Brexit: Justice for Families, Individuals and Businesses (EU Committee Report) — House of Lords, 2017-12-20
Topic: Mixed Topics
Sarah Ludford (Liberal Democrats, Centre to centre-left): 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.