European Union (Withdrawal) Bill

Lord Farmer Excerpts

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

I will not say more on this as we have in our midst a greater expert on these issues than I am, the noble and learned Baroness, Lady Butler-Sloss. But could the Minister give us a view on the proposed post-Brexit alternative solutions offered by witnesses in chapter 4 of the report I have spoken about, or on any other alternative to these issues of family law? I have tried to give a brief flavour of how the whole package of benefits to families will disappear if family law is weakened and if we lose sight of the importance of decisions about Brexit which will affect families and children.

[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.

[The Archbishop of York]

I thank the noble Lord for giving way. He really needs to answer the question posed by the noble and learned Baroness, Lady Butler-Sloss. The Hague convention can of course go some way to help, but it is much weaker than the present reciprocal arrangements. It seems to me that it is no good to simply incorporate EU law that we then cannot reciprocate at all. What would be the point? What about, for example, extradition, where we have agreed with other countries that are not part of the EU to have the same arrangements? We have managed to do that for extradition and no sovereignty question has been raised—it is a question of process. Will the noble Lord explain how he thinks simply incorporating EU law into our laws is going to guarantee that British citizens who are in the EU and EU citizens who are in Britain are treated the same in matters of family law? How would that work?

[Lord Farmer]

I thank the most reverend Primate for his intervention. There is a requirement that our courts, as we heard earlier, would take regard of EU law. We were not being tied to precedent, but certainly—

[Lord Hannay of Chiswick (CB)]

I am grateful to the noble Lord for giving way, but I have some doubts about his repeated assertion that the sort of approach in the amendments is not being taken anywhere else in the EU statute book. I wonder if he would like to read the Prime Minister’s speech at Munich and her references to the European arrest warrant, and try to parse and construe them in any other way.

[Lord Farmer]

Am I going to be able to make my speech? I thank the noble Lord for that intervention. I will be referring to the Prime Minister’s speech on Friday, which I think has some bearing and is more up to date. I am happy to talk to the noble Lord following this debate.

The amendment is highly presumptuous in suggesting a report on a measure that has no established government or parliamentary support. Passing this amendment as even contemplating a possibility of ongoing reciprocal arrangements and thence continually being bound by EU law would allow and openly encourage other areas of law, trade and social life to seek the same. This is not what the Government have said they would permit or seek. Acknowledging the possibility of this distinctive arrangement will encourage the hope of other aspects of trading and commercial life in being bound to the EU in our future arrangements.

Finally, the amendment suggests that there should be a declaration whereby a Minister of the Crown considers whether the rights of individuals in the area of family law have been weakened. This is legally controversial—and I think relates to a point just made—because of a difference of opinion on the respective advantages and disadvantages for families of EU family laws. Proposed new subsection (2)(c) in this amendment is highly presumptive of the expectation that there will be weakened rights, and would act to countenance some sort of special arrangement for ongoing reciprocity and being part of EU laws.

Amendment 53 to Clause 6 would give a UK court the power for eight years after March 2019—that is, to 2027—to refer matters relating to family law to the European court for a preliminary ruling, and it would then be bound by that ruling. Moreover, proposed new subsection (1C) states that UK courts must have regard to decisions of the European court for those eight years, but these eight years could be extended with proposed new subsection (1D). Those eight years appear to me to be entirely arbitrary; certainly, they are intended to take us beyond the next general election. But again the intention of the supporters of this amendment would appear to be that we are forever bound by the European court.

This Bill brings EU law into UK law. The Government have made it very clear that we will not be bound by the European court, but we will give strong regard to its decisions. When we apply law which is the same as EU law, the Prime Minister has made it very clear that our courts will look at European case law. The UK courts will not be bound, as understood in the common-law system of precedent in which courts are bound by higher court decisions. This was the result of the referendum and the present approach of the Government. But when it is looking at UK legislation which is similar to or indeed the same wording as EU legislation, there will need to be strong and good reasons—in my words, but as generally understood—for us not to follow it. That is already similar to the way the UK courts look at the Supreme Court decisions of other friendly jurisdictions when dealing with other international family laws—for example, in relation to Hague conventions in respect of child abduction. The UK is well able and frequently does give very strong and high regard to such decisions without being legally bound by them.

The Prime Minister was clear in her Mansion House speech on Friday on this issue. She used very careful words confirming continued strong recognition of European court decisions but not bound in law. We cannot be bound by EU laws in a reciprocal arrangement with the EU in respect of EU laws unless we are also bound by the European court. The EU will simply not countenance the UK being part of any arrangement for being bound into EU laws without being bound into the European court. This amendment must fail because proposed new subsection (1B) requires that we are bound.

One of the reasons that I and others are very keen we leave this aspect of the EU and its political agenda is because the EU intends its laws to have universal application. This means that they do not apply to just intra-EU cross-border family matters. The EU laws must apply to all cases with no other EU involvement—so, at present, a London/New York family or a London/Sydney couple are bound by EU law. This deals with several areas such as divorce jurisdiction and the inability to bring claims for reasonable needs on a divorce settlement. If the amendment is allowed, we will have cases before the UK courts which have no EU aspect—because we will have left the EU—but in which one party could apply for a preliminary ruling to the European court where it suited their litigation advantage. One can imagine the astonishment of lawyers in, for example, New York or Sydney, saying, “But you, the UK, left the EU several years ago in 2019. Why is this still being referred to the EU and subject to EU law?” Today we must lay to rest, once and for all, any suggestion that the distinctive area of family law should alone be bound by European court decisions.

--- Later in debate ---

[Lord Liddle (Lab)]

This is not my area of expertise, but it seems to me that the noble Lord, in his very detailed speech, has not addressed the central point, made by the noble and learned Baroness, Lady Butler-Sloss, about the benefit of being able to enforce decisions in other member states. Is the noble Lord arguing that these wonderful international arrangements, which he referred to as being just as effective as the EU, provide for that enforceability? I very much doubt it.

[Lord Farmer]

I thank the noble Lord for another intervention. They are a matter of negotiation and finding the best practice, as they are even with the EU. As I said, up until now they have operated well with other Governments around the world. They work well in the USA, Canada, Australia and countless other countries.

The narrow definition of family law in Amendment 336 ignores certain EU laws on the service of documents and taking evidence because we have perfectly satisfactory alternatives through Hague worldwide laws. Moreover, working with worldwide family laws with countries across the world, not just Europe, fits in entirely with the Government’s intention that on leaving the EU we will be a worldwide-facing country, looking at our global role and using the leading initiatives and developments in the UK to aid and encourage other legal systems.

[Baroness Kennedy of The Shaws (Lab)]

My Lords, I am sorry that I was not here at the beginning of the discussion on this amendment. My name is on a later amendment associated with the discussions on family law. As many in the House know, I chaired the group in the European Union Select Committee that dealt with family law. We created the report referred to by the noble Lord.

It is just not true that world law deals with this issue just as well as European law. Every family lawyer will tell you that some directives have made a huge difference to the safeguarding of children, women with abusive husbands and enforcing maintenance orders made in this country. Those directives can be enforced in another country in Europe with great ease without someone having to get themselves lawyers over there. However, you cannot do that with the United States. You have to get yourself “lawyered” up to the eyeballs in America to deal with your husband taking your children there and not returning them to you. If your partner goes off to another part of the world and is not paying maintenance, it is a very expensive and problematic business to get maintenance paid for your children, who need it. Therefore, I ask the noble Lord to please not mislead the House by saying that there is an equality of arms in this respect around the world. That is not true. We seek a mechanism to make this system operate after we leave the European Union—some kind of agreement that makes it possible for children, and perhaps abused partners, to have proper mutual recognition arrangements to enable them to seek remedies and enforcement easily. That is the point of this and that is what is misunderstood by the noble Lord.

[Lord Farmer]

I thank the noble Baroness for her intervention. Perhaps I can speak to her afterwards concerning countries outside the EU. It is worth mentioning that Professor Beaumont who I mentioned earlier—a leading expert on both the EU and The Hague—said in his opinion that The Hague alternatives are perfectly adequate and satisfactory on our leaving the EU. Apparently, the House of Lords committee does not seem to have heard this evidence.

I am sure noble Lords will be pleased to hear that I am coming to the end of my remarks. This amendment should be rejected because it concentrates on the UK remaining Eurocentric, not global, which is an important point if we are leaving the EU. Academics and lawyers who would have spoken favourably about the Hague laws were not consulted by the House of Lords Justice Sub-Committee, yet practitioners and others have described to me the incredible benefits to children and families from the UK being part of these worldwide international laws.

[Lord Carlile of Berriew (CB)]

My Lords, the noble Lord, Lord Farmer, is rightly respected for his expertise on a number of subjects—this was not one of them. Indeed, it was palpable that the atmosphere in the Chamber was curdling as he spoke. I remind the noble Lord and, indeed, the Committee, and particularly the Minister, who I suspect did not enjoy the speech we have just heard, about the danger of double standards on this subject. I remind the Committee in particular of Section 1 of the Children Act 1989, and of the standard that that Act imposes on courts. By “courts” I refer to every court dealing with children’s issues, from the Amlwch magistrates’ court, if the noble Lord, Lord Wigley, will forgive that reference or enjoy the name check, to the Supreme Court and, indeed, to the President of the Family Division, a role which my noble and learned friend Lady Butler-Sloss filled with such great distinction. It is worth reminding your Lordships that the “paramount consideration”—those are the statutory words—when a court considers the upbringing of a child or anything to do with the child is that child’s welfare. Section 1 of the Children Act 1989 does not merely deal with physical aspects of the child’s life but includes, for example, in Section 1(3)(a),

“the ascertainable wishes and feelings of the child concerned (considered in the light of his age and understanding)”.

Those are the standards that this Parliament places on our courts.

There is a danger that, if the Government do not sort out the problems so ably articulated by those who have spoken to these various amendments, we will have a situation of double standards. The courts will be obliged to apply those standards but our Government will abandon them, possibly merely to avoid a few cases coming before the Court of Justice of the European Union. That is completely unconscionable. I am not saying that the only solution is to fall under the jurisdiction of the Court of Justice of the European Union; there may be alternatives, such as a treaty with the European Union that provides for similar processes, albeit through our own courts, and reciprocal arrangements with other courts. The Court of Justice of the European Union is not a shibboleth—one way or the other. It is just the current way of solving a series of problems, which nobody is able to improve on at the moment.

It would be completely unacceptable to hear from the Minister who responds to this debate words such as, “We hope to negotiate”; “We are considering negotiating”; or “We expect that we will achieve”. That will not do, because it does not put the welfare of children first. So when the Minister comes to reply, I hope that we will hear, specifically, how many meetings have taken place in an attempt to start to negotiate a resolution of issues affecting the welfare of children who may be abducted in the most appalling circumstances; when the next series of meetings is to take place on that subject; at what level it is being done; and to what extent the leaders of the family Bar and the family solicitors are being involved in the process of consultation and negotiation. Otherwise, we will have no option but to adopt something like these amendments on Report.