Brexit: Justice for Families, Individuals and Businesses (EU Committee Report)

Baroness Ludford Excerpts

Wednesday 20th December 2017 Lords Chamber

[Baroness Ludford (LD)]

My Lords, it is a pleasure to take part in this very important debate. I too pay tribute to the vigorous chairmanship of the noble Baroness, Lady Kennedy of The Shaws. Indeed, it is a pleasure to serve on the committee; we are a happy band. Unfortunately, I could not attend yesterday’s session and believe that I missed some seasonal goodies. That was very unfortunate.

The current regime of mutual recognition and enforcement of judicial decisions and judgments provides simpler, less expensive and speedier justice. It is for those reasons that it is valued by the Government. In their August future partnership paper on civil judicial co-operation, the Government said that the EU system,

“plays an important role in enabling businesses to trade with confidence across borders, providing legal certainty in cross-border transactions and avoiding delays and excessive costs where individual and family rights need to be protected in cross-border situations”.

The benefits of predictability and certainty have been highlighted by the noble Lord, Lord Cashman, and the noble and learned Lord, Lord Hope. That explains why successive UK Governments have chosen to take part in a whole series of civil law EU measures—to opt in, in the jargon. One can weigh the importance of those opt-in decisions compared with, for instance, criminal procedure law, where the UK has declined to opt into most of the instruments. The same applies in the area of international migration, where the UK has stayed apart.

The UK influence in the EU civil justice regime is considerable. Our lawyers, judges and legal system make a very strong contribution to it. The idea that it is alien to our legal traditions is very wide of the mark. I wish that the British Government had been more proactive, in line with our legal strengths, in improving the rule of law across the EU. Today, the European Commission has taken the decision to trigger Article 7 of the treaty, saying that Poland risks causing a serious breach of EU rules and values by politicising the judiciary. Frans Timmermans, the Vice-President of the Commission, rightly said that the erosion of the rule of law in one member state is a problem not just for that member state but threatens a breakdown of the,

“functioning of the Union as a whole”.

I saw it reported in the press that the UK Government did not approve of this move by the Commission, and I think that is a mistake.

I also happen to have a positive view of the EU scoreboard, which, unfortunately, is not comprehensively shared across the committee. That scoreboard is a comparative overview of the efficiency, quality and independence of justice systems in member states. The point of that exercise, which may well be imperfect, is to help build the trust essential to the operation of mutual recognition, which underpins the single market and legal enforcement.

Our report said that uncertainty about the future is,

“having an impact on the UK’s market for legal services and commercial litigation, and on the choices businesses are making as to whether … to select English contract law”,

to govern their commercial relationships. This is borne out in a remark by the Bar Council’s Brexit working group, to which the noble Earl, Lord Kinnoull, referred. It said:

“It is likely that, if parties consider that the answer to the questions of ‘Will my jurisdiction clause be respected?’ and ‘Will my judgment be enforced?’ will involve adding time and expense as well as uncertainty to any transaction, then this may encourage them to amend their contractual clause in favour of resolving disputes before other Member State courts”,


so taking business away from London and other legal centres. We know that courts working in English are being set up in other member states, notably the Netherlands. Even more importantly, there will be an adverse consequence for companies, especially small and medium-sized ones, from losing the EU regime.

But the harm to those who rely on the EU regime in regard to divorce, child custody and maintenance goes far beyond inconvenience and could amount to serious distress. Some witnesses suggested that a complicated combination of the Lugano and Hague conventions, and retention of the Rome I and II regulations through the withdrawal Bill could offer some kind of workable alternative solution. However, it was not clear to the committee how we would accede to the Lugano convention, which is between the EU and three EFTA countries. Perhaps the Minister can enlighten us on that.

Our conclusion in any case was that this approach will come at a cost and would anyway apply only to civil and commercial proceedings, since, as our report said,

“there is no satisfactory fall-back position in respect of family law”,

and a return to common law rules would be detrimental to litigation in family law. Apart from the increased burden on domestic family courts—extra pressure our evidence suggested they cannot take—there would be that distress for families; hence the need to maintain the EU framework is acute in this field.

However, not only can we not do this unilaterally, but we keep coming up against the Government’s dogmatic red line on the Court of Justice of the European Union. Our conclusion, in paragraph 29, was:

“We remain concerned … that if the Government adheres rigidly to this policy it will severely constrain its choice of adequate alternative arrangements”.


We would be giving up the utility of the regime we have now because of an ideological obsession with the Luxembourg court.

The Government’s partnership paper we found devoid of detail and consisting of aspirations and platitudes. The paper said that,

“it is vital … that there are coherent common rules to govern interactions between legal systems”,

and the Government claimed in their response to us that this paper sets out a “clear position”. We did not find such clarity. To continually repeat the mantra of “deep and special” does not magically solve all the problems. The Government’s lack of a real plan is inadequate and disappointing. Perhaps the Minister can provide such a plan this afternoon.

As the noble Baroness, Lady Kennedy, remarked, the Government seem to be preparing for failure and disengagement as regards,

“how ongoing cooperation in this area could be wound down”.

That was a dismaying apparent admission of failure before we have even started. I hope that the Minister will be able to give us more encouragement in his response.

--- Later in debate ---

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

My Lords, on the noble Lord’s last point, it is not for me to anticipate the Uber decision but the hint might be in the existence of the motor vehicles.

I begin by congratulating the noble Baroness, Lady Kennedy of The Shaws, on securing this debate. The question of the EU’s departure from the European Union is well-trodden ground in this House by now, but the question of future civil judicial co-operation between the United Kingdom and the EU has perhaps not received as much attention. I commend her and her sub-committee for the work they have done to address this. I would also like to thank, through her, the witnesses who contributed to the inquiry and whose experience and expertise we value very highly. It is because of that expertise that this is such a commendable report.

The debate gives me the opportunity to set out to your Lordships the Government’s position on this technical but important subject, to the extent that I can while we are in the course of a negotiating process. Before addressing the specific issue of civil judicial co-operation, and dealing with the points made by your Lordships, it may be worth some scene-setting.

Since June, we have worked intensively with our European partners to settle the issues in the first phase of our negotiations to leave the EU. We have made good progress and reached agreement with the EU’s negotiators on some very difficult issues. Nearly two weeks ago, the United Kingdom and the EU negotiating teams issued a joint report on the progress they have made on the three areas covered in the first phase of the negotiations. It proposes a fair deal on citizens’ rights that allows for UK and EU citizens to get on with their lives broadly as now in the country in which they live; it agrees a financial settlement that honours the commitments we undertook as members of the EU, involving a fair delivery of our obligations; and it contains an agreement on the island of Ireland that preserves the territorial integrity of the United Kingdom and the stability that has been brought about by the Belfast agreement.

As your Lordships will know, last week, the European Council agreed that this report represents sufficient progress and that we should now move on to the talks about our future partnership. This allows the next stage of negotiations to proceed, and the Council has agreed that there should be quick progress on agreeing an implementation period.

On that implementation period, the United Kingdom Government’s proposal is to ensure that businesses and people have time to adjust, and to allow new systems to be put in place. We believe that any implementation period should be strictly time limited—to around two years, as noble Lords are aware. I emphasise that it should be based on the existing structure of EU rules and regulations, during which the UK and the EU would have access to one another’s markets on current terms, and the UK would take part in existing security and other measures. Of course we welcome that progress. It is in everyone’s interests that the talks now move on swiftly during the second phase.

On the subject of this debate, many noble Lords, particularly the noble Lord, Lord Cashman, used the term “certainty and predictability”. Let me be clear that there is consensus about that. Of course, we seek to secure certainty and predictability. But a third word was used by a number of noble Lords that I would also emphasise—reciprocity. Just as we look from the United Kingdom to the EU 27, with concern about how we will ensure suitable civil judicial co-operation following our exit from the European Union, so those 27 countries look to the United Kingdom in the same way, anxious as they are, just like us, to ensure certainty and predictability, because that is what reciprocity brings.

Of course, what we call civil judicial co-operation is the framework that governs a whole spectrum of legal systems work and cross-border situations and provides rules not only in the context of commercial cases, but in the context of family law. As has been noted, the current EU rules are contained in regulations such as the Brussels Ia—the revised regulation on jurisdiction recognition and enforcement of judgments—the Rome I regulation on choice of law in contracts, and the Brussels II regulation, which covers jurisdictional rules for recognition of divorces, and for recognition and enforcement of parental responsibility and other matters. It does not stop there. There is also the insolvency regulation, which is equally important to commerce across the whole of Europe and which covers jurisdictional rules on the recognition of insolvency proceedings, and there are others. There is a guide to them in the paper that was issued by the Government in August this year.

These instruments provide a legal route to resolving, with certainty and predictability, difficult cross-border situations that can arise whether in the context of commercial law or family law. Clearly, these various measures have over the years benefited many citizens of the United Kingdom. Equally, they have benefited many citizens of the EU 27. They have benefited small and large businesses throughout the United Kingdom and small and large businesses throughout Europe. I am obliged for the noble Lord’s encouragement on that.

It is against that background that I emphasise that we are all concerned to secure certainty and predictability. For example, we know that about 3 million EU citizens currently live in the United Kingdom. We wish to ensure that their rights can be certain and predictable going forward. Equally, about 1 million British citizens live in the other EU 27 countries and we wish the same for them. Again, I underline the point about reciprocity. It is not essentially in anyone’s interests to move backwards and wind down from such a position.

Indeed, that certainty is a key foundation of economic growth. Confidence in cross-border commercial contracts and investment relationships is underpinned and enhanced by clear rules governing each country’s jurisdiction, its courts’ responsibility for resolving disputes and its ability to avoid what the noble Earl, Lord Kinnoull, referred to as the Italian torpedo, which was a feature of commercial litigation in Europe until the revision of the Brussels I regulation some years ago. Everyone understands the need for an effective system of cross-border judicial recognition, if I can call it that, in the context of the choice of law, choice of jurisdiction and enforcement proceedings. That is not cut down by any red line. I will return to that in the context of something that was said by the noble Baroness, Lady Kennedy.

The Government are seeking a future agreement with the European Union that allows for close and comprehensive cross-border co-operation. I will return to the point raised by the noble and learned Lord, Lord Hope, about what we are seeking in that context. But what we want to do is reflect as closely as possible the substantive principles of the current framework. They work well for citizens in the United Kingdom and throughout Europe. In addition to other regulations, I mentioned such things as the insolvency regulations, the EU service regulations, the taking of evidence regulations and, in the context of Brussels II and family matters, the Maintenance Regulation. They are all-embracing.

To touch on one or two points, under the repeal Bill, we will incorporate into domestic law the Rome I and Rome II instruments on choice of law and applicable law in contractual and non-contractual matters. If we do that, and Rome I and Rome II already apply in the other EU 27 states, then essentially we will have achieved a level playing field in those matters. There is no need for us to do more than that in the context of Rome I and Rome II.

Of course, in other areas, it will be necessary for us to engage in negotiations with certain parties. The matter does not just stop at the stage of Brussels and the EU; there are countries beyond the European Union. We have signed up to agreements in civil judicial co-operation that apply well beyond the EU: reference was made to the council of the Hague Conference, which gives rise to a series of Hague Conventions in this area. There are also the UNCITRAL—United Nations Commission on International Trade Law—provisions as well, which apply beyond the EU. We will continue to embrace all of those.

The noble Lord, Lord Beecham, suggested that there were perhaps three Hague Conventions that we were interested in, but it goes much further than that. The UK is a signatory to the 1965 Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters; the 1970 Convention on the Taking of Evidence Abroad in Civil or Commercial Matters; the 1970 Convention on the Recognition of Divorces and Legal Separations, which I accept does not go as far as Brussels II; the 1980 Convention on the Civil Aspects of International Child Abduction; the 1993 Convention on the Protection of Children and Co-operation in respect of Intercountry Adoption; and the 1996 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children. So, there is a great deal more to this subject than just Brussels I, Brussels Ia and Brussels II.

Reference was also made to the Lugano convention, which is the convention on judicial co-operation between the EU and the other EEA countries—Norway, Ireland and Liechtenstein. Denmark has a separate agreement, which I will not go into detail on at the moment. I want to make one point about the Lugano convention, which I accept has not caught up with Brussels Ia —although it is up to speed with Brussels I. It is wrong to suggest that any red line, as it is termed, with regard to the CJEU’s jurisdiction is a barrier. The Lugano convention is not subject to the direct jurisdiction of the CJEU, even though the EU is a party to the Lugano convention. So, there are instruments through which we can achieve judicial co-operation, outwith the direct jurisdiction of the CJEU. That reflects the steps that we are endeavouring to take in present negotiations, and indeed what drives them.

[Baroness Ludford (LD)]

The point that was made in our report, which I certainly tried to make, was that we were not sure how it would be possible for the UK to accede to the Lugano convention in practice, given that it is between the EU and three EEA countries. I did not mention the red line about the CJEU in the context of the Lugano convention; the question was more about how we could manage to insert ourselves into the Lugano convention.

[Lord Keen of Elie]

There is no legal barrier to us becoming a party to the Lugano convention, but that would be a subject of negotiation with the council to the Lugano convention. I believe it was the noble Baroness, Lady Kennedy, who suggested that the CJEU was somehow a red line in this respect. I emphasise that it is not a red line, but it is an issue that has to be addressed in the context of the present negotiations.

I will touch on one or two points made by noble Lords in the debate, beginning with the noble Baroness, Lady Kennedy of The Shaws. Again, I go back briefly to her suggestion that our rejection of the direct jurisdiction of the CJEU had a profound effect on civil judicial co-operation. I simply cannot accept that. It does not apply in the context of the UNCITRAL rules, the Hague convention or Lugano. Therefore, there are clearly areas where we can negotiate and determine judicial co-operation without accepting the direct jurisdiction of that court.

The noble Baroness also observed that Lugano had not been upgraded. I think she suggested it was essentially stuck in aspect, or something of that kind.