Leaving the EU: Justice System

Kate Green Excerpts

Thursday 29th March 2018 Westminster Hall

[Kate Green (Stretford and Urmston) (Lab)]

It is a pleasure to contribute to this debate under your chairmanship, Ms Buck. I was a member of the Justice Committee when the report was produced in the previous Parliament. It is good to join my former colleagues and other hon. Members in this debate.

I want to concentrate on the implications for children mentioned in the Committee’s report. I have been speaking as often as I can about what Brexit will mean for our children. I tabled several amendments to the European Union (Withdrawal) Bill, and I would like to speak about some of the issues I raised then. They have also been raised extensively in the House of Lords, including by the noble Baroness Butler-Sloss and Baroness Tyler, and my noble Friends Baroness Sherlock and Baroness Massey, as recently as their debate on the Bill on 5 March. Every single one of us has pleaded with the Government to give the utmost priority to the protection of children when we leave the European Union. Here we are, as other hon. Members have said, with exactly a year to go, and the Government are still expressing no more than a wish for close co-operation, without any indication of substantive progress. We need to hear exactly what the Government are doing.

The concerns I want to speak about arise from two issues raised in the Select Committee’s report. The first, which has been discussed extensively this afternoon, relates to criminal law and the ability we enjoy now, under a range of European Union instruments, agencies and mechanisms—including Eurodac, the European arrest warrant, Eurojust, Schengen Information System II and so on—to pursue offenders and bring them to justice across the European Union. Those instruments have all been especially important in the protection of children, who face a rising risk of complex cross-border crime, such as trafficking, child sexual exploitation, grooming and online abuse.

We all agree that close co-operation on matters of criminal justice is the goal of not only the Government but the European Union, but we are no further forward in knowing how the Government intend to achieve that, and how they will maintain, adapt or replace our engagement with those institutions post Brexit. A further anxiety has arisen recently: Ministers have refused to incorporate the charter of fundamental rights into UK law in the European Union (Withdrawal) Bill or to recognise the jurisdiction of the Court of Justice of the EU after Brexit. The problem that that raises was highlighted recently by the case of O’Connor, referred by the Irish Supreme Court to the Court of Justice of the European Union on 1 February. That case relates to whether the Irish Government should execute a European arrest warrant request from the UK for an Irish citizen, which would entail his potentially being imprisoned in the UK after Brexit, when we no longer adhere to the European Union charter. We can all see the dangers for the protection of children that might arise from the circumstances highlighted by that case.

The anxieties do not just relate to the criminal justice system. The Select Committee’s report deals in detail with family law, on which the position is equally uncertain and fraught with risk. Important provisions in the Brussels IIa regulation, which deals with divorce and with child residence and contact arrangements, including, very importantly, the issue of child abduction—the unlawful removal of a child from the care of the parent—and in the EU maintenance regulation of 2009 cover matters of jurisdiction of enforcement. They put in place a reciprocal system for mutual recognition of the decisions of each member state’s courts across the European Union.



Again, the Government say that they want a coherent set of common rules that will be clear about which country’s courts can hear a dispute, which country’s laws will apply to resolve it and how judgments should be recognised and enforced across borders after Brexit. However, in relation to family law the process of achieving that remains opaque. For a start, although I assume we will incorporate the provisions of Brussels IIa into UK law under the European Union (Withdrawal) Bill, thus obliging our courts to continue to apply the decisions of the courts of other EU countries, the reciprocal nature of Brussels II means that there will be nothing we can do once we leave the EU to force the courts of those countries to apply the decisions of our courts unless we can make alternative arrangements.

What is more, Brussels IIa is now being renegotiated—upgraded, as it were, and indeed the UK Government have played an active role in those renegotiations—but the changes are unlikely to take effect before Brexit. If we incorporate the Brussels II rules into UK law under the withdrawal Bill, they will quickly, if not almost immediately, be superseded by that later legislation.

In their response to the Select Committee report, the Government acknowledge that we might have to fall back on the arrangements in the Hague and Lugano conventions. Everyone recognises, however, that those conventions are inferior in important respects to the more robust and speedier processes available under Brussels IIa—especially and troublingly in relation to child abduction—which the renegotiation seeks to strengthen further. As the Committee heard in our evidence sessions, the existence of Brussels IIa has meant that there has been less incentive to keep the Hague convention up to date, and because most lawyers have become accustomed to relying on Brussels IIa, there is a lack of experience in applying and using the provisions of the Hague convention.

Furthermore, if Ministers seek to rely on the Hague convention, it is still not clear to me whether the UK will have to ratify it in our own right after Brexit—we participate now by virtue of our European Union membership. Yet the requisite three months’ notice to do so means that time is pressing if we are not to be left with a gap in the more limited protections that the Hague convention can offer in relation to family law.

I know, as do all my colleagues, that the Minister is well aware of and concerned about both the complexity and the urgency of all these issues. I have to say, however, that the Government response to the Committee’s report is worryingly thin. I join colleagues throughout the House in pressing the Minister to update us on where the Government are with negotiations on Brussels IIa, the maintenance regulation, the Lugano convention and the Hague convention, including the possible Hague re-ratification. Also, what guarantees will she give the House that a seamless system of international judicial co-operation, mutual recognition, and criminal and civil justice measures will be in place, without gaps, to ensure the continuing and vital protection of children at the moment of our exit and in future? I look forward to her detailed response.

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

It is a pleasure to serve under your chairmanship, Ms Buck.

I pay tribute to the Select Committee and its Chair, the hon. Member for Bromley and Chislehurst (Robert Neill), for their concise, clear and balanced report on how Brexit could impact on criminal and civil justice and the legal industry. I feel like an interloper at a Justice Committee club meeting today, so I shall start by trying to make friends, by congratulating everyone on their excellent speeches and saying that I agree with almost everything that has been said—indeed, I agree with almost everything in the report as well, including the four recommendations that the right hon. Member for Delyn (David Hanson) highlighted, so I will not repeat them.

Broadly speaking the Government, too, seem to agree with what we are all saying, so in one sense we are singing from the same hymn sheet, but the debate has provided an excellent opportunity to press them on what if any progress has been made in pursuing their goals and in overcoming the many obstacles highlighted in the report. As the Chair of the Committee said in opening the debate, good intentions are no longer enough. He called for urgency, which is exactly what the Select Committee on Home Affairs—where I feel slightly more at home—also called for in a recent report.

The right hon. Member for Delyn and the hon. Member for Stretford and Urmston (Kate Green) rightly said that the issue is now not so much about the Government’s broad objectives as about the how, the when and the details, which need to concern us now. Before I go into that, however, Members have rightly flagged up a number of the benefits of EU systems and laws for justice in the United Kingdom, reflecting the point that we are debating, so I shall turn briefly to their contributions.

In the area of criminal justice, the right hon. Member for Delyn, the hon. Member for Cheltenham (Alex Chalk) and the hon. Member for Stretford and Urmston all highlighted a number of important EU schemes and agencies. First and foremost, the European arrest warrant, while not perfect, is definitely and significantly better than the alternatives. The hon. Member for Cheltenham explained one reason why that is the case, but there are others, and we have seen certain countries take a long time to negotiate and have access to alternatives.

We have also heard about Europol, the co-operation and data sharing that come with that institution, and how it has become critical to policing in the United Kingdom. Only last year membership of Europol proved pivotal in helping Police Scotland and the Romanian police to dismantle an organised crime network that was involved in the trafficking of victims for sexual exploitation. Day in, day out we hear a lot of other examples of that type of work being carried out with the help of Europol.

Eurojust brings clear benefits when it co-ordinates prosecutions where more than two countries are affected. We heard about the range of data sharing agreements such as ECRIS, SIS II and the Prüm treaty, which have brought huge benefits to our police forces. In the realm of civil justice, the hon. Member for Stretford and Urmston spoke expertly about the benefits of Brussels IIa, in particular in cases of child abduction. The Committee report, however, is balanced and not starry-eyed about such EU institutions, acknowledging that they are not perfect—for example, in divorce cases Brussels II seems to encourage a race to issue proceedings, therefore discouraging mediation.

The Committee Chair highlighted the benefit, albeit again not without flaws, of the maintenance regulation, to which there seems to be no obvious alternative after Brexit. Finally, on legal services, the hon. Member for Enfield, Southgate (Bambos Charalambous) highlighted, among other things, the huge importance of rules that allow for the free movement of lawyers and legal services, including mutual recognition of qualifications and practising rights. Members therefore rightly asked a huge number of questions to which it would be good to have answers from the Government.

In relation to criminal justice, everyone might agree on the importance of maintaining the “closest possible co-operation”, as the report says, but achieving that will be complicated. For example, on Europol, other third countries’ arrangements clearly do not bring them the same benefits as membership does for the UK. There have already been a number of Rob Wainwright quotes, and I will fling in a final one from before the Brexit referendum. He warned that leaving the EU meant that in essence the UK could become “a second-tier member” of the Europol club. We need to ask: what exactly are the Government seeking to achieve in negotiations? Norway and Iceland show that access—or even establishing similar arrangements—to the European arrest warrant and Prüm is not straightforward. What is Government’s thinking about how to replicate the mutual benefits of those schemes?

As the hon. Member for Cheltenham highlighted, it is increasingly apparent that the adequacy of our data protection regime will be pivotal. Standards will be applied more strictly and more broadly once we are outside the EU. There are concerns that the provisions of the Data Protection Bill could fall short—one area of concern is the sweeping immigration exemption. Similarly, the UK’s surveillance and interception regime will be exposed to a new level of scrutiny by EU institutions after exit. What work is ongoing to ensure that UK legislation and arrangements will survive such detailed scrutiny?

As other Members have said, the jurisdiction of the European Court of Justice is an issue that cuts across many of those subjects. My party has no problem with the European Court of Justice and its possible jurisdiction, but what I want from the Government is at least an assurance that ensuring that our citizens continue to benefit from EU justice measures far outweighs the strange obsession that some have about ending the Court’s jurisdiction. That is a red line that should be deleted, at least in so far as it comes to justice and home affairs issues.

[Kate Green]

I am grateful to the hon. Gentleman for drawing attention in more detail to the issue of the European Court of Justice. Particularly in relation to family matters, its oversight is inevitably confined, given the nature of the reciprocal arrangements, to matters of process rather than the substance of law. Does he not agree that the Government could perhaps be more relaxed about the Court’s continuing engagement in our law?

[Stuart C. McDonald]

As I said, I am very relaxed about European Court of Justice jurisdiction generally, but the hon. Lady and the Committee report make a case, specifically with regard to matters of procedure or even jurisdiction, for there being no reason for the Government to be overly concerned with the role of the Court at all.

The Chair of the Select Committee, the hon. Member for Bromley and Chislehurst, also rightly flagged up the issue of clause 6 of the exit Bill. I agree that it is unhelpful and needs to be strengthened; instead of guiding or directing judges, it seems to be buck passing. We need to protect judges from accusations of making political decisions, as the hon. Member for Cheltenham rightly explained.

The right hon. Member for Delyn flagged up the question of whether all this can be managed in less than two years. I stand to be corrected, but with justice and home affairs being areas of shared competence, I understand that agreements on participation in some of these schemes may well need approval both from the EU institutions and from individual member states. Conceivably, in some of those member states, that could mean parliamentary ratification or even a referendum. Will the Government give some clarity on whether that is their understanding, and on what contingency plans exist for that possibility?