Brexit: Justice for Families, Individuals and Businesses (EU Committee Report)

Debate between Baroness Shackleton of Belgravia and Lord Keen of Elie

Wednesday 20th December 2017 Lords Chamber

[Lord Keen of Elie]

Indeed so. I am familiar with it—absolutely ghastly stuff.

It is not stuck; it so happens that the convention has moved more slowly than Brussels in this context. Lugano was essentially in parallel with Brussels I. When Brussels moved on to Brussels Ia Lugano did not accelerate at the same speed, but that is not to say that it is in aspic.

I may have misheard the noble Baroness, but she suggested, in the context of arbitration, that there was no allowance for enforcement of arbitral judgments. That is not the case, because the New York convention provides for enforcement of arbitral judgments. That applies right across the world. It is not limited in any sense to the EU. Again, it seems arbitration—and commercial arbitration, which is particularly important in the context of the City of London, for example—is not affected by these issues of reciprocal judicial agreement and enforcement.

The noble Baroness, Lady Shackleton of Belgravia, suggested that the Government’s response was disappointing. I hope we have moved on from that point. She suggested that the reference to things being wound down would not do, but with great respect, we have no desire to see any of this wound down. We seek certainty, predictability and an outcome that we can say is in parallel with Brussels Ia, Brussels II and the other regulations referred to.

The noble Lord, Lord Cashman, referred to the Brussels regulations having a significant role. He is absolutely correct about that and we acknowledge it. Indeed—I believe I can get this far—we certainly agree as to our goal. He may feel that we are a little less certain than others about how we get to it, but there is no suggestion or intention of us walking away from these regulations. We will have to address the question of the direct jurisdiction of the CJEU and we acknowledge that.

[Baroness Shackleton of Belgravia]

I apologise for interrupting, but I did not invent the phrase “wound down”. I can quote it directly back to the noble and learned Lord. The Government’s reaction to our report was,

“in the event that we do not agree an arrangement for future civil judicial cooperation with the EU, it will be important to have reached a common view on the general principles that would govern how ongoing cooperation in this area could be wound down”.

[Lord Keen of Elie]

That is absolutely correct, but the noble Earl, Lord Kinnoull, brought this out more fully when he distinguished between cases in the pipeline and those that arise post Brexit. As paragraph 91 of the joint report points out, there will essentially be agreement—or consensus; let me put it that way—on how we deal with existing cases at the point when we leave the European Union. But there is no desire to see us walk away or wind down the existing regulatory regime.

The noble and learned Lord, Lord Hope of Craighead, posed two questions in the context of the Government’s response, where we talk about a “close and comprehensive agreement”. It cannot be a mirror of what is already there, because of the jurisdiction of the CJEU, but “close and comprehensive” is what we seek.

The noble and learned Lord’s first question was whether we could give an assurance that the aim is to achieve the same degree of certainty and predictability. The answer, I would suggest, is yes. The aim is most certainly to achieve that. I assure him that there will be no cliff edge. We have no desire for there to be any cliff edge anywhere, but that will be the subject of negotiation because we are now entering the second phase. Perhaps it is more important to point out that the Government’s aim in this context is to ensure that we have certainty, predictability and continuity.