Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019

Lord Marks of Henley-on-Thames Excerpts

Tuesday 29th January 2019 Grand Committee

I should make it clear that I and other Members understand that the Minister and staff at the Ministry of Justice had a hugely difficult task in drafting the important secondary legislation in which Parliament will be drowning for months, if not years, to come. This is a consequence of the Government rushing into a decision to enact massive legislative changes in an absurdly short time without adequate consultation. It is devoutly to be hoped that at least we will not end up with a no-deal Brexit which makes such legislative provision necessary, even if that requires us to undergo another round of secondary legislation to accord with a further and better change of circumstances.

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

My Lords, I do not propose to address the same matters of detail that the noble Lord, Lord Beecham, has done. I said a great deal of what I wanted to say about the general impact on judicial co-operation and co-operation in legal matters in the debate on the first of these statutory instruments. But let the Minister and the Government be in no doubt that the issue of co-operation in family justice, and the replacement of the system we have now by the bitty and only partial system he has outlined, is the substitution of a much less satisfactory and much less smooth step backwards—which is to be deplored—from the extremely well-respected and widely understood system that we have now across the European Union.

The noble Lord, Lord Beecham, mentioned 16 million cross-border family disputes. The European Parliament estimates that 10% of European citizens are married to people of a different citizenship, and a very large number of those are married to other European citizens. I am one of them; many in your Lordships’ House and the other place are also married to other EU citizens. Even Nigel Farage is—or was—married to an EU citizen of another state.

We have a system now that works well and is widely respected across the whole gamut of domestic law. Jurisdiction is the area where I think there has been the most difficulty because the first court is the place of jurisdiction in divorce rulings, which was difficult to accept but is now widely understood. Recognition and enforcement are absolutely crucial. Going back to the Hague rules will be unhelpful by comparison with what we have now. The system of child abduction goes back to the Hague convention of 1980. Yes, it was there but the override that we have under Brussels IIa makes the system work far better, far more effectively, far more cheaply and with far more co-operation.

Judicial co-operation across the European Union has generally been helpful and beneficial and we have all gained immeasurably from the co-operation across different jurisdictions. Legal aid is available in respect of cross-border disputes within the European Union, which will not be available after we leave it. The new arrangements for the maintenance regulations are absolutely hopeless compared with what we currently enjoy for intra-European disputes, as anybody who is involved with divorces between, for instance, UK and US or other third-country litigants well knows.

I entirely accept the Government’s argument that we simply could not insist on losing reciprocity and nevertheless maintain unilateral arrangements in the case of these convention advantages, the reason being that we would put UK citizens at severe disadvantages when their relationships with other EU citizens broke down. Nevertheless, the Minister and the Government should not rest on the consultation that they have had by discussion with some family lawyers. The Government should be in no doubt that family lawyers generally deplore the loss of the European regime, which is what would face us if we went through with a no-deal exit.

The Explanatory Memorandum produced by the Government is in similar terms to, and shares the faults of, that in respect of civil and commercial cases. It says at paragraph 12.2 on page 6:

“In the event of a no deal EU Exit, the impact on business, charities or voluntary bodies (being those that advise, represent and support individuals and families engaged in cross-border family law matters) of this instrument will, on balance, be positive. The amendments provide a basis for continued reciprocal cooperation with most EU Member States through the UK’s participation with those Member States”.


It then goes through the Hague conventions that will be available. That is a comparison with the prospect that we would enjoy if we had no statutory instrument to cover this position. The Explanatory Memorandum faces reality later on in that paragraph, where it says:

“However, the change to Hague Convention rules and the new domestic rules on divorce etc jurisdiction, maintenance jurisdiction and parental responsibility legal aid will require relevant businesses, charities and voluntary bodies to familiarise themselves and adjust their administrative arrangements to deal with the new rules. In some cases (especially divorce etc jurisdiction) the new rules could lead to greater disputation and complexity”.


Greater disputation and complexity always means greater cost. In family cases it is greater stress, unhappiness and mental health issues, and severe damage to children. One sees in so many of these cross-border cases the added damage to children, even with the present benign arrangements, because their parents are in different jurisdictions. The Explanatory Memorandum goes on:

“In the event of a no deal EU Exit, the impact on the public sector is expected to be an increase in case volume and complexity of cases before the family court due to the changes in divorce and maintenance jurisdiction rules. However, this instrument will have positive impacts on the family court as it ensures there will be workable rules governing cross-border family law disputes”.


Once again, this is confusing the two issues. Yes, there will be workable rules and, yes, that is better than no rules at all, but it is far worse than what we have now.

Of course, I accept the other statutory instrument that same-sex marriage and civil partnerships should be put on the same basis as opposite-sex relationships, but we are once again facing a situation where it is my view—and, I suggest, a view that ought to be taken seriously by the Government—that the loss of co-operation in family law and relationship law generally would be very serious, and that those prepared to countenance no deal should take that into consideration far more than they do at present. I know that the noble and learned Lord and the noble Baroness, Lady Vere, take these matters seriously. I wish other members of the Government would do the same.

[Lord Keen of Elie]

I am obliged to noble Lords for their contributions. I reiterate what the relevant comparators are for impact assessments in consideration of these instruments. This Parliament determined to make a law by reason of which we leave the EU on 29 March 2019. The Executive not only have to respect that law, as made by this Parliament, but have to make appropriate plans and arrangements to allow for that in the event that no withdrawal agreement is in place as at 29 March. So, with respect to the noble Lord, Lord Marks, we are carrying out a relevant comparison within the impact assessments in that context.

I will not gainsay the comments about the benefits we have enjoyed from the Brussels regime, whether in the context of divorce, maintenance, child abduction or the wider issues we have already discussed today of commercial and civil cases. We have all benefited from that regime, but we cease to be a party to it because this Parliament has made a law determining that that would be the consequence on 29 March 2019.

On the issues of family law, fortunately we have, in essence, the foundations for all that we find in Brussels IIa. We have the 1970 Hague convention on recognition of divorce and separation and the 1980 Hague convention on child abduction. The noble Lord, Lord Marks, is quite right that it does not contain the override, but then it cannot because we will not be in a position to make an order overriding an order of an EU state court when we have left the EU. We simply cannot do that unilaterally, so we have to accept that. We have the 1996 Hague convention on jurisdiction, applicable law, recognition, enforcement and co-operation in family matters. In the context of maintenance, we have the 2007 Hague convention. All of that will be in place and, as I indicated earlier, we are also applying to be a party to the Lugano Convention, although my understanding is that the Lugano Convention is on civil and commercial rather than family matters. Nevertheless, we are taking all the steps we can at this stage to cover all bases.

On the question of future co-operation, the political declaration refers to the intention to negotiate these matters, but it takes two to tango—as is sometimes observed—and therefore the pace at which we can negotiate these issues is dictated not only by us but by the EU, and we have to take that on board.

The noble Lord, Lord Beecham, referred to the European protection order. That is a particularly difficult issue because the European protection order is in the form of a directive, which is quite specific in its terms. It says that an EU court can issue an EPO only to another EU jurisdiction, and that an EU court can recognise an EPO only from another EU jurisdiction. It is simply not possible even to apply a unilateral aspect of the EPO, but we have done that with regard to the civil protection orders that I referred to earlier.

We have done as much as we can in preparation for a no-deal exit—a no-deal exit of which no one, as far as I am aware, is truly in favour. But we have to plan for that contingency given the state of the law as it has been determined by Parliament. It is in these circumstances that I commend the regulations to the Committee.