European Union: Negotiations (European Union Committee Report)

Lord Anderson of Ipswich Excerpts

Monday 16th March 2020 Lords Chamber

[Lord Anderson of Ipswich (CB)]

My Lords, in a constructive spirit, I will raise two matters concerning civil justice. My purpose is not to press the Minister on the Government’s bottom line, which of course he will not—and should not—share with the House while negotiations are ongoing. Rather it is to test the currently uncertain limits of the Government’s aspirations and to encourage them to aim high.

The first matter relates to judicial co-operation in the field of family law. This is the subject of the very last paragraph of the Command Paper, all three and a half lines of it. It says simply that the UK will continue to work with the EU through multilateral precedents set by the Hague Conference on Private International Law. If lawyers agree on anything, which I accept is rare, it is that, in relation to family law, the EU’s Brussels II revised regime is faster and more flexible than the Hague conventions. What does this mean in practice? It is only under the Brussels II regime that a father who is given access to his child after a divorce in Spain can automatically enforce that contact order in the UK. In the case of a child which is abducted from England to Poland, under the Hague convention, the left-behind parent in England is limited to a remedy in Poland; under Brussels II, they have, if they need it, a second bite of the cherry: the ability to ask the English court to return the child. We would also lose the maintenance regulation which allows someone in the UK to go to an EU country to enforce a maintenance order made by a British court.

I understand very well that we are out of the EU, that we cannot put the clock back and that the Government prefer not to sign up to regimes where the Court of Justice of the EU has the final say, except of course in the substantial respects already agreed in the withdrawal agreement. But we are looking here at real disadvantages to real children. As one of our witnesses said—and I declare an interest as a barrister and a member of the EU Justice Sub-Committee, which has been taking evidence on this—any child abducted from a European Union state will be in a more difficult position after Brexit than before. It will be a terrible shame to settle for something demonstrably worse than what we have, yet the self-imposed deadline looms and the cursory reference to family law in the Command Paper suggests that it may not have been given the importance that it deserves. So, I have two questions for the Minister. Is there any aspiration to negotiate something with the EU that improves on the Hague conventions? If not, will we, as EU law permits in the field of family law, seek bilateral agreements with the countries where we would make most use of them?

The other matter I want to raise is the UK’s participation in the unified patent court agreement, which, as noble Lords will know, is an international agreement made outside the EU’s formal structures by 25 states including the United Kingdom. The court is not an EU institution. That is why the pharmaceuticals and life sciences section of the court is earmarked for Aldgate Tower in London. Unlike the European Medicines Agency, which had to leave London, as the noble Lord, Lord Hain, said, it is not an EU entity. The court will hear cases on the validity and infringement of European patents and unitary patents granted by the European Patent Office, itself a non-EU intergovernmental organisation with 36 members. The advantages of the UPC for innovative British companies are self-evident. It will be a one-stop shop for patent disputes to be resolved continent-wide. That is of particular importance to research-led small and medium enterprises, on which I asked a Written Question last week. More than that, if the UPC goes ahead, it will be an instrument for the transmission of good British practice across Europe. The reputation of our intellectual property judges is second to none and the procedural rules of the UPC draw heavily on those of our own intellectual property enterprise court. It is true that the UPC agreement obliges the court to refer any question of EU law that may arise during a patent case to the Court of Justice, but the main elements of patent law—obviousness, novelty and infringement—are not governed by EU law. Questions of EU law do not arise in patent cases, save in very limited areas such as supplementary protection certificates. Indeed, so dominant is the intergovernmental element of this system that the UPC agreement is not even mentioned in the Command Paper on the future relationship.

On 28 February, the Law Society Gazette quoted a Downing Street spokesman as saying that the UK will not be seeking involvement in the court and the associated unitary patent. However, that report has been, so far as I can see, officially neither confirmed nor denied. The Justice Sub-Committee has written to the Government about this. Can the Minister tell us today whether a final decision has been taken on UK participation in the unified patent court? If the door has been closed, why was this not announced to Parliament on the record? If the door remains open, which I dare to hope it does, I urge the Minister to cast aside dogma and use his influence pragmatically and in the interests of the innovative British firms on whom our future outside the EU particularly depends. Other noble Lords will speak for themselves, but as urged by the noble Baroness, Lady Noakes, I have moved on. Brexit has happened and, whatever our views on that, we must all now unite in seeking our best possible future as a self-governing nation. However, as one of our committee’s witnesses, the chair of the Intellectual Property Bar Association, Daniel Alexander QC, said last week, if one wants to be a self-governing nation and a powerful one, it is wrong to reject institutions that help you to be an independent, powerful and self-governing nation. He was referring to the unified patent court—inter governmentalism, so lightly tempered by EU law that only the ideologically purist could possibly object. It will strengthen us in an area where we need to be at our strongest. In our own interests, let us not turn our back on it.

Finally, I listened carefully to what the noble Baroness, Lady Falkner of Margravine, said but, as I read the amendment in the name of the noble Baroness, Lady Hayter, it calls not for any parliamentary veto—still less a veto vested in this House—but simply for information, updates and scrutiny. That, as I understand it, is what we are for. On that basis, and subject to what we might yet hear from the Minister and others, I am minded to support the amendment.