Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) (No. 2) Regulations 2019

Lord Keen of Elie Excerpts

Monday 18th March 2019 Lords Chamber

Moved by

[Lord Keen of Elie]

That the draft Regulations laid before the House on 14 February be approved.

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

My Lords, this draft instrument forms part of the Government’s work to ensure there are functioning domestic laws in the event that the UK leaves the EU without a deal on cross-border co-operation on family law. The instrument relates solely to the Government’s no-deal exit preparations. Again, should we reach an agreement on our future relationship with the EU, the Government will review the instrument and amend or revoke it as necessary at the end of a transition period.

This instrument gives effect to a commitment that I gave on behalf of the Government during the debate on 29 January on the Government’s main no-deal family law instrument, the Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019. That family statutory instrument has now been made. It puts in place the arrangements in cross-border family law cases that will apply if we leave the EU without a deal. That instrument revokes the retained EU law in relation to Brussels IIa and the maintenance regulations and makes consequential changes to domestic law, including changes to ensure that the jurisdiction rules for cross-border maintenance matters are restored to their pre-EU form.

This small amending instrument addresses a technical issue raised by family law stakeholders. Some family law stakeholders have raised concerns that by the amendments to the Children Act 1989 and the Children (Northern Ireland) Order 1995 made by the main family instrument, we have inadvertently narrowed the jurisdiction of the court and the range of financial remedies that the court may order when compared to the position that currently exists under the EU maintenance regulation. That was not the Government’s intention. Without fixing this issue, the consequence would be that in some cases the court would be limited in terms of the financial remedies that it may grant. For example, the court would be able to make an order only for periodical payments and not for a lump sum or a property settlement or transfer. I extend thanks to the family law practitioners for bringing this issue to our attention.

While the existing approach is workable, the Government have decided to address those concerns to ensure that jurisdiction grounds and remedies are not reduced as a result of a no-deal exit because these are jurisdiction grounds and remedies that emerged after we had engaged with the relevant EU regulation. The instrument therefore amends the principal 2019 regulation so that, post exit without a deal, the courts in England and Wales or Northern Ireland will be able to order all types of financial remedies available under the Act or the Northern Ireland order in circumstances where either a parent, a guardian or the child is habitually resident or domiciled in England and Wales or Northern Ireland at the date of the application. The amendments also ensure that the court has jurisdiction to order a financial remedy in respect of a child where the parents are not married, in a similar way to when child maintenance is being considered ancillary to divorce.

The impacts of the Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019 were set out in an impact assessment published on 24 January 2019. This instrument amends those regulations so that the unintended impact of the amendments to the Children Act 1989 and the Children (Northern Ireland) Order 1995 on the court’s jurisdiction and remedies is rectified. As amended, the impact of the Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019 will be as described in the original impact assessment. In other words, we had assumed that they would operate in the way in which they now operate in light of this supplementary instrument.

As I said, the instrument addresses concerns raised by stakeholders. My officials met these stakeholders to discuss their concerns. A draft of this instrument was provided to the statutory Family Procedure Rule Committee. Its members include some of the family lawyers who raised these concerns about the amendments to the Children Act 1989 and they were invited to comment on the draft. Those comments were taken into consideration before the instrument was finalised and laid. In addition, my officials have spoken to officials within the devolved Administrations.

In these circumstances, I stress that this is a highly technical instrument, which is intended to take us to the point we believed we would get to with the principal instrument. I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, the amendment which the regulation seeks to make is obviously highly desirable. However, I have a question for the Minister, because I cannot for the life of me see how it achieves its purpose in expanding the financial remedies available under domestic legislation. As far as I can see, the only passage which might possibly have a bearing is Regulation 2(2)(a), where we are told that the words,

“in relation to matters relating to maintenance”,

are being deleted. Without more context, it is extremely difficult to see whether this achieves what the regulation seeks to do. I am happy to take the Minister’s assurance that it does, or perhaps he can explain it a bit more. It is characteristic that these instruments are so economically worded that, without a whole lot of legislative material in hand, it is sometimes hard to make sense of them.

[Lord Beecham (Lab)]

My Lords, I join my colleague in the House of Commons, and others in your Lordships’ House, in welcoming these amendments which meet concerns raised by family law practitioners, as mentioned in the Explanatory Memorandum. They were concerned about the prospective narrowing of the jurisdiction for financial remedies and the type of remedies which would be available.

This raises the question of what consultation took place before paragraphs 14 and 16 of the EU maintenance regulation were originally amended. To be fair, the Government have been persuaded by family law practitioners that the concerns raised were valid, hence the revised amendment in this statutory instrument, but surely adequate consultation in advance of drafting it would have avoided the need to amend it. What consultation, if any, took place? What assurances can the Minister offer that this scenario will not be repeated?

This is not quite the MoJ equivalent of the fantasy ferry projects subscribed to by the former Lord Chancellor, Chris Grayling, but it is rather disturbing. It comes, after all, only some seven weeks since the original regulations were approved by both Houses, and just over four weeks since they came into force.

The Law Society is content with the changes, which effectively revert to the relevant Hague conventions and some English law extant before 2011. I am glad that the Government have recognised the problem, just about in time, and made the necessary change. However, it underlines the need for proper consultation before laying new regulations to comply with the fate which appears to await the country.

[Lord Keen of Elie]

I am obliged to noble Lords for their contributions. As the noble and learned Lord, Lord Hope, observes, the supplementary instrument is distinguished by its brevity. Nevertheless, I can assure him that it has the effect indicated by making the deletion from the relevant provision regarding maintenance. That was raised with the Family Law Committee as well. We consider that this will be effective. I will look at the point he raises and will write to him if there is further elaboration and assurance I can give him on it.

Regarding consultation, this issue arose at a very late stage when we were proceeding with the principal instrument. It is a highly technical issue. Indeed, there is some uncertainty as to whether the principal instrument did in fact cover these issues. It therefore proceeded, but, in the light of the concerns that had been expressed, we consulted further with family law stakeholders and brought it to the committee’s attention. It was determined that we should, on any view, take the line—I was going to say “of least resistance”—that, come what may, there was no technical deficiency in the instrument in the event that we exited without a deal.

There was consultation with relevant stakeholders when the principal instrument was considered. Their response on these points came rather late in the day as far as we were concerned. The principal instrument therefore proceeded but I remind noble Lords that when I moved it I drew this point to the attention of the House quite specifically and said that we were giving consideration to a further instrument to address it. It has been at the forefront of our minds for some time. In the circumstances, I commend the regulations to the House.

Motion agreed.