European Union (Withdrawal) Bill

Debate between Baroness Ludford and Lord Farmer

Committee: 4th sitting (Hansard): House of Lords
Monday 5th March 2018 Lords Chamber

[Lord Farmer (Con)]

My Lords, I apologise that this is the first time I have spoken during the passage of the Bill: I was unavoidably out of the country when it received its Second Reading. My contribution, if I had been able to make one then, would have touched on the vital area of the implications of Brexit for family law.

I understand that, as the noble Baroness, Lady Sherlock, has said, these are probing amendments, but I find myself in disagreement with the noble Baronesses who have tabled Amendments 29, 53 and 336. This is generally not the case: indeed, I and other noble Lords are aware of their very strong track record in championing families in general and family justice in particular. However, under their amendments the UK would either remain entirely subject to EU law in the family law context or enter into some bespoke arrangement—such an arrangement does not exist presently between the EU and any other non-EU member state—which would lead to the same outcome.

Reciprocal arrangements are possible only by being subject to EU laws. The UK government position in the withdrawal legislation is that EU laws on the day we leave the EU will become part of UK national law, but not that we will be bound to those laws on an ongoing reciprocal basis, whether in the short term or for eight years or more. As far as I am aware, this is not being proposed in any other area of UK law. I understand and share the concern for children and families that drives many of those tabling these amendments. However, if accepted, they would lead to a situation in which, in effect, the UK had not left the EU. I will look in turn at Amendments 29, 53 and 336.

Amendment 29 would bind the Government to publish a report on the maintenance of rights in family law within six months of the Act being passed. If that event takes place in June 2018, two years after the referendum, this proposed new clause would take us to late 2018 and a matter of months before we leave the EU. Obviously, the Government need not take the full time, but it is worth saying that there have already been many meetings and consultations: I am aware of an early round with international lawyers and the Ministry of Justice as early as October 2016, with responses requested by the MoJ by November 2016 so it could report to DExEU.

A major family law conference was held by Cambridge University in March 2017 with academics, practitioners and policy advisers from across the UK and some EU nations, again with civil servants in attendance to report back. A couple of other conferences were held last spring. Then over the autumn, I know there were direct meetings between practitioners and civil servants about these issues, including the proposal that we should remain part of EU family law after we leave the EU. These meetings continued throughout the latter part of 2017 and, no doubt, are still ongoing.

Noble Lords will be aware that just before Christmas there was a debate here on the European Union Justice Sub-Committee’s report on civil law matters. Allowing another six months would unnecessarily extend what has already been a long consultation process. Nothing has been said by any government department to hint that the UK Government will contemplate such a dramatic change to the withdrawal legislation that we will continue to be a direct party to EU legislation in one distinctive area of law.

[Baroness Ludford (LD)]

I thank the noble Lord for giving way; I was anxious to ask him this before he sat down. I respect his professed commitment to the rights of families and children, but he appears to be saying that a rather ideological commitment to escape the jurisdiction of the European court and the other enforcement mechanisms should prevail above the needs of divorcing people and especially children who need maintenance obligation enforced and who may have been the subject of abduction. As the noble and learned Baroness, Lady Butler-Sloss, said—as a judge, she has vast experience in this area—it was much easier once EU law provisions came into force than under the international conventions. Can the noble Lord honestly tell me that he could look children in the eye and say it is better to be outside the reciprocal EU arrangements?

[Lord Farmer]

I thank the noble Baroness for her intervention. I believe it will be better in the long run. We have mentioned the Hague convention. There are many experts; Professor Paul Beaumont, for instance, is a leading expert, who has said at international conferences that in his opinion the Hague alternatives will be perfectly adequate and satisfactory on our leaving the EU.

Moreover, the amendment anticipates a report on steps taken to negotiate continued reciprocal arrangements—that is, effectively, continued membership of EU family law. This position has not been adopted in any other area of law, as far as I am aware, and is not supported by organisations such as the Law Society.