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Jurisdiction, Judgments and Applicable Law (Amendment) (EU Exit) Regulations 2020

Volume 808: debated on Tuesday 8 December 2020

Considered in Grand Committee

Moved by

That the Grand Committee do consider the Jurisdiction, Judgments and Applicable Law (Amendment) (EU Exit) Regulations 2020.

My Lords, this instrument forms part of the Government’s ongoing work to ensure that there are functioning domestic laws dealing with cross-border civil, commercial and family law matters in place at the end of the transition period that are consistent with the UK’s obligations under the withdrawal agreement.

This instrument is made under Sections 8 and 8B of the European Union (Withdrawal) Act 2018. It amends a number of statutory instruments made to remedy deficiencies in domestic legislation arising from the UK’s withdrawal from the European Union. The amendments address minor defects in those instruments, clarify the interaction of international conventions and domestic law after the end of the transition period, and ensure that two of those instruments are consistent with the provisions of the withdrawal agreement.

First is the amendment to the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019, which revoke the Brussels Ia regulation, the key EU instrument dealing with jurisdiction and the recognition and enforcement of judgments in cross-border civil and commercial matters. In its place, domestic private international law rules will apply to cross-border cases involving parties from EU member states. However, to ensure that certain employees are not disadvantaged by this change, the civil regulations transpose special protective jurisdiction rules for employment cases from Brussels Ia into UK domestic law. One of those rules ensures that employees who do not have a habitual place of work in any one country can sue their employer in the courts of the EU member state where the business which engaged the employee is or was situated.

An error has been identified in the way the civil regulations transpose this rule. The Government’s exit policy intention is to replicate as closely as possible the Brussels Ia employment jurisdiction rules, modified only as necessary to make them work in the UK. However, in relation to one ground of the special jurisdiction rules, the rule has been inadvertently broadened to cover employees without a habitual place of work in any one part of the UK, rather than employees without a habitual place of work in any one country, as is the case in Brussels Ia.

This effect of this is that a larger group of employees will be able to sue employers in UK courts under this rule. This does not reflect the Government’s policy intention; nor is it a desirable outcome, as it would mean that employees who have a habitual place of work in another country will now have the option of suing in the UK courts instead, even where the connection to the UK is more tenuous—being only that the employee was engaged by a business situated in the UK. The purpose of the Brussels Ia rule was to provide a jurisdiction only in cases where that other place, a place of habitual work, was not available.

This instrument addresses the issue by amending the civil regulations to ensure that the Brussels Ia employment jurisdiction rules are correctly transposed into UK domestic law, modified only as necessary to make them work in the UK context. It does not represent any reduction in the protection available to employees, but merely properly replicates the existing EU rules.

The Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019 revoke the Brussels IIa regulation, the main EU regulation dealing with jurisdiction and the recognition and enforcement of judgments in parental responsibility cases, and the maintenance regulation, the main EU regulation dealing with jurisdiction and the recognition and enforcement of judgments in maintenance cases. In their place, the UK will move principally to the 1996 Hague convention for cross-border parental responsibility matters involving parties from EU member states and the 2007 Hague convention for the cross-border recognition and enforcement of maintenance involving parties from EU member states. Where there are no applicable Hague convention rules, the family regulations make provision for the rules that will apply. In the case of maintenance jurisdiction, these are largely the rules as they existed prior to the relevant EU rules taking effect.

Two minor errors have been identified in the amendments made to domestic legislation by the family regulations to reinstate the pre-EU jurisdiction rules for maintenance cases in Scotland. The first of these is the carrying through of a reference to

“actions for adherence and aliment”.

These concepts have been abolished in Scots law, making this reference obsolete. This instrument addresses this by simply deleting the reference.

The second error has the unintended effect that, from the end of the transition period, certain applicants seeking maintenance, referred to as “aliment” in Scotland, would be disadvantaged. This would be where that claim is not connected to divorce or other proceedings; the applicant in such a case would be unable to bring the proceedings in Scotland and would have to pursue the paying party in the courts of the country where the paying party is domiciled. This problem is addressed in this instrument through an amendment to the family regulations to restore the jurisdiction of the Scottish court to hear claims for aliment where the applicant is domiciled or habitually resident in Scotland. We have worked closely with the Scottish Government to identify these errors and agree suitable remedies via the instrument we are debating today.

Additionally, the Government recognise that some of the precise effects of the provisions of the family regulations are potentially open to argument. We are grateful to the family law practitioners who have raised concerns about a lack of certainty in the application of the saving and transitional provisions in the family regulations. These intend to ensure that cases started under Brussels IIa or the maintenance regulation rules before the end of the transition period continue under those rules after its end. The concern is whether it is clear enough that those provisions apply to cases begun under the intra-UK maintenance jurisdiction rules, which was the Government’s intention. They have also highlighted a possible lack of clarity over the relationship after the end of the transition period between domestic jurisdiction rules in parental responsibility and maintenance matters and the relevant Hague convention rules.

This instrument addresses these areas of uncertainty through amendments to the family regulations to make clear and put beyond doubt that the saving and transitional provisions apply to intra-UK maintenance matters and that the relevant Hague convention rules take precedence over the domestic jurisdiction rules in cases that properly fall under the relevant Hague conventions.

The Cross-Border Mediation (EU Directive) (EU Exit) Regulations 2019 revoke or amend, as appropriate, domestic legislation which gave effect to the EU mediation directive, other than court rules and matters within the legislative competence of the Scottish Parliament. One of the domestic instruments amended by the mediation regulations, the Fair Employment and Treatment (Northern Ireland) Order, has been amended further by the Employment Act (Northern Ireland) subsequent to the making of the mediation regulations. This amendment came into effect on 27 January 2020; as such, the mediation regulations do not take account of it. This instrument amends the mediation regulations to take account of this later amendment to ensure the meaning of the relevant provision in the Northern Ireland order is clear once it is amended by the mediation regulations.

The Family Procedure Rules 2010 and Court of Protection Rules 2017 (Amendment) (EU Exit) Regulations 2019 make amendments to the Family Procedure Rules and the Court of Protection Rules that are consequential on the main civil judicial co-operation exit instruments. The instrument we are debating today addresses some minor technical errors in the rules regulations, re-establishing a link between the Family Procedure Rules and the transitional provisions in the civil regulations in respect of maintenance cases arising under the Lugano Convention 2007 and fixing a cross-referencing error in, and omitting an erroneous reference to “EU member state” from, the amendments to the Court of Protection Rules.

In addition to these corrective and clarifying amendments, this instrument amends two of the civil judicial co-operation exit instruments to ensure that their provisions are consistent with the UK’s obligations under the withdrawal agreement. The first of these instruments is the Law Applicable to Contractual Obligations and Non-Contractual Obligations (Amendment etc.) (EU Exit) Regulations 2019, which amends the Rome I and Rome II regulations. These EU instruments set out the rules for determining, in cases with a cross-border element, which country’s law applies, respectively, to contractual obligations and non-contractual obligations. The application of Rome I and Rome II have been extended to intra-UK matters, so are also used, for example, to determine whether English or Scots law should apply to a contract connected to both countries.

The Rome I and Rome II regulations have been retained under the withdrawal Act and will apply as domestic UK laws from the end of the transition period. The Rome regulations amend the retained versions of Rome I and Rome II to take account of the UK no longer being an EU member state. While the amendments are minor, it means that the Rome rules as retained are slightly different in some respects from the EU Rome regulations. The other instrument is the aforementioned family regulations. Both the Rome regulations and the family regulation were made in contemplation of the UK’s exit from the EU without an agreement on the terms of our departure. As a result, neither instrument takes account of the withdrawal agreement subsequently agreed by the Government and the EU.

Title VI of Part 3 of the withdrawal agreement contains provisions that determine how transitional matters—that is, matters that commence, but do not conclude, before the end of the transition period—are to be treated. In the case of applicable law rules, Article 66 of the withdrawal agreement provides that the Rome I regulation shall apply in respect of contracts concluded before the end of the transition period and that the Rome II regulation shall apply in respect of events giving rise to damage, when such events occurred before the end of the transition period. The Rome regulations do not reflect Article 66. Instead they provide that the retained versions of the Rome I and Rome II rules as amended by that instrument, and not the EU Rome I and Rome II regulations, apply to such contracts and events.

Likewise, Article 67 of the withdrawal agreement provides that the Brussels IIa regulation and the maintenance regulation continue to apply to matrimonial, parental responsibility and maintenance matters where proceedings are instituted in relevant proceedings before the end of the transition period. The family regulations contain a saving and transitional provision which, although largely consistent with Article 67 in terms of proceedings commenced under Brussels IIa and the maintenance regulation, extends to matters not dealt with in the withdrawal agreement, such as choice of court agreements in maintenance. This instrument amends the Rome regulations and the family regulations to align these instruments with the UK’s obligations under the relevant provision of the withdrawal agreement —Article 66 in the case of the Rome regulations and Article 67 in the case of the family regulations.

I should add that this is the first of two instruments that will amend the civil judicial co-operation exit statutory instruments to ensure that their provisions align with the requirements of the withdrawal agreement. The second of these instruments is still being finalised and will shortly be laid before Parliament.

On impacts, as I have noted, the amendments in this instrument correct minor technical errors and clarify ambiguities in the civil, family, mediation and family, and COP rules regulations, and will ensure that the family regulations and Rome regulations are consistent with directly applicable provisions of the withdrawal agreement. As such, they are not expected to have any significant impact on business, charities or the voluntary or public sectors. Indeed, in terms of the errors and ambiguities corrected, the amendments will ensure the civil, family, mediation and family, and COP rules exit SIs have the impact intended by the Government when they were laid before Parliament, as is reflected in the Explanatory Memoranda for those instruments and, in the case of the civil, family and mediation exit SIs, in the impact assessments published in respect of those instruments.

My Lords, I thank the Minister for explaining in some detail this statutory instrument. This SI fixes the defects in civil regulations, family regulations, mediation regulations, Rome regulations and even the rules of regulations. Is the Minister satisfied that all the problems have been ironed out? With only 24 days until we leave the EU, how many more instruments can we expect to see before the House before we go? Can he confirm that none of the amendments in this statutory instrument are in any way being discussed in Brussels today as part of the negotiations for when we finally leave?

I move on to an issue that I raised with the Minister when we had a private talk with the Minister in another place, Alex Chalk, on a specific concern of mine. I remind the Minister that I sit as a family magistrate in London and deal with the reciprocal enforcement of maintenance orders, which come under these regulations. The issue that we have in our courts is with the question of enforcement of these orders. As the Minister said, they will principally move to being enforced under the Hague conventions of 1996 and 2007. However, the issue that we have in our courts is that we have no powers, as far as I am advised by legal advisers, to enforce these maintenance orders.

When I am in the chair, there is no possibility of the noble Lord, Lord Thomas of Gresford, ever being overlooked. I call him now.

I am very grateful. I am sorry if there has been a glitch. I was ahead of the noble Lord, Lord Ponsonby, on the list that I received this morning.

I do not mind mistakes—everybody makes them—and the helter-skelter of amending the statute book in time for our leaving the EU has no doubt led to many errors in the wave of 2019 regulations put before us. If the mistakes could not be spotted at the time by government lawyers, perhaps the opposition parties can be forgiven for letting them through. I understand that another SI to amend mistakes is in the pipeline, similar to this, and I would expect others to follow.

First, the 2019 civil jurisdiction and judgments regulations inadvertently broadened the special jurisdiction rules, with the effect that a larger group of employees than the Government intended would be able to sue employers in UK courts. Secondly, the jurisdiction and judgments family rules contain two minor errors. The first are references to “actions for adherence and aliment”, concepts that had been abolished in Scots law before I ever came to know that they existed and, secondly, they inadvertently took away jurisdiction from the Scottish court to hear claims for aliment not connected to divorce or other proceedings.

The 2019 cross-border mediation regulations did not take into account alterations made by the Employment Act (Northern Ireland) 2016. Similarly, family procedure and Court of Protection rules contained minor errors. Two of the civil judicial co-operation exit instruments of 2019, which are very important to ensure co-operation with our former European partners, have been overtaken by the provisions of the withdrawal agreement.

I welcome this SI not so much for what it contains but because of its limited purposes—to use the powers that have been granted under various statutes to put right mistakes. There is nothing grandiose about it. The objection, that we hear so much, to the use of Henry VIII powers arises when they purport to carry into effect policy, not when they rectify errors, as here. By contrast, the powers to make secondary legislation that have been so offensive—the ones put back last night into the United Kingdom Internal Market Bill and abandoned this morning—were not just those which would have permitted a Minister to break the law and are contrary to the rule of law championed for so long by this country; that offence was compounded on this occasion by the unprecedented attempt to give such unlawful secondary legislation the status of an Act of Parliament, so that the use of unlawful powers could not be challenged in the courts by judicial review. The proposal was an extraordinary and unprecedented step, which I hope will never be repeated.

Today is an interesting day, not just for last night’s reassertion of illegality by a pack of Tory MPs, but as the day that the Prime Minister heads off to meet the head of the European Commission to assert the primacy of British sovereignty, having desperately weakened his own bargaining position by demonstrating that the United Kingdom cannot be trusted to keep its word. But I must be up to date. Perhaps honour has been saved this morning, not by the tooting John Soane-ian cavalry coming over the hill, but by that parfit gentil knight in tarnished armour, Michael Gove, the man the Prime Minister most trusts above all others to put a drooping lance into his back—ironic, is it not?

I take the Whig view of history: that, steadily but assuredly, humanity progresses from darkness into light. Such progress involves the necessary recognition of the rule of law, of human rights, and of international co-operation as an expression of our common humanity. In my lifetime, there has been progress. The forces of fascist dictatorship were crushed in the Second World War. International institutions such as the United Nations and its many agencies were created in its aftermath. Domestically, the welfare state, which had its origins in the reforms of Lloyd George in the early part of the 20th century, progressed and was entrenched. It gives us the National Health Service, and today, V for vaccination day.

However, in the last few years, progress has stumbled. Narrow nationalism proclaimed by populist leaders has re-emerged, blinking, into the light. The most notable instance has been the Donald Trump years—America first, when international co-operation in tackling climate change was abandoned, alliances were broken, the international order challenged, and internally, the concept of welfare, as illustrated by Obamacare, was attacked. It was all un-American.

Today, Mr Johnson will, in the Trump tradition, be arguing for British exceptionalism—Britain first. He will be asserting a faded—

I am just about to complete. I was about to say that Mr Johnson will be asserting a faded and outdated concept of Machiavellian sovereignty for which Charles I lost his head and the British Empire went to the wall. Not much to do with this statutory instrument, you may think—as the noble Lord who interrupted suggested, and he was right—but this proceeding does for once give me a platform to add a very small footnote to what is an historic day.

My Lords, if I may answer the noble Lord, Lord Ponsonby, first—however the order should have been, he spoke first. He asked whether it could be confirmed that the amendments under discussion today, as part of this statutory instrument, are not being discussed in Brussels. I am able to confirm that is the case. The United Kingdom will not be asking for bespoke arrangements on civil judicial co-operations such as these.

The noble Lord raised again the matter of enforcement power in magistrates’ courts where he sits, as he did in another context to me. I regret to advise the noble Lord that I do not have specific matters in relation to his concerns, but if I can ask him to show patience I will write to him on the matter and hope to allay fears that he may have.

The noble Lord, Lord Thomas of Gresford, spoke generously and gave a generous analogy—the helter-skelter of the times and circumstances in which the instruments containing minor errors were inaugurated. With respect, the noble Lord is quite correct to describe the circumstances with the analogy that he used. I have spoken at some length to members of the Bill team as to how these things happened. They confirmed that it was indeed a matter of the extreme and unprecedented urgency with which drafting took place. I stress to the Committee that these statutory instruments have never been enacted into law; the errors that are identified in the present statutory instrument, correcting those in the previous ones, are not errors that have caused any inconvenience to any litigant or any member of the public; and they have no caused any disruption to the court system in any part of the United Kingdom. They have been identified in good time and I freely acknowledge the assistance of the specialist stakeholders who have been in touch to point out these recondite areas in which the statutory instruments fell into error or were insufficiently clear.

Finally, the noble Lord, Lord Thomas, raised the matter of his position—interpreting history from a Whig standpoint. I am more of a Butterfield man, and refer to his book The Whig Interpretation of History. That is a huge field of history on which I look forward, when leisure permits, to having an interesting discussion with the noble Lord. I beg to move.

My Lords, apologies are due to the noble Lord, Lord Ponsonby, and to my fellow Petrean and historian, the noble Lord, Lord Thomas of Gresford, for the confusion over the batting order this evening.

Motion agreed.

Committee adjourned at 4.57 pm.