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

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Department: Scotland Office

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

Lord Hope of Craighead Excerpts
Wednesday 20th December 2017

(6 years, 3 months ago)

Lords Chamber
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Lord Hope of Craighead Portrait Lord Hope of Craighead (CB)
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My Lords, it is a pleasure to follow the noble Lord, Lord Cashman. If he will forgive me, I am afraid that this is a contribution by another lawyer—although not with anything like the experience and insight into these matters of the noble Baroness, Lady Shackleton of Belgravia. I congratulate the noble Baroness, Lady Kennedy of The Shaws, on her committee’s excellent report. I extend my compliments to the members of the committee, many of whom are present.

At the risk of some repetition, I shall concentrate on the section of the report which deals with Brussels IIa and the Maintenance Regulation. This is a little technical but these are the measures that are concerned with the rights of adults and children with regard to matrimonial matters; parental responsibility, including rights of custody and access; and the very important issue of child abduction. They supplement the Lugano and Hague conventions on these matters. As I shall mention in a moment, they do so in a way that is crucial to the points to which the report draws attention.

It struck me that there were two words that the noble Lord, Lord Cashman, stressed several times: predictability and certainty. That is what these measures give us, against the rather looser background of the conventions—much to the advantage of everyone involved in these matters, be they commercial entities or families.

At the end of his speech the noble Lord, Lord Cashman, drew attention to the passage in the report which says:

“To walk away from these Regulations without putting alternatives in place would seriously undermine the family law rights of UK citizens”.


I do not think it was an exaggeration for the report to go on to say, as the noble Lord did, that to do that would be,

“an act of self-harm”.

That underlines the crucial nature of the issues we are talking about.

The issue is of concern to UK citizens in all parts of the United Kingdom, not just the jurisdiction in which we are today: England and Wales. It might be worth inviting the Minister to study an article by Janys Scott QC—whose name, I am sure, is familiar to him; she is a senior practitioner in family law in Scotland—in this month’s edition of the Journal of the Law Society of Scotland. She draws attention, as the noble Baroness, Lady Shackleton, did, to the risk of conflicting proceedings if our domestic courts are bound to resort to our own procedures without the benefit of the reciprocity in family matters that the regulations provide. She points out that the withdrawal Bill does not create that reciprocity: in fact, it removes it, and puts nothing in its place. The risk is of conflicting actions in different countries ongoing at the same time, with conflicting decisions and no way of deciding which must prevail. That surely is a recipe for much delay and expense and is quite contrary to the principle that gives priority to the best interests of the child. As I mentioned, there are other international treaties, but they are less clear and less decisive than the Brussels measures.

That point is illustrated very clearly in the European Commission’s guide to the provisions for the return of the child. In the table you find phrases such as “not obliged to” and “may refuse” in the Hague Convention, when for the same stages in the procedure the regulations say “cannot refuse” and “shall ensure”. There you see the certainty and predictability that the noble Lord, Lord Cashman, drew attention to. We cannot rely on the conventions to provide the certainty we need. We need to maintain the same reciprocity, attention to detail and standards of precision that operate across the EU. As Janys Scott says, family law deserves serious attention if Brexit is not to result in confusion and expense for families who find themselves stretched between one or other of the jurisdictions in the UK and other European states when the misfortune of break-up strikes.

This brings me to the Government’s response, bearing in mind the sub-committee’s warning that it was not convinced that the Government had, as yet,

“a coherent or workable plan to address the … problems … if alternative arrangements are not put in place”.

We have now been told in the response that the Government are seeking,

“an agreement with the EU that allows for close and comprehensive cross-border … co-operation”,

in family matters, which would provide a range of reciprocal rules. I am not wholly reassured, so I have two questions for the Minister.

The first is: can he give us an assurance that, when the Government are seeking an agreement with the EU in these matters, the aim will be to achieve the same high degree of reciprocity and predictability that we have now? The response talks about “close” cross-border co-operation, but the words “close” and “closely” are not really good enough. Precision, predictability and certainty are what we are looking for, leaving no room for doubts that could give rise to dispute. Will that be the aim? I very much hope that it will.

The second question is: can he assure us that everything will be done to ensure that there will be no cliff edge on these matters when we leave the EU? If the current arrangements are to continue during the transitional or implementation period after the exit date, can we be assured that they will continue even after the end of that period if an agreement cannot be reached and the replacements put in place by then? The Minister will, I am sure, appreciate how highly charged family disputes can be. We must surely do everything possible to avoid a gap in the cross-border arrangements: a black hole, one might say, which would make their resolution even more difficult than it already is.

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Lord Keen of Elie Portrait Lord Keen of Elie
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That is absolutely correct, but the noble Earl, Lord Kinnoull, brought this out more fully when he distinguished between cases in the pipeline and those that arise post Brexit. As paragraph 91 of the joint report points out, there will essentially be agreement—or consensus; let me put it that way—on how we deal with existing cases at the point when we leave the European Union. But there is no desire to see us walk away or wind down the existing regulatory regime.

The noble and learned Lord, Lord Hope of Craighead, posed two questions in the context of the Government’s response, where we talk about a “close and comprehensive agreement”. It cannot be a mirror of what is already there, because of the jurisdiction of the CJEU, but “close and comprehensive” is what we seek.

The noble and learned Lord’s first question was whether we could give an assurance that the aim is to achieve the same degree of certainty and predictability. The answer, I would suggest, is yes. The aim is most certainly to achieve that. I assure him that there will be no cliff edge. We have no desire for there to be any cliff edge anywhere, but that will be the subject of negotiation because we are now entering the second phase. Perhaps it is more important to point out that the Government’s aim in this context is to ensure that we have certainty, predictability and continuity.

Lord Hope of Craighead Portrait Lord Hope of Craighead
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What would happen if at the end of the time-limited implementation period it had still not been possible to achieve what the noble and learned Lord said in answer to my first question?

Lord Keen of Elie Portrait Lord Keen of Elie
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If at the end of the transition period there had been no agreement, there would be no basis for reciprocal enforcement pursuant to Brussels Ia, Brussels II and those regulations, because we would no longer be a member of the EU for those purposes. That would appear to follow. Nevertheless, there would still be recourse to the Hague convention, although I am the first to accept that the convention provisions do not replicate or achieve the level of predictability and certainty that is in the Brussels regulations.

Lord Hope of Craighead Portrait Lord Hope of Craighead
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Does that not just heighten the importance of achieving agreement during the implementation period as a matter of urgency?

Lord Keen of Elie Portrait Lord Keen of Elie
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I absolutely concur, which is why we and the EU have expressed a desire to move forward to the second phase of negotiations as swiftly as possible. I emphasise that this is about reciprocity. It is about the interest not only of the United Kingdom but of the EU. It appears to me that those interests will eventually prevail.

I am afraid that I keep on getting a note saying that I have one minute to go and I keep on stretching that one minute. I have not expressly addressed all points raised by noble Lords, but perhaps I may touch on one or two. I entirely concur with the noble Lord, Lord Cromwell, that one cannot negotiate in public. We can express our intentions and our aims, but it is very difficult for us to give a running commentary about where we are on these issues any more than on other issues, but I underline our aims in this context.

The noble Earl, Lord Kinnoull, referred to the delay in the Government’s response to the report. I apologise for that. The report was followed by the general election and then by the Summer Recess. The government paper was issued on 22 August, when I believe that the noble Baroness, Lady Kennedy, was invited to take part in a briefing on the matter, but I accept that it took until the beginning of December for the response to be published.

The noble Lord, Lord Beecham, asked about progress in “discussions”. These are not discussions; these are negotiations. The noble Lord is a very experienced lawyer and knows perfectly well that one cannot have or maintain a running commentary on such matters when one is hoping to achieve consensus at the end of the day. However, we verily believe that we will achieve certainty and predictability, which, I emphasise again, is our aim.

I again thank the noble Baroness, Lady Kennedy of The Shaws, and her sub-committee for the report.