Considered in Grand Committee
My Lords, I turn to two further draft instruments that form part of the preparations for a no-deal exit. They are, as before, concerned solely with no-deal preparations. The Joint Committee on Statutory Instruments has reviewed these SIs and has no substantive comments to make about them.
I have already referred to, so shall not return to, the terms of the technical notice published on 13 September 2018 that covered these issues as well. I should say that prior to the publication of that notice my officials met on several occasions with key family law stake- holders, including leading family law practitioners and representative bodies, to ensure that our policy proposals provide certainty for citizens, legal practitioners and the court system in so as far as is appropriate as we transition to a post-exit arrangement in the event of no deal. That engagement has continued alongside the development of the instruments that we are discussing today, which are designed to implement the policy outlined in the technical notice of 13 September last year. I will come on to comment on a number of points that will arise concerning a further instrument in connection with some of the somewhat technical issues here, which I will endeavour to deal with as shortly as I can.
The first regulations we are considering in this debate are the draft Jurisdiction and Judgments (Family) (EU Exit) (Amendment etc.) Regulations 2019. These make changes to the current EU rules governing cross-border family law disputes that involve courts in the UK and EU member states. Again, the instrument remedies deficiencies that would arise from retaining these EU rules in the event of us exiting without a deal.
The second set of regulations are the draft Civil Partnership and Marriage (Same Sex Couples) (Jurisdiction and Judgments) Regulations 2019 which amend rules governing the jurisdiction and recognition of orders in relation to the dissolution of civil partnerships and divorce of same-sex married couples, which currently correspond to the EU rules. The effect of these regulations is that the rules relating to the dissolution of civil partnerships and the divorce of same-sex married couples will instead correspond to those for the divorce of opposite-sex married couples made by the first set of regulations—namely, the first instrument that I refer to. In other words, we are concerned to ensure that all these parties remain aligned.
It may be helpful if I outline the existing EU rules in this area. There are two applicable EU regulations: Brussels IIa, as distinct from Brussels Ia, and the maintenance regulation of 2009. The Brussels IIa regulation provides rules to determine, in cases where those involved come from or live in more than one member state, which court has jurisdiction—that is to say, has the right to hear a case—in relation to divorce and matrimonial disputes; matters of parental responsibility such as disputes between parents as to residence of and contact with their child; or care proceedings. It also provides rules for recognition, and enforcement where necessary, of a judgment from one member state in any of the others.
This includes a provision supplementing the 1980 Hague Convention on the Civil Aspects of International Child Abduction. That provision empowers the court of the EU member state of the child’s habitual residence to make an order requiring the child’s return to that state even if an order has been made by the member state to which the child was taken or in which the child was retained, that the child should not be returned. The regulation also provides rules on the availability of legal aid in these cases and for co-operation between central authorities in EU member states. As far as jurisdiction and recognition and enforcement of judgments in matters relating to parental responsibility is concerned, the Brussels IIa regulation covers similar ground to the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, to which I will turn later.
The second applicable EU regulation, the maintenance regulation, sets out in a similar manner to Brussels IIa the rules governing which EU member state court has jurisdiction in cross-border cases concerning family maintenance, together with rules governing the recognition and enforcement of decisions in these cases and provision about legal aid and central authority co-operation. This covers similar ground to another Hague convention: the 2007 Convention on the International Recovery of Child Support and Other Forms of Family Maintenance. It is interesting to note that many regulations of the Brussels regime developed from Hague convention provisions. Like the 2005 convention, the 2007 convention was signed by the EU on behalf of all member states; again, we have taken steps to apply to become an individual state signatory to the 2007 convention. That application has been accepted already; on exit, we anticipate that in the absence of a no-deal exit, we will be a party to that convention from 1 April 2019.
Should the UK leave the EU without an agreement covering these matters, the Brussels IIa and maintenance regulations will no longer operate between the UK and EU member states since these regulations rely on reciprocal action between member states. Even if the UK were to purport to apply these rules after exit, the UK’s status as a third country would mean that the regulations as they bind the EU member states would not apply to the UK. For example, EU member states would not be bound to afford recognition or enforcement under the regulations to decisions of courts in the UK. Retained provisions of the regulation would also overlap with the Hague convention provisions to which I have referred; that in turn would be liable to create confusion and potentially undermine the operation of those conventions because people would be left in doubt over which regime they should have regard to or recourse to in such circumstances. It is this deficiency in retained EU law, which would otherwise remain on the statute book, that we seek to remedy.
The principal means of addressing this deficiency is to revoke the Brussels IIa and maintenance regulations, subject to transitional arrangements for cases that are in train on exit day; there would be recognition for those cases for transitional purposes. However, they will be removed, as they form part of retained EU law, by the jurisdiction and judgments regulations. As I touched on earlier, this will not, however, leave us without rules or international co-operation in these areas. The UK is already a contracting state to a number of Hague conventions in the field of family law which cover many of the same areas as the Brussels IIa and maintenance regulations. In particular, I would mention the 1996 Hague convention, which covers similar ground in respect of jurisdiction, recognition and enforcement of judgments and co-operation between authorities as the Brussels IIa regulation; all EU member states are bound by that 1996 Hague convention. The UK is already a contracting state to that convention, so it will apply upon exit with no deal.
Similarly, the 2007 Hague convention contains similar recognition and enforcement rules and provisions on co-operation between authorities to the maintenance regulation. Again this applies to all EU member states with the exception of Denmark because, as the noble and learned Lord, Lord Hope, observed, Denmark has an opt-out under protocol 22 with regard to these matters in general. The necessary steps have been taken to ensure that the UK will, in the event of exit without a withdrawal agreement, be a contracting state to the 2007 Hague convention. As I indicated, that should be effective from 1 April 2019. I should add that the 1980 Hague convention on child abduction will also operate, and has operated since 1986. It will continue to apply between the UK and each of the EU member states that are parties to it. Again, that will give a degree of legal certainty.
There will, however, be some gaps in coverage and potential loss of effectiveness if we move from the Brussels regime to the Hague conventions and common law regime. There is no Hague convention covering the grounds of jurisdiction for cross-border divorce or maintenance. The jurisdiction and judgments regulations address this issue in the following way. For jurisdiction in maintenance cases, provision is made to revert to the various common law or statutory rules which operated before the maintenance regulation and other relevant EU regulations came into force. The Government intend that the maintenance remedies under Schedule 1 to the Children Act 1989 remain the same post exit as they are currently, under the Brussels regime. I am aware that concern has been expressed by some family law practitioners as to whether the instrument as drafted would actually achieve this aim. That is because there are some provisions where it is doubted whether the existing schedule to the Children Act would cover, for example, capital and property orders.
However, I can confirm that it is the Government’s position that the current remedies are appropriate and should continue to be available to a court post exit, to the extent that they are available at the present time. We do not want there to be any ambiguity about the Government’s intentions in that regard, so we are going to work with stakeholders to ensure the necessary clarity. We will bring forward a further statutory instrument if necessary to put this beyond doubt. In doing so, we will also look at some other technical issues that may arise here with regard to Article 3 of the maintenance regulation. That deals with jurisdictional rules and a somewhat technical point about whether you can take jurisdiction in a case where one party is habitually resident in the jurisdiction of the court but, for example, the parent and child are outside that jurisdiction rather than the other way around. These are quite complex jurisdictional issues, but we intend to look at those as well as we bring forward the next instrument.
In addition, there is a highly technical issue under Article 7 of the maintenance regulation about pension sharing arrangements. It is possible to seek an order from the English courts with regard to the sharing of a pension fund within our jurisdiction. That can be done pursuant to the Matrimonial and Family Proceedings Act 1984. However, in quite exceptional circumstances where neither party is amenable to the jurisdiction of the English courts, there is an issue as to how you secure that jurisdiction for such an order. There is a provision in Article 7 of the maintenance regulation, which may have been misused but was used, involving forum necessitatis—a forum of necessity—a novel concept introduced by the maintenance regulations. It was envisaged that it would be applied where, for example, one jurisdiction was in the midst of civil war and had no available courts so out of necessity you had to go to another jurisdiction to get an order.
It has been drawn to our attention that there have been a very small number of cases—potentially 20 to 50 applications—seeking to apply jurisdiction on the basis of forum necessitatis in the context of pension funds within the jurisdiction of the English courts. Again, this will be a highly complex issue of jurisdiction because it has ramifications. I just indicate that, because this, too, is related to this issue, we will look at it as we take forward a further instrument in this area. It is not covered by the present instrument and there is no attempt to cover either Article 3 or Article 7. As I indicated earlier, because there is a related issue that we will address with regard to remedies under the Children Act 1989, we will look at all of them together.
In divorce cases, the Brussels IIa jurisdiction grounds presently apply in all cases, regardless of whether there is an overseas connection, and regardless of whether any overseas connection is to an EU member state or to a third-party state. They have applied for a long time and therefore have the benefit of familiarity. They are tried and they have been tested. So, the jurisdiction and judgments regulations will include provisions for replicating in domestic law, the applicable Brussels IIa grounds for England and Wales and Northern Ireland, and make a further ground of sole domicile available to all cases. You cannot at present have a jurisdiction on the ground of sole domicile because it conflicts with the Brussels IIa regime, but we will have it as an additional ground of domicile. This will ensure a continuum as regards jurisdiction in divorce, rather than reverting back to a common-law scheme, based largely on domicile, which goes back to the pre-Brussels IIa regime and, indeed, pre-Brussels II.
Divorce is a devolved matter in Scotland. The Scottish Government have decided to take forward their own instrument in this area. They will decide how they intend to deal with it.
There is also a Hague convention of 1970 on divorce recognition, which has been implemented in the UK by provisions of the Family Law Act 1986. The UK and 12 other member states are party to this convention. As a party to it, and having incorporated its provisions into UK domestic law, we will recognise overseas divorces wherever they are from, be it from the 12 or from other states.
This leads me to the second instrument, the civil partnership and marriage regulations. I hope I can deal with this quite shortly. The regulations are simply intended to ensure that the provisions in domestic law with regard to civil partnership and same-sex marriage are identical to those for other marital situations and that the provisions for divorce are kept in step. It has always been our intention that this should be the case.
I hope that this covers all aspects of these provisions. I should be content to answer any queries. I commend the draft instrument to the Committee.
My Lords, again, I am grateful to the noble and learned Lord for being clear and relatively concise about the matters he is taking through this Committee today. It was important that he should explain the Government’s approach in this statutory instrument and he has done so very well.
The first of these two statutory instruments is the one in today’s batch which appears to have raised the most concern. It is disturbing that no impact assessments were published until 24 January and even more disturbing that they contained next to nothing of interest. It is fair to say that the Law Society “broadly supports” the statutory instrument on the basis that,
“it would be inappropriate to unilaterally continue the existing mechanism in the event of no deal”.
The grammatical error is theirs, not mine. Can the noble and learned Lord indicate whether there have been discussions with the EU about the future position on this, or on any other basis?
The Law Society stresses,
“the scale of loss of international functionality in family law in the event of no deal”,
It points out that,
“the lives of UK and EU 27 citizens have become intertwined in the last 40 years”.
It goes on to cite five significant benefits enjoyed by UK families, the future of which are at risk.
These are: the regulations on mutual recognition of protection orders, which help the protection of victims of domestic violence or harassment across borders; the European enforcement order, which facilitates the enforcement of uncontested claims; the maintenance regulations facilitating cross-border payment and maintenance; and the Brussels II regulation, which allows mutual recognition of divorce orders and determines the jurisdiction for them in domestic cases in close collaboration with courts and welfare services on issues affecting children, including child protection and abduction. Finally, the system provides mutual recognition of contact orders, and the enforcement of orders such as, in effect, custody of access.
Without a deal, we would have to fall back on less comprehensive provisions. There are, however, a number of additional concerns. Although the Minister in the other place, Lucy Frazer, informed the Justice Select Committee that there is an agreement to apply current rules to cases ongoing on exit day, the Ministry of Justice has confirmed that there is no such guarantee that the EU states will do this—they will treat us as a third state, and it will depend on their own law. This raises the risk of a rush to the courts to secure a decision under the present regime, which would cause real difficulties in cost to our own system.
Alternatively, people may find that a case started under one set of rules will be concluded under another set, with consequential delay and at greater cost. If the new system is deemed by one party more likely to assist his or her claim, there might be competing petitions. Will the Government therefore be addressing these issues—at the very least, seeking to ensure that the current rules will continue to be applied in all cases begun before Brexit?
I understand that the EU has issued a notice saying that only orders that should have been registered in the relevant member state would be recognised. There is also concern that the instrument, as drafted, could mean that a prenuptial agreement that is the subject of negotiation at the date of Brexit may not be upheld. We are dealing with issues potentially affecting large numbers of people, with 1 million British citizens living in the EU, and 3 million EU citizens living in the UK. The Bar Council points out that there are currently as many as 16 million cross-border family disputes in the EU, 140,000 international divorces and 1,800 cases of child abduction. What is the Government’s estimate of the number of cases of these three kinds affecting UK citizens, and EU citizens resident in the UK? I do not anticipate that the noble and learned Lord will have that information today, but I am sure he will convey it after today’s events.
The Council points to two EU instruments that impact significantly on our family law. One is on jurisdiction, recognition and enforcement of decisions in matrimonial cases, parental responsibility, and crucially, on international child abductions. The other deals with maintenance, including child maintenance. But the Bar Council cites a range of other benefits, including the protection of victims of domestic violence and forced marriage protection orders, together with a streamlined process for enforcing uncontested claims—for example, where the parties agree an out of court settlement.
While departure from the EU without a deal would not affect UK law, the Bar Council points to the risk of uncertainty, duplicate court proceedings, possible problems with enforcing UK court decisions in the EU, and significantly, costly pressure on an overstretched court system here. There are possible alternatives, which the Bar Council cites, under the Hague and Lugano conventions. But these are not, apparently, without problems. For example, we would have to join the EFTA or secure the agreement of all Lugano state members to adopt those systems.
There are also problems over financial provision for children. For example, these will be made only where the child and its resident parent live abroad, and the non-resident parent lives in England and Wales—whereas now it is the other way round. Should not the position be as it was before? As it stands, children living in the UK with fathers in the EU are likely to lose out. Further, it will be possible for the court only to make an order for periodical payments and lump sum or property orders.
Moreover, it appears that there could well be problems in relation to the potentially traumatic issue of child abduction. While the provisions of the Hague convention on child abductions would continue to apply, the Bar Council points out that the additional provisions embodied in the current EU regime would not. These include the home country’s ability to override a decision of the other country not to return a child; the hugely important six-week timetable, vital in abduction cases; the focus on listening to the child’s voice; and the failure, in the event of a no-deal Brexit, to benefit from impending changes, including a limited appeal in abduction cases. I understand that the department is due to revert to the Bar Council on a number of points. Will that happen before this statutory instrument is debated in the Commons? If not, and if subsequently it is decided that further changes are needed, what would be the likely timeframe?
It is four months since the chairman of the Lords European Union Select Committee wrote to the Lord Chancellor expressing concerns about the state of negotiations. Tellingly, the committee referred to the Government’s technical note published in September saying that it is,
“to help families and individuals make informed decisions about their futures. But, in our view, it does little more than encourage concerned individuals to seek legal advice. We are unable to ascertain any plan that will address our core concerns about the ‘profound and damaging’ impact of a no-deal Brexit on the UK’s family law system and those that these courts seek to protect: children”.
The committee noted that the Lord Chancellor’s UK-EU civil judicial framework provided little detail on how the Government’s aims would be achieved and observed that its understanding of the Hague convention in the event of no deal suggested a,
“worrying level of complacency … that assumes that we can leave the EU without alternatives in place and that other international arrangements will fill the void left by this important EU legislation”.
I understand that the noble and learned Lord met yesterday with the Resolution Foundation. Will he confirm that future consultations with the foundation and similar organisations will take place at an earlier stage of the process? For that matter, will he confirm that impact assessments will be published much earlier than four hours before statutory instruments are to be debated, as has apparently been the case today? Today’s impact statement avers:
“Businesses and individuals litigating in the courts of EU countries will have an advantage over those litigating in the UK as UK litigants cannot guarantee the judgment they get from the UK courts is enforceable in the EU but litigants who get a judgment from the EU courts, will almost always be able to obtain enforcement of it in the UK”.
I should make it clear that I and other Members understand that the Minister and staff at the Ministry of Justice had a hugely difficult task in drafting the important secondary legislation in which Parliament will be drowning for months, if not years, to come. This is a consequence of the Government rushing into a decision to enact massive legislative changes in an absurdly short time without adequate consultation. It is devoutly to be hoped that at least we will not end up with a no-deal Brexit which makes such legislative provision necessary, even if that requires us to undergo another round of secondary legislation to accord with a further and better change of circumstances.
My Lords, I do not propose to address the same matters of detail that the noble Lord, Lord Beecham, has done. I said a great deal of what I wanted to say about the general impact on judicial co-operation and co-operation in legal matters in the debate on the first of these statutory instruments. But let the Minister and the Government be in no doubt that the issue of co-operation in family justice, and the replacement of the system we have now by the bitty and only partial system he has outlined, is the substitution of a much less satisfactory and much less smooth step backwards—which is to be deplored—from the extremely well-respected and widely understood system that we have now across the European Union.
The noble Lord, Lord Beecham, mentioned 16 million cross-border family disputes. The European Parliament estimates that 10% of European citizens are married to people of a different citizenship, and a very large number of those are married to other European citizens. I am one of them; many in your Lordships’ House and the other place are also married to other EU citizens. Even Nigel Farage is—or was—married to an EU citizen of another state.
We have a system now that works well and is widely respected across the whole gamut of domestic law. Jurisdiction is the area where I think there has been the most difficulty because the first court is the place of jurisdiction in divorce rulings, which was difficult to accept but is now widely understood. Recognition and enforcement are absolutely crucial. Going back to the Hague rules will be unhelpful by comparison with what we have now. The system of child abduction goes back to the Hague convention of 1980. Yes, it was there but the override that we have under Brussels IIa makes the system work far better, far more effectively, far more cheaply and with far more co-operation.
Judicial co-operation across the European Union has generally been helpful and beneficial and we have all gained immeasurably from the co-operation across different jurisdictions. Legal aid is available in respect of cross-border disputes within the European Union, which will not be available after we leave it. The new arrangements for the maintenance regulations are absolutely hopeless compared with what we currently enjoy for intra-European disputes, as anybody who is involved with divorces between, for instance, UK and US or other third-country litigants well knows.
I entirely accept the Government’s argument that we simply could not insist on losing reciprocity and nevertheless maintain unilateral arrangements in the case of these convention advantages, the reason being that we would put UK citizens at severe disadvantages when their relationships with other EU citizens broke down. Nevertheless, the Minister and the Government should not rest on the consultation that they have had by discussion with some family lawyers. The Government should be in no doubt that family lawyers generally deplore the loss of the European regime, which is what would face us if we went through with a no-deal exit.
The Explanatory Memorandum produced by the Government is in similar terms to, and shares the faults of, that in respect of civil and commercial cases. It says at paragraph 12.2 on page 6:
“In the event of a no deal EU Exit, the impact on business, charities or voluntary bodies (being those that advise, represent and support individuals and families engaged in cross-border family law matters) of this instrument will, on balance, be positive. The amendments provide a basis for continued reciprocal cooperation with most EU Member States through the UK’s participation with those Member States”.
It then goes through the Hague conventions that will be available. That is a comparison with the prospect that we would enjoy if we had no statutory instrument to cover this position. The Explanatory Memorandum faces reality later on in that paragraph, where it says:
“However, the change to Hague Convention rules and the new domestic rules on divorce etc jurisdiction, maintenance jurisdiction and parental responsibility legal aid will require relevant businesses, charities and voluntary bodies to familiarise themselves and adjust their administrative arrangements to deal with the new rules. In some cases (especially divorce etc jurisdiction) the new rules could lead to greater disputation and complexity”.
Greater disputation and complexity always means greater cost. In family cases it is greater stress, unhappiness and mental health issues, and severe damage to children. One sees in so many of these cross-border cases the added damage to children, even with the present benign arrangements, because their parents are in different jurisdictions. The Explanatory Memorandum goes on:
“In the event of a no deal EU Exit, the impact on the public sector is expected to be an increase in case volume and complexity of cases before the family court due to the changes in divorce and maintenance jurisdiction rules. However, this instrument will have positive impacts on the family court as it ensures there will be workable rules governing cross-border family law disputes”.
Once again, this is confusing the two issues. Yes, there will be workable rules and, yes, that is better than no rules at all, but it is far worse than what we have now.
Of course, I accept the other statutory instrument that same-sex marriage and civil partnerships should be put on the same basis as opposite-sex relationships, but we are once again facing a situation where it is my view—and, I suggest, a view that ought to be taken seriously by the Government—that the loss of co-operation in family law and relationship law generally would be very serious, and that those prepared to countenance no deal should take that into consideration far more than they do at present. I know that the noble and learned Lord and the noble Baroness, Lady Vere, take these matters seriously. I wish other members of the Government would do the same.
I am obliged to noble Lords for their contributions. I reiterate what the relevant comparators are for impact assessments in consideration of these instruments. This Parliament determined to make a law by reason of which we leave the EU on 29 March 2019. The Executive not only have to respect that law, as made by this Parliament, but have to make appropriate plans and arrangements to allow for that in the event that no withdrawal agreement is in place as at 29 March. So, with respect to the noble Lord, Lord Marks, we are carrying out a relevant comparison within the impact assessments in that context.
I will not gainsay the comments about the benefits we have enjoyed from the Brussels regime, whether in the context of divorce, maintenance, child abduction or the wider issues we have already discussed today of commercial and civil cases. We have all benefited from that regime, but we cease to be a party to it because this Parliament has made a law determining that that would be the consequence on 29 March 2019.
On the issues of family law, fortunately we have, in essence, the foundations for all that we find in Brussels IIa. We have the 1970 Hague convention on recognition of divorce and separation and the 1980 Hague convention on child abduction. The noble Lord, Lord Marks, is quite right that it does not contain the override, but then it cannot because we will not be in a position to make an order overriding an order of an EU state court when we have left the EU. We simply cannot do that unilaterally, so we have to accept that. We have the 1996 Hague convention on jurisdiction, applicable law, recognition, enforcement and co-operation in family matters. In the context of maintenance, we have the 2007 Hague convention. All of that will be in place and, as I indicated earlier, we are also applying to be a party to the Lugano Convention, although my understanding is that the Lugano Convention is on civil and commercial rather than family matters. Nevertheless, we are taking all the steps we can at this stage to cover all bases.
On the question of future co-operation, the political declaration refers to the intention to negotiate these matters, but it takes two to tango—as is sometimes observed—and therefore the pace at which we can negotiate these issues is dictated not only by us but by the EU, and we have to take that on board.
The noble Lord, Lord Beecham, referred to the European protection order. That is a particularly difficult issue because the European protection order is in the form of a directive, which is quite specific in its terms. It says that an EU court can issue an EPO only to another EU jurisdiction, and that an EU court can recognise an EPO only from another EU jurisdiction. It is simply not possible even to apply a unilateral aspect of the EPO, but we have done that with regard to the civil protection orders that I referred to earlier.
We have done as much as we can in preparation for a no-deal exit—a no-deal exit of which no one, as far as I am aware, is truly in favour. But we have to plan for that contingency given the state of the law as it has been determined by Parliament. It is in these circumstances that I commend the regulations to the Committee.
I am grateful to the Minister. He cites the difficulty with the restriction of the powers of the European court. Could that be addressed, not as part of a no-deal situation, but in the event of a negotiated deal? I assume that it would, but it would be welcome to have that on the record.
I am not in a position to say what will or will not be addressed in the context of negotiations that are not yet under way, and that are pursuant to a political declaration that is attendant upon a withdrawal agreement that is not yet an agreement. So I am reluctant there. I observe, however, that it would be necessary for the EU to amend the relevant directive. It would have to amend it quite significantly to afford that benefit. No doubt parties will bear in mind the potential benefits of such an order going forward.
There is only one other matter that I will mention. The noble Lord, Lord Beecham, referred to me meeting the Resolution Foundation—in fact, it was my officials who met it, not me, to be clear on that. With that, I commend this draft instrument to the Committee.