Draft Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019 Draft Civil Partnership and Marriage (Same Sex Couples) (Jurisdiction and Judgments) (Amendment Etc.) (EU Exit) Regulations 2019

Debate between Lucy Frazer and Mhairi Black

Wednesday 30th January 2019 General Committees

[Lucy Frazer]

As always, Sir David, it is a pleasure to serve under your chairmanship. The two draft instruments form part of the Government’s preparations for the event that the UK should leave the EU without a deal. They relate solely to our no-deal preparations.

The Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations relate to the arrangements in family law that will apply when we leave the EU. They deal with the rules that determine which court should hear a family law matter, and they cover co-operation between the courts in the recognition of the judgments of EU courts. They will repeal the EU rules, because the reciprocity of those rules across member states will be lost when the UK leaves the EU; EU member states will no longer apply them to cases that involve the UK. The relevant matters will be governed instead by existing international conventions and a combination of new and pre-EU domestic rules.

Before I go into the detail of the draft regulations, it may be helpful if I outline the existing arrangements in the EU in respect of the law on this area. There are two applicable EU regulations: the Brussels IIa regulation and the maintenance regulation. The Brussels IIa regulation provides the rules that determine which court has the jurisdiction to hear various family cases—for example, whether a divorce hearing in a case with a cross-border element should take place in the UK or in another EU member state. The regulation covers divorce and matrimonial disputes; parental responsibility disputes, such as disputes between parents over the residence of their child or contact with their child; and care proceedings. It also provides for the recognition and enforcement of one member state’s judgment in all member states. Similarly, the maintenance regulation sets out rules about which EU member states’ courts have jurisdiction in cross-border cases that concern family maintenance, and about the recognition and enforcement of judgments.

What will change if we leave the EU without a deal? Without an agreement to cover these matters, the Brussels IIa regulation and the maintenance regulation will no longer operate effectively between the UK and the EU. Even if the UK tried to apply those rules after exit, the EU27 would no longer be obliged to apply them in relation to the UK because we would be a third country. For example, they would not be required under the regulations to enforce or recognise decisions of courts in the UK. In the light of those circumstances, the draft regulations will revoke the Brussels IIa regulation and the maintenance regulation, but that does not mean that we will be left without rules on international co-operation.

The UK is a contracting state to a number of Hague conventions in the field of family law that cover many of the same areas as the Brussels IIa regulation and the maintenance regulation. In particular, the 1996 Hague convention covers similar ground to the Brussels IIa regulation in respect of jurisdiction, recognition and enforcement of judgments and co-operation between authorities in matters of parental responsibility. All EU member states are bound by that convention: the UK and all EU member states are contracting parties, so it applies between us and each of them.

[Mhairi Black (Paisley and Renfrewshire South) (SNP)]

I am confused by paragraph 7.3 of the explanatory memorandum to the draft family regulations, which states that the

“instrument amends domestic law so that the 1973 Hague Convention…will again operate between the UK and those EU Member States party to them where appropriate.”

Are all EU states party to the convention, or are there cases in which certain countries are not?

[Lucy Frazer]

There are the Hague conventions of 1970 and 1996. All EU member states are party to the 1996 convention. In addition, we have the 2007 Hague convention, which contains similar recognition and enforcement rules and provisions on co-operation between authorities as those in the maintenance regulation, and which applies to all EU member states except Denmark.

We have ensured that the UK will, in the event of a no-deal exit, be a contracting state under the 2007 Hague convention after exit. We will continue to use the wide rules in the Family Law Act 1986 for the recognition in the UK of overseas divorces, and those in the Civil Partnership Act 2004 for the recognition of such dissolutions. There will be some gaps in coverage and the potential loss of effectiveness and efficiency. In particular, there is no Hague convention covering the grounds of jurisdiction for divorce or maintenance.

For jurisdiction in maintenance cases, the draft statutory instrument makes provision to return, therefore, to the rules of common law or statutory rules that operated before the maintenance regulation and other relevant instruments came into force. We will also amend our common law in relation to the jurisdiction for divorce cases. The Brussels IIa jurisdiction grounds presently apply to all cases, regardless of whether there is any overseas connection or whether any overseas connection is to an EU member state or to a state outside the EU.

Those grounds have applied for a long time and will have the benefit of familiarity, having been tried and tested. We will replicate in domestic law the applicable Brussels IIa grounds for England and Wales and Northern Ireland, and make a further ground of sole domicile applicable to all cases.

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[Mhairi Black]

I am grateful to the Minister for indulging me. To be absolutely clear, does this mean that there will be some EU states with which we will not have a framework for the recovery of such payments, or is it a blanket framework that every EU country will be under?

[Lucy Frazer]

I understand that all member states sign up to the Hague convention. In fact, the EU signs up to the Hague convention, and therefore the member states are signed up as parties under the umbrella of the EU.

There are a number of additional matters to raise. In relation to the first statutory instrument, we are very grateful to family law practitioners for raising two issues about maintenance that we are urgently considering. Both are technical and complex. The first relates to jurisdiction and remedies under the Children Act 1989 and whether, in returning to the pre-EU position, the instrument has inadvertently narrowed the jurisdiction of the English and Welsh courts and the type of financial awards they can make. The Government’s position is that the current position is appropriate, and there is no intention to reduce or narrow the provision available to families. The Government will bring forward a further SI to address that.

The second issue relates to whether, post exit, an English or Welsh court will have the power to rule on pension-sharing arrangements in cases where a person does not have a connection to England or Wales but is unable to bring the claim elsewhere. Although only a small number of cases will be affected, we will consider whether that issue should be addressed.

I shall now deal with the draft Civil Partnership and Marriage (Same Sex Couples) (Jurisdiction and Judgments) (Amendment etc.) (EU Exit) Regulations 2019. The UK Government’s position has always been that we will apply the same rules on jurisdiction, recognition and enforcement to same-sex divorce and civil partnership dissolution as we do to opposite-sex divorce.

As Brussels IIa does not apply in relation either to civil partnership dissolution or to divorce between same-sex couples, our domestic law mirrors the relevant provision for those cases. It is entirely appropriate to take a similar approach to determining jurisdiction, recognition and enforcement as that taken for opposite-sex couples. That is what the regulations will do.

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[Lucy Frazer]

Thank you for the opportunity to reply, Sir David.

The hon. Member for Bolton South East was absolutely right to identify the importance of this area. Three million EU nationals live in this country, and the EU has recognised that if we move forward with a deal, it would be interested in co-operating in this area, such is the importance of family law.

I will touch on a couple of important points that were made by Members from across the Committee. On guidance, the Government released a technical notice last September dedicated to civil judicial co-operation that set out what will be our approach in the event that we are unable to reach a deal, so people have had some time to analyse our approach and to think about it carefully.

There has been the suggestion that we have not done a formal consultation. I assure Members and the public that my Department has engaged fully with legal practitioners and the judiciary to understand these complex areas. We have a Brexit Law Committee that advises us, comprised of professional lawyers—both barristers and solicitors—and representatives from the City and the judiciary. It has sub-committees, including a family sub-committee, which regularly meets my officials. I have also done a roundtable on family law matters, to ensure that the difficult issues we face are dealt with.

[Mhairi Black]

I appreciate the Minister’s giving way; she has been very kind to me throughout our proceedings. However, we can only go by what is in front of us. I have no doubt that the Minister has a jam-packed diary, but the explanatory notes to the draft family regulations clearly say:

“There has been no formal consultation on this instrument.”

Given the importance of the kind of stuff we are talking about, we need more than that to be able to support the draft instruments.

[Lucy Frazer]

I understand what the hon. Lady says. While there might not have been a formal consultation, in the governmental sense, I assure her that we look at these issues with professionals, internally and externally, to ensure that we take the right course.

There are impact assessments. They are published online with the draft instruments themselves. I am happy to share those with any Member. My officials have undertaken a full impact assessment for these draft instruments, which found that we should expect a cost increase for Her Majesty’s Courts and Tribunals Service, because we expect case volumes to increase and there might be the risk of parallel proceedings in other EU countries. However, we are taking steps in relation to those matters.

On the point the hon. Member for Paisley and Renfrewshire South made about the 1970 Hague convention on divorce and legal separation, it is true that only 12 EU member states are party to it. The convention was implemented in the UK by the Family Law Act 1986. Its rules allow generous recognition provisions for overseas divorces to be recognised in the UK, whether or not the country in which the divorce was granted is a party to the 1970 convention, providing minimum criteria are met. We have been clear that, regardless of the outcome of Brexit, we will support developing the scope and coverage of international family law conventions, including the 1970 divorce recognition convention.

To assuage the concerns of the hon. Member for Paisley and Renfrewshire South about Scotland specifically, Scotland is not necessarily taking the same approach as England, Wales and Northern Ireland to all such matters. The draft family regulations revoke Brussels IIa for England and Wales and Northern Ireland; it does not revoke it for Scotland, except for the provisions of Brussels IIa relating to the child abduction override—otherwise, Scotland is making its own provisions. The instrument revokes the maintenance regulation for all parts of the UK, except in relation to ongoing proceedings. Obviously, the Hague convention issue will apply across the UK.

I hope that I have dealt with the points that have been made. If any remain, or if there are others, I am happy to write to Members. I therefore recommend that the provisions of the draft statutory instruments become law.

Question put.

Draft First-tier Tribunal and Upper Tribunal (Composition of Tribunal) (amendment) order 2018

Debate between Lucy Frazer and Mhairi Black

Thursday 26th April 2018 General Committees

[Lucy Frazer]

On the first point, the Senior President of Tribunals does not currently have to consult the Lord Chancellor. This measure will bring the tribunals into line with all the other courts, where the Lord Chancellor is consulted on changes to the composition of panels. On the point about a review, I am confident that there will be an impact assessment.

[Mhairi Black]

If the Senior President of Tribunals does not have to go to the Lord Chancellor already, what is the logic in introducing the change just now? The impartiality of the Senior President of Tribunals might be called into question if he is suddenly having to justify things. Would the impact assessment be within a year’s time, or is it two or three years away?

State Pension Age

Debate between Lucy Frazer and Mhairi Black

Tuesday 21st November 2017 Westminster Hall

[Mhairi Black (Paisley and Renfrewshire South) (SNP)]

Because of the constraints on time, I will rattle through this fairly quickly. We have basically got three main concerns that are relevant to this debate.

First, we want to make it clear that we oppose plans to increase the pensionable age beyond 66. That is a reckless move just now, and is not reflective of how long people are really living. The other element—which was touched on by the hon. Member for Coatbridge, Chryston and Bellshill (Hugh Gaffney), who I am very grateful to for securing this debate—is that Scotland has a very different demographic to many other parts of the UK. Even within the UK, we have different demographics in different areas. As was mentioned, some people in Glasgow barely see their 65th birthday, never mind live long enough to receive the pension that they have paid into.

[Lucy Frazer (South East Cambridgeshire) (Con)]

This is a very important debate, and women play a considerable role in society, but will the hon. Lady accept that statistics from the National Records of Scotland put the life expectancy for women higher than that for men? In fact, it is 77 years for baby boys and 81 years for girls.

[Mhairi Black]

No, and I will tell the hon. Lady why. Yes, I recognise that physically human beings are living longer, but the inequalities that exist within our society are not moving with that. We have a situation where some folk in Glasgow or Paisley barely see their 50th birthday. They are doing well if they get to 65. That is the reality for many of our constituents and it has to be reflected when we make new policy.

When I first laid eyes on the issue of pensions, when I was elected, I just thought, “This is such a mess.” What strikes me most about the issue is that I do not think the Government have sat and cruelly decided who the most vulnerable people are and how they can attack them; I do not think that has happened. What I think has happened is that we have realised that pensions have become a bit of a mess, and we are so worried about—I do not know—what Channel 4 is going to report the next day or whatever, that we have to grab the headlines and have to be seen to be doing something good. All that is doing is trying to stuff this big problem back into the closet, rather than taking it out and going, “Let’s have a serious look at this.” That is what I had hoped the Cridland review would do. My right hon. Friend the Member for Ross, Skye and Lochaber (Ian Blackford), the Scottish Government and I made many appeals to the Cridland review, raising our concerns about how the rise in the pensionable age could affect different areas. It is really disheartening to see it so swiftly dismissed, considering how big an aspect it is of the lives of my constituents.

Secondly—surprise!—I want to touch on the issue of the WASPI women. I have honestly lost count of the number of debates we have had on this issue, so I will not do the usual stuff of saying how terrible that is, because I have accepted that that is just how this place works, but I will say that this is a real chance to get something right with pensions. It is not a political thing. I know that many Conservative Members will say, “The WASPI women are just a stick that the Opposition are using to beat us with,” but it is not. As the hon. Member for Edinburgh West (Christine Jardine) said earlier, this issue is affecting women in every constituency from all different backgrounds. Their only crime is that they were born in the ’50s. That is unjust, and it cannot be allowed to happen. The Government should do something right and inspire us a wee bit. They should do something good for pensions. When we add to that a further rise in the pension age, when they have not even dealt with the WASPI women, it is downright insulting and shows that the Government are putting the final nail in their coffin in terms of pensioners. If this issue is not dealt with, people will remember.

The third thing I want to touch on is frozen pensions. I met the International Consortium of British Pensioners and, to be honest, my knowledge at first was very much on the surface. The group explained that this is not just a bunch of pensioners who went away to Spain, to the Costa del Sol. These are people who, when they were of working age, were encouraged to go to Commonwealth countries. They were offered work and deals and told, “Go, and the bonus is that you will retire in sunshine. Brilliant—go!”, but because of some ancient bilateral agreements, we now have people in Canada and Australia whose pensions are still at the same rate as they were when they left in the ’70s. It is so mad that their pensions get uprated when they physically land here. A guy was in the UK for two weeks and his pension was uprated because he was physically here. It is ludicrous.

I am conscious of the time, so let me just say this: pensions are a mess. Please work with us to get it right.

Benefit Claimants Sanctions (Required Assessment) Bill

Debate between Lucy Frazer and Mhairi Black

Friday 2nd December 2016 Commons Chamber

[Mhairi Black]

In my constituency, I have had people sanctioned because they were ill, because they had children who needed to be looked after and all sorts. Each of us has heard examples of how people have been sanctioned for a shocking amount of ridiculous reasons. There are some examples of people who have been sanctioned for missing an appointment at the jobcentre because they were at a job interview. It is ludicrous.

[Lucy Frazer (South East Cambridgeshire) (Con)]

I congratulate the hon. Lady not only on getting the debate but on the tone of her speech. If it is true that the system works in some places, is that not a reason to retain it and ensure that it works everywhere rather than to change it?

[Mhairi Black]

I am not saying that the systems works perfectly everywhere. As I have said, I disagree with the system as it stands just now. However, if I am to be realistic and try to make some small changes, South Thanet is a place where sanctions are not as harsh as they are all over the rest of the UK—they are not as harsh as they are in different constituencies.

I want to go on to explain why this Bill should go through, and I have examples of jobcentres that are not doing not too badly with the current system. There is a dramatic variation throughout the UK as to how many sanctions are applied and why they are applied. The fact that sanctions are being applied inconsistently across the board is backed up by this week’s National Audit Office report, which found that some Work programme providers make more than twice as many sanction referrals as others dealing with similar groups in the same area. The NAO report concludes that

“management focus and local staff discretion are likely to have had a substantial influence on sanction rates.”

When I secured this private Member’s Bill, I opened up a public consultation whereby individuals could answer a series of 10 questions, telling me their thoughts on the current regime and my proposed changes. Out of those responses, it was very clear that people felt that there was a Government-created point of view driven by much of the mainstream media that anyone claiming benefits is a scrounger and a chancer. They are made to feel as though they are lazy, work shy and someone who is leeching off the state and taxpayers’ money.

I will do something quite unorthodox here and quote from what probably constitutes a national treasure, Kevin Bridges. He rightly said that if politicians really think that people are choosing to be vilified by those with power all so that they can sit in their boxers watching “Storage Wars” on a Tuesday afternoon eating Quavers, then they are really not living in the real world. I know that anyone who is in touch with reality knows that that image could not be further from the truth. One respondent worded it better than I ever could when they said that there is a belief that claimants are scroungers and liars. They said that where there is a good Jobcentre Plus management, that attitude is less and probably also accounts for the variations in the application of sanctions.

It is worth noting and putting it on the record that I am not slagging off or criticising jobcentre staff. I am criticising the lack of direction and clarity that they have to operate under and the fact that they have to endure an ever-increasing workload with increasing responsibility without clear instructions.

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[Mhairi Black]

I understand the political point that the right hon. Gentleman is trying to make, but I do not want to drag us into a political debate in which we argue about Scottish budgets and so on. I remind him that Members cannot keep putting pressure on the Scottish Government and asking them to fill every single hole that this Tory Government creates, while cutting our money. As I say, I am not interested in going down the path of that argument. I am trying to be constructive and ensure that the Government can get on board with what I am suggesting.

Housing is a major issue when it comes to people being sanctioned. Research by Citizens Advice Scotland found that when people cannot pay for essentials such as food, electricity and gas, they are likely to accumulate arrears and fall into debt. The accumulation of rent and council tax arrears puts people at risk of eviction. For people who are in social rented housing, as 29% of Citizens Advice clients are, that places a burden on the local authority and the Courts and Tribunals Service, as well as adding to the hardship and vulnerability experienced by those individuals and their families.

[Lucy Frazer]

The hon. Lady is making a powerful point about mental health, which is, of course, incredibly important. Does she accept that housing benefit is not taken away when a benefit sanction kicks in?

[Mhairi Black]

I appreciate the point that the hon. Lady makes, but with the greatest respect, she misses the point. When people are under extreme stress, they accumulate debt. That is how, as the study says, they end up in arrears, which puts pressure on councils, local authorities and the individuals themselves.

In a report published in December 2015, Crisis found that homeless service users are disproportionately affected by sanctions. In the past year, 39% of the survey sample had been sanctioned, and three quarters of the survey respondents who had been sanctioned said that it had had a negative impact on—surprise—their mental health. Overall, 21% of sanctioned respondents said that they had become homeless as a result of the sanction. The simple fact is that, no matter how we look at it or how we arrive at this point, no Government should make their citizens homeless. It does not matter whether that is happening to 21% of people affected, or whether the figure is higher or lower. One person made homeless is too many. This Bill is an attempt to prevent that situation from ever arising.

Benefit Claimants Sanctions (Required Assessment) Bill

Debate between Lucy Frazer and Mhairi Black

2nd reading: House of Commons
Friday 2nd December 2016 Commons Chamber

[Lucy Frazer]

Yes, I welcome that. I am also delighted that 90% of JSA claimants who apply to the hardship fund are successful.

[Mhairi Black]

I welcome the comments made by the hon. and learned Lady and by the hon. Member for Mid Dorset and North Poole (Michael Tomlinson) on the importance of the hardship fund and the good it can do. Will she therefore support the principle of the Bill? Instead of waiting and making the individual responsible for applying to the hardship fund, the Bill would mean that the individual’s entitlement to a hardship payment is immediately assessed. Is that something she can support?

[Lucy Frazer]

My hon. Friend the Member for Bournemouth West (Conor Burns) rightly identified that hardship payments are one of the steps set out in the process. We do not necessarily need legislation to identify the fact that people should be told that a hardship system is in place—that should happen. The hon. Member for Paisley and Renfrewshire South rightly identified that the practice works in some places. If it works in some places, it is not legislation that is needed. We need to ensure that good practice is happening throughout the country.

The hon. Lady also rightly spoke about the work of jobcentre staff, and the Oakley review said:

“All of the conversations that the Review team held with Jobcentre Plus staff highlighted their dedication to trying to help claimants back into work and ensuring that the social security system was administered fairly and effectively.”

That is what we need to keep doing.

The Bill rightly recognises that the position could be improved, because things can always be improved. There is a continuous assessment of what is right and what is wrong. We have had the independent Oakley review of sanctions, which recognised that work still needs to be done.

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[Lucy Frazer]

I will make some progress.

Secondly, the hon. Lady questioned how people can provide evidence that a bus or a train was late. I can think of a number of ways of doing so, such as taking a photograph of the dashboard or asking a member of staff to provide evidence. Thirdly, she said that staff may be affected, but I have already covered that point.

In conclusion, the hon. Lady’s Bill is important because we need to assess what works and what does not work. I welcome the call for consistency, because it is absolutely vital that we have a system that works fairly throughout the country.

[Mhairi Black]

Will the hon. and learned Lady give way?

[Lucy Frazer]

I am about to finish.

I welcome the fact that we have had a review—the Oakley review—and the fact that the Government have taken on board some of the recommendations. We must consistently and constantly strive to ensure that work pays, that we encourage people to find work and, at the same time, we must protect the most vulnerable.