Legal Aid, Sentencing and Punishment of Offenders Act 2012
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The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, with the leave of the House I shall repeat a Statement made in the other place by my right honourable friend the Lord Chancellor and Secretary of State for Justice. The Statement is as follows:
“I should like to make a Statement to inform the House that we have concluded our post-implementation reviews of Parts 1 and 2 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012—better known as LASPO—as well as the outcome of our inquests review. Earlier today I laid all three reviews for consideration by both Houses, alongside a new legal support action plan, which sets out how we will build on those findings.
After an extended period of expansion that resulted in an annual spend at the time of over £2 billion, the coalition Government brought in Part 1 of LASPO to make significant changes to the scope of, eligibility for, and fees paid under, legal aid. This was essential to bring spending under control and target limited resources available at the most vulnerable and highest-priority cases. The extent of the changes LASPO introduced meant that the Government committed to carrying out the comprehensive review I have published today.
Throughout a year-long process of extensive evidence-gathering and analysis, we have engaged with more than 100 different stakeholders, professionals, providers and, of course, many in this House and in the other place, drawing together a wealth of research and evidence to inform this detailed review. We have heard that the legal aid system has for too long focused solely on delivering publicly funded advice and representation, at the expense of understanding how we can help people find early resolutions and avoid court disputes. Legal aid is, and will remain, a core element of the support on offer, and last year the Government spent £1.6 billion on legal aid funding.
We want to move forward with a new vision, focusing on the individual and their needs—be that through legal aid or otherwise. We will provide a breadth of support that is tailored to people and increases our ability to intervene earlier and catch their problems sooner, before they escalate. We must deliver a system that enables people to receive the type of legal support that is right for them, at the right time.
I am therefore delighted to publish, alongside this review, our new legal support action plan. The action plan responds to the evidence heard and includes immediate action to ensure that vulnerable people, particularly children, can access legal aid when it is needed. We will launch a review of the legal aid means-testing framework, specifically focused on the thresholds and criteria in place for someone to qualify for legal aid. We will simplify the exceptional case funding scheme to ensure it works effectively. We will expand the scope of legal aid to include immigration matters for unaccompanied and separated migrant children, and to cover all special guardianship orders in private family law cases. And we will reinstate immediate access to face-to-face legal advice in discrimination, debt and special educational needs cases.
But we also need to collect further evidence on what works and at what stage. We will invest up to £5 million of funding to encourage and support providers to develop new and innovative services; double support for litigants in person to £3 million for the next two years; launch several support pilots that will test how effective legal support at an early stage can help people avoid the escalation of problems; and test and evaluate the benefits of early advice in an area of social welfare law. Elsewhere, I am also announcing today that we will continue to support dedicated criminal legal aid practitioners by completing a comprehensive evaluation of the criminal legal aid fee schemes and structures.
Separately, I want to make the House aware that I have published the Government’s review of the changes made by Part 2 of the LASPO Act. Part 2 introduced a number of changes recommended by Sir Rupert Jackson, aimed at reducing costs in civil litigation. The evidence gathered indicates that these objectives have been met. Fewer unmeritorious cases are being taken forward, and access to justice at proportionate cost is generally being met.
Lastly, today I have also published the outcome of a separate year-long review of the provision of legal aid for inquests. The review was commissioned in response to a number of key independent reports and their recommendations. The final report is the culmination of this thorough review, undertaken with senior coroners, the legal profession and other key stakeholders, as well as—most importantly—bereaved families themselves. It considers a number of specific concerns, and looks at where we can make further improvements, including improving guidance and advice and ensuring that the inquest process is more sympathetic to the needs of bereaved families, looking into further options for the funding of legal support at inquests where the state has state-funded representation, and working closely with other government departments.
The publications that I launch today mark not only the completion of hard work already undertaken, but the beginning of more to do to meet our challenges. I place on record my thanks to everyone who has contributed evidence and expertise to these three reviews. It is essential to me that this engagement continues and that we collect more evidence, exploring with our partners and stakeholders innovative ways to support people to access the justice system and placing early intervention firmly at the heart of legal support”.
I commend the Statement to the House.
Lord Marks of Henley-on-Thames (LD)
My Lords, after a delayed process that took an entire year, we now have the post-implementation review of LASPO. I will focus on legal aid.
Of its four stated objectives, the MoJ claims success in just one: significant savings have been made. Well, we know that. As the noble Baroness, Lady Chakrabarti, pointed out, the savings wildly exceeded what was expected. However, on each of the other three objectives—discouraging unnecessary and adversarial litigation at public expense; targeting legal aid at those who need it most; and delivering better overall value for money for the taxpayer—the answer is an unimpressive “Don’t know”, dressed up in weasel words such as, “It is impossible to say with certainty”. I suspect that an independent review would have come to clearer conclusions.
The review identifies six themes echoing the experiences of all of us involved in the justice system. First, these changes in the scope of legal aid undermine value for money, particularly by preventing early intervention. Secondly, financial eligibility and operational requirements limit access to legal aid too harshly. Thirdly, the exceptional case funding scheme is not working well. Fourthly, legal aid fees are now so low that future provision by practitioners is at risk. Fifthly, increasing numbers of litigants in person increase costs and risk the perception of a two-tier justice system. Finally, advice deserts across our country threaten access to justice.
The legal support action plan seeks to address those issues, at least in part. I am more hopeful than the noble Baroness in saying that the action plan is welcome. Among the Government’s pledges, some of which were mentioned in the Statement, they promised to review eligibility requirements, increase public awareness of how to access legal aid, broaden the scope of legal aid in some immigration and family cases—that will not go nearly far enough—improve the exceptional case funding scheme, review criminal legal aid, widen access to the telephone gateway, increase support for litigants in person and examine complementary ways of providing legal support. Both those pledges and the others made must be kept and implemented soon. We will have further demands for improved support. We will hold the Government’s feet to the fire.
Can the Minister do two things today on this vital topic? Together, the four documents represent a massive report. Will he please use his influence to secure a debate, with adequate time and soon, on the reports and the action plan? Secondly, will he reassure us that where the promises in the action plan are not backed up by implementation dates—and some are—the MoJ will treat them with urgency?
Notwithstanding the warnings in the paper and in the Statement that all this cannot be delivered overnight and is the first step in the process, the rescue of our legal aid system and the improvement of our legal support system needs more urgency than was ever accorded to this review.
Lord Keen of Elie
My Lords, I thank the noble Baroness, Lady Chakrabarti, and the noble Lord, Lord Marks, for their contributions. I am a little disappointed by the response of the noble Baroness. These reports have been welcomed in many quarters, although not universally and not without qualification. However, that is hardly a surprise because, let us be clear, this is a difficult and controversial area.
Let us look for a moment to the background. We had a financial crash in 2008. It is easy to say that austerity is a political choice but essentially it is not; austerity is a consequence. Furthermore, after that financial crash, which impacted right across our society, we had the party manifestos for the election in 2010. The Labour manifesto said explicitly that it would be necessary to address the cost of legal aid provision, and that was its intent—the cost was too high. That was recognised by other parties and indeed by the coalition Government themselves, who brought forward the LASPO Act to try to bring some degree of control over the ever-spiralling actual financial cost of legal aid. The noble Lord, Lord Marks, acknowledged this.
We not talking just about the immediate cost of legal aid but about the wider issue of access to justice and the means by which we can ensure that there is legal assistance as well as legal aid for all in our society, but particularly for the most vulnerable, who truly require it. That is why I am thankful that the noble Lord has welcomed the action plan which is designed to look not only at the provision of financial resources for legal advice and assistance but the manner in which we can deliver legal support for people at the right time and in the right place. To do that, we want to see the development of web-based products, for example. We want to see proper signposting and advice for people. Moreover, we want to encourage that sort of advice and signposting at an early stage because there is a belief that if we can do that, we can help resolve people’s issues before they develop into major and costly litigation. All of that is to be considered.
In addition, we are going to test the impact of early legal advice by promoting certain pilots, particularly in the area of social welfare law, to see what results can be secured. I note the observation of the noble Lord, Lord Marks, about the need for implementation at pace, and indeed we are committed to the implementation of all of these recommendations as soon as we can. For example, we will be looking at the financial levels for qualification for legal aid and we intend to bring that to a conclusion by summer 2020 so that these matters can be addressed as soon as possible.
There are areas where we face difficulties with regard to the provision of legal advice. The noble Lord referred to legal advice deserts. In fact, in the areas of housing and debt, we are generally well covered across England and Wales so far as advice is concerned, but I accept that there are still gaps which have to be filled by, for example, telephone advice, which is not the ideal. Indeed, one of the reasons we want to roll out the web-based access that I mentioned earlier is to address the demand for legal advice and assistance in rural areas and other areas outside urban centres where that is more readily to hand. That is certainly part of our proposed action plan,
On the assurances the noble Lord sought, he readily appreciates that it is not in my power to secure a debate in this House, but no doubt the usual channels will have heard his observations. I concur with his reference to the depth and breadth of these reports, and perhaps the need to look at them in more detail to figure out just where we are going forward and how quickly we should go forward on these issues. As I sought to reassure him earlier, we are concerned to ensure that there is implementation of these proposals as soon as it is possible to secure it.
Lord Low of Dalston (CB)
My Lords, the Minister referred to early advice in the area of social welfare law. He will understand my interest in this area, given the review of advice and legal support in the area of social welfare law that I chaired. Could he tell us more about what is envisaged from the pilots in this area and perhaps say something about the Government’s thinking about public support for sustainable advice services generally?
Lord Keen of Elie
I am obliged to the noble Lord. Looking more generally at advice and assistance, we want and propose to look at how we can engage with people at a very early stage, so that we can evaluate their legal problems—and, indeed, sometimes problems that are not entirely legal but that lead on to legal issues if not addressed quickly enough.
In the specific area of social welfare law, we will seek pilots that evaluate various technological solutions and look at the cost benefits of trying to approach matters in that way. I mentioned earlier the idea of web-based material and the development we have seen in digital access to legal advice. For example, we have already instituted such digital access in the areas of uncontested divorce and debt, so that people can, without the need for legal advice, be guided through what should be a relatively straightforward process for the resolution of certain legal issues.
Lord Garnier (Con)
My Lords, in thanking my noble and learned friend the Minister for repeating the Lord Chancellor’s Statement, I declare an interest as a member of the private Bar, albeit I do not do any legal aid work.
The Minister said he was disappointed by the reaction of the noble Baroness and the noble Lord to the Lord Chancellor’s Statement. I was the Opposition spokesman in the Lord Chancellor’s Department from 1997 to 1998, and then variously shadow Attorney-General throughout the Blair and Brown Governments. I can assure my noble and learned friend that I made exactly the same sort of speeches as the two opposition Peers made just now. This is a continuing and almost intractable problem, and it is of course a question of judgment and priorities when resources are scarce. But there is much to commend in what my noble and learned friend has said, albeit I would like to see plenty more done.
I welcome the £3 million support for litigants in person. However, it is fair to say—I agree with the noble Lord, Lord Marks—that the increasing presence in our courts of litigants in person not only makes our court system more sclerotic but feeds into the lessening of morale in the judiciary. Although not immediately germane to the post-implementation review, that is a factor that needs to be thought of within and outside its scope.
Finally, and most gently, I urge my noble and learned friend to see whether the Secretary of State and the Treasury can do something more—I know they have been doing some things—to assist in the funding of the criminal legal aid system. If there is one aspect of the criminal justice system that most worries me, it is the underremuneration of criminal legal aid lawyers, both solicitors and barristers.
I daresay that many will say, “Here’s one fat lawyer seeking to protect other fat lawyers”, but it really is not like that. I urge my noble and learned friend to do what he can to enhance the remuneration of legal aid lawyers in the criminal justice system. They have taken a pay cut of 10% or 20% over the last few years. Until that is recovered, our criminal justice system will be much hampered and hindered.
Lord Keen of Elie
My Lords, we recognise the importance of a viable, properly trained and effective criminal Bar in order to maintain suitable access to justice for all. That is demanding in the present circumstances. Quite recently, as my noble and learned friend Lord Garnier will know, we have increased the level of fees for criminal justice work. That was done in discussion with the Bar Council in order that it could be suitably targeted to the areas where it was most needed. But I will not suggest that no more needs to be done. I quite understand the observations made about the need to maintain a viable, effective criminal Bar in that respect.
We are conscious of the issue of litigants in person, particularly of the need to avoid the simple matter of cost transferring: in other words, you relieve one area of costs by reducing legal aid provision only to find that you increase costs elsewhere because of the demands on the court system and the judiciary, because with an increasing number of litigants in person, we may find that court hearings take longer and are more demanding. We are conscious of that when looking at this overall. I reiterate that legal aid provision as such is only one aspect of a wider ecosystem that is designed to ensure access to justice.
Lord Judd (Lab)
My Lords, it is not so long ago in history that Mr Nabarro claimed to the nation, after a rather sensational motoring case, that British justice was unequalled in the world so long as you could afford to pay for it. We have come a long way since then, or we had. We can summarise the exchanges that have already taken place by saying that the quality of justice is essentially related to access to justice. Therefore, the priority for all Governments must be ensuring that access is equal and it is not just the administration endeavouring to be equal.
There has been reference to criminal law, and I am very glad that the noble and learned Lord opposite made the point about the dedicated work done in this sphere by insufficiently recognised lawyers. We also ought to bear in mind the tremendous amount of work done in this area by voluntary organisations and the rest, which strive to cover the gaps that are there. We should not have this exchange without recognising that work—by people who are really dedicated to the cause of equality in justice. It is rather important that we get this right as urgently as possible, at a time when we are parading around the world the concept that we cannot possibly operate with the European Court of Justice because our entire system is so perfect. I do not see our system as perfect at all while this problem remains.
Lord Keen of Elie
I thank the noble Lord, Lord Judd, for his observations. I certainly acknowledge the point he made about the contribution of the voluntary sector in this area. Citizens Advice and other bodies make a very material contribution and we seek to support them in that endeavour. In addition, we are expanding the funding available for advice to litigants in person. Again, I hope that that will help some of the more vulnerable.
The design of legal aid is to ensure that it is targeted at the most vulnerable in our society. That is essential. Indeed, very often we hear complaints not from the most vulnerable but from those who would be perceived to have a relatively comfortable income who find that they are called upon to make payment in respect of legal support—legal defence in some circumstances—where 10 or 20 years ago that would not have been the case. I refer in that context to, for example, the recovery of defence costs in the context of criminal trials, which are now the subject of limitations that did not exist many years ago. The intent here is to target legal advice, legal assistance and legal cost at the most vulnerable in our society. We have sought to expand that by improving access to legal aid, and by seeking to improve the exceptional case funding system and to simplify it for parties seeking to use it.
Female Offender Strategy
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The Lord Bishop of Gloucester
To ask Her Majesty’s Government what progress they have made in implementing the female offenders’ strategy.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, the Female Offender Strategy, published in June 2018, outlines the Government’s long-term vision for improving outcomes for female offenders in custody and in the community. The strategy sets out a programme of work that contains a number of commitments that will take some years to implement. A new women’s policy framework was published last December, and my noble friend Lord Farmer’s review of family ties for female offenders is expected to report in the coming weeks.
The Lord Bishop of Gloucester
My Lords, I welcome that information from the Minister, which follows many positive commitments to the female offender strategy. However, we are still awaiting news of residential pilots, action to strengthen links between probation services and women’s centres, the report from the noble Lord, Lord Farmer, and a national concordat. Given that many of the strategy’s commitments have no clear timescales—indeed, in some cases the suggested deadline has already passed—how does the Minister plan to effectively monitor progress and stay on track?
Lord Keen of Elie
My Lords, we are concerned to ensure that these recommendations are implemented as soon as practicable; indeed, the women’s policy framework was implemented as of 21 December 2018. We are taking forward further work in partnership with other groups and parties. I note the work of the Nelson Trust, which I know the right reverend Prelate is directly involved in, which recently put in a bid for additional funding from the ministry to further its community work. We are encouraged by the strength of that and similar bids, and want to take that forward as soon as possible.
Lord Blunkett (Lab)
My Lords, if my noble friend Lady Corston were here, she would be enthusiastically supporting the right reverend Prelate in pressing for the review to be implemented as quickly as possible, not just on moral grounds but because the additional investment that the Minister has referred to is “spend to save”. We could save an enormous amount of money by diverting into prevention and early intervention, rather than having women prisoners in the kind of conditions that I saw when I was Home Secretary.
Lord Keen of Elie
My Lords, I entirely concur with the noble Lord’s observations. Indeed, our Female Offender Strategy seeks to build on the seminal report of the noble Baroness, Lady Corston, which of course goes back to 2007.
Baroness Burt of Solihull (LD)
My Lords, the extension of mandatory post-custody supervision has disproportionately affected women. Recall numbers for men have risen by 22% since the changes were introduced but for women they have grown by 131%. Women are trapped in the justice system rather than being enabled to rebuild their lives. The Prison Reform Trust has called for mandatory post-custody supervision to be abolished. Does the Minister agree that the present system is not working, and does he have plans to review it?
Lord Keen of Elie
My Lords, the idea of mandatory supervision for those serving a sentence of less than 12 months was introduced only quite recently. There is a disproportion between male and female offenders in that context—I quite accept that. Indeed, that manifests itself in various other parts of the prison and custodial system. At the moment, we are seeking to extend community centre services, to help to accommodate those released after short sentences, and to combine community services with treatment requirement protocols.
That is extremely important, particularly for female offenders, where we see a vast proportion who have reported elements of mental health difficulty or who suffer from alcohol issues and, very often, drug abuse issues as well. Over and above that, an enormous proportion of these female offenders have at times been subject to domestic violence. We are trying to direct these services at these issues and will continue to do so.
Lord Selkirk of Douglas (Con)
Does my noble friend accept that in recent years there have been a considerable number of pregnant women in prisons? Can he assure us that in every case the person concerned will be treated with sensitivity?
Lord Keen of Elie
This is a very important issue for us. In all cases where a female offender is in custody, we endeavour to ensure that birth does not take place within the prison system, but sometimes that cannot be avoided. We have extensive services for mothers and children up to the age of 18 months when it is necessary for them to be in custody—I emphasise the word “necessary”. When an offender is reaching the end of a short sentence, steps are taken to try to ensure that mother and child are kept together. However, of course this cannot be done in circumstances where there has been a serious offence that results in a mother being in custody for a lengthy period.
Lord Beecham (Lab)
The right reverend Prelate referred to the strategy envisaging greater use of residential and community services instead of custodial sentences. To what extent is that occurring? Are the Government still adhering to their policy of limiting funding of the strategy to £5 million over two years, replacing their previous plan to spend £50 million on five new prisons? If so, what is happening to the other £45 million?
Lord Keen of Elie
My Lords, there is an important shift in policy away from custody as a means of trying to resolve these issues. That is why we moved away from the proposal for five community prisons; we hope they will not be required. Instead, we have shifted the balance in the direction of community services. We will pilot such community residential services in five areas to see how they work. For that purpose, we have committed funding of up to £5 million over the next two years, but of course that will not be the end of the matter. We will address the consequences of the pilot in these five areas and see how we can take things forward from there.
Lord Reid of Cardowan (Lab)
Does the Minister recall that 15 years ago, during my noble friend Lord Blunkett’s custodianship of the Home Office, the Sentencing Guidelines Council approved indeterminate sentences for more serious crimes, on condition that there should be a significant reduction at the lower end for less serious crimes, particularly for women and women with debt? Unfortunately, from the judiciary’s point of view, that has never been fully implemented. May I congratulate the Government on moving away from custodial sentences and ask them to look to this long-standing recommendation that has never been fully implemented?
Lord Keen of Elie
I agree with the force of the noble Lord’s point. In fact, Section 152 of the Criminal Justice Act 2003 clearly requires the courts to consider imposing non-custodial sentences unless otherwise justified. The Sentencing Council guidelines from 2016 reinforce this move. In addition to that, we have a judgment from the criminal Court of Appeal in the case of Petherick in 2012, which set out the criteria for sentencing in cases involving, for example, a female offender with dependent children. We have been moving in the right direction, but I accept that we have not moved far enough and we are determined to see if we can do that.
Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019
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Lord Keen of Elie
That the Grand Committee do consider the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, this draft instrument forms part of our ongoing work to ensure that, if the UK leaves the EU without a deal, our legal system will continue to work effectively for our citizens. If Parliament approves the withdrawal agreement, which includes an implementation period, and passes the necessary legislation to implement that agreement, the Government would defer the coming into force of these instruments until the end of that implementation period. Once a deal on our future relationship has been reached, we envisage that they would be revoked entirely.
Your Lordships will be aware that, as part of these preparations, the Government have published a series of technical notices to outline the implications of a no-deal exit for citizens and businesses. One of these, published on 13 September 2018, was titled Handling Civil Legal Cases that Involve EU Countries if There’s No Brexit Deal. It set out the implications of a no-deal exit for the rules on how to resolve cross-border disputes in civil and commercial cases.
The Secretary of State, the Ministry of Justice ministerial team and officials have had regular engagement with key stakeholders in the field of civil, commercial and family justice, including the Law Society of England and Wales, the Bar Council, through the Brexit Law Committee, and individuals. This has included discussions on the technical notice, to ensure that our policy proposals in respect of no deal provide the best outcome for citizens and businesses. The instruments we are discussing today are designed to implement the policy outlined in the technical notice. The Joint Committee on Statutory Instruments reviewed the statutory instrument and had no substantive comments.
This draft instrument makes changes to the rules in England and Wales, in Northern Ireland and in Scotland that determine which courts should have jurisdiction in cross-border civil and commercial cases involving courts in EU and relevant EFTA countries—that is, those party to the Lugano convention: Norway, Switzerland and Iceland. It also changes the rules on how to ensure that any judgments or decisions can be enforced across the EU and relevant EFTA states.
It may be helpful if I explain the current effect of EU law in this area. The current principal measure in relation to civil and commercial law is known as the Brussels Ia regulation, as it replaced the so-called Brussels I regulation. Denmark has a separate agreement with the other EU member states, based on Brussels Ia, to give Denmark access to the EU’s system of civil judicial co-operation, because it does not normally participate in EU justice and home affairs measures, pursuant to Protocol 22 of the Treaty on the Functioning of the European Union. There is also a separate but similar agreement, the 2007 Lugano convention, based on Brussels I, between the EU and Norway, Switzerland and Iceland. It also applies to Denmark. Brussels I, as distinct from Brussels Ia, remains of some continuing relevance because it applies in respect of actions commenced prior to 10 January 2015, but it is of limited relevance to the present issue.
The Brussels regime provides clear and reciprocal rules on jurisdiction in civil and commercial matters—that is, which court should hear a cross-border case. Its application is mandatory. There is no discretion for courts to act otherwise than in accordance with the regime. This means that if, for example, a UK consumer or business has a dispute with a party in another EU member state or a Lugano party, there are clear rules to follow to determine where the case should be heard. This negates the risks of parallel proceedings and more than one court hearing the same case.
There is almost automatic recognition and enforcement of judgments from one participating state in another. This means that if a business successfully sues a business in one participating state, it can enforce the resulting judgment where it needs to without going through costly and time-consuming additional processes. This is possible because all participating states must apply uniform rules of jurisdiction and can trust that jurisdiction was taken properly and appropriately.
The Brussels regime operates almost entirely on a reciprocal basis. Its effectiveness is founded on mutual co-operation between states. Countries respect the jurisdiction of each other’s courts and recognise and enforce each other’s judgments. However, with some limited exceptions, including consumer and employment cases, the Brussels rules do not apply if the defendant to the dispute is domiciled outside the EU. In such cases, EU member states and the Lugano parties apply their own national rules when dealing with cross-border matters.
What will change should we leave the EU without a deal? If the UK leaves without an agreement, the current EU regime for determining these matters will cease to apply to us. After such an exit, the reciprocity in the EU regime will no longer apply in relations between the EU member states and the UK, nor between the Lugano parties and the UK. Furthermore, there are no unilateral actions that the UK can take to compel the EU as a whole to continue to apply the reciprocal jurisdictional rules or to enforce judgments. Simply put, the rules under which we currently operate under the Brussels regime would cease to function effectively in the event of a no-deal exit.
For this reason, it is necessary to legislate now to provide clarity about how the UK will determine whether it has jurisdiction in a civil and commercial case and when UK courts will recognise and enforce judgments from EU countries. However, let me be absolutely clear: without a reciprocal agreement in this area, we cannot determine what rules the EU will apply. This will be down to member states’ own national laws.
As set out in the instrument before us, the Government’s response to this is, with limited exceptions, to revert to the rules on jurisdiction and on recognition and enforcement of judgments that currently apply to cross-border disputes where the Brussels regime does not apply—that is, for disputes involving parties from the UK on the one hand and countries outside the EU and the Lugano parties on the other. This instrument is not creating new policy but transitioning to a well-developed and understood set of rules that provide an effective framework for UK courts to work with and take into account the lack of reciprocity in this area.
There are a few exceptions to this general approach. Importantly, the rules of the Hague Convention on Choice of Court Agreements 2005 will continue to apply, as the UK is acceding to it as a contracting state. This is being brought into UK law post-EU exit by a separate SI, which has been subject to the negative procedure—that is, the Civil Jurisdiction and Judgments (Hague Convention on Choice of Court Agreements 2005) (EU Exit) Regulations 2018. Broadly speaking, this means that the courts of a part of the UK will take jurisdiction whenever a valid choice of court agreement to which the convention applies has been made and will readily recognise and enforce a foreign judgment from a foreign court validly selected under such an agreement. Courts of other contracting states to that convention will equally recognise and enforce a judgment from a UK court to which the convention applies.
The EU was a signatory to the 2005 Hague convention on behalf of all members of the EU. It is therefore necessary that we should become a signatory to that convention as an individual state on exit. The application to do so was made on 28 December 2018. It will become effective under the terms of the convention as of 1 April this year.
Secondly, we have sought where we can to maintain jurisdictional protections for UK consumers and employees contained in the Brussels regime. These rules are not restricted to EU-domiciled defendants, so we can retain to a large degree the consumer and employee-friendly approach of the Brussels regime while restating them in a manner specific to UK-based consumers and employees. This largely obviates the need for a consumer or employee to sue abroad in these cases, with the expense and difficulty that brings.
This instrument is necessary to fix the statute book in the event of a no-deal exit. We have assessed its impact and published a full impact assessment. Broadly, we have concluded that although in certain respects the common law may operate less efficiently than the existing Brussels regime to which the UK is party as a result of EU membership, only negligible costs would arise from this SI, relative to the alternative of leaving legislation on the statute book that ceases to operate effectively in the absence of reciprocity after the UK leaves the EU.
Lord Keen of Elie
I am not taking interventions during the opening speech. It is the Government’s view that removing deficient retained EU law and associated domestic legislation from domestic law will clarify the rules that apply to determine jurisdiction, recognition and the enforcement of judgments post exit. This has the benefit of protecting litigants from unnecessary expense and making UK legislation more transparent, therefore protecting its reputation. This will also ensure that the same rules apply to cross-border matters involving EU and non-EU countries.
There will be deficiencies in retained EU law, which implements the instruments of the Brussels regime, due to a lack of reciprocity. That will become obvious if we leave the EU without a deal. This SI fixes those deficiencies and establishes a practicable set of rules for dealing with cross-border disputes in civil and commercial matters in such a scenario.
Lord Adonis
That is extremely disrespectful to the Committee, if I may say so, because now there is no other way for us to ask the Minister questions before he responds at the end of the entire debate—and we will have no means to come back on his statements at that point because the Question will be put at the end.
Lord Adonis
I am happy to take an intervention from the noble and learned Lord, even though he was not prepared to take one from me. I will speak later in the debate but I just want to put on record that I find his actions extremely disrespectful to the Committee. That alone would lead me to wish to negative the instrument, because the Minister is not subjecting himself to the proper process of interrogation and answering questions on the regulations. It is immensely disrespectful and the first time that a Minister has come to a Grand Committee and not been prepared to answer questions in the normal way.
Lord Adonis
So why does it say that they are not applicable? These issues are significant.
The final issue in the debate, to which I hope the noble and learned Lord will respond, was raised by my noble friend Lord Beecham and other noble Lords. It is about the losses to this country of not being part of the European Judicial Network. My understanding is that there is nothing statutory about the network. Am I wrong? Is the network a formal institution of the European Union? If it is an informal body, and if belonging to it brings us great benefits, why can we not continue to be members of it even after we leave the European Union? Indeed, to the lay man, being part of the network would seem positively beneficial because, presumably, the network co-ordinates and promotes joint understandings. If we will be separate jurisdictions, with neither wanting, as far as possible, to operate in parallel, is that not all the more reason for us to be part of the network and not seek to leave it? If we crash out with no deal and all losses as set out or implied in the Explanatory Memorandum, why we are not seeking to remain part of the European Judicial Network? Might it be in the country’s best interests for the Government to seek to keep us in the network?
Lord Keen of Elie
My Lords, this Parliament decided that the United Kingdom will leave the European Union on 29 March this year. That is the determination that has been made. That date has been set in law. The Executive must respect the law as determined by Parliament and respond responsibly to it, as laid down by Parliament. Therefore, they must address the implications of us leaving on 29 March if, as at present, we do not have a withdrawal agreement concluded with the European Union. That is what this statutory instrument seeks to address.
In that context, we must address the difference between leaving on 29 March and doing nothing about the existing state of the law—with regard to judicial recognition, identity of choice of court and law, the enforcement of judgment and so on—and doing something about it. I quite understand the observations of the noble Lord, Lord Marks, about the benefits of our being in the Brussels Ia system, but we can be in the Brussels regime only as a member of the European Union. According to Parliament and the law it made, we will cease to be a member of the European Union on 29 March 2019. Although the Brussels regime can be dated back to 1968, it was in that context a regime for existing European Union members and not open to non-members, to clarify a point made by the noble Lord, Lord Adonis.
The first point is that we have to consider the impact of us leaving on the date I have mentioned if we make no change to the existing law, and the impact if we change the existing law. I quite understand the point repeatedly made, that in many ways we would prefer the cake analogy: we would like to have our cake and eat it. We would like to remain within the regime, even if, as Parliament has determined as a matter of law, we are leaving on 29 March 2019. But we cannot have it, because Parliament has made that determination. Many may regret it now, and many may regret it later, but that is the law as determined by this Parliament, and we have to accept that. We can seek to change the law—of course we can—and no doubt there are many who may, even now, seek to change it. However, the law is as determined by this Parliament.
Lord Marks of Henley-on-Thames
I hope that the noble and learned Lord will at least address my question on what consideration has been given to applying to join the Brussels regime entirely separately. Although he says that it is a creature of the European Union, and by and large of course it is, there do not seem to be insuperable obstacles to negotiating reciprocity around the context of the Brussels regime but outside the European Union.
Lord Keen of Elie
I take the noble Lord’s point when he says “negotiate”; that is the whole point. If he looks at the political declaration, there is a reference to the desire of all parties to negotiate on this among other issues so that we may be part of a regime perhaps similar to Lugano. Let us be clear: we have not only applied to become an individual signatory to Hague 2005, which involves reciprocity between the convention members and ourselves—although I say, quite candidly, that it is not as perfect as Brussels Ia, being more akin to Brussels I. That is why it is in many ways a second best to that extent, but that is as far as we can go. We have also applied to the council of the Lugano convention to become a party to the Lugano convention—a point raised by the noble Lord, Lord Beith. That will of course require the consent of the EFTA parties and of the EU, and it will be subject to negotiation, but we hope also to be a member of the Lugano convention.
If noble Lords have regard to the impact assessment, they will see that under option two we looked at simply leaving the UK law as it is—in other words, embracing all those relevant terms of Brussels Ia without any right to reciprocity from the EU 27. The difficulty there is that in the absence of reciprocity, people would not know what they were going to get from those provisions. Furthermore, it would raise two obvious difficulties. First, corporations, companies and associations within Europe could secure a decree there and automatically seek to secure enforcement in the UK, but companies, corporations and associations in the UK that secured a judgment from a UK court could not expect to enforce it in the EU 27 countries. That is why I stressed the concept of reciprocity. Yes, we want to negotiate and to secure reciprocity, but until we do, we have to make sure that the statute book is in some sort of order for a no-deal exit—which, as far as I am aware, no one truly wishes for.
Secondly, if we embrace the Brussels Ia regime without being a member of the EU, we would be discriminating between the EU 27 jurisdiction and all the other third-party countries. We would be giving some benefits to the EU 27 under Brussels Ia, albeit without reciprocity, but we would not be giving the same benefit to third-party countries such as the United States, India and China, and Commonwealth countries such as Australia and New Zealand. That raises real issues about discrimination in the context of wider issues on services and so on.
Lord Beith
I thank the Minister for explaining the Government’s objections to option two. It might have been a good thing if he had written the impact assessment and developed those points. I shall still disagree with him on some other matters, including the fundamental issue here, but he has clarified that very helpfully.
Lord Keen of Elie
I am obliged to the noble Lord. I know the noble Lord, Lord Adonis, made much of this, but that is why the impact assessment is between the statute book as it is upon exit and the statute book as it would be under the instrument upon exit, because Parliament has made the law and Parliament is determined to exit on 29 March. If that is reversed, so be it, but that is where we are and that is the impact that we have to properly address in this context.
On the wider point made by the noble Lord, Lord Marks, about the benefits of being in the EU and within Brussels Ia, I am not going to seek to disagree with him. Brussels Ia was a marked improvement on Hague 2005, for example; we all know that. Therefore, in many senses, exit from the EU without a deal is unattractive in the context of the provision of legal services in the UK, as indeed are the implications of that for those who have to engage those services and have recourse to the courts. No one is denying that either, but these are the consequences of the law that Parliament has made in these circumstances.
The noble Baroness, Lady McIntosh, asked what steps are being taken with regard to reciprocity. As I say, we are applying to become signatories to the Hague convention 2005, which will give us certain reciprocal rights. We are applying to the council of the Lugano convention to become a party to that, which will give us reciprocal rights with the EFTA countries. In addition, we are intent upon negotiating around the whole issue of judicial co-operation in future, which is why it features in the political declaration. At this stage we cannot demand reciprocity from the EU 27 and they are certainly not prepared to offer it at this stage. At a very early point there were discussions about, for example, the recognition of legal qualifications and mutual issues of that kind, and the EU made it very clear at that stage that that was a discussion for another day. That is where we are.
Coming on to a further point made by the noble Lord, Lord Beith, about what happens to the SI, if we have an agreement on the terms of the present withdrawal agreement then we go into a two-year implementation period where we will remain a part of the Brussels Ia regime, so the instrument itself will essentially be suspended by the withdrawal agreement Bill. However, it will not be completely done away with because at the end of the implementation period—two, three or four years, whatever it might be—we will then have to decide whether or not we have achieved agreement with the EU 27 on future judicial co-operation. That might be on essentially identical terms to what we have now, in which case we will not need the instrument at all, or it may be that we cannot achieve agreement at that stage, in which event we will need to revive the instrument in order to bring the statute book into proper order. That is why I have referred to it as being “deferred” in that context; it is deferred for the implementation period, whatever that period might ultimately turn out to be. That is where we are on that.
On the issue of forum non conveniens, which the noble and learned Lord, Lord Hope, alluded to, that has always been a part of our common law because we apply it in the context of third party countries outwith the Brussels Ia convention. The noble and learned Lord may recollect the litigations that took place around the Pan Am/Lockerbie case and the attempts to take it further than just applying the doctrine of forum non conveniens but rather to apply the issue of interdict against the raising of proceedings in a third party country, which is attendant to the doctrine of forum non conveniens—although I recall being in a Texas court where the judge asked it to be pointed out to me that in Texas they do not have forum non conveniens, and we have to accept that there are some jurisdictions of that ilk. Nevertheless, the courts will fall back upon these common-law concepts which have not been done away with but have not applied in the context of the Brussels Ia regime for the reasons that the noble and learned Lord very carefully pointed out.
The European Judicial Network is a very fine body but it was set up in order that there could be engagement across the EU 28 about the operation of the regime that at the moment we are referring to as Brussels Ia, but it also looks at Brussels IIa and other issues. It concerns the operation of that regime and how it may be improved. For example, it contributes to how you move from Brussels I to Brussels Ia. If we are not part of the regime, we are not part of the European Judicial Network and we really have no part to play in that. But again if, going forward, we are able to achieve a negotiated position with the EU 27 where we are, if you like, semi-detached from Brussels Ia and the other Brussels regime, no doubt they will consider allowing us a seat perhaps not at the table but at least in the room of the judicial network in order that we can contribute to it. However, that too is a negotiation for another day. It is not what this instrument is addressing and not what it is intended to do. So, with all due respect to the noble Lord, Lord Adonis, there is no elephant in the room. Parliament removed the elephant when it decided that, as a matter of law, we would leave on 29 March 2019. The Executive have to address that point in order to put the statute book in proper order.
Mutual Recognition of Protection Measures in Civil Matters (Amendment) (EU Exit) Regulations 2019
Lord Keen of Elie Excerpts(7 years ago)
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Lord Keen of Elie
That the Grand Committee do consider the Mutual Recognition of Protection Measures in Civil Matters (Amendment) (EU Exit) Regulations 2019
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, the Committee will be aware that as part of the no-deal preparations we have, as I indicated earlier, published a series of technical notices to outline the implications for citizens and businesses. I referred earlier to the technical notice published on 13 September 2018 which made clear that we are committed to unilaterally recognising incoming civil protection measures from EU countries to ensure that vulnerable individuals would continue to be protected. This instrument amends the retained EU law to give effect to that policy.
Before I set out the effect of the instrument, it might help if I first explain what I mean by a civil protection measure and how the rules are currently applied both in the United Kingdom and across the EU. A civil protection measure is a decision ordered by an issuing authority of an EU member state in accordance with its national law that imposes restrictions on one person with a view to protecting another when the latter’s physical or psychological integrity may be at risk. The civil protection measure imposes one or more obligations on the person causing the risk. For example, they may be restricted from entering the place where the at-risk individual works or resides, or from contacting them by telephone or other means.
Examples of civil protection measures in England and Wales include non-molestation orders under Part IV of the Family Law Act 1996 or injunctions under Section 3 of the Protection from Harassment Act 1997 and there are similar provisions in the law of Scotland. In the law of Northern Ireland, such measures include non-molestation orders under Article 20 of the Family Homes and Domestic Violence (Northern Ireland) Order 1998 and injunctions with regard to harassment.
Regulation 606/2013 of the European Parliament and of the Council of 12 June 2013 on mutual recognition of protection measures in civil matters, which I will refer to as the civil protection measures regulation, provides for the mutual recognition of such protection measures in civil matters across the EU. The effect of this is that a civil protection measure granted in one member state must be recognised in another without any special procedure for achieving this and it must be enforceable in another member state without any need for a declaration of enforceability. It is, in effect, treated as if the civil protection measure had been ordered in the member state addressed.
If we leave the EU without an agreement then, as presently drafted, the retained EU law will become deficient as the UK will no longer be a member state and will therefore be unable to recognise and enforce an incoming protection measure from any EU member state under the terms of the civil protection measures regulation as retained. Accordingly, the instrument provides that an incoming civil protection measure from an EU member state shall, under the terms of the civil protection measures regulation, be recognised without any special procedure being required and enforceable without the requirement for a declaration of enforceability.
However, the instrument revokes the provision relevant to issuing a certificate in the courts of England and Wales and Northern Ireland which is required for recognition and enforcement in an EU member state under the civil protection measures regulation. The reason for this is that we are unable to legislate unilaterally to restore the reciprocity of approach. That is something I mentioned earlier. We cannot require an EU member state to comply with the civil protection measures regulation with respect to a civil protection measure issued by a court in the UK when we will no longer be an EU member state. The consequence is that EU member states will no longer be bound to recognise, let alone enforce, civil protection measures issued in the UK.
It is our view that to provide for courts in England and Wales to issue such certificates when there is no certainty that the civil protection measure could be invoked in the UK under the EU regulation would provide no benefit for citizens. Indeed, on the contrary, that runs the risk of giving a person at risk a false expectation of continued protection in an EU member state. To give a simple example, if after exit we were to issue such a civil protection measure to an individual who was going to Poland, they might go to Poland in the belief that they enjoyed some degree of protection because of the order made by the English court, but in reality they would enjoy no element of protection when they got there because the order would not be recognised by the Polish court. Of course, for reasons that I have mentioned before, we hope to take that forward in the context of negotiation. The instrument is designed to address the issue of a no-deal exit from the EU.
Although the Government accept that this loss of reciprocity means that those with civil protection measures issued in our courts who wish to travel to the EU will be in a disadvantageous position as compared to those with protection measures issued in the EU who wish to come to the UK, we believe that it is right that we do what we can to provide as much reassurance as possible to persons, often vulnerable persons, who have been granted a protection measure issued in the EU. This is to the benefit of all citizens living in the EU, whether they be EU or UK nationals.
Frankly, we did not come to that conclusion on our own. The proposal that, post EU exit, civil protection measures and certificates issued in EU member states continue to be recognised and enforceable in the UK was discussed with family law stakeholders and leading family law practitioners as we developed our thinking on the issue.
These regulations cover England, Wales and Northern Ireland and the issues here are devolved to Scotland. The Scottish Government are dealing with this matter separately and are determined to bring forward their own legislation in this area. However, we understand that they also intend to continue recognising and enforcing incoming protection measures.
This instrument ensures that the element of the regime for mutual recognition of civil protection measures that we can continue to operate under a no-deal scenario applies—namely, to continue to unilaterally comply with the regulation in England, Wales and Northern Ireland with respect to incoming civil protection.
The civil protection measure regime is not, so far as we are able to determine, widely relied on in any formal sense. However, it provides for hapless people in vulnerable situations an additional protection when moving from an EU member state into the UK. It is for that reason that we have decided on this unilateral approach to this particular issue. It is perhaps a pragmatic approach, but it means that we do what we are able to do in this situation for vulnerable individuals without creating a false expectation of protection for those who may be in the UK and contemplating going to other EU states. We therefore consider that this is the best and most appropriate approach to take if the United Kingdom leaves the EU without a deal.
It is in those circumstances that I commend the instrument to the Committee—adding the caveat, again, that we hope to exit with a deal and to engage in fruitful and constructive negotiations about judicial cooperation at all levels going forward.
Lord Hope of Craighead (CB)
My Lords, about half-way down page 3 there is a reference to “participating Member State” and that it means “a Member State other than Denmark”. Am I right in thinking that, although it is dealt with specifically there, there is no change as far as Denmark is concerned because it does not participate in the EU regulations? Is it purely a matter of drafting that this provision appears?
Lord Keen of Elie
The position as I understand it —I mentioned this earlier—is that pursuant to Article 22 of TFEU, Denmark has an opt out from all of these issues but has a bilateral agreement with the EU in respect of them. I have been corrected. It does not have a bilateral agreement in respect of this one but it does with the others—I apologise—and that is why Denmark is excepted.
Lord Hope of Craighead
It is really a clarification in the drafting—it does not change anything. That is my point.
Lord Beecham (Lab)
My Lords, as we have heard, this statutory instrument has the effect of preventing UK courts from providing similar protection measures and certificates to secure the recognition and enforcement of their judgments in the EU while, paradoxically, recognising such measures and certificates issued by the EU courts. This is extraordinary. There is not an impact assessment as far as I know—if there is I have missed it—and no indications as to what steps will be taken to ensure reciprocity by the EU on this subject. The noble and learned Lord mentioned that possibility en passant without substantive clarification.
The Law Society recommends that there should be an explicit clarification that protective measures issued in the Scottish and Northern Irish courts will be recognised in England and Wales. Perhaps the noble and learned Lord will deal with that when he replies to the debate.
The Secondary Legislation Scrutiny Committee has recommended that this SI should be upgraded to an affirmative, stating:
“To allow UK civil courts to issue certificates post EU-exit would, potentially, mislead protected persons as to the recognition and enforceability of their UK issued protection measures in EU Member States post exit potentially placing them at risk”.
That sounds significant and I wonder why the Government have chosen to adopt the procedure they have rather than make this an affirmative, given the potential implications identified by the Secondary Legislation Scrutiny Committee. It points out that it is unclear what measures would be taken to ensure UK judgments would be recognised after Brexit and that there is an assumption that the EU states will not respect civil protection measures issued in England and Wales. Can the noble and learned Lord confirm that?
Finally, there is a question about the potential cost to the UK Government, the courts and the police of enforcing EU-issued protection orders, which will still be valid, while ours will not be valid there. It looks one-sided: the cost will fall on us as a nation because contrary positions have been taken up. Can the noble and learned Lord clarify that?
Lord Beith (LD)
I agree entirely with my noble friend. Oddly enough, we had not consulted each other beforehand, but we reached the same conclusion from the same basic principles: where people are particularly vulnerable, when the arrangements we make in this country can afford them some protection, we should do so without regard to the reciprocity we would prefer, which we might not be able to have.
It is particularly depressing to have to see through this statutory instrument which says to people in desperate family situations threatened with violence, “Sorry, but, whereas we have been able to issue a procedure in the past which gives you some protection, even if you are going elsewhere in the European Union”—which they may be doing because there are grandparents or aunts and uncles for their children to see—“we can no longer offer you that, and you are that much more vulnerable as a consequence”. We really must negotiate our way to a better position. Like my noble friend, I think it is right that the Government should continue to offer protection when a court elsewhere in the European Union has deemed it necessary.
Lord Keen of Elie
My Lords, I am grateful for the contributions. No matter how divisive the issues that we face on Europe, we should seek to do good where we can in the present circumstances. We consider that we can do this by accepting these unilateral measures for the benefit of EU and UK citizens.
Regarding the issue of reciprocity, we would clearly like to see the development of a reciprocal regime similar to that which is presently enjoyed, but the way negotiations have been carried on is such that they will not be salami-sliced, if I can put it that way. Going forward, we are going to have to negotiate judicial co-operation as a whole. It is therefore not possible to pre-empt the Commission on these matters by taking them one by one, however regrettable the matter might appear to be.
On the matter of costs, I concur with the noble Lord, Lord Beith: in a sense, it is a matter of no real concern whatever that cost might be, given the individuals that we are concerned with. However, I understand that these orders are very few and far between and that there will be no major impact on our public authorities.
On Scotland and Northern Ireland, the regulation does not apply intra-UK; it applies to the UK as a member of the EU. Intra-UK, these matters are determined by our domestic law, and I see no reason to anticipate that the Scottish Government will alter the present system whereby within domestic law you can have suitable reciprocal enforcement of orders in this area. It is a matter for the Scottish Government to bring forward their own instrument in this regard, and I am not in a position to pre-empt them on that.
Against that background, I am obliged to noble Lords for having welcomed this instrument, at least to the extent that it is doing some good. I therefore commend the draft instrument to the Committee.
Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019
Lord Keen of Elie Excerpts(7 years ago)
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Lord Keen of Elie
That the Grand Committee do consider the Jurisdiction and Judgments (Family) (Amendment etc.) (EU Exit) Regulations 2019.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, I turn to two further draft instruments that form part of the preparations for a no-deal exit. They are, as before, concerned solely with no-deal preparations. The Joint Committee on Statutory Instruments has reviewed these SIs and has no substantive comments to make about them.
I have already referred to, so shall not return to, the terms of the technical notice published on 13 September 2018 that covered these issues as well. I should say that prior to the publication of that notice my officials met on several occasions with key family law stake- holders, including leading family law practitioners and representative bodies, to ensure that our policy proposals provide certainty for citizens, legal practitioners and the court system in so as far as is appropriate as we transition to a post-exit arrangement in the event of no deal. That engagement has continued alongside the development of the instruments that we are discussing today, which are designed to implement the policy outlined in the technical notice of 13 September last year. I will come on to comment on a number of points that will arise concerning a further instrument in connection with some of the somewhat technical issues here, which I will endeavour to deal with as shortly as I can.
The first regulations we are considering in this debate are the draft Jurisdiction and Judgments (Family) (EU Exit) (Amendment etc.) Regulations 2019. These make changes to the current EU rules governing cross-border family law disputes that involve courts in the UK and EU member states. Again, the instrument remedies deficiencies that would arise from retaining these EU rules in the event of us exiting without a deal.
The second set of regulations are the draft Civil Partnership and Marriage (Same Sex Couples) (Jurisdiction and Judgments) Regulations 2019 which amend rules governing the jurisdiction and recognition of orders in relation to the dissolution of civil partnerships and divorce of same-sex married couples, which currently correspond to the EU rules. The effect of these regulations is that the rules relating to the dissolution of civil partnerships and the divorce of same-sex married couples will instead correspond to those for the divorce of opposite-sex married couples made by the first set of regulations—namely, the first instrument that I refer to. In other words, we are concerned to ensure that all these parties remain aligned.
It may be helpful if I outline the existing EU rules in this area. There are two applicable EU regulations: Brussels IIa, as distinct from Brussels Ia, and the maintenance regulation of 2009. The Brussels IIa regulation provides rules to determine, in cases where those involved come from or live in more than one member state, which court has jurisdiction—that is to say, has the right to hear a case—in relation to divorce and matrimonial disputes; matters of parental responsibility such as disputes between parents as to residence of and contact with their child; or care proceedings. It also provides rules for recognition, and enforcement where necessary, of a judgment from one member state in any of the others.
This includes a provision supplementing the 1980 Hague Convention on the Civil Aspects of International Child Abduction. That provision empowers the court of the EU member state of the child’s habitual residence to make an order requiring the child’s return to that state even if an order has been made by the member state to which the child was taken or in which the child was retained, that the child should not be returned. The regulation also provides rules on the availability of legal aid in these cases and for co-operation between central authorities in EU member states. As far as jurisdiction and recognition and enforcement of judgments in matters relating to parental responsibility is concerned, the Brussels IIa regulation covers similar ground to the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, to which I will turn later.
The second applicable EU regulation, the maintenance regulation, sets out in a similar manner to Brussels IIa the rules governing which EU member state court has jurisdiction in cross-border cases concerning family maintenance, together with rules governing the recognition and enforcement of decisions in these cases and provision about legal aid and central authority co-operation. This covers similar ground to another Hague convention: the 2007 Convention on the International Recovery of Child Support and Other Forms of Family Maintenance. It is interesting to note that many regulations of the Brussels regime developed from Hague convention provisions. Like the 2005 convention, the 2007 convention was signed by the EU on behalf of all member states; again, we have taken steps to apply to become an individual state signatory to the 2007 convention. That application has been accepted already; on exit, we anticipate that in the absence of a no-deal exit, we will be a party to that convention from 1 April 2019.
Should the UK leave the EU without an agreement covering these matters, the Brussels IIa and maintenance regulations will no longer operate between the UK and EU member states since these regulations rely on reciprocal action between member states. Even if the UK were to purport to apply these rules after exit, the UK’s status as a third country would mean that the regulations as they bind the EU member states would not apply to the UK. For example, EU member states would not be bound to afford recognition or enforcement under the regulations to decisions of courts in the UK. Retained provisions of the regulation would also overlap with the Hague convention provisions to which I have referred; that in turn would be liable to create confusion and potentially undermine the operation of those conventions because people would be left in doubt over which regime they should have regard to or recourse to in such circumstances. It is this deficiency in retained EU law, which would otherwise remain on the statute book, that we seek to remedy.
The principal means of addressing this deficiency is to revoke the Brussels IIa and maintenance regulations, subject to transitional arrangements for cases that are in train on exit day; there would be recognition for those cases for transitional purposes. However, they will be removed, as they form part of retained EU law, by the jurisdiction and judgments regulations. As I touched on earlier, this will not, however, leave us without rules or international co-operation in these areas. The UK is already a contracting state to a number of Hague conventions in the field of family law which cover many of the same areas as the Brussels IIa and maintenance regulations. In particular, I would mention the 1996 Hague convention, which covers similar ground in respect of jurisdiction, recognition and enforcement of judgments and co-operation between authorities as the Brussels IIa regulation; all EU member states are bound by that 1996 Hague convention. The UK is already a contracting state to that convention, so it will apply upon exit with no deal.
Lord Marks of Henley-on-Thames (LD)
My Lords, I do not propose to address the same matters of detail that the noble Lord, Lord Beecham, has done. I said a great deal of what I wanted to say about the general impact on judicial co-operation and co-operation in legal matters in the debate on the first of these statutory instruments. But let the Minister and the Government be in no doubt that the issue of co-operation in family justice, and the replacement of the system we have now by the bitty and only partial system he has outlined, is the substitution of a much less satisfactory and much less smooth step backwards—which is to be deplored—from the extremely well-respected and widely understood system that we have now across the European Union.
The noble Lord, Lord Beecham, mentioned 16 million cross-border family disputes. The European Parliament estimates that 10% of European citizens are married to people of a different citizenship, and a very large number of those are married to other European citizens. I am one of them; many in your Lordships’ House and the other place are also married to other EU citizens. Even Nigel Farage is—or was—married to an EU citizen of another state.
We have a system now that works well and is widely respected across the whole gamut of domestic law. Jurisdiction is the area where I think there has been the most difficulty because the first court is the place of jurisdiction in divorce rulings, which was difficult to accept but is now widely understood. Recognition and enforcement are absolutely crucial. Going back to the Hague rules will be unhelpful by comparison with what we have now. The system of child abduction goes back to the Hague convention of 1980. Yes, it was there but the override that we have under Brussels IIa makes the system work far better, far more effectively, far more cheaply and with far more co-operation.
Judicial co-operation across the European Union has generally been helpful and beneficial and we have all gained immeasurably from the co-operation across different jurisdictions. Legal aid is available in respect of cross-border disputes within the European Union, which will not be available after we leave it. The new arrangements for the maintenance regulations are absolutely hopeless compared with what we currently enjoy for intra-European disputes, as anybody who is involved with divorces between, for instance, UK and US or other third-country litigants well knows.
I entirely accept the Government’s argument that we simply could not insist on losing reciprocity and nevertheless maintain unilateral arrangements in the case of these convention advantages, the reason being that we would put UK citizens at severe disadvantages when their relationships with other EU citizens broke down. Nevertheless, the Minister and the Government should not rest on the consultation that they have had by discussion with some family lawyers. The Government should be in no doubt that family lawyers generally deplore the loss of the European regime, which is what would face us if we went through with a no-deal exit.
The Explanatory Memorandum produced by the Government is in similar terms to, and shares the faults of, that in respect of civil and commercial cases. It says at paragraph 12.2 on page 6:
“In the event of a no deal EU Exit, the impact on business, charities or voluntary bodies (being those that advise, represent and support individuals and families engaged in cross-border family law matters) of this instrument will, on balance, be positive. The amendments provide a basis for continued reciprocal cooperation with most EU Member States through the UK’s participation with those Member States”.
It then goes through the Hague conventions that will be available. That is a comparison with the prospect that we would enjoy if we had no statutory instrument to cover this position. The Explanatory Memorandum faces reality later on in that paragraph, where it says:
“However, the change to Hague Convention rules and the new domestic rules on divorce etc jurisdiction, maintenance jurisdiction and parental responsibility legal aid will require relevant businesses, charities and voluntary bodies to familiarise themselves and adjust their administrative arrangements to deal with the new rules. In some cases (especially divorce etc jurisdiction) the new rules could lead to greater disputation and complexity”.
Greater disputation and complexity always means greater cost. In family cases it is greater stress, unhappiness and mental health issues, and severe damage to children. One sees in so many of these cross-border cases the added damage to children, even with the present benign arrangements, because their parents are in different jurisdictions. The Explanatory Memorandum goes on:
“In the event of a no deal EU Exit, the impact on the public sector is expected to be an increase in case volume and complexity of cases before the family court due to the changes in divorce and maintenance jurisdiction rules. However, this instrument will have positive impacts on the family court as it ensures there will be workable rules governing cross-border family law disputes”.
Once again, this is confusing the two issues. Yes, there will be workable rules and, yes, that is better than no rules at all, but it is far worse than what we have now.
Of course, I accept the other statutory instrument that same-sex marriage and civil partnerships should be put on the same basis as opposite-sex relationships, but we are once again facing a situation where it is my view—and, I suggest, a view that ought to be taken seriously by the Government—that the loss of co-operation in family law and relationship law generally would be very serious, and that those prepared to countenance no deal should take that into consideration far more than they do at present. I know that the noble and learned Lord and the noble Baroness, Lady Vere, take these matters seriously. I wish other members of the Government would do the same.
Lord Keen of Elie
I am obliged to noble Lords for their contributions. I reiterate what the relevant comparators are for impact assessments in consideration of these instruments. This Parliament determined to make a law by reason of which we leave the EU on 29 March 2019. The Executive not only have to respect that law, as made by this Parliament, but have to make appropriate plans and arrangements to allow for that in the event that no withdrawal agreement is in place as at 29 March. So, with respect to the noble Lord, Lord Marks, we are carrying out a relevant comparison within the impact assessments in that context.
I will not gainsay the comments about the benefits we have enjoyed from the Brussels regime, whether in the context of divorce, maintenance, child abduction or the wider issues we have already discussed today of commercial and civil cases. We have all benefited from that regime, but we cease to be a party to it because this Parliament has made a law determining that that would be the consequence on 29 March 2019.
On the issues of family law, fortunately we have, in essence, the foundations for all that we find in Brussels IIa. We have the 1970 Hague convention on recognition of divorce and separation and the 1980 Hague convention on child abduction. The noble Lord, Lord Marks, is quite right that it does not contain the override, but then it cannot because we will not be in a position to make an order overriding an order of an EU state court when we have left the EU. We simply cannot do that unilaterally, so we have to accept that. We have the 1996 Hague convention on jurisdiction, applicable law, recognition, enforcement and co-operation in family matters. In the context of maintenance, we have the 2007 Hague convention. All of that will be in place and, as I indicated earlier, we are also applying to be a party to the Lugano Convention, although my understanding is that the Lugano Convention is on civil and commercial rather than family matters. Nevertheless, we are taking all the steps we can at this stage to cover all bases.
On the question of future co-operation, the political declaration refers to the intention to negotiate these matters, but it takes two to tango—as is sometimes observed—and therefore the pace at which we can negotiate these issues is dictated not only by us but by the EU, and we have to take that on board.
The noble Lord, Lord Beecham, referred to the European protection order. That is a particularly difficult issue because the European protection order is in the form of a directive, which is quite specific in its terms. It says that an EU court can issue an EPO only to another EU jurisdiction, and that an EU court can recognise an EPO only from another EU jurisdiction. It is simply not possible even to apply a unilateral aspect of the EPO, but we have done that with regard to the civil protection orders that I referred to earlier.
We have done as much as we can in preparation for a no-deal exit—a no-deal exit of which no one, as far as I am aware, is truly in favour. But we have to plan for that contingency given the state of the law as it has been determined by Parliament. It is in these circumstances that I commend the regulations to the Committee.
Lord Beecham
I am grateful to the Minister. He cites the difficulty with the restriction of the powers of the European court. Could that be addressed, not as part of a no-deal situation, but in the event of a negotiated deal? I assume that it would, but it would be welcome to have that on the record.
Lord Keen of Elie
I am not in a position to say what will or will not be addressed in the context of negotiations that are not yet under way, and that are pursuant to a political declaration that is attendant upon a withdrawal agreement that is not yet an agreement. So I am reluctant there. I observe, however, that it would be necessary for the EU to amend the relevant directive. It would have to amend it quite significantly to afford that benefit. No doubt parties will bear in mind the potential benefits of such an order going forward.
There is only one other matter that I will mention. The noble Lord, Lord Beecham, referred to me meeting the Resolution Foundation—in fact, it was my officials who met it, not me, to be clear on that. With that, I commend this draft instrument to the Committee.
Civil Partnership and Marriage (Same Sex Couples) (Jurisdiction and Judgments) (Amendment etc.) (EU Exit) Regulations 2019
Lord Keen of Elie Excerpts(7 years ago)
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Lord Keen of Elie
That the Grand Committee do consider the Civil Partnership and Marriage (Same Sex Couples) (Jurisdiction and Judgments) (Amendment etc.) (EU Exit) Regulations 2019.
Child Sexual Exploitation: Grooming Gangs
Lord Keen of Elie Excerpts(7 years ago)
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Baroness Cox
To ask Her Majesty’s Government what progress they have made with the prosecution of grooming gangs in Rotherham and elsewhere; and what assistance they have offered to victims and their families.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, there are a number of criminal investigations currently ongoing in Rotherham and other parts of the country that have led to prosecutions resulting in convictions. Supporting victims requires a multiagency effort to protect them and help rebuild their lives. The Government provide funding for victims of child sexual abuse and exploitation, and additional funding has been provided to agencies in Rotherham.
Baroness Cox (CB)
My Lords, I thank the Minister for his reply. Is he aware that I had the painful privilege of becoming friends with a number of young women who have suffered such atrocities, including Caitlin Spencer—a pseudonym—whose life story was published in a must-read book, Please, Let Me Go, in which she describes how from the age of 14 she was groomed, sexually exploited and trafficked around this country by gangs of men. I have placed a copy in your Lordships’ Library. Given that Caitlin still sees her abusers driving their taxis with impunity and that other victims similarly see perpetrators living freely and intimidating them, what more will the Government do to bring those perpetrators to justice?
Lord Keen of Elie
My Lords, Operation Stovewood is now operating in respect of Rotherham. To support women such as Caitlin, the National Crime Agency has a dedicated team of independent sexual violence advisers working with investigators and service providers in Rotherham to create a bespoke survivor pathway for victims and their families. The Department for Education is providing additional funding of up to £2 million to children’s social care. The Ministry of Justice has also provided £1.6 million to the police and crime commissioner for the commissioning of local victims’ services, and additional funding for specialist support.
Lord Marks of Henley-on-Thames (LD)
Can the Minister say a little more about what lessons may have been learned to help victims of grooming through the prosecution process? Are any further steps planned to help support victims through those very difficult cases?
Lord Keen of Elie
My Lords, Operation Stovewood is a victim-focused investigation carried out under a strategy known as the survivor pathway, with a dedicated team of independent sexual violence advisers. In addition, when taking forward the consideration of prosecution, the CPS has regard to the victims’ code and to guidance on how it should approach and deal with victims in that context. Over and above that, we have the statutory provisions of Sections 16 and 17 of the Youth Justice and Criminal Evidence Act 1999, whereby victims and other witnesses who are vulnerable or potentially intimidated can have their evidence taken by video recording and be cross-examined via a television link.
Lord Pickles (Con)
My Lords, this whole sorry business led to the collapse of the political and official authority in Rotherham, and that was one reason why, during my time as Secretary of State for Communities and Local Government, I put in commissioners. Does my noble and learned friend agree that we need to look beyond the immediate victims and towards future victims, and consider the conditions that have been created, which can be addressed only by dealing with particularly vulnerable families? Will he tell the House what the Government are doing, in co-operation with the local authority and voluntary organisations in Rotherham, to increase the esteem of young girls and to find ways of dealing with the root cause of this problem?
Lord Keen of Elie
My noble friend is entirely right: we need to look not only at the consequences of these abhorrent crimes but at the causes if we are to prevent further victims emerging. In that context, the Home Office is taking forward work on a number of fronts to improve our understanding of group-based child sexual exploitation and how it manifests in different ways throughout the country. Therefore, steps are being taken at both national and local agency level to see what can be done not only to protect vulnerable children in this context but to deter and indeed disrupt persons becoming engaged in such devastating crimes.
Lord Blunkett (Lab)
My Lords, I commend the comments that have already been made in the House this morning, and I commend the work of the police and crime commissioner, the chief constable and the MP for Rotherham, Sarah Champion. However, perhaps I may raise a small issue that follows through on the point raised earlier by the noble Baroness, Lady Cox. Will the Minister talk to his colleagues about taxi drivers registering in one local authority area but operating in another? That causes real difficulties in clamping down.
Lord Keen of Elie
The noble Lord makes a valid observation. There has been an association between these abhorrent crimes and certain areas such as minicab driving. Officials and Ministers are considering the registration of minicab drivers in one area in order that they can then operate in another.
Lord Laming (CB)
My Lords, will the Minister use his influence to incorporate the position of children in public care who were exposed to such dreadful experiences? When the state has parental responsibility for these vulnerable young children, it has to make sure that it knows where they are and what they are doing. Is it not dreadful that these children were exposed to such dangers and that apparently, it was not known where they were?
Lord Keen of Elie
My Lords, I entirely accept the noble Lord’s observation. Clearly, there were failures in many areas that left those children exposed to these abhorrent crimes. That is one reason why Operation Stovewood, directed by the National Crime Agency, has taken over investigations in, for example, Rotherham, where it is looking at the exploitation of children for purposes of sexual abuse from 1997 to 2013. Other reports have been made but further work needs to be done.
Lord Campbell-Savours (Lab)
My Lords, in the case of claims arising from sexual offences, is it not worth transferring funds from the criminal injuries compensation scheme so that they can be spent on counselling victims? That happens in Germany, which has a far more substantial budget to spend in that regard.
Lord Keen of Elie
As the noble Lord may be aware, changes to the criminal injuries compensation scheme have been considered and addressed in the context of victims of child sexual abuse. So some changes have been made, but I cannot indicate that further material changes will be made to the scheme at this time.
Central Courts IT System
Lord Keen of Elie Excerpts(7 years ago)
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The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, with the leave of the House I shall repeat in the form of a Statement an Answer given in the other place by my honourable friend the Parliamentary Under-Secretary at the Ministry of Justice. The Statement is as follows:
“I am grateful for the opportunity to update the House on the IT issues facing the Ministry of Justice over recent days. I start by apologising to those who have been affected by the intermittent disruption, which was caused by an infrastructure failure in our supplier’s data centre. While services have continued to operate and court hearings have continued, we know how frustrating this is for everyone.
The issue has been that some of our staff in courts and tribunals, the Legal Aid Agency, probation and the Ministry of Justice headquarters have been unable to log on to their computers, but we have contingency plans in place to make sure that trials can go ahead as planned. The Prison Service has not been impacted and—to clarify incorrect reporting—criminals have not gone free as a result. We have been working very closely with our suppliers, Atos and Microsoft, to get all our systems working again, and yesterday had restored services to 180 court sites, including the largest sites.
Today, 90% of staff have working computer systems. Work continues to restore services, and we expect the remainder of court sites to be fully operational by the time that they open tomorrow morning. We are very disappointed that our suppliers have not yet been able to resolve the network problems in full. This afternoon the Permanent Secretary, Sir Richard Heaton, will meet the chief executive of Atos and write personally to all members of the judiciary.
I am very grateful to the staff who have been working tirelessly and around the clock, alongside our suppliers, to resolve these issues”.
Lord Beecham (Lab)
My Lords, last May the National Audit Office published a damning report on the Ministry of Justice’s four year-old £280 million IT programme. In the light of the latest fiascos affecting the probation service and the entire criminal justice email system, would the Minister rank the department’s performance in these areas as better or worse than that of Chris Grayling’s recent award of a ferry contract to a company with no ships, or the shameful record of the Home Office over the Windrush debacle?
Lord Keen of Elie
I rather fear that the noble Lord’s inquiry has taken sail. The position is that the issue that arose recently had nothing whatever to do with the development of the common platform system for the Ministry of Justice, which is still in its testing phase. It was entirely unaffected by the issue that arose, which was in fact attributable to the corruption of a routing server that has now been replaced.
Lord Marks of Henley-on-Thames (LD)
My Lords, the Answer repeated by the Minister is welcome, but expressions of frustration and an apology are, frankly, not enough. The reported consequences of this IT failure include: the adjournment and collapse of criminal trials; lawyers and litigants unable to access court documents; probation workers unable to provide courts with pre-sentence information; and even the farce of courts asking driving offenders to check their own DVLA records for past offences. The chair of the Criminal Bar Association, Chris Henley QC, describes the system as being “on its knees”.
We appreciate that the MoJ needs time to understand these failures, but they come at a time when the department is rightly further digitalising courts and tribunals to increase efficiency and save time and money. Will the Minister promise us an urgent, full and detailed inquiry to cover what has gone wrong, any failures of contract management within the MoJ, other weaknesses in the IT system, what updating and replacement is necessary and what it will all cost?
Lord Keen of Elie
My Lords, the reported effects narrated by the noble Lord are not accurate; let us be clear about that. There is no evidence of any cases being adjourned in either courts or tribunals with respect to this issue. In addition, it is not true that defendants have had to do their own DVLA checks. Furthermore, the probation service was affected by the outage but no offender appointments were missed, and the service reverted to paper processes where necessary. The IT systems are back up and working as of this morning with respect to the probation service. There was no impact on the Prison Service, which is in fact dependent on entirely separate computer system.
The cause of the outage was identified as a routing server that had become corrupted, and that has been replaced. It fell within one of our contractors’ systems and, as I indicated earlier, we are going to be speaking to our contractors with regard to that matter. At this stage we do not intend to institute the sort of inquiry that the noble Lord alluded to.
Lord Morris of Aberavon (Lab)
My Lords, is it correct that thousands of criminal cases in the courts have been disrupted? The National Audit Office criticised the delay in the IT system installation and said that the objectives would not be reached on time and on budget. Given this warning, are there any penalties in the contractual arrangements between the company and HMG?
Lord Keen of Elie
With respect to the noble and learned Lord, it is important to distinguish between two entirely separate systems: the existing system, which suffered the corruption of the routing server, and the proposed new common platform system which is in its testing phase. That is entirely unrelated to the existing system, but is of course connected to the modernisation of the courts system and the case management system, which has been allocated considerable funding at the present time.
With regard to the existing contracts, we are engaging with the provider over this issue. We regret the outage that occurred. Back-up systems did operate. Certainly, I am not aware of thousands of criminal cases being disrupted. I am advised that there is no evidence of cases being adjourned due to the IT issue.
Lord McNally (LD)
My Lords, it a fairly easy strike to suggest, as the Labour Front Bench did, that this was all the fault of Chris Grayling. I was also the Minister of State in the Ministry of Justice when we set out to reform court IT. Throughout my political life we have had, periodically, Ministers coming to explain some disaster in an IT system. What I wonder is: what happens next? As he rightly said, the comprehensive view of reform is not affected by this particular malfunction, but I do remember visiting courts and asking, “Have you got any problems with your IT system?” and they would say, “Well, our fax system doesn’t work”. This was long after the rest of the world had sent their fax systems to museums. The original idea is still valid: to invest in technology to make our court systems efficient. Where does the buck stop? I understood that the Cabinet Office also has responsibility for oversight of the efficiency of bringing in these new systems. Who is overseeing this? Who is keeping their eye on it? Or will we wait for another few years, and somebody coming along to explain why that system has not worked.
Lord Keen of Elie
I am obliged to the noble Lord for his observations, drawing upon his own experiences in the ministry when we began the introduction of the common platform system. Clearly, we want to move on to that platform fully and as soon as possible. We have already seen some success in the digital approach that has been taken to some forms of casework—such as debt actions and undefended divorce actions—and we want to roll that out further. With regard to the existing system: it is not perfect. If it was perfect, we would not be seeking to replace it. There are back-ups, but they are of limited operability because of the availability of wi-fi in courts in circumstances where it has not been possible for those working there to access their desktop computers. That has been the case in some courts recently, and in the ministry itself, because of this particular problem.
At the end of the day, the Ministry of Justice must consider the effectiveness and efficiency of the computer system that it relies upon, not only as a ministry but also for its attendant agencies and arm’s-length bodies. We accept that we have a responsibility in that matter.
Lord Judd (Lab)
My Lords, yesterday, in his evidence to the Justice Sub-Committee, the Home Secretary was emphatic that the registration of EU people living in Britain will be dependent entirely on IT and that there are no plans whatever to give people documentary evidence of what has been granted. With the vulnerability of IT again being illustrated today, I wonder whether we could have an undertaking that Ministers will look again at this approach.
Lord Keen of Elie
I thank the noble Lord for his question. I do not believe that it is for me to gainsay the Home Secretary’s evidence before the Justice Sub-Committee, so I am afraid I am not in a position to commit to any alternative approach on the matter at present.
Lord Pannick (CB)
My Lords, in preparing this Statement, have Ministers and their officials spoken to judges and lawyers, or only to IT consultants?
Lord Keen of Elie
My Lords, I was not involved directly in the preparation of this Statement. I was invited to repeat it in this House on the basis of information given to me. I cannot directly answer the question of who was consulted in the preparation of the Statement itself. If the noble Lord wishes I will write to him on the point—but if he has no desire for me to do so I will not.
Lord Scriven (LD)
My Lords, less than three years ago there was a whole-Whitehall review of the £500 million contracts given to Atos for government IT systems. This is another potential catastrophe with an IT system that Atos has implemented in government. In the light of that, what government-wide review will now be done of Atos’s ability to provide IT services for government on such a scale?
Lord Keen of Elie
My Lords, this issue arose in the context not of the implementation of an IT system but of an existing system, in particular the corruption of part of the hardware, namely a routing server, which has now been replaced. Given that that has been identified and rectified, we would not contemplate launching the form of inquiry indicated by the noble Lord.
Voyeurism (Offences) (No. 2) Bill
Lord Keen of Elie ExcerptsTuesday 15th January 2019
(7 years, 1 month ago)
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The Advocate-General for Scotland (Lord Keen of Elie) (Con)
I beg to move that the Bill do now pass.
Baroness Chakrabarti (Lab)
My Lords, at the risk of my complete and utter humiliation, I rise in these difficult and fractious times to celebrate a moment of genuine positivity, collaboration and leadership in this place and beyond it. I pay tribute to the campaigner Gina Martin, whose original indignity was converted into a powerful campaign to do something important that we can all agree on. I also pay tribute to her lawyer, Ryan Whelan, for that campaigning partnership and to parliamentarians on all sides of both Houses who made it possible—even at the expense of rivalries and through self-censoring—to allow a speedy and successful passage of this Bill. I particularly thank the government Bill team, the Minister and his colleague, the noble Baroness, Lady Vere. This was good work and very well done.
Lord Keen of Elie
I am obliged to the noble Baroness, Lady Chakrabarti, for her observations. I, too, extend my thanks to all who were engaged in bringing this Bill to fruition. I thank in particular the Bill team, which did so much work to ensure that the passage of this Bill was as simple and swift as we would all wish.
Civil Legal Aid (Amendment) (EU Exit) Regulations 2019
Lord Keen of Elie Excerpts(7 years, 1 month ago)
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Lord Keen of Elie
That the draft Regulations laid before the House on 28 November 2018 be approved.
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
My Lords, as I indicated a moment ago, the Government published a technical notice on a number of areas which anticipated the possibility of our leaving the EU without any form of withdrawal agreement. On 13 September 2018, we published a technical notice which set out arrangements for civil legal aid cases, including arrangements in relation to the EU legal aid directive 2003, which I will refer to as the EU legal aid directive. The regulations we are discussing today will allow us to implement these arrangements and make other necessary amendments to the legal aid framework in England and Wales and Northern Ireland. These draft regulations will provide clarity for lawyers and citizens in the event of a no-deal outcome. As I indicated, that is not what we hope for, seek or wish to have as our destination. I emphasise that this will deal with the matter in England and Wales and in Northern Ireland. It is a matter of devolved competence in Scotland. The Scottish Government will address it as they see fit.
If we were to leave the European Union without a withdrawal agreement, the current reciprocal arrangements under the EU legal aid directive would be lost. The EU legal aid directive sets out rules relating to legal aid in EU member states, other than Denmark, to ensure adequate access to justice in cross-border disputes. Its application is limited to civil and commercial matters. It only applies to cross-border disputes which are, very broadly, disputes where an individual who is domiciled or habitually resident in an EU member state requires legal services in relation to proceedings or to enforcement of a decision or authentic instrument in another member state.
In a no-deal scenario, we are seeking to ensure that legal aid provision—for matters within the scope of the EU legal aid directive but not otherwise within the scope of legal aid—is not made to individuals domiciled or habitually resident in an EU member state on a unilateral basis where there is no longer reciprocity from the EU member state.
The instrument also makes technical amendments to ensure that the legal aid legislation in England and Wales and Northern Ireland operates effectively following EU exit and makes changes to procedural requirements for legal aid applications in England and Wales. It amends the civil legal aid framework in England, Wales and Northern Ireland to remove the legislation implementing the EU legal aid directive, which will no longer apply to the United Kingdom.
Individuals who are domiciled or habitually resident in the EU member state who require legal services in relation to proceedings in England and Wales or Northern Ireland or who wish to enforce a decision will be subject to the same scope, means and merits requirements as those who are domiciled or habitually resident in England and Wales or third countries—in other words, it brings everyone on to a level playing field. Legal aid provision for those domiciled or resident in the UK participating in proceedings in EU member states will fall to each member state’s particular legal aid framework—again, we cannot legislate for those states.
Repealing the legislation implementing the EU legal aid directive will ensure legal certainty and clarity regarding legal aid entitlement. In addition, we avoid a unilateral arrangement where those domiciled or habitually resident in EU member states are treated more favourably than those domiciled or habitually resident in the United Kingdom.
If I may, I shall explain the technical amendments made by the instrument. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 and the Access to Justice Order 2003 require the provision of legal aid for exceptional cases not normally within the scope of legal aid where not to do so would be a breach of enforceable EU rights. LASPO also provides that the Lord Chancellor may make an order specifying circumstances where foreign legal advice may be provided when not to do so would, again, be a breach of enforceable EU rights.
The references in LASPO and the 2003 order will be amended to “retained enforceable EU rights”, because of course, pursuant to the 2018 Act, in our domestic law we will have retained enforceable EU rights, but we will not have EU rights. The terms will be defined with reference to the 2018 Act, as I said. That will enable the proper functioning of the exceptional case funding frameworks in England and Wales and, under LASPO, for the provision of foreign legal advice.
As to the procedural amendments, controlled work, which is referred to in the instrument, is a categorisation of legal aid work covering certain advice where the power to determine legal aid entitlement is generally delegated to legal aid providers—for example, initial advice and assistance. At present, it is not necessary for an individual seeking legal aid for controlled work in England and Wales to attend a legal provider’s premises in person where they are present or reside in the EU. Such an individual can authorise someone to attend on their behalf.
The draft instrument changes the exception to apply to those present or resident in the United Kingdom, and these changes will allow the benefit to continue to apply to those within the UK and ensure that those residing within the European Union will now be required to meet the same criteria as those residing in third countries are currently expected to meet when applying for controlled work and not present in the United Kingdom.
Licensed work is a categorisation of work that is generally granted where there is a need for representation in court, and the procedural criteria that currently apply for individuals applying for licensed work in England and Wales who reside outside the EU and are not present in England and Wales will now apply to those who reside outside the United Kingdom and are not present in England and Wales. In other words, it will level down the playing field as between those resident in the EU and those resident otherwise in a third-party country. As such, those residing within the EU will now have to meet the same criteria as those residing in third countries for the purposes of applying for licensed work in England and Wales.
With respect to the changes made to the domestic legislation implementing the EU legal aid directive and to the procedural requirements, the draft instrument makes provision for transitional arrangements for matters that are live under the repealed or amended legislation at the time of EU exit, so at least they will continue under the same rules as before.
As regards the impact, the department carried out an impact assessment, although one would not have been required in the context of the present instrument. I say that because in 2017, there were only 27 cross-border applications made between England and Wales and the central authorities in all other EU member states with regard to legal aid and of those, 20 of the applications were from EU member states for legal aid in England and Wales and seven went the other way. In Northern Ireland, it is estimated that there have been three applications over the past two years.
The instrument is necessary to correct deficiencies arising from the UK’s exit from the EU and in LASPO. As I said, the Scottish Government are taking required amendments to legal aid legislation in their jurisdiction separately, in order that that, too, can be addressed. I hope that with that explanation, noble Lords will understand the need to put this in place in the event of our proceeding without a withdrawal agreement, without a relevant transition period and without the scope for negotiation to deal with these matters. I commend the instrument to the House.
Lord Thomas of Gresford (LD)
My Lords, I must confess that it is not easy to grasp the scope of these provisions, but then I last filled in an application for civil legal aid when I was campaigning politically for Britain to enter the European Common Market about 55 years ago. In a paper published by the Ministry of Justice in August 2017, Providing a Cross-Border Civil Judicial Cooperation Framework, the Government declared that they would seek to agree new, close and comprehensive arrangements for civil judicial co-operation with the EU. The paper stated:
“We have a shared interest with the EU in ensuring these new arrangements are thorough and effective. In particular, citizens and businesses need to have continuing confidence as they interact across borders about which country’s courts would deal with any dispute, which laws would apply, and know that judgments and orders obtained will be recognised and enforced in neighbouring countries, as is the case now”.
In paragraph 7 of that paper, the benefits of the current framework are described as follows:
“This framework provides predictability and certainty for citizens and businesses from the EU and the UK about the laws that apply to their cross-border relationships, the courts that would be responsible, and their ability to rely on decisions from one country’s courts in another State”.
As with the previous statutory instrument, nothing appeared in the political declaration which refers to these “new, close and comprehensive” arrangements. Again, perhaps the Minister can advise us how far he has got in discussing the future.
An important feature of civil judicial co-operation at present is the mutual provision of legal aid. The legal aid directive set minimum common rules relating to legal aid to improve access to justice in cross-border disputes and it applied to all such disputes involving civil and commercial matters but, in particular, it applied to family law: problems about children, the disposal of assets and so on. As the Minister said, its provisions were incorporated into English law by LASPO, and this SI’s purpose is to ensure that those domiciled or habitually resident in EU member states are not treated more favourably after we leave the EU than those who reside in England, Wales or Northern Ireland. EU residents who require legal services in relation to proceedings in our courts or who wish to enforce an overseas judgment will no longer have a right to legal aid for matters within the scope of the EU directive alone. The SI uses Henry VIII powers under Section 8 of the LASPO Act to revoke the domestic legislation implementing the EU directive in the UK, as the Minister fully explained.
So far as I can ascertain, this statutory instrument will prevent EU residents from seeking legal aid for exceptional cases that are not normally within the scope of UK domestic legal aid, but where not to do so would be a breach of “retained enforceable EU rights”. Will the Minister give a concrete example of what “exceptional cases” means? He told us something of the statistics but how often have such applications for legal aid in exceptional cases been made by EU domiciled people or residents? Can he confirm that EU residents, even after Brexit, can apply for legal aid in the ordinary way for, say, a case involving children across borders in an English court, and that it would be granted if the ordinary merits and the means tests were satisfied? Does domicile or residency in the EU disqualify an applicant from legal aid in the normal way?
Lord Beecham (Lab)
My Lords, in general, the view of the Law Society and the Bar Council is that these regulations do not raise many problems but some matters appear to require clarification. I am not sure whether I am about to overlap with what the noble Lord, Lord Thomas, has just raised. He will forgive me—although the Minister may not—if I am going over the same ground.
The Law Society has raised a question on the impact on the provision for legal aid under paragraph 44 of Part 1 of Schedule 1 to LASPO, which states:
“Civil legal services provided in relation to proceedings in circumstances in which the services are required to be provided under Council Directive 2003/8/EC of 27 January 2003 to improve access to justice in cross-border disputes by establishing minimum common rules relating to legal aid for such disputes”.
At present it is unclear, certainly to me, how many people are granted legal aid under this provision. I do not know whether the noble and learned Lord will have that information to hand—presumably not. Perhaps he can provide it later if it is not immediately available.
The other question is: do the Government know how many such provisions are reciprocated by the other side, so to speak? If there are significant numbers involved, the Government should surely ensure that there is funding in the event of a no-deal Brexit but if there is a Brexit deal, this provision should be included on a reciprocal basis, given the number of UK citizens residing in the EU who may well need such assistance. As I say, I do not know whether the noble and learned Lord will have that information but I certainly join the noble Lord who spoke previously in wishing for confirmation that legal aid will still be available for those who need it in these areas.
Lord Keen of Elie
My Lords, I am obliged for the contributions. The noble Lord, Lord Thomas, makes a good point about the advantages for all in securing mutual judicial recognition and enforcement. That is why, at an early stage, we sought to take forward those discussions with the profession on what was required. He is right to observe that the matter is not contained in the withdrawal agreement or the existing declaration but is an ambition. That may seem very little but, recognising that, we have taken forward what we can, which is to deal on a unilateral basis with the more recent Hague conventions that have been entered into by the EU on behalf of member states. We have engaged in discussion to become an individual state signatory to those conventions. My recollection is uncertain but I think the 2005 and 2007 conventions were involved. We have engaged with the council of the Lugano convention, which deals with the reciprocal position between EFTA states and the EU, to engage on that. Again, to become a party to Lugano, we require the consent of the EU because it is also party to it. Those steps are being taken forward and we are conscious of their importance. I underline that.
On legal aid provision, there is no question of a disqualification being applied on the basis of residence in the EU. Let me be clear about that. The point is that the scope of the EU legal aid directive is wider than the scope of the legal aid provision under LASPO. This instrument is to bring that into line with LASPO and have a situation whereby, in certain forms of civil and commercial dispute, the directive would require consideration of a legal aid application that would not otherwise fall under the LASPO provisions.
Lord Keen of Elie
I was coming to that and would point out that the exceptional case provision is there for all cases that fall under LASPO. That will apply equally to those resident in the EU, as it would apply to those resident in the United Kingdom. Again, I point out that there is no disqualification or discrimination in respect of that matter; it is a case of ensuring that there is a level playing field whereby the scope of legal aid availability and the qualification for that aid are the same. It may not assist your Lordships much but there are provisions in the EU directive for taking account of differences in standard of living, for example, when applying financial criteria for legal aid under the directive. It is that sort of provision that we have to deal with to ensure that there is a level playing field. I emphasise that this instrument does not seek to disqualify anyone who would otherwise qualify for legal aid under LASPO, whether under the exceptional provisions or standard provisions of that scheme. I hope I can reassure your Lordships on that point.
I have rather forgotten the other points that the noble Lord, Lord Beecham, so eloquently made, but if I sit down without answering, will he remind me afterwards and I will write to him? As I say, I want to underline the purpose of the instrument, which is to produce a level playing field, not a disqualification.