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

Lord Cashman Excerpts

Wednesday 20th December 2017 Lords Chamber

[Lord Cashman (Lab)]

My Lords, it is a great pleasure to follow the noble Baroness, Lady Shackleton. I thank her and other committee members for their support for this non-lawyer on that committee and, in particular, their patience. I also pay tribute to our chairman, the noble Baroness, Lady Kennedy of The Shaws, who has led us brilliantly. I came on to the committee very recently and have seen how, particularly when dealing with the public and taking evidence, she has used her skills and her charm to the benefit of Parliament and the committee.

I served as a Member of the European Parliament and was deeply impressed by the engagement of the British Government, the British legal system, NGOs and others with Commission proposals and those that subsequently became regulations. Here we are talking about three very important regulations which affect people’s lives.

The report considers the ramifications of Brexit for the EU’s programme of civil justice co-operation, whose regulations, as the noble Baroness, Lady Kennedy, referred to, are known collectively as the Brussels regime. The evidence in the report clearly illustrates that the three regulations and the system they engender play a significant role in the daily lives of UK and EU citizens—families, businesses and people who live, travel and work across not just one or two but in some instances 28 member states, of more than half a billion people.

As we know, human relationships can sometimes go wrong in many unpredictable ways: divorce; disputes over custody of children; medical negligence claims; litigation arising out perhaps an accident abroad; and employment disputes. Particularly given freedom of movement, all three regulations provide, as the noble Baroness, Lady Kennedy, said, certainty, predictability and clarity about where the resulting legal dispute should be pursued. They also provide for the automatic recognition—extremely important—and enforcement of judicial decisions and judgments throughout the 28 EU member states. They regulate a pan-European system of civil justice co-operation, which has been proved to work.

However, because of the Government’s ideological opposition to and obsession with the role of the Court of Justice of the European Union after Brexit, the certainty of civil justice co-operation directly overseen by the CJEU will cease. The Government’s stance is unhelpful and casts serious doubt on the future application of these three regulations and many others, and on the reciprocal rules they preserve between member states.

I return to the consequences for individuals, families and businesses seeking justice, its implementation and enforcement. This is deeply problematic and not helped by the European Union (Withdrawal) Bill—the Minister has heard me say this before on another occasion in your Lordships’ House—particularly Clause 6 on the development of jurisprudence post Brexit and its relevance to retained EU law. Senior Law Lords have already expressed their concerns to the EU Justice Sub-Committee on this matter on a separate occasion. I shall not go into further detail, but the uniformity and certainty given to general civil litigation by the Brussels I Regulation is very important because it brings certainty to all citizens and does not discriminate.

One of the fundamental principles of the current EU system is that it is there to protect people, reinforcing, I believe, the fundamental values at the heart of the European Union. The Brussels II Regulation, as we have heard, addresses important issues: divorce, legal separation, marriage annulment and parental responsibility, including rights of custody, access, guardianship and placement in a foster family or institutional care. These are vital issues for families, individuals and children. The maintenance regulation rules address matters relating to maintenance obligations. It is worth quoting Mr Tim Scott QC, who gave evidence on behalf of the Bar Council. Explaining the rationale of the two regulations, he said,

“there are 3 million citizens of other member states living in the UK and 1.2 million UK citizens living in other member states … A certain proportion of this very large number will experience contentious family breakdown”.

He said that the certainty provided by both regulations was “vital” and that,

“it is the ordinary citizens for whom this level of certainty is the most valuable”.

Another witness said of Brussels IIa that,

“it has overlaid all our pre-existing domestic legislation, so it spreads into every area of our domestic law … it has transformed the way family law has operated over the last 11 years”.

This is very important because EU law will continue to develop but we may well be left behind and there could be greater divergence between our laws post Brexit. Therefore, the uniformity introduced by the regulations, underpinned by the Court of Justice of the European Union, will be lost and people and businesses will suffer. It is worth repeating that it is not just people and businesses: families, individuals and children will suffer. I quote the report:

“To walk away from these Regulations without putting alternatives in place would seriously undermine the family law rights of UK citizens and would, ultimately, be an act of self-harm”.


I too have read the Government’s responses to the committee’s concerns and I share those concerns. I am not convinced that the Government have a coherent or workable plan to address the significant problems that will arise in the UK’s family law system post Brexit if alternative arrangements are not put in place, and I look to the Minister to convince me otherwise. I fear that those least able to deal with the consequences of Brexit—in this instance, the 3 million EU 27 citizens here and the 1.2 million UK citizens living in the EU 27, and many others—will pay the price of this narrow, dubious referendum and their lives and their futures will be harmed irrevocably.

My final plea is to the Government: they must compromise and accept that it is in our mutual interests and in the interests of all citizens to accept a role for the Court of Justice of the European Union where to date, in terms of all judgments, we have fared extremely well.