Brexit: Dispute Resolution and Enforcement (European Union Committee Report)

Earl of Kinnoull Excerpts

Wednesday 17th October 2018 Lords Chamber

[The Earl of Kinnoull (CB)]

My Lords, it is a great pleasure to follow the noble Lord, Lord Bilimoria, who has made a typically ebullient and thought-provoking contribution. I remind the House that I am a member of the European Union Select Committee and the Justice Sub-Committee that wrote this report.

I begin by adding my tribute to our staff. The EU Committee staff have worked consistently at an increased load level for more than two years, and the staff on the Justice Sub-Committee are especially hard worked, because they are the legal resource for the main Select Committee and every other sub-committee as well. We have now published 36 unanimous Brexit reports and the very high quality has been maintained. In my view, this report is no exception.

I also add my warm congratulations to our wonderful chair, the noble Baroness, Lady Kennedy of The Shaws, on her excellent and very clear speech. It is a very wide-ranging report and it takes some skill to summarise it in a very pleasing and quite short address. I will confine myself to underlining three areas on which I would ask the Minister for an update.

My first concern, shared by other noble Lords have, is on disputes between the EU and the UK arising out of the withdrawal agreement. This was an area that took up quite a bit of time during our inquiry and we devoted the whole of chapter 3 of our report to it. Our report was published on 3 May and the British position at that stage was substantially that of the August 2017 future partnership paper Enforcement and Dispute Resolution. In paragraph 121 of the report we stated:

“We are unconvinced by the Government’s suggestion that all disputes relating to the withdrawal agreement can simply be settled politically by the joint committee”.


The Government’s response on 5 July was not that helpful and ended on this issue by saying:

“We recognise that there needs to be a clear mechanism for governing and enforcing our withdrawal agreement with the EU—as there is in any international agreement—and we will continue to engage constructively on this in the negotiations”.


On 12 July, just a week later, the Government published their White Paper, which, for the first time, saw a limited role for the CJEU, as described by noble Lords. Essentially, it was advancing the same structure that we felt in these circumstances was simply not robust enough. In any event, more than three months have gone by since the Government’s response. Accordingly, I and many other noble Lords would be very grateful if the Minister updated us on the vital issue of disputes between the EU and the UK arising out of the withdrawal agreement.

My second concern is slightly smaller; it is about the pipeline of cases and claims that arise during the intermediate period. The draft withdrawal agreement foresees, as we stated in paragraph 132 of our report that,

“the UK would continue to be subject to the jurisdiction of the CJEU for the duration of the transition period”.

We were concerned by the open-ended nature of the withdrawal agreement drafting and paragraph 147 concluded:

“It is important that this continued jurisdiction of the CJEU should only be for a reasonable, time limited, period: we urge the Government to ensure that there is a longstop for any claims that arise during the transition, so that cases relating to acts occurring during transition cannot be brought indefinitely”.


The 5 July government response on this issue ended encouragingly. It said:

“We expect to reach agreement in negotiations soon on this remaining issue”.


We are three and a half months further on, so could the Minister update us?

My final area of concern is mutual recognition of judgments and civil justice co-operation. In many ways this is the most important area; naturally, it is incredibly important for individuals and businesses throughout the European Union today. A particular issue that we looked at was family law. We have the benefit on our committee of much direct experience and expertise. I am looking at the noble Baroness, Lady Shackleton, who is extremely interesting on this point. I am sure many other noble Lords are hoping, as I am, that she might rise in the gap and talk briefly about family law provisions.

I cannot emphasise enough how strongly every member of our committee feels that this area must be addressed successfully. It would be a major failure on the part of all sides if politics got in the way of preserving things of such great value to our fellow citizens. The Government published their framework proposal on this area on 13 June and presented it to the EU negotiating team. The 19-slide pack contains just one slide summarising what the Government are seeking. It is very clear but, naturally, it is at a very high level and contains no real detail. Very slightly more detail is contained in the 12 July White Paper, which states:

“The UK is therefore keen to explore a new bilateral agreement with the EU, which would cover a coherent package of rules on jurisdiction, choice of jurisdiction, applicable law, and recognition and enforcement of judgments in civil, commercial, insolvency and family matters”.


It also states:

“The UK will therefore seek to participate in the Lugano Convention after exit”.


The Lugano convention would certainly, in my view and I think in that of the whole committee, form part of the “coherent package of rules” mentioned in the White Paper, but importantly our accession to it would need the consent not just of the EU but of Switzerland, Norway and Iceland. Accordingly, making progress on acceding to it is a separate strand of work that is urgent. On 17 July, Lucy Frazer QC MP, Parliamentary Under-Secretary of State at the Ministry of Justice, told us in evidence:

“We have made it very clear in our White Paper that we want to re-join Lugano. It is no secret and we are taking steps to ensure that that happens”.


I therefore close by asking the Minister to update us on progress in the area of mutual recognition of judgments and civil justice co-operation, and in particular on what steps the Government have taken since 17 July on acceding to the Lugano convention.