Motion to Take Note
My Lords, this report was prepared by the Justice Sub-Committee of the European Union Committee, which I chair. I should like to thank the members of this committee: they are as stimulating a group of people as you could ever find—intelligent, analytical and always great company. I thank also the staff of the sub-committee for their support and hard work. We had some of the finest lawyers in government service helping us to prepare this work and wonderful civil servants. I especially want to commend Amanda McGrath, whose quiet competence ensures that our work is effective.
The Government’s view is that once we leave the European Union there can be no jurisdiction for the Court of Justice of the European Union. That step would have profound ramifications for the UK’s continued participation in the European Union’s programme of civil justice co-operation—the so-called Brussels regime—that ensures that civil court decisions handed down by a court in one member state of the European Union will be respected and enforced in another member state.
That may sound arcane to non-lawyers, but will noble Lords please bear with us in understanding just how important this is? These three regulations—the Brussels I Regulation (recast), the Brussels IIa Regulation and the Maintenance Regulation—together play a significant if hitherto unheralded role in the daily lives of UK and EU citizens, their families and businesses in our nation, who work, live, travel and do business within the European Union. These regulations regulate a pan-European system of civil justice co-operation, which has been proved to work.
The regulations really do work. They provide certainty, predictability and clarity about where the resulting legal dispute should be pursued. They also provide for the automatic recognition and enforcement of judicial decisions and judgments throughout the European Union. To put that into lay terms, it means that if you are a small business in Britain doing business with Poland, and your Polish contractor does not supply you with the widgets you need and fails in the contract, you can go to a local court in Britain and get an order against him for that failure. It can then be enforced in Poland, so that you get either compensation or the follow-through of your contract. If you are a British woman whose marriage to an Italian ends in divorce and you have problems securing maintenance for your children, you can secure in the family court here an order on maintenance and have it put into effect in Italy in short order, as others on my committee will explain. The effect is that there will be distraint on the wages of a worker in Italy so that the mother of the children can receive maintenance. These things work smoothly. They have been developed over decades and I assure noble Lords that it is very difficult to replace what has been developed with the great input of British lawyers.
Far from being an imposition, the Brussels regime reflects the UK’s legal culture. The UK has been instrumental in shaping its content and it serves our country very well indeed. The UK Government had the choice of whether to opt in to these regulations or to opt out, and they chose to opt in. They did so with a sensible rationale. Since the referendum result, the Government have decided to opt in to the current renegotiation of the Brussels IIa Regulation, which will seek to update its provisions. That updating, perfecting and improving continues, depending on the development of our societies and ensuring that there will be effective remedies across Europe.
Clearly, by their actions, successive UK Governments from across the political spectrum have recognised that these regulations offer effective, predictable and clearly defined solutions to the legal issues encountered by UK citizens and businesses. These issues will not cease when we leave the European Union. So the question that our inquiry sought to resolve was: what alternative plans do the Government have to replace the Brussels regime once we leave the European Union? The Government state that they want close co-operation with the European Union on these matters—an aspiration the committee strongly supports. The issue, however, is not the aspiration, but rather the details. I am sorry to weary noble Lords with them, but they are rather important. If only some people actually bothered with the small print on some of these problems. Our concern is that very little is known about the Government’s thinking on these highly complex matters. We have found that there are alternatives, but any option that avoids the jurisdiction of the European Court of Justice will be less effective and more complicated than the existing system. Indeed, since the publication of our report, the committee—and other committees in Parliament—have found an ever-growing body of evidence that highlights the deep complications that will be caused by the Government’s red line on the European Court of Justice.
Turning first to the Brussels I Regulation (recast), covering civil and commercial matters, the UK could seek to use a combination of matters to fill the gap that will be created. The Lugano convention operates between EU members and Iceland, Norway and Switzerland; it applies to jurisdiction and the enforcement and recognition of judgments. We should be very clear that the Lugano convention is inferior to the Brussels regulations, operating as it does under an earlier and less effective iteration of the regulations that did not participate in the upgrading of regulations; it is stuck in aspic, as it were.
The Rome I and II Regulations deal with applicable law, namely which law ought to be applied in any given legal dispute with an external element. The Hague Convention on Choice of Court Agreements sets out uniform rules determining which countries’ authorities are competent to take child protection measures. This combination appears to offer at least a workable solution to the post-Brexit loss of the Brussels I Regulation (recast). However, it seems likely that there would be greater recourse to arbitration, which is thrown up by government as the answer to everybody’s prayers, but I assure noble Lords that it is not perfect. I support arbitration in the right circumstances, but although such arbitration would allow for judgments, it would not allow for enforcement. It would be harder—perhaps sometimes impossible—to compel courts in other EU states to support judgments made in the UK, and vice versa.
For the Brussels IIa Regulation—covering matrimonial matters and parental responsibility—and the Maintenance Regulation, finding an alternative poses a greater challenge than for the Brussels I Regulation (recast). Only yesterday morning, I spoke to a colleague at the Bar who described being involved in matters concerning a child with one parent in the United States and one here. They are not super-rich people—the kind who hit the headlines in our media—but an ordinary, middle-class family who will be crippled by the expense of American litigation, because they do not have the same arrangements in America as we have in Europe.
The Government have proposed to apply the 2005 Hague Convention on Choice of Court Agreements that covers most, although not all, of the same ground as the EU family law regulations, including rules for jurisdiction and for recognition and enforcement in child matters. The concern is about which matters would not be covered; we questioned that again and again. The Lugano convention would offer some support in cases involving maintenance. The 1996 Hague convention would offer some support on parental responsibility and measures for the protection of children, but less clarity and protection than the Brussels regulations.
Overall, there is no obvious replacement for the Brussels IIa Regulation and the Maintenance Regulation, so it seems likely that obtaining justice in these areas will be harder and less reliable. In the absence of clear replacements for the Brussels regime, our report also considered the fallback position, namely a return to common-law rules. Some of those who are romantic about common law and advocate a return to it do not realise the advancements that have been made, building on common-law principles. It was interesting that all the witnesses who assisted in our inquiry—bar one, who was an academic and not involved in practising law in the courts, dealing with real citizens’ lives—were concerned by the prospect of a simple return to the old ways of common law, as we had in the 1950s and 1960s. Their observations included that common law would be particularly detrimental to those involved in family law litigation, especially with the increase in cases for the already stretched family courts.
I said that the Government want close co-operation with the European Union on these matters. This should be an absolute priority, to give proper protections to citizens and businesses. So it is concerning that the Government’s formal response to our inquiry conceives of an eventuality in which the UK does not agree an arrangement for future civil judicial co-operation and in which ongoing co-operation in this area would be wound down.
I finish by highlighting the personal dimension to this matter. As with many aspects of Brexit, citizens face uncertainty about future rights and protections. The longer we wait for decisions and clear commitments from the Government, the greater the uncertainty for our citizens. Furthermore, the loss of the so-called Brussels regime will be felt most profoundly by those families who rely on its provisions, for example for the enforcement of judicial decisions. Small businesses will feel it, too. We know that the big corporates can lawyer themselves up to the eyeballs and get themselves lawyers in other nations. That will be no problem for them, but it is a problem for small businesses, families and people who go on holiday where something tragic happens and they want justice. We have these arrangements, which work effectively. To compound the issues, the UK’s family court system has said it would struggle to cope with such a radical change to the current arrangements. This is a matter of some seriousness. I beg to move.
My Lords, I pay tribute to our chairman, the noble Baroness, Lady Kennedy, who not only rules us with a rod of iron but seems able to make us all turn up and make our committee meetings fun. We get a lot of work done. I thank her.
The common law rules the noble Baroness refers to are, as most witnesses said, except the one non-practising witness, a recipe for confusion, expense and uncertainty, particularly in family law, in which I practice. I will pick three different topics to illustrate this.
The reality of life is that European citizens intermarry and inter-divorce. We have for some time been ruled by the Brussels convention, where the first past the post wins. You may have two French nationals living in this country with French passports. It would be possible for them to divorce in France or in England—the first person to file a petition wins. That takes away a lot of law. It takes away a long-contested forum conveniens argument and a lot of anti-suit injunctions, such as Hemain injunctions, to prevent the foreign jurisdiction proceeding until the English jurisdiction catches up, for example.
We have not used this in European law for many years. The judges are not qualified to deal with it or have little practice in it because we have not been doing it. There is no legal aid. The judges are completely overwhelmed with very serious child matters. Absent Brussels II being reinvented, we will be flooded with litigants in person trying to plead before a judge as to whether the jurisdiction in England is more convenient for the family than the jurisdiction in, say, in the example I gave, France. That will have a very serious effect on our already overburdened courts.
The second area is the enforcement of maintenance regulations. Lugano exists, but it is not the same as what we have under European law. It is a poor relation. It is of some significance, but nobody can find out how many people obey the law because they are too scared not to. If there is a void in the law, it is likely that more people will default. If there is not proper enforcement, the applicant will not be able to collect their money. The same is true in relation to children. We have been told that the Hague convention is not as good as the Brussels II Regulation. More children may be abducted. This is all at a time when legal aid is practically non-existent and judges are overwhelmed by litigation.
The Government’s response to the concerns caused by the loss of this EU legislation to the UK’s family law system post Brexit is, to put it mildly, disappointing. The committee was not convinced that the Government had a coherent or workable plan. To suggest that we can just be “wound down”, as the noble Baroness, Lady Kennedy, mentioned, is purely defeatist and inadequate. Proper law has to be put in place. The good that has been done by harmonious European relationships—a judge in England phoning a judge in Italy to try to retrieve a child; the cross-border co-operation between member states—cannot be underestimated. It has taken decades to build up such relationships. If we do not continue with them, we as a country will be poorer.
My Lords, it is a great pleasure to follow the noble Baroness, Lady Shackleton. I thank her and other committee members for their support for this non-lawyer on that committee and, in particular, their patience. I also pay tribute to our chairman, the noble Baroness, Lady Kennedy of The Shaws, who has led us brilliantly. I came on to the committee very recently and have seen how, particularly when dealing with the public and taking evidence, she has used her skills and her charm to the benefit of Parliament and the committee.
I served as a Member of the European Parliament and was deeply impressed by the engagement of the British Government, the British legal system, NGOs and others with Commission proposals and those that subsequently became regulations. Here we are talking about three very important regulations which affect people’s lives.
The report considers the ramifications of Brexit for the EU’s programme of civil justice co-operation, whose regulations, as the noble Baroness, Lady Kennedy, referred to, are known collectively as the Brussels regime. The evidence in the report clearly illustrates that the three regulations and the system they engender play a significant role in the daily lives of UK and EU citizens—families, businesses and people who live, travel and work across not just one or two but in some instances 28 member states, of more than half a billion people.
As we know, human relationships can sometimes go wrong in many unpredictable ways: divorce; disputes over custody of children; medical negligence claims; litigation arising out perhaps an accident abroad; and employment disputes. Particularly given freedom of movement, all three regulations provide, as the noble Baroness, Lady Kennedy, said, certainty, predictability and clarity about where the resulting legal dispute should be pursued. They also provide for the automatic recognition—extremely important—and enforcement of judicial decisions and judgments throughout the 28 EU member states. They regulate a pan-European system of civil justice co-operation, which has been proved to work.
However, because of the Government’s ideological opposition to and obsession with the role of the Court of Justice of the European Union after Brexit, the certainty of civil justice co-operation directly overseen by the CJEU will cease. The Government’s stance is unhelpful and casts serious doubt on the future application of these three regulations and many others, and on the reciprocal rules they preserve between member states.
I return to the consequences for individuals, families and businesses seeking justice, its implementation and enforcement. This is deeply problematic and not helped by the European Union (Withdrawal) Bill—the Minister has heard me say this before on another occasion in your Lordships’ House—particularly Clause 6 on the development of jurisprudence post Brexit and its relevance to retained EU law. Senior Law Lords have already expressed their concerns to the EU Justice Sub-Committee on this matter on a separate occasion. I shall not go into further detail, but the uniformity and certainty given to general civil litigation by the Brussels I Regulation is very important because it brings certainty to all citizens and does not discriminate.
One of the fundamental principles of the current EU system is that it is there to protect people, reinforcing, I believe, the fundamental values at the heart of the European Union. The Brussels II Regulation, as we have heard, addresses important issues: divorce, legal separation, marriage annulment and parental responsibility, including rights of custody, access, guardianship and placement in a foster family or institutional care. These are vital issues for families, individuals and children. The maintenance regulation rules address matters relating to maintenance obligations. It is worth quoting Mr Tim Scott QC, who gave evidence on behalf of the Bar Council. Explaining the rationale of the two regulations, he said,
“there are 3 million citizens of other member states living in the UK and 1.2 million UK citizens living in other member states … A certain proportion of this very large number will experience contentious family breakdown”.
He said that the certainty provided by both regulations was “vital” and that,
“it is the ordinary citizens for whom this level of certainty is the most valuable”.
Another witness said of Brussels IIa that,
“it has overlaid all our pre-existing domestic legislation, so it spreads into every area of our domestic law … it has transformed the way family law has operated over the last 11 years”.
This is very important because EU law will continue to develop but we may well be left behind and there could be greater divergence between our laws post Brexit. Therefore, the uniformity introduced by the regulations, underpinned by the Court of Justice of the European Union, will be lost and people and businesses will suffer. It is worth repeating that it is not just people and businesses: families, individuals and children will suffer. I quote the report:
“To walk away from these Regulations without putting alternatives in place would seriously undermine the family law rights of UK citizens and would, ultimately, be an act of self-harm”.
I too have read the Government’s responses to the committee’s concerns and I share those concerns. I am not convinced that the Government have a coherent or workable plan to address the significant problems that will arise in the UK’s family law system post Brexit if alternative arrangements are not put in place, and I look to the Minister to convince me otherwise. I fear that those least able to deal with the consequences of Brexit—in this instance, the 3 million EU 27 citizens here and the 1.2 million UK citizens living in the EU 27, and many others—will pay the price of this narrow, dubious referendum and their lives and their futures will be harmed irrevocably.
My final plea is to the Government: they must compromise and accept that it is in our mutual interests and in the interests of all citizens to accept a role for the Court of Justice of the European Union where to date, in terms of all judgments, we have fared extremely well.
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.
My Lords, it is indeed an honour to follow the noble and learned Lord, Lord Hope. The Government were correct in response to our report because, since it was published much earlier in the year, things have happened. Article 50 was triggered, papers were published in August on the cross-border and civil co-operation framework and a time-limited implementation period was announced by the Prime Minister. I think that progress is being made.
I am by nature an optimist—I see the glass half full. Like the noble Lord, Lord Cashman, I am a non-lawyer on the Justice Committee, which is so ably chaired by the noble Baroness, Lady Kennedy. Non-lawyers can occasionally be useful, if only to ask the often obvious questions that need answering. It is also a great pleasure to serve with other members of the committee. It is a particular pleasure to work with a colleague who I am sure will allow me to call him “my noble friend” Lord Judd. We both endeavour to stress the importance of the individual, so that the public will be able to understand how these important and complicated issues affect them individually, and their families, and we endeavour to do this in simple, plain English.
I also want to stress, and make it very clear, that I have great sympathy for the Government’s negotiating team and position. I firmly believe that it is deeply unhelpful that almost every cough and sneeze has to be discussed in the public domain, is spun by the press and becomes a political football, when anyone who has been involved in any sort of negotiation knows clearly that to reveal one’s hand prior to sitting down and negotiating is just plain daft.
That said, I believe that that work of the committee is vital and more than useful as a reminder to the Government—almost an aide memoire—that there are some key issues that HMG and the negotiators will need to deal with, as has already been explained today, in a satisfactory manner on behalf of the citizens of the UK.
In view of the time restraint, I am going to concentrate my last few remarks on certainty—or perhaps uncertainty. But before doing that, I shall flag up an important issue that the noble Baroness, Lady Kennedy, raised at the end of her speech: good reciprocal enforcement procedures for business, perhaps especially for small businesses, the lifeblood of our economy. Those small businesses and the people working in them may suffer because the firms will not be able to afford expensive lawyers abroad if there is a breach of contract.
Throughout the report, the committee again and again referred to the importance of certainty. For example, paragraph 37 states:
“The predictability and certainty of the BIR’s reciprocal rules are important to UK citizens who travel and do business within the EU”.
I am grateful that the Government’s response states that they,
“are seeking the best possible deal for the UK in order to ensure a smooth transition to future arrangements”.
It seems eminently sensible that the Ministry of Justice was involved in the establishment of the sector-led Brexit law committee bringing together the Bar Council, the Law Society, “magic circle” firms and others. Besides acting as a further group reminding the Government of their obligations, surely it may also be a historic first: a group of lawyers sitting around a table all in agreement.
It is also important that the Government have proposed this time-limited implementation period based on the existing structure of EU rules and regulations, so that the UK and the EU would have continued access to each other’s markets on current terms. Although it could be—and is being—argued that the Government appear not to take the report seriously and have not replied to many of the committee’s recommendations, I look at this from a slightly different perspective. As I said earlier, I am by nature an optimist, and I believe that the negotiators for both the UK and the EU will ultimately agree to do what is best for the citizens of the 27 and the citizens of the UK. Again, I do not expect to receive chapter and verse updates from the negotiators, because that would be unhelpful to all.
I have no doubt we will keep pressing and reminding the Government of some vital points, and I have every confidence that the Government will listen. But I am also cognisant of the fact that this is indeed a negotiation, which by its very nature adds to the uncertainty until it is at an end and leads to an agreement. My one plea to the Government and to the Minister is that, throughout their discussions, concern for individual citizens and their family should always be centre stage and at the forefront of every discussion. The people of this country deserve legal certainty, not uncertainty, as we leave the EU.
My Lords, if the noble and learned Lord, Lord Hope, professed himself humbled by the speakers who had gone before and the Minister who is going to respond, imagine how we non-lawyers feel following him. It was a great honour to be on the committee for the production of this report. In the noble Baroness, Lady Kennedy, we have someone who blends, in equal large measure, charm, wisdom and utter determination. I also express my thanks to the clerks and the supporting team, who have done such a terrific job in producing this very good report.
The report once again makes clear that there are a series of linked regulatory systems in a single space, rather than individual states with cumbersome and often expensive barriers between them. The central advantages of these systems, which come up time and again in the different areas our committee and other committees look at, are clarity, reciprocity and enforceability—words that we have already heard today and which I am sure we will hear again. Those are beneficial to all concerned, be it a parent with a child abducted to another country or a businessperson with a cross-border contract. The objective of our committee was not, as too often happens in this House, to refight the Brexit debate but to establish what Her Majesty’s Government’s plan is when we leave the EU so that the benefits of these well-established systems are not lost.
The Government’s written response and the paper which they continuously refer to throughout entitled Providing a Cross-Border Civil Judicial Cooperation Framework, are—I speak as I find—frustrating and a repetitive confection. The response is not the practical, reasoned reassurance that I was hoping for. It tends to repeat the very points in our own report, or responds in a fairly banal way. I take entirely the points made by the noble Lord, Lord Polak, about negotiation, but nevertheless I had hoped for more. It acknowledges the lack of certainty, reciprocity and enforceability, but we knew that from our own report and evidence. What it offers in response is,
“a new relationship based on mutually beneficial rules and processes”.
I think I can remember that as the sort of thing my mother used to say as she served out the apple pie. Another response is:
“We will need to build a bridge from our exit to our future”.
That almost sounds like the closing song from a Christmas panto. I do not really know what it means.
The Government say they are “seeking an agreement” and assert that that activity itself will provide confidence and certainty to businesses and individuals. We did not see any such evidence in front of the committee. The Government paper provides “general principles” for “ongoing cooperation” in the context of separation and “without prejudice” to the ongoing negotiations. Again, I am sure my mum would have approved of that. To replace the very effective existing Brussels I and II Regulations, the plan appears to be to fall back on the 2005 Hague convention and the 2007 Lugano convention, which are less clear and comprehensive than the existing set-up, which was created expressly to improve upon them, as the noble Baroness, Lady Kennedy, explained. Lastly, and I will try not to quote too extensively, we are told that the Government will consider the coverage of alternative international agreements when deciding how best to ensure ongoing reciprocity and mutual recognition. Again, I did not find a great deal of substance there.
So, what about the timescale? On the one hand, the Government favour a strictly time-limited implementation period, which they define as around two years. In the meantime, we carry on as now—or, rather, based on the existing structure of EU rules and regulations. The matter of the ECJ has already been touched on. We know the Government are keen to eschew the ECJ but they have not really offered anything clear to us as a mechanism to replace it. That makes for more uncertainty.
In conclusion, there is a common recognition that there are real and troubling problems here, and everyone agrees that reciprocity and cross-border enforcement need to be protected. However, a recurring theme across all the committees whose reports I have read or been a part of is the lack of actual practical mechanisms to deliver this. The only tangible quantifiable in the Government’s response is “in about two years”. We are not told the mechanisms. Such assurances are wearing thin.
Naturally, to return to the very wise point made by the noble Lord, Lord Polak, it is very difficult to be specific when negotiations are under way. Nevertheless, in all the evidence that we took, we really did not find evidence that actual mechanisms were being devised or discussed to safeguard the individuals, families and businesses that the noble Lord, Lord Cashman, spoke so movingly about a few minutes ago.
The Minister is known for his robust, factual and penetrating answers to questions and comments. I hope that when he responds he will go beyond the generalities and shine his very bright and piercing light on the mechanisms and how they are going to deliver outcomes at least as good as Brussels I and Brussels II.
My Lords, it is a great pleasure to follow the noble Lord, Lord Cromwell. I found myself in agreement with much of what he said, particularly the emphasis at the end of his speech upon the absence of any firm indication whatever about mechanisms—the working arrangements that will ensure the right outcome. This is becoming deeply disturbing because there are countless thousands of people out there who are uncertain and worried stiff, not only on this count but about so many aspects of Brexit and what is going to happen. Effective reassurance on this is terribly important.
It is significant that the report has had the endorsement of the noble and learned Lord, Lord Hope, and what he said was important. He emphasised the importance not only of reciprocity but of certainty, and he is absolutely right. For him to bring all his legal experience to bear in emphasising those points is indeed significant.
Other noble Lords have spoken about the need for clarity, relating again to the point made by the noble Lord, Lord Cromwell, that we need to be clear about the structures and arrangements for enforcement. Clarity cannot be overemphasised.
It has been a great joy to serve on the committee, not least because of the very special nature of our chair. She is one of the most effective chairs I have ever served under. She brings a firmness which we all recognise, together with her, if I may use these words, kindly and in the best sense wicked, devastating charm—look out when it is in operation; she is ruthless at times—and her incisiveness. We had a very good indication of that in the way that she introduced the debate.
It has also been a joy to serve on the committee because of the commitment, seriousness and quality of fellow members of the committee. I have never gone away from a committee meeting without feeling challenged and impressed by what is gathered around that table. The House would do well to take its findings seriously.
Sometimes, we fail to thank our witnesses. We owe them a great deal for the candour with which they spoke. I am one of those who learns from personal experiences; I learn from them all the time. I therefore always take away from something in which I am really involved anecdotes which help to inform my attitudes to life. I shall never forget the occasion on which two very distinguished and highly qualified lawyers were giving evidence to the committee, but broke off to say—I am not quoting them literally, I am reporting what I heard—“We are lawyers. What we want to say now is not necessarily professionally in our personal interest, nor in our interest at all, because if things do not work out satisfactorily, there will be lots of work for lawyers in times ahead. But we are dealing with family matters. Surely everyone around this table cares about children. What is so awful in the handling of family matters in the legal system is how children can so easily be trampled on. We want outcomes that are in the best interest of children. What is significant is that it is beginning to work”.
I was taken to task by our chair the other day in a private conversation to say that they did not say “it is beginning”, they said that it is so effectively working on a cross-border basis. Of course, that is related to the role of the European court, enforceability and the system by which every member country is in the end legally accountable to one authority. We must have something very good indeed if it is to replace what the European court has brought.
The other thing that has come across to me in the work of this committee, which has come across day after day—and it has come across to me in other committees in which I have served—is the gap in which we are operating between reality and myth. I cannot find, in all the experience that I have been through on European matters, anything to substantiate the myth about the wicked nature of the European Court and the reasons why we have to extricate ourselves from its operation. Of course, there was a building and learning experience—but those who work in the system find it so effective and important. On the whole European issue, I hope that in this House, if nowhere else, we will want to feel that we have made a contribution not just to the well-being of British people but to the evolution of law within the European Union in the interests of people throughout the European Union. We do not hear enough about that argument. What is going to happen to that? Our lawyers and legal profession has played a key part in the evolution of European law, which is just not recognised or understood by the British people.
The myth has reigned too long. We must have reality—and that reality rests on making sure that, whatever happens, we have something that is as good as the European court.
My Lords, it is a pleasure to follow the noble Lord, Lord Judd. “K” seems to follow “J” quite a lot. He always brings great passion and the wisdom born of many long years of public service, and we are very lucky that he does. I am glad to say that he brings it to every committee meeting, too. I feel that he needs a large carpetbag—in my case, I need a very small toothpaste bag for such things.
I add my thanks and congratulations to the noble Baroness, Lady Kennedy of The Shaws, on her leadership of our committee. She brings the most marvellous crispness and robustness to meetings, which I find energises us—and we had a strong flavour of that in her speech in introducing the debate. What an excellent survey of the report and state of affairs that was.
I add, as others have, my heartfelt thanks to committee staff for their hard work. They in fact work on every report of the EU Select Committee, being the legal resource. In the 18 months or so since the Brexit vote, there have been 24 Brexit reports from the EU Select Committee, and the standard of work has been high throughout. I do not know how they do it, but they continue to exude an atmosphere of calm efficiency and good humour. I can see some of them there, but I hope that the others are having a mild afternoon off.
Although this report is only 37 pages long, it represents a rounded and important summary and analysis of vital issues that need to be addressed as part of the Brexit process. It was published on 20 March, but I regret that the government response arrived only on 1 December, more than eight months later, well outside the conventional two-month period, even taking into account the election period. I note that the response itself relied heavily on the government paper, Providing a Cross-border Civil Judicial Cooperation Framework, of 22 August. The Minister has a strong personal reputation for getting things done on time, being a good Scot, and I ask him to explain briefly some reasons for this delay on this very important topic. As we have heard today, so many people are relying on certainty in this area.
In my remarks I shall confine myself substantially to the perspective of business. Business thrives on certainty. I started the debate by noting down the names of all the noble Lords who made more or less the same point on certainty. However, as that includes everyone who has spoken in the debate so far, I shall not list them. But the certainty point is what everything comes back to; anything that can be done to provide greater certainty benefits business and thus our economy.
From the business perspective, the uncertainty falls in two broad areas. They are what I am calling the “pipeline”, or civil law matters in train at the date of exit, and the “new future”, or matters that arise after the date of exit. I have assumed that any transitional period matters would be part of the pipeline, not only because of recent comment but because it would simply make submissions far too complex to try to analyse them separately.
Turning, therefore, to the pipeline, I feel that the news has seemed quite good. The EU published its views on 12 July in its paper on judicial co-operation in civil and commercial matters. The UK responded with its paper of 22 August, which I referred to earlier. Annex A of that paper deals with the UK’s views on pipeline issues. The pleasing thing is that, between the two, there is quite a lot of common ground, I feel. In the interim, we have had four months where, presumably, more discussions have been held. Indeed, we have had some further evidence in paragraph 91 of the joint report of 8 December:
“On cooperation in civil and commercial matters there is a need to provide legal certainty and clarity. There is general consensus between both Parties that Union rules on conflict of laws should continue to apply to contracts before the withdrawal date and non-contractual obligations where an event causing damage occurred before the withdrawal date”.
Can the Minister tell the House how close the parties are in terms of agreeing pipeline matters?
I move to the new future—matters that arise after the date of exit. The evidence that we took painted a remarkable picture concerning the development of judicial co-operation in the EU and, in particular, the Brussels I Regulation (recast). This was—and I am disapplying my normal British reserve—that the UK had a huge influence in the legal developments that made judicial processes work well within the EU. The wonderfully named legal tactic, the “Italian Torpedo”, was widely employed to frustrate proceedings prior to the Brussels I Regulation (recast). The lis pendens rule used to apply so that, where proceedings involving the same parties and same causes of action were brought in different member states, any court other than the first court seized stayed its proceedings until such time as the jurisdiction of the first court seized was established—a good rule to prevent parallel proceedings, but misused in the regular commencement of Italian proceedings, where progress is notoriously slow.
The Brussels I Regulation (recast) defeated this by disapplying the “first in time” rule where an exclusive jurisdiction clause existed between the parties. This Brussels I Regulation (recast) change was thanks to pragmatic British pressure and diplomacy. Indeed, the British-engineered Brussels I Regulation (recast) regime is very helpful to commerce, providing certainty and a good framework. The Government paper of 22 August clearly aspires to that and the second half of paragraph 91 of the joint report that I referred to a moment ago states:
“There was also agreement to provide legal certainty as to the circumstances under which Union law on jurisdiction, recognition and enforcement of judgements will continue to apply, and that judicial cooperation procedures should be finalised”.
Again, I am mildly heartened, but the detail and certainty is not there and is not what business seeks.
The Bar Council has published a series of papers in this area, The Brexit Papers, which I commend to the House. Paper 4, Civil Jurisdiction and Judgments, suggests a practical route forward with admirable certainty:
“Enter into an agreement based on the Denmark-EU Jurisdiction Agreement, both with the EU and with Denmark albeit with a clause providing not for interpretative jurisdiction of the CJEU but for ‘due account’ to be taken of the decisions of the courts of all ‘Contracting Parties’”.
“Sign and ratify the Lugano II Convention, to preserve the present regime vis-à-vis Norway, Iceland and Switzerland”.
“Sign and ratify the 2005 Hague Convention on Choice of Court Agreements”.
“Enter into an agreement based on the Denmark-EU Service Agreement, both with the EU and with Denmark”.
I found this and its associated reasoning clear and convincing and a good route forward. In closing, I therefore ask the Minister to comment on this Bar Council proposal.
My Lords, it is a pleasure to take part in this very important debate. I too pay tribute to the vigorous chairmanship of the noble Baroness, Lady Kennedy of The Shaws. Indeed, it is a pleasure to serve on the committee; we are a happy band. Unfortunately, I could not attend yesterday’s session and believe that I missed some seasonal goodies. That was very unfortunate.
The current regime of mutual recognition and enforcement of judicial decisions and judgments provides simpler, less expensive and speedier justice. It is for those reasons that it is valued by the Government. In their August future partnership paper on civil judicial co-operation, the Government said that the EU system,
“plays an important role in enabling businesses to trade with confidence across borders, providing legal certainty in cross-border transactions and avoiding delays and excessive costs where individual and family rights need to be protected in cross-border situations”.
The benefits of predictability and certainty have been highlighted by the noble Lord, Lord Cashman, and the noble and learned Lord, Lord Hope. That explains why successive UK Governments have chosen to take part in a whole series of civil law EU measures—to opt in, in the jargon. One can weigh the importance of those opt-in decisions compared with, for instance, criminal procedure law, where the UK has declined to opt into most of the instruments. The same applies in the area of international migration, where the UK has stayed apart.
The UK influence in the EU civil justice regime is considerable. Our lawyers, judges and legal system make a very strong contribution to it. The idea that it is alien to our legal traditions is very wide of the mark. I wish that the British Government had been more proactive, in line with our legal strengths, in improving the rule of law across the EU. Today, the European Commission has taken the decision to trigger Article 7 of the treaty, saying that Poland risks causing a serious breach of EU rules and values by politicising the judiciary. Frans Timmermans, the Vice-President of the Commission, rightly said that the erosion of the rule of law in one member state is a problem not just for that member state but threatens a breakdown of the,
“functioning of the Union as a whole”.
I saw it reported in the press that the UK Government did not approve of this move by the Commission, and I think that is a mistake.
I also happen to have a positive view of the EU scoreboard, which, unfortunately, is not comprehensively shared across the committee. That scoreboard is a comparative overview of the efficiency, quality and independence of justice systems in member states. The point of that exercise, which may well be imperfect, is to help build the trust essential to the operation of mutual recognition, which underpins the single market and legal enforcement.
Our report said that uncertainty about the future is,
“having an impact on the UK’s market for legal services and commercial litigation, and on the choices businesses are making as to whether … to select English contract law”,
to govern their commercial relationships. This is borne out in a remark by the Bar Council’s Brexit working group, to which the noble Earl, Lord Kinnoull, referred. It said:
“It is likely that, if parties consider that the answer to the questions of ‘Will my jurisdiction clause be respected?’ and ‘Will my judgment be enforced?’ will involve adding time and expense as well as uncertainty to any transaction, then this may encourage them to amend their contractual clause in favour of resolving disputes before other Member State courts”,
so taking business away from London and other legal centres. We know that courts working in English are being set up in other member states, notably the Netherlands. Even more importantly, there will be an adverse consequence for companies, especially small and medium-sized ones, from losing the EU regime.
But the harm to those who rely on the EU regime in regard to divorce, child custody and maintenance goes far beyond inconvenience and could amount to serious distress. Some witnesses suggested that a complicated combination of the Lugano and Hague conventions, and retention of the Rome I and II regulations through the withdrawal Bill could offer some kind of workable alternative solution. However, it was not clear to the committee how we would accede to the Lugano convention, which is between the EU and three EFTA countries. Perhaps the Minister can enlighten us on that.
Our conclusion in any case was that this approach will come at a cost and would anyway apply only to civil and commercial proceedings, since, as our report said,
“there is no satisfactory fall-back position in respect of family law”,
and a return to common law rules would be detrimental to litigation in family law. Apart from the increased burden on domestic family courts—extra pressure our evidence suggested they cannot take—there would be that distress for families; hence the need to maintain the EU framework is acute in this field.
However, not only can we not do this unilaterally, but we keep coming up against the Government’s dogmatic red line on the Court of Justice of the European Union. Our conclusion, in paragraph 29, was:
“We remain concerned … that if the Government adheres rigidly to this policy it will severely constrain its choice of adequate alternative arrangements”.
We would be giving up the utility of the regime we have now because of an ideological obsession with the Luxembourg court.
The Government’s partnership paper we found devoid of detail and consisting of aspirations and platitudes. The paper said that,
“it is vital … that there are coherent common rules to govern interactions between legal systems”,
and the Government claimed in their response to us that this paper sets out a “clear position”. We did not find such clarity. To continually repeat the mantra of “deep and special” does not magically solve all the problems. The Government’s lack of a real plan is inadequate and disappointing. Perhaps the Minister can provide such a plan this afternoon.
As the noble Baroness, Lady Kennedy, remarked, the Government seem to be preparing for failure and disengagement as regards,
“how ongoing cooperation in this area could be wound down”.
That was a dismaying apparent admission of failure before we have even started. I hope that the Minister will be able to give us more encouragement in his response.
My Lords, I refer to my interest as an unpaid consultant at my former solicitors’ firm. I should add that it gives me two tickets for Newcastle United matches, but in the present circumstances I do not regard that as much of a benefit.
It is now 18 months since the referendum and nine months since the Article 50 notice was given. We are only 15 months away from the deadline, yet the first meeting of the Cabinet to discuss the details of a post-Brexit future has only just taken place. Astonishingly, the meeting lasted all of one hour and 25 minutes, with 25 Ministers participating, giving an average of three minutes and 24 seconds per member—possibly exceeded by the likes of the three wise men leading the charge: Boris Johnson, David Davis and Michael Gove.
I congratulate my noble friend Lady Kennedy both on securing this debate and on the European Select Committee’s report, published nine months ago tomorrow. This debate has been a long time in gestation, due primarily to the dilatory response of the Government, which emerged only on 1 December.
Some Members of your Lordships’ House may recall a television series called “Candid Camera”. The picture portrayed by the Government is more like “Candide Camera”, emulating Voltaire’s famous character and giving the impression that all will be for the best in the best of all Brexit worlds. Its eight-page letter contains all of 25 paragraphs of reassurances, many of which, to put it mildly, are somewhat less than convincing.
It begins with the complacent claim:
“Our justice system and our legal sector will continue to be the envy of the world after EU Exit”,
which seven years of attrition in access to justice in this country and growing difficulty in making judicial appointments somewhat belie. It goes on to assert that the Government will,
“need to build a bridge from our exit to our future partnership”.
It is the same aspiration repeatedly voiced by the Government over other areas but not one, apparently, shared by the EU. So, far from building a bridge, we appear in danger of walking the plank. What response has been received to this aspiration and its proposed,
“strictly time-limited implementation period”?
The Government’s response to the committee’s call for provisions in any withdrawal or transitional agreement to address specifically the Brussels I Regulation is, to put it mildly, less than confident.
In the important area of family law, mentioned by a number of speakers, including the noble Baroness, Lady Shackleton, my noble friend Lord Cashman and the noble and learned Lord, Lord Hope, there is clear concern about the problem of cross-border cases, including international child abduction and financial provision. The Government’s response in August was that they are seeking an agreement to achieve cross-border collaboration in these areas. Perhaps the Minister could indicate what progress, if any, has been made.
As an article in the New Law Journal in October pointed out, while the August paper on cross-border co-operation affirmed an intention to continue to participate in the four Hague conventions to which we subscribe directly and the two to which we subscribe by virtue of EU membership,
“no mechanism for this to happen”,
was included in the paper.
We are dealing here with highly sensitive issues, from divorce and separations to child abduction and protection, adoption, the enforcement of orders for maintenance and the choice of court. Both the former and current President of the Supreme Court have called for clarity on these matters. Where do we now stand in terms of both timescale and substantive proposals?
Paragraphs 27 to 31 of the committee report raise the issue of the jurisdiction of the Court of Justice of the European Union, which the Government rejects, although the committee was,
“left unable to discern a clear policy”.
The response was flaccid, proclaiming the,
“need to ensure future civil judicial cooperation takes into account regional legal arrangements”.
How do the Government propose this is to be achieved?
The report’s conclusion called for a “coherent plan” for addressing the three sets of regulations covering families, individuals and businesses, to which the response, characteristically, falls back on the platitudinous assertions that:
“Where disputes arise, these will also continue to need to be settled. Cooperation on the civil judicial mechanisms and procedures which underpin these relationships is essential, and the best way”—
I interpolate “in the best of all possible worlds”—
“to deliver that cooperation is through a close and comprehensive agreement between the UK and the EU, that sets out coherent common rules”.
The Government’s contribution to achieving such an agreement consists of an eight-page letter sent on 1 December, but can the Minister say what, if any, progress has been made in the last four months in discussions with the EU?
Much is at stake, not least in relation to the UK’s legal services. The Law Society, in a fuller paper than that provided by the Government, calls, among many other issues, for the ability to recruit skilled individuals from Europe, access to practise in the UK and the maintenance of recognition and enforcement of judgments with EU states. It places emphasis on the need to deal swiftly with cases involving children and asserts that the UK should sign up to international conventions on family law, now covered by its EU membership. It also calls for maintaining participation in the process of serving documents and taking evidence. Do the Government agree, and what assurance can they give that these objectives will be met?
Not unnaturally, the Law Society also points to the significant contribution of legal services to our economy, including £3.7 billion of net export value. It points out that the UK is the second largest legal services market in the world and the largest in the EU, accounting for as much as 20% of all European legal fee income. All of that is under threat. Other countries are already believed to be following the trend in the banking and financial services sectors in seeking to displace the UK as a forum for dispute resolution and the source of legal advice and representation.
The society, in its report of January 2017, referred to two reports it published as long ago as September and October 2015 covering a wide range of substantive issues as well as the implications for the profession. Have the Government responded to that document and to what extent are they reflecting the society’s concerns in their approach?
The committee’s report also addressed the critical issue of the Brussels I Regulation and the potential impact on citizens and businesses of failing to reach agreement on its application after Brexit. In their response, the Government, inter alia, said that they had proposed a time-limited implementation period pending the preparation of new processes and systems. Again I ask: what response have they received?
The Government have also stated that,
“in the event that we do not agree an arrangement for future civil judicial cooperation with the EU, it will be important to have reached a common view on the general principles that would govern how ongoing cooperation in this area could be wound down”.
Given that both the Government and the EU have published their general principles in this area, can the Minister indicate how close or distant the two approaches are?
Today, in an interesting judgment, the European Court of Justice has ruled that Uber is a transport company, not a digital service, and as such its drivers should have employee rights. Is this a decision welcomed by the Government or one they would seek to change under Brexit?
It is difficult to avoid the conclusion that we are embarked on a voyage into uncharted waters with no clear destination, a potentially mutinous crew and an indecisive captain. I wish only that we had the equivalent of my noble friend Lord West at the helm.
My Lords, on the noble Lord’s last point, it is not for me to anticipate the Uber decision but the hint might be in the existence of the motor vehicles.
I begin by congratulating the noble Baroness, Lady Kennedy of The Shaws, on securing this debate. The question of the EU’s departure from the European Union is well-trodden ground in this House by now, but the question of future civil judicial co-operation between the United Kingdom and the EU has perhaps not received as much attention. I commend her and her sub-committee for the work they have done to address this. I would also like to thank, through her, the witnesses who contributed to the inquiry and whose experience and expertise we value very highly. It is because of that expertise that this is such a commendable report.
The debate gives me the opportunity to set out to your Lordships the Government’s position on this technical but important subject, to the extent that I can while we are in the course of a negotiating process. Before addressing the specific issue of civil judicial co-operation, and dealing with the points made by your Lordships, it may be worth some scene-setting.
Since June, we have worked intensively with our European partners to settle the issues in the first phase of our negotiations to leave the EU. We have made good progress and reached agreement with the EU’s negotiators on some very difficult issues. Nearly two weeks ago, the United Kingdom and the EU negotiating teams issued a joint report on the progress they have made on the three areas covered in the first phase of the negotiations. It proposes a fair deal on citizens’ rights that allows for UK and EU citizens to get on with their lives broadly as now in the country in which they live; it agrees a financial settlement that honours the commitments we undertook as members of the EU, involving a fair delivery of our obligations; and it contains an agreement on the island of Ireland that preserves the territorial integrity of the United Kingdom and the stability that has been brought about by the Belfast agreement.
As your Lordships will know, last week, the European Council agreed that this report represents sufficient progress and that we should now move on to the talks about our future partnership. This allows the next stage of negotiations to proceed, and the Council has agreed that there should be quick progress on agreeing an implementation period.
On that implementation period, the United Kingdom Government’s proposal is to ensure that businesses and people have time to adjust, and to allow new systems to be put in place. We believe that any implementation period should be strictly time limited—to around two years, as noble Lords are aware. I emphasise that it should be based on the existing structure of EU rules and regulations, during which the UK and the EU would have access to one another’s markets on current terms, and the UK would take part in existing security and other measures. Of course we welcome that progress. It is in everyone’s interests that the talks now move on swiftly during the second phase.
On the subject of this debate, many noble Lords, particularly the noble Lord, Lord Cashman, used the term “certainty and predictability”. Let me be clear that there is consensus about that. Of course, we seek to secure certainty and predictability. But a third word was used by a number of noble Lords that I would also emphasise—reciprocity. Just as we look from the United Kingdom to the EU 27, with concern about how we will ensure suitable civil judicial co-operation following our exit from the European Union, so those 27 countries look to the United Kingdom in the same way, anxious as they are, just like us, to ensure certainty and predictability, because that is what reciprocity brings.
Of course, what we call civil judicial co-operation is the framework that governs a whole spectrum of legal systems work and cross-border situations and provides rules not only in the context of commercial cases, but in the context of family law. As has been noted, the current EU rules are contained in regulations such as the Brussels Ia—the revised regulation on jurisdiction recognition and enforcement of judgments—the Rome I regulation on choice of law in contracts, and the Brussels II regulation, which covers jurisdictional rules for recognition of divorces, and for recognition and enforcement of parental responsibility and other matters. It does not stop there. There is also the insolvency regulation, which is equally important to commerce across the whole of Europe and which covers jurisdictional rules on the recognition of insolvency proceedings, and there are others. There is a guide to them in the paper that was issued by the Government in August this year.
These instruments provide a legal route to resolving, with certainty and predictability, difficult cross-border situations that can arise whether in the context of commercial law or family law. Clearly, these various measures have over the years benefited many citizens of the United Kingdom. Equally, they have benefited many citizens of the EU 27. They have benefited small and large businesses throughout the United Kingdom and small and large businesses throughout Europe. I am obliged for the noble Lord’s encouragement on that.
It is against that background that I emphasise that we are all concerned to secure certainty and predictability. For example, we know that about 3 million EU citizens currently live in the United Kingdom. We wish to ensure that their rights can be certain and predictable going forward. Equally, about 1 million British citizens live in the other EU 27 countries and we wish the same for them. Again, I underline the point about reciprocity. It is not essentially in anyone’s interests to move backwards and wind down from such a position.
Indeed, that certainty is a key foundation of economic growth. Confidence in cross-border commercial contracts and investment relationships is underpinned and enhanced by clear rules governing each country’s jurisdiction, its courts’ responsibility for resolving disputes and its ability to avoid what the noble Earl, Lord Kinnoull, referred to as the Italian torpedo, which was a feature of commercial litigation in Europe until the revision of the Brussels I regulation some years ago. Everyone understands the need for an effective system of cross-border judicial recognition, if I can call it that, in the context of the choice of law, choice of jurisdiction and enforcement proceedings. That is not cut down by any red line. I will return to that in the context of something that was said by the noble Baroness, Lady Kennedy.
The Government are seeking a future agreement with the European Union that allows for close and comprehensive cross-border co-operation. I will return to the point raised by the noble and learned Lord, Lord Hope, about what we are seeking in that context. But what we want to do is reflect as closely as possible the substantive principles of the current framework. They work well for citizens in the United Kingdom and throughout Europe. In addition to other regulations, I mentioned such things as the insolvency regulations, the EU service regulations, the taking of evidence regulations and, in the context of Brussels II and family matters, the Maintenance Regulation. They are all-embracing.
To touch on one or two points, under the repeal Bill, we will incorporate into domestic law the Rome I and Rome II instruments on choice of law and applicable law in contractual and non-contractual matters. If we do that, and Rome I and Rome II already apply in the other EU 27 states, then essentially we will have achieved a level playing field in those matters. There is no need for us to do more than that in the context of Rome I and Rome II.
Of course, in other areas, it will be necessary for us to engage in negotiations with certain parties. The matter does not just stop at the stage of Brussels and the EU; there are countries beyond the European Union. We have signed up to agreements in civil judicial co-operation that apply well beyond the EU: reference was made to the council of the Hague Conference, which gives rise to a series of Hague Conventions in this area. There are also the UNCITRAL—United Nations Commission on International Trade Law—provisions as well, which apply beyond the EU. We will continue to embrace all of those.
The noble Lord, Lord Beecham, suggested that there were perhaps three Hague Conventions that we were interested in, but it goes much further than that. The UK is a signatory to the 1965 Convention on Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters; the 1970 Convention on the Taking of Evidence Abroad in Civil or Commercial Matters; the 1970 Convention on the Recognition of Divorces and Legal Separations, which I accept does not go as far as Brussels II; the 1980 Convention on the Civil Aspects of International Child Abduction; the 1993 Convention on the Protection of Children and Co-operation in respect of Intercountry Adoption; and the 1996 Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children. So, there is a great deal more to this subject than just Brussels I, Brussels Ia and Brussels II.
Reference was also made to the Lugano convention, which is the convention on judicial co-operation between the EU and the other EEA countries—Norway, Ireland and Liechtenstein. Denmark has a separate agreement, which I will not go into detail on at the moment. I want to make one point about the Lugano convention, which I accept has not caught up with Brussels Ia —although it is up to speed with Brussels I. It is wrong to suggest that any red line, as it is termed, with regard to the CJEU’s jurisdiction is a barrier. The Lugano convention is not subject to the direct jurisdiction of the CJEU, even though the EU is a party to the Lugano convention. So, there are instruments through which we can achieve judicial co-operation, outwith the direct jurisdiction of the CJEU. That reflects the steps that we are endeavouring to take in present negotiations, and indeed what drives them.
The point that was made in our report, which I certainly tried to make, was that we were not sure how it would be possible for the UK to accede to the Lugano convention in practice, given that it is between the EU and three EEA countries. I did not mention the red line about the CJEU in the context of the Lugano convention; the question was more about how we could manage to insert ourselves into the Lugano convention.
There is no legal barrier to us becoming a party to the Lugano convention, but that would be a subject of negotiation with the council to the Lugano convention. I believe it was the noble Baroness, Lady Kennedy, who suggested that the CJEU was somehow a red line in this respect. I emphasise that it is not a red line, but it is an issue that has to be addressed in the context of the present negotiations.
I will touch on one or two points made by noble Lords in the debate, beginning with the noble Baroness, Lady Kennedy of The Shaws. Again, I go back briefly to her suggestion that our rejection of the direct jurisdiction of the CJEU had a profound effect on civil judicial co-operation. I simply cannot accept that. It does not apply in the context of the UNCITRAL rules, the Hague convention or Lugano. Therefore, there are clearly areas where we can negotiate and determine judicial co-operation without accepting the direct jurisdiction of that court.
The noble Baroness also observed that Lugano had not been upgraded. I think she suggested it was essentially stuck in aspect, or something of that kind.
Indeed so. I am familiar with it—absolutely ghastly stuff.
It is not stuck; it so happens that the convention has moved more slowly than Brussels in this context. Lugano was essentially in parallel with Brussels I. When Brussels moved on to Brussels Ia Lugano did not accelerate at the same speed, but that is not to say that it is in aspic.
I may have misheard the noble Baroness, but she suggested, in the context of arbitration, that there was no allowance for enforcement of arbitral judgments. That is not the case, because the New York convention provides for enforcement of arbitral judgments. That applies right across the world. It is not limited in any sense to the EU. Again, it seems arbitration—and commercial arbitration, which is particularly important in the context of the City of London, for example—is not affected by these issues of reciprocal judicial agreement and enforcement.
The noble Baroness, Lady Shackleton of Belgravia, suggested that the Government’s response was disappointing. I hope we have moved on from that point. She suggested that the reference to things being wound down would not do, but with great respect, we have no desire to see any of this wound down. We seek certainty, predictability and an outcome that we can say is in parallel with Brussels Ia, Brussels II and the other regulations referred to.
The noble Lord, Lord Cashman, referred to the Brussels regulations having a significant role. He is absolutely correct about that and we acknowledge it. Indeed—I believe I can get this far—we certainly agree as to our goal. He may feel that we are a little less certain than others about how we get to it, but there is no suggestion or intention of us walking away from these regulations. We will have to address the question of the direct jurisdiction of the CJEU and we acknowledge that.
I apologise for interrupting, but I did not invent the phrase “wound down”. I can quote it directly back to the noble and learned Lord. The Government’s reaction to our report was,
“in the event that we do not agree an arrangement for future civil judicial cooperation with the EU, it will be important to have reached a common view on the general principles that would govern how ongoing cooperation in this area could be wound down”.
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.
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.
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.
My Lords, I am grateful to everyone who has spoken, to all my committee members and to others. I am grateful also to the Minister for his recognition of this committee’s work and of the very high quality of evidence that we received from voices that should be listened to by government on the problems that will arise if we do not succeed in achieving the close co-operation referred to throughout this debate and the certainty that flows from it.
I hope that the Government, as they continue to negotiate Brexit, will take note of the concerns that have been expressed in the report, today and by our witnesses. Predictability and certainty, as the Minister has said, rely upon reciprocity. Rome I and II do not give reciprocity; they do not need reciprocity to work and I think the Minister will know that. It is different. The Brussels regulations give us something much more profound and the concern should be to make that possible in whatever is negotiated henceforth. Our concern is that we are likely to get something less: because of drawing a line around the court, we will no longer be party to the development of law.
One important thing—and I do not say this as a British lawyer, but on behalf of all colleagues and brilliant people I know in the law—is that the law has developed in Europe with a huge input from British lawyers, such as the Minister himself. To pull ourselves out of that discourse, which often takes place in the courtroom as well as in the committees and the other processes that develop law, would be a great shame and a great step back from the development of very positive co-operation.
So I hope that in the negotiations the Government will take note of this report, which is really urging that citizens will lose something serious if we do not maintain the current framework and if we are not party to developments as we go forth; that has been one of the great riches to emerge from the great collaborations across Europe. I say this not just of these matters but of all other rights, be it intellectual property rights, our rights as consumers, our rights as citizens—all our human rights. It is really important that we play a part in that development. We have done so, to our great credit, so far. Please, let that continue: that is the message of this report to the Government. I beg to move.