Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019

Lord Adonis Excerpts

Tuesday 29th January 2019 Grand Committee

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, this draft instrument forms part of our ongoing work to ensure that, if the UK leaves the EU without a deal, our legal system will continue to work effectively for our citizens. If Parliament approves the withdrawal agreement, which includes an implementation period, and passes the necessary legislation to implement that agreement, the Government would defer the coming into force of these instruments until the end of that implementation period. Once a deal on our future relationship has been reached, we envisage that they would be revoked entirely.

Your Lordships will be aware that, as part of these preparations, the Government have published a series of technical notices to outline the implications of a no-deal exit for citizens and businesses. One of these, published on 13 September 2018, was titled Handling Civil Legal Cases that Involve EU Countries if There’s No Brexit Deal. It set out the implications of a no-deal exit for the rules on how to resolve cross-border disputes in civil and commercial cases.

The Secretary of State, the Ministry of Justice ministerial team and officials have had regular engagement with key stakeholders in the field of civil, commercial and family justice, including the Law Society of England and Wales, the Bar Council, through the Brexit Law Committee, and individuals. This has included discussions on the technical notice, to ensure that our policy proposals in respect of no deal provide the best outcome for citizens and businesses. The instruments we are discussing today are designed to implement the policy outlined in the technical notice. The Joint Committee on Statutory Instruments reviewed the statutory instrument and had no substantive comments.

This draft instrument makes changes to the rules in England and Wales, in Northern Ireland and in Scotland that determine which courts should have jurisdiction in cross-border civil and commercial cases involving courts in EU and relevant EFTA countries—that is, those party to the Lugano convention: Norway, Switzerland and Iceland. It also changes the rules on how to ensure that any judgments or decisions can be enforced across the EU and relevant EFTA states.

It may be helpful if I explain the current effect of EU law in this area. The current principal measure in relation to civil and commercial law is known as the Brussels Ia regulation, as it replaced the so-called Brussels I regulation. Denmark has a separate agreement with the other EU member states, based on Brussels Ia, to give Denmark access to the EU’s system of civil judicial co-operation, because it does not normally participate in EU justice and home affairs measures, pursuant to Protocol 22 of the Treaty on the Functioning of the European Union. There is also a separate but similar agreement, the 2007 Lugano convention, based on Brussels I, between the EU and Norway, Switzerland and Iceland. It also applies to Denmark. Brussels I, as distinct from Brussels Ia, remains of some continuing relevance because it applies in respect of actions commenced prior to 10 January 2015, but it is of limited relevance to the present issue.

The Brussels regime provides clear and reciprocal rules on jurisdiction in civil and commercial matters—that is, which court should hear a cross-border case. Its application is mandatory. There is no discretion for courts to act otherwise than in accordance with the regime. This means that if, for example, a UK consumer or business has a dispute with a party in another EU member state or a Lugano party, there are clear rules to follow to determine where the case should be heard. This negates the risks of parallel proceedings and more than one court hearing the same case.

There is almost automatic recognition and enforcement of judgments from one participating state in another. This means that if a business successfully sues a business in one participating state, it can enforce the resulting judgment where it needs to without going through costly and time-consuming additional processes. This is possible because all participating states must apply uniform rules of jurisdiction and can trust that jurisdiction was taken properly and appropriately.

The Brussels regime operates almost entirely on a reciprocal basis. Its effectiveness is founded on mutual co-operation between states. Countries respect the jurisdiction of each other’s courts and recognise and enforce each other’s judgments. However, with some limited exceptions, including consumer and employment cases, the Brussels rules do not apply if the defendant to the dispute is domiciled outside the EU. In such cases, EU member states and the Lugano parties apply their own national rules when dealing with cross-border matters.

What will change should we leave the EU without a deal? If the UK leaves without an agreement, the current EU regime for determining these matters will cease to apply to us. After such an exit, the reciprocity in the EU regime will no longer apply in relations between the EU member states and the UK, nor between the Lugano parties and the UK. Furthermore, there are no unilateral actions that the UK can take to compel the EU as a whole to continue to apply the reciprocal jurisdictional rules or to enforce judgments. Simply put, the rules under which we currently operate under the Brussels regime would cease to function effectively in the event of a no-deal exit.

For this reason, it is necessary to legislate now to provide clarity about how the UK will determine whether it has jurisdiction in a civil and commercial case and when UK courts will recognise and enforce judgments from EU countries. However, let me be absolutely clear: without a reciprocal agreement in this area, we cannot determine what rules the EU will apply. This will be down to member states’ own national laws.

As set out in the instrument before us, the Government’s response to this is, with limited exceptions, to revert to the rules on jurisdiction and on recognition and enforcement of judgments that currently apply to cross-border disputes where the Brussels regime does not apply—that is, for disputes involving parties from the UK on the one hand and countries outside the EU and the Lugano parties on the other. This instrument is not creating new policy but transitioning to a well-developed and understood set of rules that provide an effective framework for UK courts to work with and take into account the lack of reciprocity in this area.

There are a few exceptions to this general approach. Importantly, the rules of the Hague Convention on Choice of Court Agreements 2005 will continue to apply, as the UK is acceding to it as a contracting state. This is being brought into UK law post-EU exit by a separate SI, which has been subject to the negative procedure—that is, the Civil Jurisdiction and Judgments (Hague Convention on Choice of Court Agreements 2005) (EU Exit) Regulations 2018. Broadly speaking, this means that the courts of a part of the UK will take jurisdiction whenever a valid choice of court agreement to which the convention applies has been made and will readily recognise and enforce a foreign judgment from a foreign court validly selected under such an agreement. Courts of other contracting states to that convention will equally recognise and enforce a judgment from a UK court to which the convention applies.

The EU was a signatory to the 2005 Hague convention on behalf of all members of the EU. It is therefore necessary that we should become a signatory to that convention as an individual state on exit. The application to do so was made on 28 December 2018. It will become effective under the terms of the convention as of 1 April this year.

Secondly, we have sought where we can to maintain jurisdictional protections for UK consumers and employees contained in the Brussels regime. These rules are not restricted to EU-domiciled defendants, so we can retain to a large degree the consumer and employee-friendly approach of the Brussels regime while restating them in a manner specific to UK-based consumers and employees. This largely obviates the need for a consumer or employee to sue abroad in these cases, with the expense and difficulty that brings.

This instrument is necessary to fix the statute book in the event of a no-deal exit. We have assessed its impact and published a full impact assessment. Broadly, we have concluded that although in certain respects the common law may operate less efficiently than the existing Brussels regime to which the UK is party as a result of EU membership, only negligible costs would arise from this SI, relative to the alternative of leaving legislation on the statute book that ceases to operate effectively in the absence of reciprocity after the UK leaves the EU.

[Lord Adonis (Lab)]

My Lords—

[Lord Keen of Elie]

I am not taking interventions during the opening speech. It is the Government’s view that removing deficient retained EU law and associated domestic legislation from domestic law will clarify the rules that apply to determine jurisdiction, recognition and the enforcement of judgments post exit. This has the benefit of protecting litigants from unnecessary expense and making UK legislation more transparent, therefore protecting its reputation. This will also ensure that the same rules apply to cross-border matters involving EU and non-EU countries.

There will be deficiencies in retained EU law, which implements the instruments of the Brussels regime, due to a lack of reciprocity. That will become obvious if we leave the EU without a deal. This SI fixes those deficiencies and establishes a practicable set of rules for dealing with cross-border disputes in civil and commercial matters in such a scenario.

[Lord Adonis]

My Lords, before the Minister sits down—

[Lord Keen of Elie]

I have already sat down.

[Lord Adonis]

The Minister said that he would not take interventions.

[Lord Keen of Elie]

That is correct.

[Lord Adonis]

That is extremely disrespectful to the Committee, if I may say so, because now there is no other way for us to ask the Minister questions before he responds at the end of the entire debate—and we will have no means to come back on his statements at that point because the Question will be put at the end.

[Lord Keen of Elie]

Just to be clear, I have already sat down.

[Lord Adonis]

I am happy to take an intervention from the noble and learned Lord, even though he was not prepared to take one from me. I will speak later in the debate but I just want to put on record that I find his actions extremely disrespectful to the Committee. That alone would lead me to wish to negative the instrument, because the Minister is not subjecting himself to the proper process of interrogation and answering questions on the regulations. It is immensely disrespectful and the first time that a Minister has come to a Grand Committee and not been prepared to answer questions in the normal way.

[Lord Beith (LD)]

My Lords, when I looked at the instrument, I began to wonder whether the Minister was open to the charge from some of his colleagues here and in the other place that he was part of Project Fear, because the instrument sets out some consequences of Brexit, both in general and in a no-deal scenario, pretty starkly.

The loss of reciprocity is central to this instrument. I did not notice the Minister express any concern or grief at this but it represents the removal of something that we have developed in recent years, to the great advantage of litigants, and which we are about to lose, to our detriment. The consequence is that separate enforcement will be required in many cases, including judgments of foreign courts; by foreign, I mean courts in the EU or the Lugano states. Incidentally, that includes Norway, a state with which we have particularly close and friendly relations.

The Explanatory Notes to the regulations show that the Government go only this far by stating:

“The impact on business, charities or voluntary bodies of this instrument is, on balance, expected to be positive when compared to making no changes to retained EU law”.


However, in the same paragraph the notes go on to explain that,

“an increased risk of parallel proceedings … could increase the number and complexity of disputes before the courts and the cost of litigation for parties … Common law rules also involve a less efficient mechanism for recognising and enforcing judgments than using existing EU rules deriving from the Brussels regime, which will cost those seeking to have their judgment recognised in the UK more money and time”.

There is a serious loss in that and a further loss in relation to the European Judicial Network, another development that has been beneficial to this country and to justice across Europe generally. Again, a bald statement is made in paragraph 7.14:

“The inability of the UK to continue to take part in this network is as a result of EU Exit, this SI simply reflects that new status”.


Another valuable judicial development is to be simply cast aside.

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[Baroness Vere of Norbiton (Con)]

My Lords, I remind all Members of the Committee that it is a convention that a noble Lord does not intervene if they were not here at the start of the debate.

[Lord Adonis]

My Lords, that is a completely inappropriate intervention. My noble friend was not present at the beginning of the debate because he was in the Chamber debating no-deal regulations. It is the Government’s fault that no-deal regulations were being debated in the Grand Committee and in the Chamber at the same time.

[Lord Foulkes of Cumnock]

I am most grateful to my noble friend. I take great exception to what the noble Baroness said. I am surprised that she knows a lot about convention, as she has not been here very long, but obviously she has picked it up from somewhere. Conventions are conventions, not rules that need to be and must be obeyed. I understand that one of the conventions is that when Ministers are explaining something and are asked a question, they normally give way and answer it. In all the Grand Committees that I have been in, throughout the years—I have been in a number—the Minister has given way. Of course, we are getting used to the noble and learned Lord, Lord Keen, by now.

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

My Lords, it is not often that I confess to feeling sorry for the noble and learned Lord, Lord Keen, but on this occasion I do, and in the presence of a number of other distinguished lawyers, who have considerable experience of commercial litigation involving cross-border and cross-European border disputes. It is almost impossible to overestimate the importance of the regime that we have built up across the European Union for the resolution of issues of jurisdiction, recognition and enforcement in civil and commercial disputes. We have been promised so many times, in debate after debate on the Brexit issue, that we would not be in this position. The Government were going to get a deal, and one of the first things they would insist on in getting it is that we would preserve the cross-border jurisdiction, recognition and enforcement issues, or rules that we have built up with Brussels Ia.

We are in this position now; I entirely accept that the Minister opened this debate on these regulations on the basis that the Government are still hoping for a deal and that if there is a deal, we will continue along the course of resolving this issue. But it was with horror that many of us heard the noble Lord, Lord Callanan, last night refuse to accede to the Motion of the noble Baroness, Lady Smith, because it ruled out no deal—which it did not—and for him and the Government to be so prepared to countenance no deal.

In our view and that of almost every commercial lawyer with whom I speak, the issues surrounding cross-border litigation are being given far too little prominence and importance. What we are losing is clearly defined in the Explanatory Memorandum as,

“a system of uniform jurisdictional rules to identify the appropriate court in which to bring a civil law or commercial claim”—

that is the first bullet point on page 2—and,

“a simplified mechanism to recognise and enforce the judgment EU Member State/EFTA state courts in civil and commercial cases, with a view to reducing costs for litigants and increasing efficiency. The possibility for such simplified and almost automatic treatment of the judgment of one such state in another is based on the ‘mutual trust’ that each state will have applied the uniform rules of jurisdiction”.

This statutory instrument, subject to some relatively minor exceptions, effectively revokes Brussels Ia, which is at the heart of the Brussels regime. It is also significant that it abandons the European Judicial Network, which has been a forum for judicial co-operation of great use throughout the European Union, and does so with no replacement. The very limited exceptions that I mentioned were mentioned by the Minister: some consumer and employment cases—in British courts, of course—transitional cases and the choice of courts arrangements under the Hague Convention. That is, to coin a phrase used by some Brexiteers in the past, thin gruel indeed compared with the widespread benefits that we get from the system of judicial co-operation and our current arrangements.

[Lord Adonis]

My Lords, the noble Lord is making an extremely powerful case. For those of us who are not lawyers and are struggling to understand precisely what we are losing as a result of this no-deal regulation and the preparations, can he tell us what we as a country would lose by not being part of the European Judicial Network? It was not mentioned at all by the Minister.

[Lord Marks of Henley-on-Thames]

I shall move on to that in the course of what I have to say. I do not propose to deal with the detail of it, because the detail is all spelled out.

What we have at the moment is a common system for arranging which court will have jurisdiction, recognising the judgment of courts throughout the European Union and the other convention states and the enforcement of judgments across the European Union. The point of that, and what we will be losing, is the capacity for citizens and businesses to know that they can sue, wherever they are in the European Union, in the appropriate court and that that judgment will be enforced across the Union. That was not the case before the convention and will not be the case thereafter. We will effectively be thrown back on to the rules that pertained before the EU. Those rules are those we have with third countries and in many cases involve satellite litigation, duplication of litigation and duplication of costs. That means that our citizens and businesses will be left weaker and less protected. Notably, totally uncosted in the documentation surrounding this statutory instrument is that commercial disadvantage costs money.

The fact that Britain has become so successful and so attractive within the European Union owes not a little to the fact that its system of law and the mutual recognition and enforcement that it enjoys with other European countries has made it attractive as a gateway to the European Union for those outside the European Union, as well as an attractive forum in which to deal for other member states. Losing that advantage is important and will largely offset some other advantages that we have by having a stable, effective and well-respected legal system.

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The impact assessment—the Minister very fairly opened on this point—compares the situation of having no deal and not passing this statutory instrument with having no deal and passing it, and said that on that comparison the benefits are positive. However, that is not a real impact assessment. What we need to assess is the real impact of this statutory instrument and the effect of losing the regime, compared to what we have now—that is, the effect of leaving. My noble friend Lord Beith quoted from paragraph 12.1 of the Explanatory Memorandum.

[Lord Adonis]

My Lords, if the noble Lord will forgive me, both he and the noble Lord, Lord Beith, have referred to the first sentence of paragraph 12.1, which I think is highly misleading to the lay reader until you have read it twice and understand what it says:

“The impact on business, charities or voluntary bodies of this instrument is, on balance, expected to be positive when compared to making no changes to retained EU law”.


That is very different from saying “when compared to the status quo”. The ordinary reader would expect the impact being compared to be that of this new regime compared to the status quo, whereas what the Government are doing, which is seriously misleading to the House and to the public, is claiming that, in comparison with exiting the EU and then making no changes to retained EU law, we are no worse off. That misses the massive elephant in the room: we are leaving the EU in the first place and so losing all the benefits, as he and other noble Lords have mentioned, that come from being in the EU and being part of this reciprocal regime in the first place. Could he tell me whether I have understood this issue correctly?

[Lord Marks of Henley-on-Thames]

The noble Lord has understood it absolutely correctly and has plainly made the point more eloquently than I did. It was the point I made when I mentioned that the noble and learned Lord had accepted that that was how the Government’s impact statement worked. The noble Lord is right to draw the distinction between the,

“impact on business, charities or voluntary bodies of this instrument is, on balance, expected to be positive when compared to making no changes to retained EU law”,

and the real meat of this, which is in the last part of the paragraph:

“However, as compared to the pre-Exit position, common law rules on jurisdiction provide for a discretionary rather than mandatory stay in the case of parallel proceedings. This creates an increased risk of parallel proceedings”—


precisely the point I was making—

“whether the court in the United Kingdom is seised first or second. This could increase the number and complexity of disputes before the courts and the cost of litigation for parties. Common law rules also involve a less efficient mechanism for recognising and enforcing judgments than using existing EU rules deriving from the Brussels regime, which will cost those seeking to have their judgment recognised in the UK more money and time”.

Addressing the Committee, I attempted to add my further point that it is not just the cost to litigants who go through all this but the attractiveness of the United Kingdom as a location for doing business that suffers from the fact that you cannot rely on a uniform system.

Before closing, I simply ask this. We are in this dreadful position of being a very short time away from the risk of a no-deal Brexit. As Sabine Weyand put it yesterday—I make no apology for her being blunt, because I think she was right to be—we could fall into it “by accident” rather than on purpose. What a travesty for a Parliament almost entirely opposed to a no-deal Brexit to be at risk of forcing our country into this calamitous outcome by accident—but that is where we are. So I ask the noble and learned Lord: in the circumstances, given that almost everybody accepts that this reciprocal set of arrangements for the justice system is of such crucial importance to our functioning legal system, what talks have there been at Secretary of State for Justice level with other members of the European Union to try to preserve some element of a reciprocal system that will replace what we have, even if we walk into this catastrophe by mistake?

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[Lord Beecham (Lab)]

My Lords, I have practised law for a long time—fortunately none of it in relation to the EU and the complications we are debating today. I defer to the more qualified Members of the Committee today, some of whom have already addressed us.

These regulations might best be described as a hors d’oeuvre to the four-course Brexit banquet we are being served today—although, curiously, neither the Joint Committee on Statutory Instruments nor the Secondary Legislation Scrutiny Committee has raised any concerns.

In addition to reverting to the pre-EU membership system, the statutory instrument repeals a decision that currently allows the UK to co-operate on civil and commercial matters in the EU judicial network. What estimate have the Government made of the impact on the UK of that change, and what consultation took place with industry or other potentially interested parties given that the so-called Brussels regime operated on a reciprocal basis?

The Law Society, which is generally supportive of the statutory instrument, is concerned about the loss of the existing framework for determining which national court has jurisdiction and for recognising whether or not there is a choice of court between the parties to disputes.

The impact assessment contains a disturbing paragraph which states:

“Businesses and individuals litigating in the courts of EU countries will have an advantage over those litigating in the UK as UK litigants cannot guarantee the judgment they get from the UK courts is enforceable in the EU but litigants who get a judgment from the EU courts, will almost always be able to obtain enforcement of it in the UK”.


It is a one-sided deal, as it were. The English legal system has prospered remarkably through its participation in the EU but that looks to be one of the costs and losses that it will incur.

The Law Society notes that hitherto the existing system has fostered cross-border trade and encourages litigants to use the UK courts in the knowledge that their judgments would be enforceable across the EU and calls on the Government to accede to the Lugano convention—which, as the noble and learned Lord has indicated, is not an EU organisation although the EU is a party to it. Can the Minister indicate the Government’s response to that suggestion?

[Lord Adonis]

My Lords, the only noble Lord who has not been prepared to take interventions is the Minister; it is unprecedented in my experience of Grand Committees. It is a straightforward attempt by the Government, which I am afraid we have seen time and again, to suppress parliamentary debates and shorten proceedings in a Grand Committee. One can understand why the Government wish to do this: it is simply impossible now to introduce and enact all the statutory instruments relating to no deal in time for the UK to leave the European Union at the end of March unless they are not scrutinised by Parliament. If they are not, the Government can increase the volume that come before the Grand Committee day by day. The hundreds more that have to come can then be hustled through. I say to the noble and learned Lord, who we hold in high esteem as a barrister, that if these sorts of proceedings and this sort of short-circuiting of due process were taking place in a court in which he was appearing, I imagine that he would be the first to criticise it. It is our duty to hold him to account. As he is not prepared to follow the normal conventions of the Grand Committee and the House, that should lead us to refer this regulation to the House for further debate as a matter of principle, not least because of all the issues raised in the debate.

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[Lord Foulkes of Cumnock]

I am grateful to my noble friend for what he said. I was participating in a debate on the other statutory instruments we are dealing with, as was confirmed by the Bench opposite.

Until I heard the excellent speeches from noble Lords on the Liberal Democrat Front Bench and the noble and learned Lord, Lord Hope, I had not realised what a vital issue we are dealing with. As my noble friend Lord Adonis said, we are not dealing with it line by line in the detailed way that we would normally deal with something so important. Even worse, there has not been proper consultation. We have not heard the views of a widespread group of lawyers: only a few have been consulted. If we had had a wider consultation, the lawyers might have been able to point out some of the difficulties that might arise. We could end up with some unintended consequences because of a lack of scrutiny not just in here but outside. Does my noble friend agree?

[Lord Adonis]

My noble friend makes a very powerful point. Paragraph 10 of the Explanatory Memorandum says on consultation:

“A formal consultation on these legislative amendments has not been carried out”.


I do not know why the relevant Delegated Powers Committee did not highlight that as an issue before the House. The noble and learned Lord, Lord Hope, in a very telling intervention—as a former head of the Supreme Court—talked about the wider impact of leaving the European Union on our legal system and on the recourse that individuals and bodies corporate have as a result of losing all the benefits of EU membership. Given the scale of those concerns and losses, I would have thought that a formal consultation should have been the first thing to be carried out in respect of this statutory instrument.

Although my noble friend Lord Foulkes and I lack expertise in many of these areas, we can see the common themes because we have been present for the statutory instrument debates on all these subjects. One common theme is that of the Government seeking to hustle through these regulations with minimal debate; the other is very inadequate consultation. The consultation has been so inadequate because it simply would not have been possible to conduct a consultation according to the normal Cabinet Office rules of publishing draft instruments, which require: 12 weeks of formal consultation; assessment of the consultation responses; their publication; and the Government response to the consultation, all within the timescales available. The normal standards of good government, which my noble friend and I remember in the far distant days when we had Governments that sought to improve the country and not wreck it—as we have at the moment—simply do not apply any more.

Indeed, it is not just that there was no formal consultation, which we read in paragraph 10.1. Paragraph 10.2, which is suspiciously familiar to Members of the Grand Committee because we have had variants of it time and again too, states:

“The Government’s basic approach … has been discussed with a number of members of the legal profession”.


Which members? Perhaps the noble and learned Lord will tell us when he responds, if he intends to respond to any of the points raised in the debate. On what basis did the Government choose those members? Why has the list of those consulted not been published? Lastly, I put a fair question to the Delegated Powers and Deregulation Committee, which examined these regulations: why did it not seek to bring before the Grand Committee a statement about the consultation processes that were actually undertaken?

My noble friend and I remember that in other cases, we have seen in Explanatory Memoranda that the Government consulted “selected” and—what was the phrase?—“trusted” members of the relevant industry. Members of the Grand Committee who were present for that debate will recall that we had a long discussion about what “selected and trusted” means. We did not think that the phrase included my noble friend Lord Foulkes and myself because, clearly, we are not trusted by the Government to engage in scrutiny or else the noble and learned Lord, Lord Keen, would have allowed us to intervene on his remarks. However, it is important that the Grand Committee understands who the Government are consulting so that we can also understand who they have been listening to, as well as on what basis they have made any changes to the drafts. Those who were consulted as set out in paragraph 10.2 is therefore important.

I want to make a few remarks on the statutory instrument. I was struck by the remarks of the noble and learned Lord, Lord Hope, about the wider context. I hope that the Minister might tell us more about that in terms of what rights will be lost and what the losses will be to the country as a result of not having reciprocal arrangements. As a complete layman, what I do not understand from reading the document in its entirety as regards the Brussels regime is that looking at the dates, the Brussels regime predates British membership of the European Community. I believe that the document dates from the 1960s and is known as Brussels Ia. We have a number of different variants in the Brussels regime that go back to 1968, which of course was five years before the United Kingdom joined the European Community. That raises a big issue.

Unless someone can correct me, as I understand it, the Government are proposing to withdraw from the Brussels regime. The noble Lord, Lord Marks, made a point that ought to be brought out more; indeed, it was mentioned by the noble Lord, Lord Beith, too. It appears that a very important policy decision has been taken in this statutory instrument: not to leave retained EU law static on departing from the European Union, which is the default procedure under the European Union (Withdrawal) Act, but to make changes. I am not technically competent enough to understand the changes fully, but the Government have glossed over changes in paragraph 12.1 covering the difference in quantifiable terms between making no changes to retained EU law and changing it.

The question that I would like to put to the noble and learned Lord is: if we were part of the Brussels regime before we joined the European Community—he is going to correct me, which is good, because this is exactly the kind of knowledge that the Grand Committee needs—why do we not simply revert to the position before 1973 rather than go to the new position that the Government are establishing under this statutory instrument? Perhaps he could explain the benefits of the new position. Looking at all the lawyers nodding their heads in the Grand Committee, I may have misunderstood the position. All I can say is that, if I have misunderstood it, I suspect that many members of the general public will have misunderstood it, too, so I look forward to the House doing what it is supposed to do on these occasions and elucidating the real state of play.

The other fundamental point, which was mentioned by the noble Lords, Lord Beith and Lord Marks, is the highly contradictory and misleading impact statement in paragraph 12.1. It seeks to minimise the impact by relating it simply to the difference between making no changes to retained EU law, if we crash out with no deal, and making the changes that are set out in the statutory instrument, rather than relating it to the much wider context of the impact on reciprocal rights, the ability to enforce those rights and so on that arises from leaving the European Union without a deal. Even during this debate, because I have been so restrained in my interventions, I have not been able to understand fully what has been said. The noble Lord, Lord Marks, referred several times to satellite litigation. I do not understand what satellite litigation is. Could the noble Lord explain?

[Lord Marks of Henley-on-Thames]

It is when you are litigating about two issues at once. You are litigating in a principal case and you have another case going on to decide one aspect.

[Lord Adonis]

In different jurisdictions?

[Lord Marks of Henley-on-Thames]

In this case, it is two jurisdictions. There is one case and you are having an argument, in another court, about whether it should be proceeding in court 1 or a court in another jurisdiction.

[Lord Adonis]

That is a very helpful elucidation, because I thought that it might be litigation that took place on a satellite.

[Lord Marks of Henley-on-Thames]

That is for the future.

[Lord Adonis]

I did not understand the concept. There are more absurd things. Given that the Government are now preparing for martial law, we are told, if there is a no-deal Brexit, litigating in relation to satellites would be a far less absurd proposition. I take the key point to mean that, under the existing Brussels regime in which we operate as part of the EU, you do not need to undertake satellite litigation, because proceedings in one jurisdiction count as proceedings in all jurisdictions. As a non-lawyer, I hope I have understood that point correctly. The satellite litigation to which the noble Lord refers is a considerable loss of benefit to people seeking to litigate. Not only is that the case, but it also makes this jurisdiction considerably less attractive to people to bring cases in, which I took to be the noble Lord’s other point. These are huge issues about the whole future of our legal system and the rights of redress that people have in it, all of which the Government are trying to hustle through in a statutory instrument subject to limited debate and with the Minister not prepared to take any interventions whatever.

The other key point that arises relates, as the noble Lords, Lord Beith and Lord Marks, said, to the final sentences in the long and highly convoluted paragraph 12. Those sentences, which completely contradict the earlier sentences, say that,

“as compared to the pre-Exit position, common law rules on jurisdiction provide for a discretionary rather than mandatory stay in the case of parallel proceedings. This creates an increased risk of parallel proceedings whether the court in the United Kingdom is seised first or second. This could increase the number and complexity of disputes before the courts and the cost of litigation for parties. Common law rules also involve a less efficient mechanism for recognising and enforcing judgments than using existing EU rules deriving from the Brussels regime, which will cost those seeking to have their judgment recognised in the UK more money and time”.

I do not understand why no assessment has been made in any quantified way of the impact of all those significant losses, as set out in the final sentences of paragraph 12.1. Perhaps the Minister will tell us why. Could he offer the Grand Committee some assessment? It is important before we agree to this statutory instrument that we have some assessment of its impact.

I am also surprised because some of the noble Lords present are members of the relevant EU committees and the Delegated Powers Committee. Why did they not ask for such an assessment to be conducted before the statutory instrument came to the House?

[Lord Marks of Henley-on-Thames]

The noble Lord may have noticed that in the impact assessment, among the business assessments, it just says “not applicable”. That seems a dereliction of duty.

[Lord Adonis]

I take the noble Lord’s point. Is he saying that he believes that they are applicable?

[Lord Marks of Henley-on-Thames]

They certainly are.

[Lord Adonis]

So why does it say that they are not applicable? These issues are significant.

The final issue in the debate, to which I hope the noble and learned Lord will respond, was raised by my noble friend Lord Beecham and other noble Lords. It is about the losses to this country of not being part of the European Judicial Network. My understanding is that there is nothing statutory about the network. Am I wrong? Is the network a formal institution of the European Union? If it is an informal body, and if belonging to it brings us great benefits, why can we not continue to be members of it even after we leave the European Union? Indeed, to the lay man, being part of the network would seem positively beneficial because, presumably, the network co-ordinates and promotes joint understandings. If we will be separate jurisdictions, with neither wanting, as far as possible, to operate in parallel, is that not all the more reason for us to be part of the network and not seek to leave it? If we crash out with no deal and all losses as set out or implied in the Explanatory Memorandum, why we are not seeking to remain part of the European Judicial Network? Might it be in the country’s best interests for the Government to seek to keep us in the network?

[Lord Keen of Elie]

My Lords, this Parliament decided that the United Kingdom will leave the European Union on 29 March this year. That is the determination that has been made. That date has been set in law. The Executive must respect the law as determined by Parliament and respond responsibly to it, as laid down by Parliament. Therefore, they must address the implications of us leaving on 29 March if, as at present, we do not have a withdrawal agreement concluded with the European Union. That is what this statutory instrument seeks to address.

In that context, we must address the difference between leaving on 29 March and doing nothing about the existing state of the law—with regard to judicial recognition, identity of choice of court and law, the enforcement of judgment and so on—and doing something about it. I quite understand the observations of the noble Lord, Lord Marks, about the benefits of our being in the Brussels Ia system, but we can be in the Brussels regime only as a member of the European Union. According to Parliament and the law it made, we will cease to be a member of the European Union on 29 March 2019. Although the Brussels regime can be dated back to 1968, it was in that context a regime for existing European Union members and not open to non-members, to clarify a point made by the noble Lord, Lord Adonis.

The first point is that we have to consider the impact of us leaving on the date I have mentioned if we make no change to the existing law, and the impact if we change the existing law. I quite understand the point repeatedly made, that in many ways we would prefer the cake analogy: we would like to have our cake and eat it. We would like to remain within the regime, even if, as Parliament has determined as a matter of law, we are leaving on 29 March 2019. But we cannot have it, because Parliament has made that determination. Many may regret it now, and many may regret it later, but that is the law as determined by this Parliament, and we have to accept that. We can seek to change the law—of course we can—and no doubt there are many who may, even now, seek to change it. However, the law is as determined by this Parliament.