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House of Commons Hansard
Draft Mutual Recognition of Protection Measures in Civil Matters (Amendment) (EU Exit) Regulations 2019
06 February 2019

The Committee consisted of the following Members:

Chair: Mr Virendra Sharma

† Beckett, Margaret (Derby South) (Lab)

† Beresford, Sir Paul (Mole Valley) (Con)

Coaker, Vernon (Gedling) (Lab)

† Daby, Janet (Lewisham East) (Lab)

† Foxcroft, Vicky (Lewisham, Deptford) (Lab)

† Frazer, Lucy (Parliamentary Under-Secretary of State for Justice)

† Graham, Richard (Gloucester) (Con)

† Heaton-Jones, Peter (North Devon) (Con)

† Hussain, Imran (Bradford East) (Lab)

† Keegan, Gillian (Chichester) (Con)

† Milling, Amanda (Cannock Chase) (Con)

† Shapps, Grant (Welwyn Hatfield) (Con)

† Smith, Henry (Crawley) (Con)

Streeting, Wes (Ilford North) (Lab)

† Thomas, Gareth (Harrow West) (Lab/Co-op)

† Thomson, Ross (Aberdeen South) (Con)

Turley, Anna (Redcar) (Lab/Co-op)

Claire Cozens, Committee Clerk

† attended the Committee

Thirteenth Delegated Legislation Committee

Wednesday 6 February 2019

[Mr Virendra Sharma in the Chair]

Draft Mutual Recognition of Protection Measures in Civil Matters (Amendment) (EU Exit) Regulations 2019

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I beg to move,

That the Committee has considered the draft Mutual Recognition of Protection Measures in Civil Matters (Amendment) (EU Exit) Regulations 2019.

It is a pleasure to serve under your chairmanship, Mr Sharma. The draft instrument forms part of the Government’s preparations should the UK leave the EU without a deal. It relates solely to our no-deal preparations. If Parliament approves the withdrawal agreement, which includes an implementation period, and passes the necessary legislation to implement that agreement, the Government would defer the coming into force of the instrument until the end of that implementation period.

The statutory instrument relates to civil protection measures. A civil protection measure is the decision to place restrictions on one individual to protect another individual who may be at risk. Someone may be prevented from going to a place where the person at risk lives or works, for example. They could also be prevented from contacting the person at risk by phone or by email. Examples of civil protection measures in the law of England and Wales include non-molestation orders, under part IV of the Family Law Act 1996, or injunctions, under section 3 of the Protection from Harassment Act 1997. There are similar measures in Northern Ireland. The SI relates in particular to the recognition and enforcement of those measures. The approach that we are taking is to unilaterally recognise and enforce incoming civil protection measures from EU countries, except Denmark, to ensure that vulnerable individuals will continue to be protected.

What is the current position of English and Welsh law under EU law? The EU regulation on mutual recognition of protection measures in civil matters, which I will refer to as the civil protection measures regulation, provides for mutual recognition of such protection measures in civil matters across the EU, except Denmark, which does not participate in the European Union area of freedom, security and justice. That regulation’s effect is that if a civil protection measure is granted in one member state, it must be recognised in another, without any special measure to achieve that end. It must be enforced in another member state without any need for a declaration of enforceability and is treated, practically speaking, as if it had been ordered in the other member state.

What will change if we leave the EU without a deal? The instrument provides that an incoming civil protection measure from an EU member state—except Denmark—shall, under the terms of the civil protection measures regulation, be recognised without any special procedure being required, and enforceable without the requirement for a declaration of enforceability.

The instrument also revokes the provision about issuing a certificate in the courts of England and Wales and Northern Ireland, which is required for recognition and enforcement in an EU member state, under the civil protection measures regulation. We are doing that because we cannot legislate unilaterally to restore the reciprocity of approach. That means we cannot require an EU member state to comply with civil protection measures issued by UK courts, because the UK will no longer be an EU member state and EU member states will no longer be bound to recognise or enforce civil protection measures issued in the UK under the regime.

Providing for courts in England and Wales to issue such certificates when there is no certainty that the measure could be invoked in the EU under the civil protection measures regulation would, in our view, be of no benefit to our citizens. Indeed, it could open up the possibility of giving the person at risk a false expectation of continued protection in an EU member state.

The Government accept that that loss of reciprocity means that those with civil protection measures issued in our courts who wish to travel to the EU will be disadvantaged compared with those who have protection measures issued in the EU who wish to come to the UK. We strongly believe, however, that we must do what we can to provide as much reassurance as possible to people, often in vulnerable situations, who have a protection measure issued in the EU. That is because it benefits all citizens, including vulnerable people living in the EU, be they EU, UK or other nationals.

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I, like all Members of the Committee, I am sure, look forward to being selected to serve on Delegated Legislation Committees. Will the Minister give a practical example that a simple soul, such as a Back Bencher like me, could understand, to show how these regulations will make a practical difference on the ground?

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Like the hon. Gentleman, I am eager to serve and do my duty, to ensure that our laws are worthy of the citizens we serve. I am grateful to him for serving on this very important Committee. An example would be a molestation order. If a victim of domestic violence has an injunction in France preventing the perpetrator emailing them, visiting their home or workplace, or contacting them in any way, and they come on holiday to England, we will respect that injunction, which will remain valid and enforceable.

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On a point of clarification, I understand from what my hon. Friend has said so far that, if we leave without a deal, through this statutory instrument we will ensure that EU citizens are protected effectively if they come here, but the same will not be the case for British citizens in the EU. I understand that we want to create the atmosphere for the best possible relations, but what measures are the British Government taking to ensure that, even in a no-deal scenario, there is some reciprocity for what seems to be a very generous position in this statutory instrument?

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I am pleased that all Members are listening intently. A number of SIs set out reciprocity with the EU, but in most others, where we are taking ourselves away from EU laws, we are not giving reciprocity because it will not be respected. We are taking this approach with this unusual SI because we want to continue to protect vulnerable people. We would like other member states to continue to respect and protect vulnerable people, but we have no power to dictate to them how to run their laws.

We have been liaising primarily with the EU in our negotiations, but we will of course try, in whatever scenario, to have discussions on a bilateral as well as multilateral basis, to ensure that we get the best result, not only for our citizens but for EU citizens using our courts and services.

We have not reached this position without considering the views of others. As we developed our thinking, we discussed the proposal with family law stakeholders and leading family law practitioners. These regulations cover England, Wales and Northern Ireland—this is a devolved matter in Scotland and the Scottish Government are dealing with it separately. However, we understand that they, too, will continue to recognise and enforce incoming protection measures.

The draft instrument ensures that the element of the regime for mutual recognition of civil protection measures, which we will continue to operate under in a no-deal scenario, applies—namely, to continue to comply unilaterally with the civil protection measures regulation in England, Wales and Northern Ireland with respect to incoming civil protection measures from the EU, apart from Denmark. It will therefore provide an effective framework for UK courts to work with. It takes into account the lack of reciprocity in this area, which recognises that we cannot legislate in this area in other member states after we leave.

In conclusion, as far as we can establish, the civil protection measures regime is not widely relied upon in any formal sense, but it can enable at-risk people in vulnerable situations to avail themselves of additional protection when moving between EU member states. The Government consider that removing that additional means of protection would be an undesirable outcome of the UK’s decision to leave the EU. Again, we would prefer to ensure that if the UK leaves the EU without a deal, those granted civil protection measures in England and Wales and in Northern Ireland will be able to avail themselves of the protection currently provided in EU member states, but we cannot; it is not in our gift to suggest that they do something we would like them to do. We are taking a pragmatic approach in order to protect vulnerable citizens and give them as much certainty as possible. We believe that is the best approach to ensure that if we leave without a deal, our legal system will continue to work effectively for our citizens.

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It is a pleasure to serve under your chairmanship, Mr Sharma. Civil law is rarely presented as the most exciting aspect of the legal profession—the Minister herself said as much in an article on civil judicial co-operation last September—but, as she too accepts, that does not mean it is not important. Certainly, the matters before us are of huge importance. These regulations, while unassuming at first sight, with their long title serving to deceive, and tucked away in this SI Committee, are of huge importance and should not be understated. They extend vital protections from harassment, abuse and risk to vulnerable people from the EU while in the UK.

The interconnected world in which we live means that people have never been freer to travel, move and relocate. It means that we must have interconnected protections extended to cover different nations. Although these regulations extend protections, they are not what we had hoped for. They are worryingly one-sided, and we have serious concerns about them. First, the regulations lay bare the inadequacies of the Government’s preparations for a post-Brexit world in the area of judicial co-operation, as it is the Government’s failure to secure a deal on judicial co-operation and the recognition of civil protection measures that makes them necessary in the first place.

The Government stated in their future partnership paper “Providing a cross-border civil judicial cooperation framework” that their intention was to secure

“an agreement with the EU that allows for close and comprehensive cross-border civil judicial co-operation”.

In their White Paper on future UK-EU relations, they further stated that they were

“keen to explore a new bilateral agreement with the EU”

on civil judicial co-operation. The White Paper also stated that the EU has shown that

“a deeper level of civil judicial cooperation with third countries is both legally viable and operationally achievable”.

The real question is why they have been unable to replicate that civil judicial co-operation, if it is all too possible. Why have we been forced into this situation at all? The answer is the Government’s poor negotiation and a lack of preparation by the Ministry of Justice for a post-Brexit world. The Government’s preparations for judicial co-operation have been shredded by parliamentary Select Committees in both Houses. The Chair of the Justice Committee warned the Minister of a lack of clarity on the implications of Brexit for the justice system, including little certainty about how the civil judicial objectives that the Government are reaching for will be achieved. The Chair of the EU Justice Sub-Committee in the other place, in a letter to the Justice Secretary last October, expressed further concerns about how the Government are handling the Brexit negotiations, warning of the “profound and damaging impact” of a no-deal Brexit on those whom the courts seek to protect.

This damaging impact is seen all too clearly here, because a failure to prepare and secure a deal now means that there is no reciprocation by the EU on the recognition of protection measures. Although these regulations mean that protection measures issued in the EU will be recognised and enforced in the UK, the reverse is worryingly not true. Instead, protection measures issued in the UK will be neither recognised nor enforced in EU member states, meaning that those in the UK will be at risk when they are in the EU.

Ultimately, that means a harassed mother seeking protection for herself and her children, with an abusive partner barred from making contact, will be left vulnerable in the EU. That is simply unacceptable. It is deplorable that, with just weeks to go, we are unable to offer her the protection she needs, particularly given that the Government’s own explanatory memorandum states that protection measures impose obligations and prohibitions on persons causing risk—the word “risk” is not used lightly and shows the grave seriousness of the issue.

Although the Minister in the other place states that the Government are hopeful of taking forward recognition by EU member states in future negotiations, they have failed to set out specifically what is being done exclusively on the issue of judicial co-operation and recognition of protection measures in current and past negotiations. That Minister further stated that the Ministry of Justice had discussed the issue of protection measures post Brexit with family law stakeholders and practitioners, something reinforced here today by the Minister, to develop the MOJ’s thinking. Even today, we have failed to hear which groups were consulted and what they think about the lack of reciprocation secured by the UK and the impact that would have on those travelling to the EU. What assurances has the Minister given to those groups that protection measures issued in the UK will be taken forward as a matter of urgency to maintain protection for vulnerable adults and children?

The Opposition have long warned of the damaging impact of no deal. We are clearly seeing today just how bad no deal will be. The damage of no deal extends beyond trade and the movement of people, beyond the economy and migration, and into laws that would otherwise ensure that we all have protections in an interconnected world—protections from abuse, harassment and danger.

We do not support the regulations today. Although they have our support for extending the recognition of protection made in EU member states to the UK, they do not have our support for their failure to secure reciprocation. We are deeply unhappy with the situation and want to express our serious concerns. However, our view, supported by the Law Society, is that not allowing the regulations to pass would leave people worse off in the event of no deal. Opposing the regulations will not leave UK citizens better protected; only a better deal and better negotiations by the Government will do that. It would instead leave those from EU member states worse off and less well protected for no benefit whatsoever to any parties involved. We are not prepared to do that. We are not prepared to act out of spite, so we will not oppose the regulations.

However, we must be clear that the Government must come forward at the earliest opportunity to set up how they will achieve reciprocation across the EU, which is not for lack of willingness on the part of the EU, and how the framework for achieving judicial co-operation and recognition of protection measures will be achieved. A failure to do so would be a betrayal of vulnerable people seeking protection and a failure of the Government’s duty of care towards them.

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I will respond to a couple of the points made by the hon. Member for Bradford East. He is right to identify this as an important matter affecting families across Europe and the UK. He said that the regulations are one-sided; we have been very up front that this is a one-sided relationship, because we cannot legislate for other member states. All we can do is ensure that our regime provides the best possible protection.

The hon. Gentleman suggested that the Government have failed to prepare. I made it clear at the outset that in this SI we are legislating for a no-deal scenario. The Government would very much like to have a deal. If we have a deal, the EU has been clear, in our discussions and in its written guidance, that it would like to have a strong relationship with the UK in family matters, and to develop further the basic requirements that we would have in a no-deal situation, so that families are protected.

We have liaised extensively with the EU on this matter, and the deal—as set out in the political declaration—makes it clear that the EU is willing to give us a deal on family matters on a reciprocal basis. We cannot come here today and offer that deal, because Parliament did not vote in favour of it. A large number of Labour Members did not support that deal, which is why the Government are in this position.

I would like to make clear the protection that these individuals will have. It is not the case that vulnerable people going to EU member states will have no protection at all; they will be able to make an application in a foreign court for the same protections. It is just that the measures currently in place give automatic protections, so that an order made here is treated like one made in another member state. There are protections, but it would just be more laborious and expensive.

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The Minister conveniently forgets that many Government Members rejected that very bad deal as well. She must accept that some of the most vulnerable people will be put at risk in the case of no deal. She cannot provide any guarantees here to the contrary.

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We have been up front that the current provisions in civil judicial co-operation in family law matters do provide some protection even without the EU regimes, but not the same level of protection, and this is an example of that. It is not the case that they will get no protection at all, but the protection they have at the moment is better. We accept that, which is one of the reasons I will be voting again for the Government’s deal when, or if, the opportunity arises.

The hon. Gentleman raised a legitimate point about consultation. I can assure him that we have liaised with a number of bodies interested in family law. We have a Brexit law committee, on which sit members of the Bar Council, the Law Society and the City. We also have sub-committees in different areas of law. There is a family sub-committee, with which I have held roundtable discussions. My officials met the sub-committee regularly to discuss these and other areas of family law. We have also met Resolution and the international Family Law Committee, and I have spoken with the Family Law Bar Association. The Ministry of Justice has not taken these decisions in isolation; we have very much engaged with stakeholders to come up with the best possible solutions. I commend the draft regulations to the Committee.

Question put and agreed to.

Committee rose.