European Union (Withdrawal) Bill

Baroness Sherlock Excerpts

2nd reading (Hansard): House of Lords
Wednesday 31st January 2018 Lords Chamber

[Baroness Sherlock (Lab)]

My Lords, in a debate full of marvellous speeches, I apologise in advance that mine is going to be boring. It is possible to be boring and very important at the same time—I know: I used to work in the Treasury. I am going to look at a specific area but, by the end, this may be a lens through which we can look at the Bill as a whole.

I want to look at family law and the law affecting families with kids. In doing so, I have been grateful for some wise and thoughtful briefing from various quarters, including the Children’s Society and the Brexit family law group. Family law has a major international dimension. There are about 140,000 international divorces and 1,800 cases of child abduction within the EU every year. The matters at stake cover divorce and maintenance, child contact and child protection, child abduction and the protection of victims of domestic violence and harassment.

Brexit and the way this Bill is crafted pose some real problems for this area. By importing EU family provisions into our law, this Bill does not change substantive law, but it maintains our obligations without any guarantee of the reciprocity necessary to make them work. The result is that the Bill shunts us into a one-way street where the UK is obliged to apply the current provisions, but the EU 27 will not have to do the same for us because we will have left.

Although there is no effect on our substantive law, EU family provisions affect our lives in various ways. Imagine a German man, Andreas, married to an English woman, Jane, living in Germany with their son, Thomas. They are affected in various ways. First, there is jurisdiction. Imagine that Andreas and Jane separate and Jane comes back to England and petitions for divorce in Birmingham, while Andreas petitions in Berlin. Thankfully, there is a mechanism to decide which court takes precedence, avoiding expensive parallel proceedings.

Secondly, there is enforcement. If Jane gets an order from an English court for maintenance and Andreas will not pay up, Jane can enforce the English order by applying directly to the court in Germany using her English court paperwork, or via the central authorities. If Jane also has a contact order from an English court when Andreas fails to return Thomas after a summer visit, the EU family law provisions provide enhanced and quicker mechanisms to get him back. England also gets the final say if, for any reason, Germany will not return Thomas. If Andreas then gets cross and starts harassing Jane, she can get an injunction against him in England which is automatically enforceable in Germany.

Thirdly, there is co-operation. The stress means Jane starts neglecting Thomas and a neighbour gets worried and alerts social services, at which point Jane disappears to Ireland. Fortunately, the rules on co-operation mean the two countries can readily share information.

What will happen to this admittedly rather unhappy family post Brexit? We will lose the rules that stop parallel divorce proceedings, so with Andreas and Jane both petitioning for divorce, if Andreas files first in Germany, under this Bill we have to stop proceedings here. But if Jane files first, Germany does not have to stop its proceedings. We could end up with simultaneous cases running in Birmingham and Berlin at vast expense, reaching contradictory decisions on maintenance and contact with no certainty about enforcement. Jane loses the enhanced provisions that would ensure the speedy return of Thomas if his dad keeps him in Germany, and our courts lose their final say but would have to respect it the other way round. Jane would have no ability to enforce any domestic violence injunction in Germany. She would have to raise separate litigation there, by herself if she cannot afford lawyers.

On the rare occasions this has even been touched on, Ministers like to say that there are alternatives. They cannot point to common law as here we are talking procedural not substantive law. They might cite existing conventions but there is no guarantee that they will apply. There is nothing in place of the domestic violence protection measures. There are no practical alternatives on divorce. With regard to maintenance and children cases, the relevant Hague conventions offer much weaker protection and narrower provision than we have now.

In short, our citizens would be disadvantaged by lesser provisions. We would have to apply the EU provisions in our law while the EU 27 would have to give our citizens only the secondary protection under the Hague conventions, if they are applicable at all. The Bill will create confusion as to which laws apply and when. Families will not know whether or when their orders can be enforced and disputes will be slower and more expensive.

What are the alternatives to the options in this Bill? There are not many. The first is to retain full reciprocity. That would almost certainly mean being bound by the CJEU and its decisions, which Ministers currently reject. It is worth noting that unlike in other areas of law, here the CJEU is dealing only with procedural questions, not with substantive law. Every EU state keeps its own family law. The court can rule on questions of interpretation of laws, such as which country decides a case or the wording of enforcement orders. It does not change the law by which a country decides who gets divorced, what maintenance will be granted or how much contact there will be.

Secondly, we could seek a bespoke arrangement. We could try to make a deal with the EU for a new framework for family law co-operation. That would be slow and difficult and certainly not possible by 2019. Even if we end up with no deal and even if we can get rid of the asymmetry, there is still no guarantee that the Hague conventions would apply, leaving us with an unacceptable void.

I am very worried that Ministers appear to have given no attention to what they will do about this area. I have heard not a single thing telling us what they will do. By the time we get to Committee—where I intend to return to this—I very much hope that the Government are in a better position.

I have a final word on children. Children’s charities are deeply concerned about whether our law will be sufficiently robust and comprehensive to protect vulnerable children post Brexit. For example, not all the provisions of the EU anti-trafficking directive 2011 were brought into domestic law, which will leave real gaps in safeguards, for example for unaccompanied minors.

It is not just trafficking. Noble Lords may remember the awful case of Northern Irish teenager Ronan Hughes—just one example of the international nature of many crimes against children. He killed himself when images he was lured into sharing online were sent to his friends when he would not pay a ransom. Last year his blackmailer was finally put away thanks to Europol.

These issues do not make headlines, but perhaps they should. Whatever the high politics of Brexit, children in the UK deserve protection and our citizens should be able to enforce our family law in Berlin as well as in Birmingham. That is what is at stake. I very much hope that the Minister will attend to it.

European Union (Withdrawal) Bill

Baroness Sherlock Excerpts

Committee: 4th sitting (Hansard): House of Lords
Monday 5th March 2018 Lords Chamber

Moved by

[Baroness Sherlock]

29: After Clause 4, insert the following new Clause—
“Maintenance of rights in the area of family law
(1) Within six months of the passing of this Act, a Minister of the Crown must publish a report outlining the ways in which the rights afforded by EU family law continue to exist in domestic law.(2) The report provided for under subsection (1) must include—(a) the steps, if any, taken by Ministers of the Crown to negotiate the continuation of reciprocal arrangements between the United Kingdom and member States in the field of family law;(b) the nature and duration of these reciprocal arrangements, if such arrangements have been successfully negotiated; and(c) a declaration from the Minister of the Crown outlining whether, in their view, the rights of individuals in the area of family law have been weakened.(3) The Minister of the Crown must lay the report before both Houses of Parliament.”

[Baroness Sherlock (Lab)]

My Lords, in moving Amendment 29 I shall speak also to Amendments 53, 120 and 336, all tabled in my name. In doing so, I should like to record my appreciation of the work done by the Brexit and Family Law group, especially the members of the Family Law Bar Association, Resolution and the International Academy of Family Lawyers who have worked so hard to produce expert briefing for the House.

At Second Reading I set out the problems facing international family law post Brexit. I have tabled these probing amendments specifically to give the Minister the opportunity to reassure the Committee that he understands the severity of the problems and tell us how the Government propose to take forward family law provisions within the UK after Brexit. I will spell out—as succinctly as I can, given the complexity of this issue—what the problems are, explain the only two ways I can think of in which the Government could deal with this, and invite the Minister to tell us in which direction they plan to take the country.

Amendment 336 simply clarifies what counts as family law for the purposes of this debate. It focuses on two main instruments, the first of which is Council Regulation No. 2201/2003, known as “Brussels II revised”, or “Brussels IIa” in the jargon. It deals with jurisdiction for divorce and issues about parental responsibility for children. As well as private law disputes about child arrangements within a family, it covers child abduction cases and public law disputes where local authorities seek child protection measures. The second is Council Regulation No. 4/2009, known as the maintenance regulation, which deals with child maintenance obligations and maintenance for the adults in a family. There are plenty of other important EU instruments that affect families, but because of time I will not go through them all.

Let me explain how the EU family law provisions named in Amendment 336 work. Unlike in other areas of law, each EU state makes and keeps its own family law, so that countries decide the terms of their own substantive family law. These EU family law provisions are really about procedure and they do three things, the first of which concerns jurisdiction. They provide a mechanism for deciding which country’s courts take precedence if cases are issued in two countries at the same time, thereby avoiding expensive parallel proceedings that could lead to contradictory decisions. The certainty and predictability make it easier for families to understand what will happen.

Number two is enforcement; that is, a court order for maintenance or child contact—or an injunction against harassment issued by an English court—can be enforced in other EU states, and vice versa. Thirdly, there is co-operation between EU member states, for example the sharing of information to protect children, help locate people to make them pay maintenance or start proceedings across borders.

The Bill copies those EU provisions into UK domestic law, but the whole point of the regulations is that they will work on a reciprocal basis. When we leave the EU we will lose that reciprocal aspect. The Bill cannot solve that problem; in fact, it creates an additional one. By importing EU provisions, we do not change our substantive law but we do retain our obligations toward the judgments of other EU member states, without any guarantee of reciprocity. So we have a one-way street where the UK is obliged to apply current provisions but the EU 27 will not have to do the same for us. A Polish order to return an abducted child or enforce a contact order would be automatically enforceable in England, but the reverse would not be true. English orders might be enforceable using other international conventions, but those have different provisions and there would be a mismatch in the way decisions are treated. A British woman could be forced to stop her divorce case in the English courts if her husband had filed first in Germany, but the reverse would not be true. The couple could end up with cases running simultaneously in Birmingham and Berlin at vast expense and reaching contradictory decisions on maintenance with no certainty of enforcement. There are no other international conventions applicable across the EU to help in divorce cases. Lawyers will not know what to advise on how orders will be treated, and many families will not have the money to fight it out in court. Those who cannot afford advice will be lost.

I am afraid that, to complicate things further, these regulations are about to change. The EU is in the middle of renegotiating them: it is about to negotiate an update to Brussels IIa, creating a “Brussels IIa recast”, in the jargon. In October 2016, the UK decided to actively get involved by opting into the renegotiation of Brussels IIa, which is expected to conclude some time next year. The reforms aim, broadly, to improve return proceedings after a child is abducted by limiting the number of appeals and concentrating on certain courts—to enhance children’s rights and give children the chance to be heard in court—as well as making various other improvements, such as better co-ordination with the 1996 Hague Convention on Protection of Children. Those improvements are welcome, but they help us only if the recast provisions are complete before Brexit. If they are not—and they probably will not be—we will end up importing into our law provisions that will almost immediately be different from those from the EU, making it even harder to negotiate getting back any reciprocity.

A final challenge is that the UK contains a number of different jurisdictions—England and Wales, Scotland and Northern Ireland—all of which have different family law systems. We might come back to that later in the Bill. So that is the landscape at which Amendment 29 is directed. It invites Ministers to publish a report that outlines the way in which the rights afforded by EU family law will continue to operate in domestic law, what steps Ministers have taken to negotiate reciprocal arrangements between the UK and the EU 27, and whether the rights of individuals have been weakened as a consequence. I hope that Ministers will accept the amendment, but for the report to be meaningful we need the Minister to answer a key question today: what is the Government’s vision for family law post Brexit? I will make it easier by making it a multiple-choice question, because I think there are only two choices. Option one is that we seek to retain the status quo as far as possible, permanently. The 2017 report of our Justice Sub-Committee of the European Union Committee—called Brexit: Justice for Families, Individuals and Businesses?—said that the three main EU regulations were,

“crucial to judicial cooperation in civil matters and reflect the UK’s influence and British legal culture”.

The report urges the Government to stay as close as possible to those rules when negotiating their post-Brexit position.

So the questions begin: is the Government’s goal to stick with the provisions of the EU family law regulations? If so, we will clearly need some sort of reciprocal arrangement with the EU, covering the EU 27, to make those provisions effective. Question two: are there negotiations with the EU, ongoing or planned, to discuss that issue—and, given how tight time is, when might those be expected to conclude? Question three: if the Brussels IIa recast is adopted by the EU after Brexit, do the Government intend to amend the provisions brought into our law to reflect the improvements brought about through the recast measure?

--- Later in debate ---

[Lord Grocott (Lab)]

Just before my noble friend leaves Amendment 53, I will say that I have followed her almost entirely and agreed with her, but I do not understand in practice what the amendment means by requiring UK courts and tribunals to “have regard to” relevant decisions of the European court relating to cases referred to it by the domestic courts of EU member states. In practical terms to a layman, what does “have regard to” mean? Is it standard legal terminology?

[Baroness Sherlock]

It is standard legal terminology, and I thank my noble friend for his question. It would mean having regard to the human rights model. I said at the start that these were probing amendments. One of the reasons why I tabled it in that form is that I knew that if I tried to do anything more specific I would end up getting a classic government answer about the European court. To be honest, I am not really interested in having a fight about that. All I want to do is to understand what the Government’s approach to this is and how they will deal with whatever kind of judicial oversight is needed to enable reciprocity. So I will be open to whatever they come back and say; I will look at it in Hansard and judge it afterwards, rather than getting into it now. This is Committee and that is what I was trying to do.

My final questions are: will the Minister assure us that the 1996 Hague child protection convention will have continued application? Secondly, the UK will have to ratify the 2007 Hague convention on maintenance independently once we have left the EU. Because we have to give three months’ notice on that, if we do not take action before Brexit there will be a minimum three-month gap in its applicability after we leave. So what steps are the Government taking to ensure that it continues to apply seamlessly?

I know that I have asked an awful lot of questions, but at heart there is a core question: do Ministers want to try to stay with the current reciprocal provisions, which are tried and tested? If the answer is yes, are they taking the necessary steps? If it is no, where are we heading and what are we going to do in the interim until we get there? These are important provisions for the effective conduct of cross-border family cases. There are a lot of international divorces each year. These issues cannot be ignored. Children will suffer if they are not returned promptly after being abducted, or if their main carers do not get the maintenance they are entitled to. Families can lose time and money fighting court cases in two countries, with no certainty as to what happens at the end. We need to know where we are heading. To that end, I look forward to the Minister’s reply.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I support Amendment 29 and the supporting amendments. My noble friend Lady Hamwee has put her name to them to express our strong support from these Benches.

The Foreign Secretary said in his one of his more perceptive interventions—delivered, appropriately, on Valentine’s Day—that if we get the right deal on aviation and visa-free travel, British citizens will continue to travel within the EU, meet interesting people and fall in love. It follows that they may also marry and have children with EU citizens.

There are approximately 16 million international families in the European Union and about 140,000 international divorces in the EU annually. While the statistics are not collected by individual countries, a great many of them involved British citizens married to citizens of other member states. Over many years, we have painstakingly constructed an effective, fair and widely admired set of arrangements for permitting very different family law systems to operate alongside each other within the EU, while enabling member states to respect the laws, orders and arrangements made elsewhere in the Union.

Importantly, as the noble Baroness, Lady Sherlock, explained, EU family law concerns procedural and not substantive law. All EU states have their own substantive family law; in the UK alone, we have three systems: one for England and Wales, one for Scotland and another for Northern Ireland. However, EU law has established a common set of rules for jurisdiction, recognition and enforcement of judgments and orders and cross-border co-operation. The Brussels IIa regulation, enforced since 2005, governs jurisdiction; that is, where proceedings ought to be brought and decided. It applies to divorce and cases concerning children; in private law disputes, such as those concerning residence or contact between parents and children; and to public law disputes where local authorities are concerned for child protection. The regulation also provides rules for child abduction cases, of which there are roughly 1,800 a year within the European Union, simplifying and expediting the enforcement within the EU of the protections accorded by the Hague convention.

The maintenance regulation which the noble Baroness, Lady Sherlock, also mentioned, enforced since 2011, enables parties to enforce maintenance obligations for adults and children across the Union. Further EU measures, directly applicable in all member states, reinforce protection for victims of domestic violence and assist in enforcing out-of-court settlements.

The effect of the Bill is that the UK would continue to be bound to apply EU family law in its entirety as it stood at exit day. However, there would be no reciprocity. We would be bound to recognise and enforce the decisions of EU member states, but the 27 remaining member states would be under no such obligation to recognise or enforce decisions of UK courts. So British citizens would be at a significant and lasting disadvantage. There would be the risk of proceedings in the UK being pursued in parallel with proceedings in EU member states and so the risk of conflicting judgments, with EU judgments enforceable in the UK and UK judgements unenforceable in the EU. This would be,

“the worst of all outcomes”,

as the Family Law Bar Association, Resolution and the International Academy of Family Lawyers pointed out in their excellent joint paper published in October. It would, as the paper asserted, leave our citizens in a position of significant vulnerability and confusion, and lead to unfair outcomes.

A further issue is that Brussels IIa is currently being revised. British family lawyers have been playing their important part in shaping the new arrangements. However, the new regulation will not apply to the UK unless we legislate for it to do so. Even legislating for it to do so will not bring about reciprocity unless we agree in negotiations to that reciprocity, and there’s the rub, because EU law is subject to interpretation and ultimate determination by the Court of Justice of the European Union, yet the Government insist on rejecting the direct application of CJEU decisions. Decisions of the CJEU in this field concern the rights of individual citizens. Cases are referred to the court because national courts seek the determination of individual cases before them by the European court. Members of this House have asked over and over again: why should the 27 give that up?

Amendment 53 is designed to explore a continuing role for the CJEU. The court has provided a successful system for the determination of disputes and for the supervision, monitoring and development of EU law. In our debate on the European arrest warrant on 8 February, I suggested that if we went ahead with this project to leave the EU, we could seek some adjustment of the constitution of the court, so that in areas of cross-border co-operation involving the United Kingdom the court might include a UK judge and a UK Advocate-General, which it otherwise would not, after we left, whether by the creation of a separate division of the court or by some other means.

The noble and learned Lord, Lord Mackay of Clashfern, whom I see in his place, raised the constitution of the court in Committee with my noble friend Lady Ludford, last Monday. However, I cannot see any basis on which we can preserve the benefit of EU family law, just as in many other areas where we seek continued co-operation with the EU, without agreeing to its fundamental underpinning by the guarantee of recourse to the CJEU. There has been no answer from our Government on these issues.

European family law brings this country an unqualified benefit. There is no down side. The Government, in answers from the Dispatch Box, have recognised this. They say they want to continue to benefit from the rules for cross-border co-operation in family law. However, we can no longer be asked to listen to pious protestations from the Dispatch Box in this House to that effect when, almost in the next breath, they contradict themselves by rejecting the decisive role of the Court of Justice in determining the application of the rules. Amendment 29 would insist on some frankness on the part of the Government about the consequences of Brexit for family law—frankness with the British public, who have a right to be informed of the threat to international co-operation in this area, and frankness with this Parliament, which will in due course be asked to enact a statute approving any withdrawal terms.

This Bill and the Government’s obsessive stubbornness on the question of the CJEU threaten to make international co-operation in family law a needless casualty of Brexit, with absolutely no countervailing benefit, either for British citizens or for citizens of the rest of the European Union.

--- Later in debate ---

[Lord Keen of Elie]

I am happy to repeat the observation I made earlier: these difficult cases are resolved, for example, between Norway, Iceland, Switzerland and the other members of the Lugano convention embraced within the EU. In that context, each of the courts—the Lugano court and the CJEU—respects each other’s judgments, but they are not bound by them. That happens all the time. Ultimately, it would be for the domestic courts of each jurisdiction to determine what they were and were not prepared to enforce in the context of these agreements. That does not present any insurmountable difficulty, any more than it does in the context of the reciprocal recognition and enforcement of orders made pursuant to the current Hague conventions.

Again, I am obliged to the noble Baroness, Lady Sherlock, and to the noble Baroness, Lady Kennedy of The Shaws, for the report. I repeat my offer of further meetings to the noble and learned Baroness, Lady Butler-Sloss.

[Baroness Sherlock]

My Lords, I thank all noble Lords who have contributed and the Minister for his reply. When I tabled these amendments—I realise that they have not found favour in all corners of your Lordships’ Committee—my aim was simply to have a discussion that I thought had not happened since the Bill began. It had not happened in another place and, with all respect to the Government, it has not been happening in the kind of detail we need in the publications we have seen so far. We have at least now begun to have this conversation and I am delighted that we have.

The debate has established to so many people quite how important these family law provisions are. They are fundamental to the welfare of so many of our children, because issues of child abduction, child protection and child contact are caught up at the centre of this. Those points were made very well by my noble friends Lady Massey and Lord McConnell of Glenscorrodale, and by the noble Baroness, Lady Tyler, and the noble Lord, Lord Carlile. The importance of a single effective family law system was stressed very well by the noble Lord, Lord Marks, who also expressed how well-functioning and widely admired our system is. The need for it was underscored so well. I am hugely grateful to the noble and learned Baroness, Lady Butler-Sloss. When I heard her speech I wanted, in the way children do nowadays, to say “what she said”. She expressed it so well that I should have walked away at this point, but I think convention prohibits it so I press on.

I will pick up two or three points that were in contention. I do not think I will take up all the points made by the noble Lord, Lord Farmer, but his most important contention was that the provisions in the Hague conventions and elsewhere are sufficient unto the day. I hope he will take the opportunity, when he can read Hansard, to reflect on the comments made by the noble and learned Baroness, Lady Butler-Sloss, and my noble friend Lady Kennedy of The Shaws, and to look at how the weight of opinion in family law is clearly against him on this matter.

I would be happy to discuss this further outside the Committee, but to make a couple of specific points, Brussels IIa is distinctly better than Hague because it has a stricter timetable on abduction. There is a back-up mechanism—a second bite of the cherry—so that the child’s home country has another opportunity to overrule a decision by another court not to return an abducted child. The Brussels II recast will make that far better still.

The noble Lord, Lord Farmer, mentioned the provisions on divorce, which I found harder to understand. My understanding is that the 1970 Hague convention is much more restrictive than the current arrangements and that very few EU members are signed up to it anyway. It has no direct rules about jurisdiction, so we would be back to these forum conveniens arguments deciding expensively where which court should rule. Those things take at least two days in court, probably with a circuit court judge or above. I do not think there is a practical alternative on divorce, but I would be very interested if the noble Lord wanted to intervene or to talk to me later to challenge that.

I hope that we would all widely accept that the current EU provisions are the superior offering available. The challenge would be to find out how we can best salvage what is there. I take the point made by the noble and learned Lord, Lord Mackay of Clashfern, from whom I dissent with great trepidation, that the Bill is doing what it can to replicate the current provisions. The problem is that, by importing those provisions, it is not replicating the current situation, because, by doing so in a context of no reciprocity, it is creating asymmetry between our obligations to the EU 27 and theirs to us. That needs dealing with very early on.

European Union (Withdrawal) Bill

Baroness Sherlock Excerpts

Committee: 4th sitting (Hansard - continued): House of Lords
Monday 5th March 2018 Lords Chamber

[Baroness Deech (CB)]

My Lords, my noble and learned friend Lord Brown is of course right. There is a simple proposition in law, which is that the United Nations convention, like others, is not directly enforceable in this country—let alone between two individuals—until and unless it has been incorporated into our domestic law, which it has not been. On the face of it, if one brought it as it stands by our decision tonight, or later, how would we tackle things such as where the charter and the convention say that every child has the right to know and be brought up by his parents? How would we reconcile that with our very complicated and subtle laws about, for example, sperm donors or surrogate parents? How would we reconcile a child’s right to education with our very lax attitude towards home schooling and our inability to bring that under control? How would we reconcile it with the very sad fact that the majority of divorced and estranged fathers do not turn up to see their children, even though their children would like to and have a right to see them?

In other words, it is extremely complicated. It is not enough simply to wave a flag for what a good thing the United Nations convention is, which indeed it is, unless it is incorporated in a careful and detailed fashion into our law, which it has not been. It therefore cannot be by a side wind as this Bill goes through Parliament.

[Baroness Sherlock (Lab)]

My Lords, this has been an interesting and important debate and one that was much needed. As my noble friends Lady Massey of Darwen and Lady Lister and the noble Baroness, Lady Greengross, pointed out, there does not seem to have been enough attention paid to how Brexit may affect children. This point was made strongly in the briefing that a number of us attended and in the written materials given to us by an alliance of children’s organisations, and we are all very grateful for the work it put into briefing the House on this.

Many children’s charities are worried that neither the referendum nor the subsequent discussions engaged adequately with the voices of children and young people, especially those under 16, who still should have the opportunity to express their views.

A number of areas have been raised. I shall not go through them all, but we heard interesting comments around issues of cross-border co-operation by the noble Earl, Lord Dundee, and the noble Baroness, Lady Meacher, on the European arrest warrant, Europol and Eurojust. The noble Baronesses, Lady Meacher and Lady Greengross, touched on family law and cross-border co-operation, which I will not come back to, having spoken rather a lot on that on an earlier amendment, but I will be interested in anything the Minister has to add on that.

Two specific issues came up tonight. One is the status of children’s rights in the UK after Brexit and the other is we how retain appropriate mechanisms for ensuring that due regard is paid to children’s rights when policy and law are being developed. As my noble friend Lady Massey pointed out, a range of different types of EU regulations affect children. The way the key mechanisms come together is interesting. For example, the European Convention on Human Rights, the EU Charter of Fundamental Rights, particularly Article 24, which is based on the UNCRC in the first place, the UN Convention on the Rights of the Child and the constitutional commitment in Article 3(3) of the Treaty on European Union to protect the rights of the child in all EU activities affecting children. The interesting result of this is that measures enacted at EU level, whether or not they directly target children, are interpreted and applied by member states in a manner that is consistent with international children’s rights standards. That is what we are trying to chase down here today. The risk of losing some of that is what these amendments are concerned with.

Amendment 37, tabled by my noble friend Lady Massey of Darwen, and Amendments 38 and 39, tabled by the noble Baroness, Lady Greengross, seek to retain parts of the Charter of Fundamental Rights. Amendments 68, 69, 70, 97 and 158, tabled variously by my noble friend Lady Lister, the noble Baroness, Lady Meacher, and the noble Earl, Lord Listowel, refer in various ways to the UNCRC and the requirement at least to have regard to the provisions of sections that have been ratified by the UK or, in some cases, to go further than that. My noble friend Lord Foulkes and the noble Baroness, Lady Greengross, made a powerful case for the importance of attending to the right to dignity for older people, especially in care. I am sure the whole Committee will be interested to hear the Minister’s response on those important issues.

Looking at these different instruments, Ministers in general argue that removing the charter will not result in a reduction in rights and they cite their right-by-right analysis, but as we have heard sometimes that may simply indicate that aspects of a charter right are protected domestically without necessarily meaning that those rights are being fully protected. My noble friends Lady Massey and Lady Lister referred to a counsel’s opinion obtained by the EHRC which offered a very different assessment of the likely reduction in rights. I should declare a historical interest as an EHRC commissioner in the long-lost and greatly missed days before I joined this House and had the opportunity to spend many evenings discussing the importance of Brexit.

The EHRC briefing states that “some Charter rights”, for example the right for a child’s best interests to be a primary consideration in all actions taken by a public or private institution,

“have no equivalent protection in UK law. Furthermore, the Charter provides remedies, such as the ability for an individual to challenge laws that breach their fundamental rights, which are not otherwise available in UK law”.

The noble and learned Lord, Lord Brown of Eaton-under-Heywood, mentioned that we had a debate on day 2 in Committee specifically about the charter—led, if I may say so, brilliantly by my noble and learned friend Lord Goldsmith—but the reason that these amendments are being debated here is because when he responded to that debate, the noble and learned Lord, Lord Keen of Elie, did not make any reference to the issues raised about children and therefore people who are concerned about children’s rights want to understand how they will affect the people they are concerned about.

The noble and learned Lord said in reply:

“I understand the concerns expressed by some about whether some rights would somehow be left behind, but if we can and do identify a risk of such rights being left behind, we are entirely open to the proposition that we have to address that by way of amendment to the Bill, and we will seek to do that”.—[Official Report, 26/2/18; col. 573.]


Can the Minister tell us whether an audit has been done in respect of children’s rights to see whether any of them will accidentally be left behind? If so, what was the result, and if not, when will it be done?

What of the other measures? My noble friend Lady Lister quoted the reply given by the noble Lord, Lord Callanan, at Second Reading, in which he sought to reassure the House that children’s rights would continue to be protected by the Children Act 1989 and through our remaining party to the UNCRC. The UNCRC is hugely valuable, and I was pleased to hear it being defended so vigorously and passionately by my noble friend Lord Judd. But as many noble Lords have said, although we have ratified the UNCRC, the convention has not been fully incorporated into UK law and there are no effective sanctions for non-compliance.

The Children Act 1989, to which the noble Lord, Lord Callanan, referred, applies of course only to England and Wales. The problem for children in the UK as we leave the EU, as pointed out very clearly by my noble friend Lady Lister, is that there is no explicit constitutional commitment at a central UK level to children’s rights, and it is that level at which most EU legislation will be amended or repealed in the period post Brexit. We do not have any specific statutory provision requiring respect for children’s rights in lawmaking, and no general requirement to safeguard and promote the welfare of children in the UK.

As the noble Lord, Lord Wigley, pointed out, there are devolved provisions, such as the Rights of Children and Young Persons (Wales) Measure 2011 and the Children and Young People (Scotland) Act 2014. But as a number of noble Lords have pointed out, my noble friend Lady Massey among them, the Bill brings competence on matters that have been arranged under EU law back to Westminster and would seem, on the face of it, to prevent devolved nations from exercising their powers to stop or amend legislation from Westminster—even, as the noble Lord, Lord Wigley, pointed out, where it might contradict their own commitments to children’s rights. I look forward to hearing the Minister explain to the Committee how the Government will deal with that.

On one level, these conversations may sound academic, but the noble Lord, Lord Russell, made a passionate defence of why human rights matter. They matter for everybody, even—probably especially—for people we do not want to give them to, but they certainly matter for children. One reason they matter is because of what we are talking about at the end of this: how to ensure that our children are safeguarded, protected from harm and enabled to flourish. I know no Government would want to challenge that aspiration, but the danger is that where there is no specific requirement to pay due regard to the interests of children when deciding matters in legislation, law and practice, especially when the matters may not appear to specifically relate to children, there is a real danger those interests can, and do, get overlooked.

The noble Lord, Lord Russell, and the noble Baroness, Lady Meacher, gave some important examples of forced child labour and slavery, but there are also some examples that are wholly unrelated, on the face of it. Under current EU law, the free circulation of goods and services between member states—a very fundamental principle of course—has to be balanced against the need to ensure the welfare of children who are exposed to them. In post Brexit trade deals, how will similar safeguards be ensured and, if it is necessary, how can they be enforced legally?

The noble Lord, Lord Russell, referred to data protection. The general data protection regulation makes specific recommendations in respect of children, saying that they have the right to be properly informed in language they can easily understand. Children’s charities fear that without that, our children will specifically be targeted by marketing of things that will not be good for them.

Nearly a quarter of our population are children. As we have heard, they did not get to vote in the referendum, but they are the ones who will live with its consequences for the longest time. I doubt many of the parents who voted leave did so in order for their children to be less well protected than they are at the moment.

We should be celebrating and building on the significant contribution the UK has made to the EU’s work on promoting the best interests of children. I hope the Minister has heard the concern from around the Committee and that the Government’s previous assurance does not seem to have given the reassurance that he might have hoped. If the Government do not like these amendments, could he tell the Committee how they will ensure that our children will be protected in future?

European Union (Withdrawal) Bill

Baroness Sherlock Excerpts

Report: 1st sitting: House of Lords
Wednesday 18th April 2018 Lords Chamber

[Baroness Crawley (Lab)]

My Lords, my noble friend Lady Kennedy is simply asking that the Minister publish within six months of Royal Assent a report outlining how the rights currently enshrined in EU family law will continue to exist after exit day. That is a very modest ask.

[Baroness Sherlock (Lab)]

My Lords, I am grateful to my noble friend Lady Kennedy of The Shaws for a characteristically impressive summary of the challenges facing us in relation to family law post Brexit. I should also like to place on record my appreciation of the work done by the EU Justice Sub-Committee, which she chaired so ably, and the very helpful report it produced last year entitled Brexit: Justice for Families, Individuals and Businesses?. These issues are of huge importance to a significant minority of our citizens, and I am grateful to the noble Lord, Lord Inglewood, for underscoring just how much personal pain can be at stake in individual cases and how important it is that we get this sorted as soon as possible.

In Committee, we had a wide-ranging discussion on a number of amendments related to the post-Brexit family law landscape, so I will not go over that ground again. I am grateful to the Minister for subsequently meeting a number of us who spoke in Committee, along with some family lawyers. I hope very much that that dialogue can continue as we discuss these matters further.

In replying to me in Committee on 5 March, the Minister confirmed that the Government wanted to,

“agree a clear set of coherent common rules about: which country’s courts will hear a case in the event of a dispute—that is choice of jurisdiction; which country’s law will apply—that is choice of law; and a mutual recognition and enforcement of judgments across borders”.

That is what is at stake. The Minister continued:

“We believe that the optimum outcome for both sides will be a new agreement negotiated between the UK and EU as part of a future partnership which reflects our close existing relationship”.—[Official Report, 5/3/18; col. 854.]


That is what we all want. The point made by the noble Lord, Lord Marks, is that almost nobody disputes that what we have at the moment is the Rolls-Royce of family law provision. But time is very tight indeed. I understand that Ministers would like to negotiate a deal for the implementation period but that does not leave much time, even if it is forthcoming, to get a deal in place by the time we leave the European Union. If we crash out without a deal, things get very serious indeed. My noble friend Lady Kennedy of The Shaws is asking for reassurance that the Government are determined to do this: to get a full, properly reciprocal deal in place; to make a priority of it; and to find a way for Parliament to be kept informed about how those negotiations are going.

I understand that the noble and learned Lord, Lord Mackay of Clashfern has two different objections. I think he suspects that we are trying to press the Government to do something that they cannot do, which is to deliver reciprocity on their own. We would contend that we know that and that is the problem. One of the difficulties about this very situation is that the way the Bill has been framed means that, in the case of family law, because it is English and Welsh family law or Scottish family law that we retain, simply bringing that in does not mean that things stay the same. It means that things change in precisely the way my noble friend Lady Kennedy explained. With that family of a British man and an Italian woman, if the Italian woman were to take the couple’s son away to Rome and he pursued a British court for an order to have the child returned, whereas at the moment the court in Rome would have to recognise that, in future it would not. Under this arrangement, however, this country would have to recognise an Italian order for a child to be returned if the situation were reversed. That is the reciprocity that we cannot get around.

I fully accept that the Minister and the noble and learned Lord, Lord Mackay of Clashfern, may not like the wording of this amendment about the report. I honestly do not mind very much. All I would like to see is some means by which the House can be reassured that the Government are making progress, that they will keep us informed and that we will find out in good time how the problems for families described very movingly by the noble Lord, Lord Inglewood, will be solved. Will the Minister please give my noble friend and the House the reassurance that we seek this evening?

[Lord Keen of Elie]

My Lords, I thank the noble Baroness, Lady Kennedy of The Shaws, for raising this important issue. We discussed it at some length in Committee and I will not repeat the points I made at that stage. But, as the Government outlined in their position paper published in August last year, we are committed to continuing civil judicial co-operation with the EU once we leave. That of course includes the area of family law as covered by Brussels II and Brussels IIa, as it is clearly in the interests of all individuals and families both in the UK and throughout the rest of the EU that there should be an effective area of civil judicial co-operation for these purposes. Of course, that will be the subject of negotiation.

Amendment 14, while clearly well intentioned, is potentially burdensome and I venture to suggest is not necessary. My noble and learned friend Lord Mackay of Clashfern pointed to what is potentially a deficiency in the drafting of subsection (1) of the proposed new clause, but I do not take issue with that. I understand the point that is being made about the underlying principles of reciprocity and its importance in this context.

To suggest a six-month period for a report is of course an arbitrary deadline, which makes no reference to the position of the negotiations between the EU and the UK at that stage, or to any other steps that have been taken by the Government in regard to these issues. The Government are concerned not only with the final agreement reached in negotiations but in addressing what will be done with regard to retained EU law, including retained family law. Ultimately, any agreement that takes place between the United Kingdom and the EU to reflect not only our domestic position but the need for reciprocal enforcement will be the subject of the upcoming withdrawal agreement and will be legislated for in what is proposed to be the Withdrawal Agreement and Implementation Period Bill—so it is not something that will be the subject of the present Bill.

But I stress that the Government share the view expressed by the noble Baroness and others in the House on the importance of maintaining an effective system for resolution of cross-border family law disputes once we leave the EU. It will be an important part of the partnership that we seek to maintain with the other EU 27 countries. The Government certainly believe that intergovernmental co-operation and mutual recognition is of benefit to all parties. This is not an instance in which the EU has one particular interest and we have another. We all understand that the individuals and families concerned are affected right across the EU. We have made it clear that civil judicial co-operation in respect of family matters will be part of our future relationship with the EU.

European Union (Withdrawal) Bill

Baroness Sherlock Excerpts

Report: 4th sitting (Hansard): House of Lords
Monday 30th April 2018 Lords Chamber

[The Lord Bishop of Leeds]

My Lords, I briefly add my support for this amendment. It seems that much of the debate about EU withdrawal has been about economics, deals and trade, and we cannot speak of children in terms of deals or trade. Some of the most vulnerable people on our continent are children. Perhaps the most important thing is that they are the future as well as the present, and they will not forget how they have been seen and how they are regarded. So I strongly endorse the statement made by the noble Baroness earlier that children are people, not a project. I support the amendment.

[Baroness Sherlock (Lab)]

My Lords, this has been an important short debate. I congratulate my noble friend Lady Massey of Darwen on the way she introduced it and on her ongoing battle to protect the rights of our children, and I expect to hear much more from her on that many times in the future.

As we have heard today, at EU level a number of key legislative mechanisms work in conjunction with each other to ensure that children’s rights are protected when EU law and policy is being developed, applied and interpreted: the ECHR, the EU charter and, crucially, the UN Convention on the Rights of the Child. As we have heard, the key issue is that measures enacted at EU level, whether or not they directly target children, are interpreted and applied by member states in a manner that is consistent with international children’s rights standards. It is the loss of that that so many people inside and outside Parliament are concerned about. The inadequacy of domestic legislation in doing that job has been articulated so well by my noble friends Lady Massey and Lady Lister, the noble and learned Baroness, Lady Butler-Sloss, the noble Lord, Lord Storey, and the noble Baroness, Lady Meacher. The case is compelling.

This amendment would go some way to try to rectify that by ensuring that Ministers cannot make regulations under the relevant section of the Bill without reference to the parts of the UNCRC ratified by the UK. The Government would therefore have to commit to Parliament that they would give due consideration to Part 1 of the convention before using powers transferred from the EU, and, crucially, they would have to set out an audit of how children’s rights will continue to be protected in the UK after exit day. The importance of an audit and an impact assessment—a point made by the noble Earl, Lord Dundee—cannot be understated. Or do I mean overstated?

We all share the same goal: that we should create and maintain a society in which all children are valued, safe and able to flourish. The right reverend Prelate the Bishop of Leeds made that point clearly: children are people and are our future as well as our present. But as a society we have learned slowly that the risks to children’s safety are not always obvious, nor is it always obvious which are the actions that can pay positive dividends in helping them to flourish. If we do not intentionally look at the implications of generic actions for children, there will be unintended consequences. My noble friend Lady Massey gave some good and powerful examples of that, and the noble Baroness, Lady Meacher, gave a good case of how international law has to be used to defend those rights. It is crucial that we retain appropriate mechanisms for ensuring that due regard is paid to children’s rights when policy and law are being developed.

The Minister will have heard the concerns expressed from around the House and that the Government’s previous reassurances have not served to reassure Members or key people outside. I have two simple questions for the Minister. Does she understand why people are so concerned about what will happen to the status of children’s rights in the UK after Brexit? If so, what will the Government do to ensure that, as the Bill brings EU legislation into domestic law and transfers powers from the EU to Westminster, fundamental rights for children are not weakened in the process, either deliberately or accidentally? I look forward to her reply.

[Baroness Goldie]

My Lords, I am grateful to the noble Baroness, Lady Massey, for raising the important issue of children’s rights through this amendment. I know that both the noble Baronesses, Lady Massey and Lady Meacher, met the Children’s Minister recently to discuss these matters. I fully accept that the intention behind this amendment is clearly an honourable one. However, it would in effect add no further value to preserving current safeguards on children’s rights within the Bill. This is because the amendment implies that the EU offers additional duties or functions to safeguard children’s rights above or beyond those that exist in the UK. That concern may stem from the Government’s proposal to not retain the Charter of Fundamental Rights, subject now to further consideration when this Bill returns to the other place. However, if the charter no longer applies once we exit the EU, this would not impact on the UK’s ability to protect and safeguard children’s rights, as I shall endeavour to explain.

The amendment also states that there are some children’s rights which are not currently protected under domestic law but are under EU law. Again, however, we do not accept their construction. The noble Baroness, Lady Sherlock, raised the important point about what these rights are and what will happen to them on exit. Children’s rights are, and will remain, protected in England primarily through the Children Act 1989, the Adoption and Children Act 2002, and the Children Act 2004.

--- Later in debate ---

[Baroness Burt of Solihull]

My Lords, Amendment 68 is in the names of the noble Baroness, Lady Kennedy of The Shaws, the noble Lord, Lord Russell of Liverpool, and myself. The amendment proposes a new, short clause which is similar in its intention to that proposed by Amendments 67 and 69, to which we also added our names and which have already been debated.

The clause relates to ensuring co-operation within the EU on child maintenance claims. The importance of cross-border co-operation between the EU and the UK on enforcing child maintenance claims is clear, and I will not detain the House at this hour by going into it. However, in post-Brexit times we need a mechanism to ensure that this cross-border co-operation is maintained.

The clause is very modest in its intention. It does not tell the Government how to do this; it merely requests a report showing how it is working, or not, as the case may be. This does not seem unreasonable to me, so I hope that the Minister will undertake at least to consider this modest request. Children and families who have already suffered the challenges of family break-up across the EU are depending on it. That is all I wish to say on this proposed new clause.

[Baroness Sherlock]

My Lords, EU family law provisions are tried and tested. There is a broad consensus that they work well, and with the advent of the Brussels II recast—as it is known in the trade—they will become more effective still. At earlier stages of the Bill, I set out in some detail the challenges for international family law post Brexit, so I will not rehearse those again. However, as the noble Baroness, Lady Burt, has said, this amendment is focused on what happens to child maintenance when we leave the EU.

Child maintenance matters because parents can separate or divorce but they do not cease being responsible for their children. Children have a right to support from both parents, even if one lives abroad. Maintenance plays a key role in lifting single-parent families out of poverty. Receipt of child support is also positively associated with single parents taking up work and with children maintaining contact with a non-resident parent.

This may be private law, but the need for it to work well and be enforceable is a matter of public policy importance. Even the UNCRC mandates, at Article 27, contracting states to take all appropriate measures to secure the recovery of child maintenance and, when a parent lives abroad, to promote accession to international agreements. So there are compelling reasons for Parliament to want to be assured that we will have a well-functioning system to enable the assessment and enforcement of child maintenance owed by a parent living in one of the EU 27. The Minister told the House that, during the implementation or transition period, the current reciprocal rules, including the key EU family law instruments and Hague conventions, will continue to apply as now. Beyond that, we do not yet know what the landscape will look like.

Ministers have signalled that they would like to continue to participate in the Lugano convention, but that is nothing like a substitute for the maintenance regulation, as that part of the EU family law provisions are known. The 2007 Hague convention would go some way towards assisting with the recognition and enforcement of maintenance obligations, but it too falls well short of the maintenance regulation. It has no general system of jurisdictional rules, and you cannot enforce spousal maintenance orders via the central authorities unless they are linked to enforcement of a child maintenance order. We are left hoping that the Government will be successful in negotiating a reciprocal deal that will serve our people well. Given the significant number of international divorces, these issues cannot be ignored.

Ministers are confident that comparable reciprocal arrangements can be achieved to replace the EU family law provisions. This amendment would simply require Ministers to tell us how. If Ministers do not smile on this amendment, perhaps they could tell the House how and when the Government will update us on progress. I look forward to the Minister’s reply.

[Baroness Goldie]

I thank the noble Baroness, Lady Burt, for raising the important issue of child maintenance, which we recognise is of particular importance to many families across the UK. As the Government outlined in their position paper published in August last year, we are seeking a comprehensive future agreement with the EU on civil judicial co-operation that is based on the substance of the current EU regulations, including the maintenance regulation. I stress again that the precise nature of this relationship will be a matter for negotiation.

However, I assure the House that the Government are committed to working with our EU partners to agree the most effective rules in this area which reflect our close existing relationship on this important issue. This approach will provide confidence and certainty to families and individuals, ensuring they can continue to enforce cross-border maintenance orders efficiently and effectively in the future. As both noble Baronesses, Lady Burt and Lady Sherlock, rightly said, these orders are hugely important to the families involved.