Draft Civil Legal Aid (Amendment) (EU Exit) Regulations 2019

Yasmin Qureshi Excerpts

Tuesday 22nd January 2019 General Committees

[Yasmin Qureshi (Bolton South East) (Lab)]

It is a pleasure to serve under your chairmanship, Sir Henry. As the Minister has explained, this regulation will repeal a 2003 directive that was designed

“to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid”

for cross-border disputes over family, commercial and civil matters, which are obviously important issues that need to be dealt with properly. As the Minister has outlined, a cross-border dispute is defined as

“one where the party applying for legal aid in the context of the directive is domiciled or habitually resident in a Member State other than the Member State where the court is sitting or where the decision is to be enforced.”

In practical terms, this is relevant for individuals who are domiciled or habitually resident in an EU member state and require legal services for proceedings in other member states, or who wish to enforce a decision or an authentic instrument in another member state.

Although it is acknowledged that some of the provisions in this regulation are procedural in nature, there is one substantive provision that will have a massive impact on access to legal aid by removing paragraph 44 of part 1 of schedule 1 in LASPO. When this statutory instrument was discussed in the other place, Lord Thomas of Gresford said that the current framework

“provides predictability and certainty for citizens and businesses”

and that

“judgments and orders obtained will be recognised and enforced…as is the case now.”—[Official Report, House of Lords, 15 January 2019; Vol. 795, c. 191.]

Those benefits were recognised in the Government’s 2017 paper, “Providing a cross-border civil judicial cooperation framework”. Paragraph 7 stated:

“This framework provides predictability and certainty for citizens and businesses from the EU and the UK about the laws that apply to their cross-border relationships, the courts that would be responsible, and their ability to rely on decisions from one country’s courts in another State.”

An important feature of civil judicial co-operation at present is the mutual provision of legal aid. The legal aid directive sets minimum common rules relating to legal aid in order to improve access to justice in cross-border disputes. It applies to all such disputes over civil and commercial matters, but particularly to family law—the disposal of assets and access to children, especially across borders. This provision was incorporated into English law by LASPO, and its purpose is to ensure that people domiciled or habitually resident in EU member states are not treated more favourably after we leave the European Union than those who reside in England, Wales and Northern Ireland. EU residents who require legal services in relation to proceedings in our courts, or who wish to enforce an overseas judgment, will no longer have a right to legal aid for matters within the scope of the EU directive.

The statutory instrument uses the Henry VIII powers in section 8 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 to revoke the legislation implementing the European Union directive in UK domestic law. As far as we can ascertain, the statutory instrument would prevent European Union residents from seeking legal aid for exceptional cases that are not normally within the scope of UK domestic legal aid, but where not providing it would be a breach of retained enforceable European Union rights. Can the Minister tell us whether, after Brexit, EU residents will be able to apply for legal aid in the ordinary way for cases involving children across borders in an English court, for example, and whether legal aid would be granted if the ordinary tests of merits and means were satisfied? Does domicile or residency in the European Union disqualify an applicant who applies for legal aid in the normal way?

One of our many concerns is that the Government have not properly planned for reciprocal justice arrangements after we leave the European Union. That failure could have very damaging consequences for the people who rely on those arrangements, including those resolving complex family law cases. There are concerns across Parliament, including on the Justice Committee, that the Ministry of Justice has provided little detail or certainty about how co-operation on justice will be managed after we have left the European Union. In October, the Chair of the Lords EU Justice Sub-Committee wrote to the Lord Chancellor to set out a number of the Sub-Committee’s concerns about the impact of the Government’s handling of the Brexit negotiations on judicial co-operation, warning about the

“‘profound and damaging’ impact of a no-deal Brexit on the UK’s family law system and those that these courts seek to protect”.

The civil judicial co-operation framework that I referred to earlier on, which was issued by the Government, was found by the Lords EU Justice Sub-Committee to contain little detail on how the Government’s aims for co-operation would be achieved, and noted that

“a worrying level of complacency has taken hold in the Government that assumes that we can leave the EU without alternatives in place and that other international arrangements will fill the void left by this important EU legislation.”

It is in that context that we express concern that the provisions in the statutory instrument could begin to undo the existing legal framework without yet having an agreed replacement in place. That is a risky approach that would be avoidable were it not for the Government’s failure so far to secure comprehensive agreements on future co-operation in justice matters. The Lords EU Justice Sub-Committee is not alone in noting that. The matter was raised in two debates in Westminster Hall last year, which focused generally on judicial co-operation post Brexit, not only for legal services but for our judicial and civil relationships.

The statutory instrument does not come with a clear explanation, which is another concern expressed by the Lords. The Government’s failure to plan properly for reciprocal justice arrangements could have damaging consequences for people who rely on such co-operation. Earlier, I asked whether European Union residents could apply in the ordinary way for legal aid for UK courts post Brexit in cases of children across borders, for example, and whether that aid would be granted subject to means and merit tests. No answer has been given. I would be grateful if the Minister gave us some facts and figures about which applications for legal aid might be accepted. It is well known that the Law Society has indicated its concerns to the Ministry of Justice about the provisions and the problems that they may cause. For those reasons, we will vote against the statutory instrument.