Courts and Tribunals (Online Procedure) Bill [HL]

Debate between Lord Marks of Henley-on-Thames and Lord Mackay of Clashfern

Report stage (Hansard): House of Lords
Monday 24th June 2019 Lords Chamber

[Lord Marks of Henley-on-Thames]

My Lords, the noble and learned Lord, Lord Garnier, has reminded me that perhaps I should make the same declaration—so I do so now.

We support Amendments 22 to 24, not only for the reasons given by my noble friend Lord Beith but for those given earlier in the debate, in particular by the noble and learned Lord, Lord Judge, and the noble Lord, Lord Pannick. We regard it as very important that these rules should ensure a proper balance between the Lord Chancellor and the Lord Chief Justice: between the Executive and the legislature. I also take the two points made by the noble and learned Lord, Lord Mackay. First, there are of course equivalent provisions in the existing rules, but I agree entirely with the noble and learned Lord, Lord Garnier, who pointed out that that should not be treated as a precedent, and that if there is anything wrong with the earlier rules, perhaps they should be changed. If the 2005 Act overlooked those changes, perhaps it should not have done so, because that was the point at which the changes should have been made; that is, when the balance between the Lord Chancellor and the administration of justice changed.

I also suggest that what the noble and learned Lord, Lord Mackay, said was telling. He said that the difference between consultation and concurrence is that where you have consultation, the Lord Chancellor will go to the Lord Chief Justice and check that the change in the rules is okay with him—or that is what he hopes he would do—and then he would go back to make the rule. However, it seems to me that the need for concurrence in these rules is dependent on the Lord Chancellor finding out that the rules are okay with the Lord Chief Justice and the requirement for concurrence is to determine the position where they are not okay with the Lord Chief Justice, and that is why we have the concurrence requirement. I will give way to the noble and learned Lord.

[Lord Mackay of Clashfern]

We are talking about Clause 9, which is to do with regulations, not the making of the rules. It is the effect of existing law in relation to the rules that has to be dealt with.

European Union (Withdrawal) Bill

Debate between Lord Marks of Henley-on-Thames and Lord Mackay of Clashfern

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

[Lord Mackay of Clashfern]

I think the noble Baroness has demonstrated the truth of what I am saying: namely, that she is concerned with the rights afforded by EU law in this country. The fact that those rights will continue to be enforced in this country is what the Bill is about. Therefore, I do not see any possibility of this amendment having any effect. The noble Baroness has just mentioned its operation in Italy, if the husband is there. That depends not on the domestic law of this country but on the law of Italy, and that is not part of what we can do in this Bill.

[Lord Marks of Henley-on-Thames]

I am terribly sorry to interrupt the noble and learned Lord when he has already been interrupted, but the point is that these provisions are all about reciprocity. They are about the mutuality of enforcement in other member states and in the United Kingdom. Subsection (2) of the proposed new clause seeks to address the problem with reciprocity. It says:

“The report provided for under subsection (1) must include … the steps, if any, taken by Ministers of the Crown to negotiate the continuation of reciprocal arrangements between the United Kingdom and member States in the field of family law”.


The point of that reciprocity is to ensure that United Kingdom citizens can enforce rights in other members states under the regulation in the same way as member state citizens—or former member state citizens as they would be—can in the United Kingdom.

[Lord Mackay of Clashfern]

I take what the noble Lord is saying, but such a report would not be dealing with subsection (1). That is my point. Subsection (1) is the operative subsection and it deals with domestic law, and reciprocity is not a matter that can be dealt with by domestic law. The only thing we can do, as I said on the last occasion on which we discussed this, is make sure that our arrangements are suitable for reciprocity and, if the reciprocity comes, that we have the right arrangements to deal with it. That is our domestic side of reciprocity. The rest of the reciprocity belongs to the rest of Europe, and I hope it will see the benefit of this as much as us. However, as far as we are concerned, we are bringing the whole of EU law that refers to family matters into our law by virtue of this Bill, and a report about that would be otiose.