There have been 3 exchanges involving Lord Polak and the Ministry of Justice
|Wed 10th March 2021||Domestic Abuse Bill (Lords Chamber)||2 interactions (425 words)|
|Thu 21st January 2021||Anti-Semitism: University Campus Incidents (Grand Committee)||3 interactions (191 words)|
|Wed 20th December 2017||Brexit: Justice for Families, Individuals and Businesses (EU Committee Report) (Lords Chamber)||3 interactions (806 words)|
My Lords, I shall be extremely brief, not least because of the happy coincidence that the noble Lords, Lord Hunt and Lord Polak, have largely said what I was going to say. I thank them. I can now go and have a late lunch.
Like the noble Lord, Lord Polak, I was impressed by the Barnardo’s press release last Thursday, with all the different voices speaking in unison. My own experience of dealing with voluntary organisations over many years is that hell hath no fury like different voluntary organisations in pursuit of similar goals and, in particular, similar pools of funding. Peace seems rather dangerously to have broken out in this case. I hope it will continue.
I thank the Government for listening. It was a bit of a no-brainer with a Bill in which 25% of the accommodation-based services for domestic abuse victims were dealt with but 75% were not. That was an open goal waiting to be filled. I am grateful that the Government have acknowledged this and acted on it.
Like the noble Lord, Lord Hunt, I took note of the National Audit Office investigation and report into the state of local authority funding. I have observed a variety of individuals in this House—some of whom I have worked in co-operation with—who, for the best of reasons, ceaselessly plead with the Government to put more and more statutory duties on local authorities in a whole variety of different areas. In a sense, this is dangerous because, in a situation where local authorities are under the strains and stresses that they are, piling even more statutory duties or guidance on them runs the risk of mission failure and initiative fatigue. I am very conscious of this. It requires a joined-up approach from the different parts of Her Majesty’s Government.
The Home Office is doing its bit. The Ministry of Justice is going to do what may not come easily to it and talk more openly with the communities department —and vice versa. It was not terribly helpful that the Secretary of State, while acknowledging the councils’ problems, could not resist the political dig of accusing them of poor management. This is a bit rich coming from a national Administration who have spent the amount of money they have on initiatives such as test and trace, or who have presided over the highest number of deaths per million in the world during the current pandemic. Before one starts throwing political missiles at one’s opponents, it does one a lot of good to look in the mirror and have a degree of humility. None of us gets it right all the time.
When the domestic abuse commissioner comes back with her recommendations, I would plead with the various parts of national government and the local authorities to talk to one another, agree, buy into whatever is recommended, and put in place properly thought-through, long-term plans to deliver on this strategy and to fund it properly.
My Lords, I am pleased to take part in this discussion. I congratulate the noble Baroness, Lady Deech, on getting the debate. All forms of discrimination on the basis of identity are wrong. Some have greater resonance than others; quite clearly, for all the historical and present-day reasons we know, anti-Semitism is up there with the worst of them. However, it is simply one of the evils we have in today’s world as a result of the increasing manifestation of politics of identity which are outward-looking and hostile towards individuals and groups. It results in people being disrespected, discriminated against and attacked. It must be wiped out.
The noble Lord, Lord Woolley of Woodford, has withdrawn, so I call the noble Baroness, Lady Warwick of Undercliffe.
My Lords, it is a pleasure to follow the noble Lord, Lord Cashman. If he will forgive me, I am afraid that this is a contribution by another lawyer—although not with anything like the experience and insight into these matters of the noble Baroness, Lady Shackleton of Belgravia. I congratulate the noble Baroness, Lady Kennedy of The Shaws, on her committee’s excellent report. I extend my compliments to the members of the committee, many of whom are present.
At the risk of some repetition, I shall concentrate on the section of the report which deals with Brussels IIa and the Maintenance Regulation. This is a little technical but these are the measures that are concerned with the rights of adults and children with regard to matrimonial matters; parental responsibility, including rights of custody and access; and the very important issue of child abduction. They supplement the Lugano and Hague conventions on these matters. As I shall mention in a moment, they do so in a way that is crucial to the points to which the report draws attention.
It struck me that there were two words that the noble Lord, Lord Cashman, stressed several times: predictability and certainty. That is what these measures give us, against the rather looser background of the conventions—much to the advantage of everyone involved in these matters, be they commercial entities or families.
At the end of his speech the noble Lord, Lord Cashman, drew attention to the passage in the report which says:
“To walk away from these Regulations without putting alternatives in place would seriously undermine the family law rights of UK citizens”.
I do not think it was an exaggeration for the report to go on to say, as the noble Lord did, that to do that would be,
“an act of self-harm”.
That underlines the crucial nature of the issues we are talking about.
The issue is of concern to UK citizens in all parts of the United Kingdom, not just the jurisdiction in which we are today: England and Wales. It might be worth inviting the Minister to study an article by Janys Scott QC—whose name, I am sure, is familiar to him; she is a senior practitioner in family law in Scotland—in this month’s edition of the Journal of the Law Society of Scotland. She draws attention, as the noble Baroness, Lady Shackleton, did, to the risk of conflicting proceedings if our domestic courts are bound to resort to our own procedures without the benefit of the reciprocity in family matters that the regulations provide. She points out that the withdrawal Bill does not create that reciprocity: in fact, it removes it, and puts nothing in its place. The risk is of conflicting actions in different countries ongoing at the same time, with conflicting decisions and no way of deciding which must prevail. That surely is a recipe for much delay and expense and is quite contrary to the principle that gives priority to the best interests of the child. As I mentioned, there are other international treaties, but they are less clear and less decisive than the Brussels measures.
That point is illustrated very clearly in the European Commission’s guide to the provisions for the return of the child. In the table you find phrases such as “not obliged to” and “may refuse” in the Hague Convention, when for the same stages in the procedure the regulations say “cannot refuse” and “shall ensure”. There you see the certainty and predictability that the noble Lord, Lord Cashman, drew attention to. We cannot rely on the conventions to provide the certainty we need. We need to maintain the same reciprocity, attention to detail and standards of precision that operate across the EU. As Janys Scott says, family law deserves serious attention if Brexit is not to result in confusion and expense for families who find themselves stretched between one or other of the jurisdictions in the UK and other European states when the misfortune of break-up strikes.
This brings me to the Government’s response, bearing in mind the sub-committee’s warning that it was not convinced that the Government had, as yet,
“a coherent or workable plan to address the … problems … if alternative arrangements are not put in place”.
We have now been told in the response that the Government are seeking,
“an agreement with the EU that allows for close and comprehensive cross-border … co-operation”,
in family matters, which would provide a range of reciprocal rules. I am not wholly reassured, so I have two questions for the Minister.
The first is: can he give us an assurance that, when the Government are seeking an agreement with the EU in these matters, the aim will be to achieve the same high degree of reciprocity and predictability that we have now? The response talks about “close” cross-border co-operation, but the words “close” and “closely” are not really good enough. Precision, predictability and certainty are what we are looking for, leaving no room for doubts that could give rise to dispute. Will that be the aim? I very much hope that it will.
The second question is: can he assure us that everything will be done to ensure that there will be no cliff edge on these matters when we leave the EU? If the current arrangements are to continue during the transitional or implementation period after the exit date, can we be assured that they will continue even after the end of that period if an agreement cannot be reached and the replacements put in place by then? The Minister will, I am sure, appreciate how highly charged family disputes can be. We must surely do everything possible to avoid a gap in the cross-border arrangements: a black hole, one might say, which would make their resolution even more difficult than it already is.
My Lords, if the noble and learned Lord, Lord Hope, professed himself humbled by the speakers who had gone before and the Minister who is going to respond, imagine how we non-lawyers feel following him. It was a great honour to be on the committee for the production of this report. In the noble Baroness, Lady Kennedy, we have someone who blends, in equal large measure, charm, wisdom and utter determination. I also express my thanks to the clerks and the supporting team, who have done such a terrific job in producing this very good report.
The report once again makes clear that there are a series of linked regulatory systems in a single space, rather than individual states with cumbersome and often expensive barriers between them. The central advantages of these systems, which come up time and again in the different areas our committee and other committees look at, are clarity, reciprocity and enforceability—words that we have already heard today and which I am sure we will hear again. Those are beneficial to all concerned, be it a parent with a child abducted to another country or a businessperson with a cross-border contract. The objective of our committee was not, as too often happens in this House, to refight the Brexit debate but to establish what Her Majesty’s Government’s plan is when we leave the EU so that the benefits of these well-established systems are not lost.
The Government’s written response and the paper which they continuously refer to throughout entitled Providing a Cross-Border Civil Judicial Cooperation Framework, are—I speak as I find—frustrating and a repetitive confection. The response is not the practical, reasoned reassurance that I was hoping for. It tends to repeat the very points in our own report, or responds in a fairly banal way. I take entirely the points made by the noble Lord, Lord Polak, about negotiation, but nevertheless I had hoped for more. It acknowledges the lack of certainty, reciprocity and enforceability, but we knew that from our own report and evidence. What it offers in response is,
“a new relationship based on mutually beneficial rules and processes”.
I think I can remember that as the sort of thing my mother used to say as she served out the apple pie. Another response is:
“We will need to build a bridge from our exit to our future”.
That almost sounds like the closing song from a Christmas panto. I do not really know what it means.
The Government say they are “seeking an agreement” and assert that that activity itself will provide confidence and certainty to businesses and individuals. We did not see any such evidence in front of the committee. The Government paper provides “general principles” for “ongoing cooperation” in the context of separation and “without prejudice” to the ongoing negotiations. Again, I am sure my mum would have approved of that. To replace the very effective existing Brussels I and II Regulations, the plan appears to be to fall back on the 2005 Hague convention and the 2007 Lugano convention, which are less clear and comprehensive than the existing set-up, which was created expressly to improve upon them, as the noble Baroness, Lady Kennedy, explained. Lastly, and I will try not to quote too extensively, we are told that the Government will consider the coverage of alternative international agreements when deciding how best to ensure ongoing reciprocity and mutual recognition. Again, I did not find a great deal of substance there.
So, what about the timescale? On the one hand, the Government favour a strictly time-limited implementation period, which they define as around two years. In the meantime, we carry on as now—or, rather, based on the existing structure of EU rules and regulations. The matter of the ECJ has already been touched on. We know the Government are keen to eschew the ECJ but they have not really offered anything clear to us as a mechanism to replace it. That makes for more uncertainty.
In conclusion, there is a common recognition that there are real and troubling problems here, and everyone agrees that reciprocity and cross-border enforcement need to be protected. However, a recurring theme across all the committees whose reports I have read or been a part of is the lack of actual practical mechanisms to deliver this. The only tangible quantifiable in the Government’s response is “in about two years”. We are not told the mechanisms. Such assurances are wearing thin.
Naturally, to return to the very wise point made by the noble Lord, Lord Polak, it is very difficult to be specific when negotiations are under way. Nevertheless, in all the evidence that we took, we really did not find evidence that actual mechanisms were being devised or discussed to safeguard the individuals, families and businesses that the noble Lord, Lord Cashman, spoke so movingly about a few minutes ago.
The Minister is known for his robust, factual and penetrating answers to questions and comments. I hope that when he responds he will go beyond the generalities and shine his very bright and piercing light on the mechanisms and how they are going to deliver outcomes at least as good as Brussels I and Brussels II.