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

Lord Beecham Excerpts

Wednesday 20th December 2017 Lords Chamber

[Lord Beecham (Lab)]

My Lords, I refer to my interest as an unpaid consultant at my former solicitors’ firm. I should add that it gives me two tickets for Newcastle United matches, but in the present circumstances I do not regard that as much of a benefit.

It is now 18 months since the referendum and nine months since the Article 50 notice was given. We are only 15 months away from the deadline, yet the first meeting of the Cabinet to discuss the details of a post-Brexit future has only just taken place. Astonishingly, the meeting lasted all of one hour and 25 minutes, with 25 Ministers participating, giving an average of three minutes and 24 seconds per member—possibly exceeded by the likes of the three wise men leading the charge: Boris Johnson, David Davis and Michael Gove.

I congratulate my noble friend Lady Kennedy both on securing this debate and on the European Select Committee’s report, published nine months ago tomorrow. This debate has been a long time in gestation, due primarily to the dilatory response of the Government, which emerged only on 1 December.

Some Members of your Lordships’ House may recall a television series called “Candid Camera”. The picture portrayed by the Government is more like “Candide Camera”, emulating Voltaire’s famous character and giving the impression that all will be for the best in the best of all Brexit worlds. Its eight-page letter contains all of 25 paragraphs of reassurances, many of which, to put it mildly, are somewhat less than convincing.

It begins with the complacent claim:

“Our justice system and our legal sector will continue to be the envy of the world after EU Exit”,


which seven years of attrition in access to justice in this country and growing difficulty in making judicial appointments somewhat belie. It goes on to assert that the Government will,

“need to build a bridge from our exit to our future partnership”.

It is the same aspiration repeatedly voiced by the Government over other areas but not one, apparently, shared by the EU. So, far from building a bridge, we appear in danger of walking the plank. What response has been received to this aspiration and its proposed,

“strictly time-limited implementation period”?

The Government’s response to the committee’s call for provisions in any withdrawal or transitional agreement to address specifically the Brussels I Regulation is, to put it mildly, less than confident.

In the important area of family law, mentioned by a number of speakers, including the noble Baroness, Lady Shackleton, my noble friend Lord Cashman and the noble and learned Lord, Lord Hope, there is clear concern about the problem of cross-border cases, including international child abduction and financial provision. The Government’s response in August was that they are seeking an agreement to achieve cross-border collaboration in these areas. Perhaps the Minister could indicate what progress, if any, has been made.

As an article in the New Law Journal in October pointed out, while the August paper on cross-border co-operation affirmed an intention to continue to participate in the four Hague conventions to which we subscribe directly and the two to which we subscribe by virtue of EU membership,

“no mechanism for this to happen”,

was included in the paper.

We are dealing here with highly sensitive issues, from divorce and separations to child abduction and protection, adoption, the enforcement of orders for maintenance and the choice of court. Both the former and current President of the Supreme Court have called for clarity on these matters. Where do we now stand in terms of both timescale and substantive proposals?

Paragraphs 27 to 31 of the committee report raise the issue of the jurisdiction of the Court of Justice of the European Union, which the Government rejects, although the committee was,

“left unable to discern a clear policy”.

The response was flaccid, proclaiming the,

“need to ensure future civil judicial cooperation takes into account regional legal arrangements”.

How do the Government propose this is to be achieved?

The report’s conclusion called for a “coherent plan” for addressing the three sets of regulations covering families, individuals and businesses, to which the response, characteristically, falls back on the platitudinous assertions that:

“Where disputes arise, these will also continue to need to be settled. Cooperation on the civil judicial mechanisms and procedures which underpin these relationships is essential, and the best way”—


I interpolate “in the best of all possible worlds”—

“to deliver that cooperation is through a close and comprehensive agreement between the UK and the EU, that sets out coherent common rules”.

The Government’s contribution to achieving such an agreement consists of an eight-page letter sent on 1 December, but can the Minister say what, if any, progress has been made in the last four months in discussions with the EU?

Much is at stake, not least in relation to the UK’s legal services. The Law Society, in a fuller paper than that provided by the Government, calls, among many other issues, for the ability to recruit skilled individuals from Europe, access to practise in the UK and the maintenance of recognition and enforcement of judgments with EU states. It places emphasis on the need to deal swiftly with cases involving children and asserts that the UK should sign up to international conventions on family law, now covered by its EU membership. It also calls for maintaining participation in the process of serving documents and taking evidence. Do the Government agree, and what assurance can they give that these objectives will be met?

Not unnaturally, the Law Society also points to the significant contribution of legal services to our economy, including £3.7 billion of net export value. It points out that the UK is the second largest legal services market in the world and the largest in the EU, accounting for as much as 20% of all European legal fee income. All of that is under threat. Other countries are already believed to be following the trend in the banking and financial services sectors in seeking to displace the UK as a forum for dispute resolution and the source of legal advice and representation.

The society, in its report of January 2017, referred to two reports it published as long ago as September and October 2015 covering a wide range of substantive issues as well as the implications for the profession. Have the Government responded to that document and to what extent are they reflecting the society’s concerns in their approach?

The committee’s report also addressed the critical issue of the Brussels I Regulation and the potential impact on citizens and businesses of failing to reach agreement on its application after Brexit. In their response, the Government, inter alia, said that they had proposed a time-limited implementation period pending the preparation of new processes and systems. Again I ask: what response have they received?

The Government have also stated that,

“in the event that we do not agree an arrangement for future civil judicial cooperation with the EU, it will be important to have reached a common view on the general principles that would govern how ongoing cooperation in this area could be wound down”.

Given that both the Government and the EU have published their general principles in this area, can the Minister indicate how close or distant the two approaches are?

Today, in an interesting judgment, the European Court of Justice has ruled that Uber is a transport company, not a digital service, and as such its drivers should have employee rights. Is this a decision welcomed by the Government or one they would seek to change under Brexit?

It is difficult to avoid the conclusion that we are embarked on a voyage into uncharted waters with no clear destination, a potentially mutinous crew and an indecisive captain. I wish only that we had the equivalent of my noble friend Lord West at the helm.