European Union (Withdrawal) Bill

Baroness Butler-Sloss Excerpts

Committee: 4th sitting (Hansard): House of Lords
Monday 5th March 2018 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I support Amendment 29 and the supporting amendments. My noble friend Lady Hamwee has put her name to them to express our strong support from these Benches.

The Foreign Secretary said in his one of his more perceptive interventions—delivered, appropriately, on Valentine’s Day—that if we get the right deal on aviation and visa-free travel, British citizens will continue to travel within the EU, meet interesting people and fall in love. It follows that they may also marry and have children with EU citizens.

There are approximately 16 million international families in the European Union and about 140,000 international divorces in the EU annually. While the statistics are not collected by individual countries, a great many of them involved British citizens married to citizens of other member states. Over many years, we have painstakingly constructed an effective, fair and widely admired set of arrangements for permitting very different family law systems to operate alongside each other within the EU, while enabling member states to respect the laws, orders and arrangements made elsewhere in the Union.

Importantly, as the noble Baroness, Lady Sherlock, explained, EU family law concerns procedural and not substantive law. All EU states have their own substantive family law; in the UK alone, we have three systems: one for England and Wales, one for Scotland and another for Northern Ireland. However, EU law has established a common set of rules for jurisdiction, recognition and enforcement of judgments and orders and cross-border co-operation. The Brussels IIa regulation, enforced since 2005, governs jurisdiction; that is, where proceedings ought to be brought and decided. It applies to divorce and cases concerning children; in private law disputes, such as those concerning residence or contact between parents and children; and to public law disputes where local authorities are concerned for child protection. The regulation also provides rules for child abduction cases, of which there are roughly 1,800 a year within the European Union, simplifying and expediting the enforcement within the EU of the protections accorded by the Hague convention.

The maintenance regulation which the noble Baroness, Lady Sherlock, also mentioned, enforced since 2011, enables parties to enforce maintenance obligations for adults and children across the Union. Further EU measures, directly applicable in all member states, reinforce protection for victims of domestic violence and assist in enforcing out-of-court settlements.

The effect of the Bill is that the UK would continue to be bound to apply EU family law in its entirety as it stood at exit day. However, there would be no reciprocity. We would be bound to recognise and enforce the decisions of EU member states, but the 27 remaining member states would be under no such obligation to recognise or enforce decisions of UK courts. So British citizens would be at a significant and lasting disadvantage. There would be the risk of proceedings in the UK being pursued in parallel with proceedings in EU member states and so the risk of conflicting judgments, with EU judgments enforceable in the UK and UK judgements unenforceable in the EU. This would be,

“the worst of all outcomes”,

as the Family Law Bar Association, Resolution and the International Academy of Family Lawyers pointed out in their excellent joint paper published in October. It would, as the paper asserted, leave our citizens in a position of significant vulnerability and confusion, and lead to unfair outcomes.

A further issue is that Brussels IIa is currently being revised. British family lawyers have been playing their important part in shaping the new arrangements. However, the new regulation will not apply to the UK unless we legislate for it to do so. Even legislating for it to do so will not bring about reciprocity unless we agree in negotiations to that reciprocity, and there’s the rub, because EU law is subject to interpretation and ultimate determination by the Court of Justice of the European Union, yet the Government insist on rejecting the direct application of CJEU decisions. Decisions of the CJEU in this field concern the rights of individual citizens. Cases are referred to the court because national courts seek the determination of individual cases before them by the European court. Members of this House have asked over and over again: why should the 27 give that up?

Amendment 53 is designed to explore a continuing role for the CJEU. The court has provided a successful system for the determination of disputes and for the supervision, monitoring and development of EU law. In our debate on the European arrest warrant on 8 February, I suggested that if we went ahead with this project to leave the EU, we could seek some adjustment of the constitution of the court, so that in areas of cross-border co-operation involving the United Kingdom the court might include a UK judge and a UK Advocate-General, which it otherwise would not, after we left, whether by the creation of a separate division of the court or by some other means.

The noble and learned Lord, Lord Mackay of Clashfern, whom I see in his place, raised the constitution of the court in Committee with my noble friend Lady Ludford, last Monday. However, I cannot see any basis on which we can preserve the benefit of EU family law, just as in many other areas where we seek continued co-operation with the EU, without agreeing to its fundamental underpinning by the guarantee of recourse to the CJEU. There has been no answer from our Government on these issues.

European family law brings this country an unqualified benefit. There is no down side. The Government, in answers from the Dispatch Box, have recognised this. They say they want to continue to benefit from the rules for cross-border co-operation in family law. However, we can no longer be asked to listen to pious protestations from the Dispatch Box in this House to that effect when, almost in the next breath, they contradict themselves by rejecting the decisive role of the Court of Justice in determining the application of the rules. Amendment 29 would insist on some frankness on the part of the Government about the consequences of Brexit for family law—frankness with the British public, who have a right to be informed of the threat to international co-operation in this area, and frankness with this Parliament, which will in due course be asked to enact a statute approving any withdrawal terms.

This Bill and the Government’s obsessive stubbornness on the question of the CJEU threaten to make international co-operation in family law a needless casualty of Brexit, with absolutely no countervailing benefit, either for British citizens or for citizens of the rest of the European Union.

[Baroness Butler-Sloss (CB)]

As a family judge, I regularly tried international family cases, so I entirely agree with the noble Baroness, Lady Sherlock, and the noble Lord, Lord Marks, and very much support Amendment 29. I am dismayed, I have to say, by the inadequacy of the current wording of the Bill, which does not refer specifically to family law and does not deal with the main issue of reciprocity and the importance of the European court in Luxembourg. I will reiterate two figures because they are important for noble Lords to know. One is that there are 140,000 EU divorces between the UK and other member states. That is not a small number. There are 1,800 EU child abduction cases—an area of the law that I spent a disproportionate amount of my time trying under the Hague convention before the EU law came in and enormously improved the Hague convention.

Probation Service

Baroness Butler-Sloss Excerpts

Thursday 14th December 2017 Lords Chamber

[Lord Keen of Elie]

My Lords, responsibilities have not been farmed out. Contracts have been entered into and they are properly supervised.

[Baroness Butler-Sloss (CB)]

Is the noble and learned Lord really saying that the Government are satisfied with a telephone form of probation, because I do not believe anybody in this House is?

[Lord Keen of Elie]

My Lords, we are not satisfied with the telephone form of probation but, as I said, contact with offenders has to be proportionate to the risk they present.

Northern Ireland

Baroness Butler-Sloss Excerpts

Thursday 2nd November 2017 Lords Chamber

[Lord Duncan of Springbank]

I thank the noble Lord, who brings much experience to these discussions.

It is important to stress that everything is on the table going forward. No one is trying to preclude any particular outcome, whether it be in regard to the individuals participating, how often they participate or what they do when they are around the table. I include within that my right honourable friend the Prime Minister and others.

The key question now will be not to rule anything out. We have moved through a nine-month period in which we have not secured the outcome we wish to see. It is important to stress that I do not believe anyone around the table wants this outcome either. So the next step will need to be an accommodation between the parties at the table.

I appreciate the idea that involvement at the highest possible level is the answer. However, sometimes it is and sometimes it is not. What we have to determine is how to deliver the outcome we all desperately want—which is to set up a sustainable Northern Ireland Executive. The noble Lord is right: we should not rule anything out. At the moment we are doing the best we can to keep all options open and to take those talks to the next stage.

[Baroness Butler-Sloss (CB)]

My Lords, what voice will Northern Ireland have, particularly in relation to the border, on Brexit?

[Lord Duncan of Springbank]

That is a good question and an important one. Right now, the voice of Northern Ireland is being drawn from a number of sources. We would prefer to have an Executive who could be the principal for that, but at the moment stakeholders inside Northern Ireland are articulating a number of views, and that is absolutely critical. Through the joint ministerial committees we are seeing again the civil servants drawing those voices in to make sure they are absolutely at the heart of the discussion. I would like to emphasise again to the people of Northern Ireland that they are not being overlooked and they are not being silenced. Their Civil Service is performing a valuable function in ensuring that not just one single view but a diversity of views are being heard. The noble and learned Baroness is absolutely right to emphasise the importance of the border question, because that is where a number of the biggest challenges of Brexit will be experienced. We cannot afford to turn a deaf ear to any of those communities and stakeholders in Northern Ireland.

Prison Officers’ Association: Protest Action

Baroness Butler-Sloss Excerpts

Tuesday 15th November 2016 Lords Chamber

[Lord Keen of Elie]

There is no question or suggestion of such a thing. In this context, I make clear there is a national response team organisation to deal with unrest in our prisons. For example, the recent incident at Bedford was resolved when the national response team moved into the prison.

[Baroness Butler-Sloss (CB)]

My Lords, would the Minister consider a radical approach towards those offenders with mental health issues, with the possibility of probation with a requirement for residential care? That would remove a great many people from the prisons and allow them to be treated, with some ability to be rehabilitated.

[Lord Keen of Elie]

The Government are of course always open to any suggestion that might improve the situation in our prisons. I take on board the observations of the noble and learned Baroness.

Legal Aid, Sentencing and Punishment of Offenders Act 2012

Baroness Butler-Sloss Excerpts

Tuesday 25th October 2016 Lords Chamber

[Lord Keen of Elie]

The Government acted quickly to change the evidence arrangements in respect of domestic violence cases following a decision in February of this year, and the take-up on these cases has increased by about 30% since that time. With regard to exceptional case funding, again the number of applications and grants has increased markedly in the past year and indeed, according to the data available for the last quarter of 2015-16, the number of grants in respect of exceptional case funding has increased by 32%.

[Baroness Butler-Sloss (CB)]

My Lords, is the Minister aware that, whereas in the past most of the litigants in person in the cases I tried over many years were men, who chose not to have legal aid, now they are both parties? Therefore, neither party has legal aid and the judge has no knowledge of what is the issue between them that can be properly litigated for the best interests of the child. This is a serious matter, which also leads to enormous delays and overuse of Cafcass.

[Lord Keen of Elie]

With particular reference to proceedings concerning children, I point out that legal aid remains available where most needed. Indeed, legal aid was provided for in over 54,000 proceedings last year under the special Children Act.