European Union (Withdrawal) Bill

Baroness Kennedy of Shaws Excerpts

Report: 1st sitting: House of Lords
Wednesday 18th April 2018 Lords Chamber

Moved by

[Baroness Kennedy of The Shaws]

14: After Clause 4, insert the following new Clause—
“Maintenance of rights in the area of family law
(1) Within six months of the passing of this Act, a Minister of the Crown must publish a report outlining the ways in which the rights afforded by EU family law continue to exist in domestic law.(2) The report provided for under subsection (1) must include—(a) the steps, if any, taken by Ministers of the Crown to negotiate the continuation of reciprocal arrangements between the United Kingdom and member States in the field of family law;(b) the nature and duration of these reciprocal arrangements, if such arrangements have been successfully negotiated; and(c) a declaration from the Minister of the Crown outlining whether, in their view, the rights of individuals in the area of family law have been weakened.(3) The Minister of the Crown must lay the report before both Houses of Parliament.”

[Baroness Kennedy of The Shaws (Lab)]

My Lords, many Members of this House will remember that I have raised the issue of matters concerning family law arrangements that cut across the whole of Europe. I chair the EU Justice Sub-Committee of the European Union Select Committee and we published a report for this House, which dealt with issues of maintaining the mutuality that exists across Europe for matters concerning family law, business and commercial disputes, and individual rights.

The concern that we have is that we want it to be clear that, in the negotiation, the Government should be mindful of the ways in which current arrangements have been carefully crafted over many years. A number of directives exist, which I know the Minister is only too aware of: directives on which court will take control of a particular issue if there is a dispute between parties based in different nations; the ways in which family law matters can be dealt with where there is divorce and a breakdown of families, or where there are issues concerning access or maintenance arrangements for children. Those are dealt with by Brussels regulations I, II, IIa and the maintenance regulation, and they are found to be of incredible value in these areas of law. I wanted to raise this again because I would like some assurances from the Minister that these are going to be included in any negotiated settlement with Europe in the future, because the loss of these legal arrangements would be detrimental to the rights of individuals, businesses, people running businesses and others.

Those are the matters raised by me; we want to have monitoring of the ways in which the Government might proceed. It is similar to the position that was raised by the noble Lord, Lord Deben, just now. I am raising this because I want assurances and I hope to receive them from the Minister before deciding what to do. I beg to move.

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

My Lords, I start by apologising for arriving a moment after the noble Baroness had started speaking. I did not know what had happened to Amendment 13. I want to speak briefly in full support of the amendment from the noble Baroness, Lady Kennedy of The Shaws. I do not propose to rehearse all the arguments that we made at Committee at some length, but want to make four very brief points.

First, no one suggested in Committee, on behalf of the Government or anyone else, that the family law provisions contained in the European regulations Brussels I, IIa, the maintenance regulation and the arrangements for the enforcement of obligations and co-operation were not a considerable benefit to the citizens of the UK as well of other member states. Secondly, no one suggested that any benefit would flow from our not continuing to have those regulations applied in the United Kingdom. Thirdly, no one suggested that we could achieve reciprocal protections for UK citizens and citizens from other member states of the EU without negotiating for their continued protection. Fourthly and finally, all that could be said and was said by the Minister for the Government was that it was all a matter for the negotiations, but it would be possible to negotiate arrangements whereby we could continue to benefit from the regulations without accepting the role of the Court of Justice of the European Union in overseeing their implementation.

It is on that point that I take issue with the Government, because I ask why the EU 27 should agree to a set of arrangements affecting private law rights—these are disputes between citizens of different member states, by and large—whereby citizens of those other member states have obligations that are enforceable in their courts at the instance of citizens of the United Kingdom, while the United Kingdom could refuse to honour such obligations unless the courts of the United Kingdom approve their enforcement. In other words, a different set of rules could be said to apply to the UK from the rest of the Union.

The Government’s obsession—and I use the word without embarrassment—with the direct effect of CJEU decisions in cases involving treaty rights threatens to scupper the whole system of family law protections that is so important to our citizens, as well as to the citizens of other member states. The noble Lord said that it would be easy to negotiate other agreements for non-binding decisions. That, I suggest, is simply impossible to achieve. I do not see any difficulty with our accepting, in the case of private law rights between citizens, the binding nature of decisions of the Court of Justice of the European Union. That way, we could commit, and commit early, to continuing to have all the rights and benefits for all citizens bound by the regulations for the foreseeable future.

[Lord Mackay of Clashfern]

My Lords, I am certainly interested in family law, and have been for some time, but this amendment strikes me as rather otiose and ineffective. It says:

“Within six months of the passing of this Act, a Minister of the Crown must publish a report outlining the ways in which the rights afforded by EU family law continue to exist in domestic law”.


It has nothing to do with reciprocity in the sense of other people’s laws; it is that they will continue to exist in domestic law. As I understand it, this Bill transforms into our law all existing EU law to this effect—that is what the Bill is supposed to do. And if it is deficient in that respect, it is for the noble Baroness, with all her expertise, to point that out. So far as I have understood it, all law that applies here on Brexit day will become part of our law, and therefore there is nothing to report in respect of that because that is what EU law was before—which would now be the law here.

[Baroness Kennedy of The Shaws]

I do not know whether I am entitled to interrupt someone who speaks subsequent to me, but I want to explain. We are introducing this into domestic law, but take, for example, the current position for a wife divorced from an Italian spouse. She can go to her local court here in Britain and obtain an order which is then—because of reciprocity and the special arrangements—enforceable in Italy against her ex-husband, who lives there and has not been paying maintenance for his children. It is the business of reciprocity that is problematic. I am sure the noble and learned Lord knows that very careful arrangements have been made as to which court in which country takes cognisance of a case and where the matter is dealt with if there is conflict. All those rules, which have now been set down in regulations, need to be settled with our partners in Europe. It is not enough to introduce it into UK law; we have to have the component of the other party and the other court in agreement. That has to be part of the negotiations. Bringing this into UK law will not do it on its own.

[Lord Mackay of Clashfern]

I think the noble Baroness has demonstrated the truth of what I am saying: namely, that she is concerned with the rights afforded by EU law in this country. The fact that those rights will continue to be enforced in this country is what the Bill is about. Therefore, I do not see any possibility of this amendment having any effect. The noble Baroness has just mentioned its operation in Italy, if the husband is there. That depends not on the domestic law of this country but on the law of Italy, and that is not part of what we can do in this Bill.

--- Later in debate ---

[Baroness Kennedy of The Shaws]

My Lords, I thank the Minister for his response. I want to make clear the purpose of both these amendments—Amendment 14 and Amendment 20. The idea was that they would create a safety net because we are concerned, as are many practitioners who deal with family law matters that cross borders in Europe, that somehow—as can happen—when the negotiation is complete, we will find that there are glitches and things have fallen between the slats. It will not be a perfect solution in the way that is imagined. That is because, in creating law, we often do not imagine the very particular circumstances of a family. That is what we have been anxious to look at: how to create some kind of safety net if the negotiations do not satisfy the needs that people have when it comes to family matters.

That is why having a requirement to produce a report within six months is not, I suggest, an onerous demand on the Government. It would say, “This is what will happen in those circumstances”. The report would be able to deal with how the Government envisage the arrangements working in practical terms. It would be neither otiose nor unnecessary because there are concerns about the whole business of reciprocity and how it is going to work.

I have heard the Minister mention Lugano before as his example, but as I am sure he knows, Lugano is only about commercial matters. If a person in Norway is in a family dispute with someone in another part of Europe, they will not have the reciprocity that we are talking about. We have to make sure that, in the design of some eventual court that will deal with conflict on trade or commercial matters, it would also be able to deal with family matters because Lugano does not do that. Lugano is specifically a commercial court dealing with commercial matters. It does not deal with family issues, and families complain about it. If someone here has a problem with someone in Switzerland over maintenance or access to children, I am afraid that they have to get lawyers in Switzerland at great expense in order to deal with the Swiss courts, which do not operate on quite the same set of rules as we have here in Britain or, for example, with the same commitment to the rights of women. I suggest that there are legitimate concerns here.

The idea behind Amendment 20 is to retain some way of getting to a court which would have, if you like, an overarching role for a limited period of time. The suggestion may seem clunky, but it is really about creating a safety net. As the noble Lord, Lord Inglewood, said, we are talking about families involved in some of the most miserable of circumstances when they break down. People want to maintain relationships with their children into the future and so on.

I have heard what the Minister has said and I am grateful for his reassurances that this issue is going to be taken seriously in the negotiations, but I can assure the noble and learned Lord that I will be snapping at his ankles, as will others in this House, if we do not see a proper kind of reciprocity in the final arrangements. I beg leave to withdraw the amendment.

Amendment 14 withdrawn.