UK Parliament / Open data

European Union (Withdrawal) Bill

Am I going to be able to make my speech? I thank the noble Lord for that intervention. I will be referring to the Prime Minister’s speech on Friday, which I think has some bearing and is more up to date. I am happy to talk to the noble Lord following this debate.

The amendment is highly presumptuous in suggesting a report on a measure that has no established government or parliamentary support. Passing this amendment as even contemplating a possibility of ongoing reciprocal arrangements and thence continually being bound by EU law would allow and openly encourage other areas of law, trade and social life to seek the same. This is not what the Government have said they would permit or seek. Acknowledging the possibility of this distinctive arrangement will encourage the hope of other aspects of trading and commercial life in being bound to the EU in our future arrangements.

Finally, the amendment suggests that there should be a declaration whereby a Minister of the Crown considers whether the rights of individuals in the area of family law have been weakened. This is legally controversial—and I think relates to a point just made—because of a difference of opinion on the respective advantages and disadvantages for families of EU family laws. Proposed new subsection (2)(c) in this amendment is highly presumptive of the expectation that there will be weakened rights, and would act to countenance some sort of special arrangement for ongoing reciprocity and being part of EU laws.

Amendment 53 to Clause 6 would give a UK court the power for eight years after March 2019—that is, to 2027—to refer matters relating to family law to the European court for a preliminary ruling, and it would then be bound by that ruling. Moreover, proposed new subsection (1C) states that UK courts must have

regard to decisions of the European court for those eight years, but these eight years could be extended with proposed new subsection (1D). Those eight years appear to me to be entirely arbitrary; certainly, they are intended to take us beyond the next general election. But again the intention of the supporters of this amendment would appear to be that we are forever bound by the European court.

This Bill brings EU law into UK law. The Government have made it very clear that we will not be bound by the European court, but we will give strong regard to its decisions. When we apply law which is the same as EU law, the Prime Minister has made it very clear that our courts will look at European case law. The UK courts will not be bound, as understood in the common-law system of precedent in which courts are bound by higher court decisions. This was the result of the referendum and the present approach of the Government. But when it is looking at UK legislation which is similar to or indeed the same wording as EU legislation, there will need to be strong and good reasons—in my words, but as generally understood—for us not to follow it. That is already similar to the way the UK courts look at the Supreme Court decisions of other friendly jurisdictions when dealing with other international family laws—for example, in relation to Hague conventions in respect of child abduction. The UK is well able and frequently does give very strong and high regard to such decisions without being legally bound by them.

The Prime Minister was clear in her Mansion House speech on Friday on this issue. She used very careful words confirming continued strong recognition of European court decisions but not bound in law. We cannot be bound by EU laws in a reciprocal arrangement with the EU in respect of EU laws unless we are also bound by the European court. The EU will simply not countenance the UK being part of any arrangement for being bound into EU laws without being bound into the European court. This amendment must fail because proposed new subsection (1B) requires that we are bound.

One of the reasons that I and others are very keen we leave this aspect of the EU and its political agenda is because the EU intends its laws to have universal application. This means that they do not apply to just intra-EU cross-border family matters. The EU laws must apply to all cases with no other EU involvement—so, at present, a London/New York family or a London/Sydney couple are bound by EU law. This deals with several areas such as divorce jurisdiction and the inability to bring claims for reasonable needs on a divorce settlement. If the amendment is allowed, we will have cases before the UK courts which have no EU aspect—because we will have left the EU—but in which one party could apply for a preliminary ruling to the European court where it suited their litigation advantage. One can imagine the astonishment of lawyers in, for example, New York or Sydney, saying, “But you, the UK, left the EU several years ago in 2019. Why is this still being referred to the EU and subject to EU law?” Today we must lay to rest, once and for all, any suggestion that the distinctive area of family law should alone be bound by European court decisions.

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Finally, Amendment 336 inserts a definition into the Bill. First, I can see no other area of law so defined presently before the House of Lords—not criminal law, regulatory law, financial services law or similar, yet these are areas at the very forefront of our relationship with the EU. This shows how distinctive, unusual and highly unacceptable it is for family law to be made into a special case—moreover, a special case going so much against the direction of government policy on leaving the laws of the EU. The fact that this one area of law is included should ring major alarm bells with Government and others.

The amendment refers to two pieces of EU law and erroneously equates these with family law. These two pieces of EU legislation are certainly most used in practice. But if there is going to be this definition then it should be all pieces of EU law in the family law context. There are several others. One relates to domestic violence, whereby domestic violence protection orders made in one EU member state are automatically recognised and enforceable in another. It was brought in primarily for the parts of the EU with land borders to prevent a perpetrator of domestic violence quickly crossing a nearby land border to escape domestic violence orders. It has been used, exceptionally, only a couple of times by the UK, but the fact that it is not included highlights that this definition is not all of EU family law. It refers only to the pieces of legislation which are of most interest to those behind these amendments and allow, for example, the highly concerning practice of “race to issue” which militates against couples in saveable marriages being reconciled to each other.

Importantly there are other international laws pertaining to family law to which the UK is already a signatory and which are satisfactory alternatives to these EU laws. They are created by the Hague Conference on Private International Law. Some of these laws were the models on which EU family laws were built and share many common characteristics. Most fundamentally, these laws are worldwide, with more than 80 signatory countries, working together, co-operating and looking after the best interests of children and the recognition and enforcement of family court orders and arrangements. That is why the UK can leave the EU and have no part in any reciprocal enforcement arrangement without any material detriment to family law and family life. The other alternatives exist, have been used before the EU laws came into existence, and lawyers work with them daily in practice and work closely with Governments around the world in their operation. They work well.

Type
Proceeding contribution
Reference
789 cc846-8 
Session
2017-19
Chamber / Committee
House of Lords chamber
Subjects
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