Oral evidence: Implications of Brexit for the justice system, HC 750
Tuesday 20 December 2016
Ordered by the House of Commons to be published on 20 December 2016.
Members present: Robert Neill (Chair); Alex Chalk; Philip Davies; Kate Green; Mr David Hanson.
Questions 1 - 81
Witnesses
I: Dr Eva Lein, Herbert Smith Freehills, Senior Research Fellow in Private International Law, British Institute of International and Comparative Law, Patrick Robinson, Partner, Linklaters LLP, and Gary Campkin, Director, Policy and Strategy, TheCityUK.
II: Philip Marshall QC, Chair, Family Law Bar Association, Dr Ruth Lamont, Senior Lecturer in Family and Child Law, University of Manchester, and Daniel Eames, Chair, International Committee, Resolution.
Written evidence from witnesses:
British Institute of International and Comparative Law
Witnesses: Dr Eva Lein, Patrick Robinson and Gary Campkin.
Q1 Chair: Good morning, everyone. Thank you very much for coming to give evidence to us. This is the first evidence session in our inquiry on the implications of Brexit for the justice system. We will be dealing in particular with commercial law and then family law, as we have two panels. First, I will ask our witnesses to introduce themselves and then we will go into the questions.
Patrick Robinson: My name is Patrick Robinson. I am a partner in the dispute resolution team at Linklaters, a City law firm.
Dr Lein: My name is Dr Eva Lein. I am a senior research fellow at the British Institute of International and Comparative Law, mainly working on private international law issues.
Gary Campkin: Good morning; I am Gary Campkin. I am director of policy and strategy at TheCityUK.
Chair: Thank you very much. As I think is known, I am a non-practising barrister and a consultant to a law firm.
Alex Chalk: I am a practising barrister.
Q2 Chair: There are no other relevant interests for anyone to declare in this context.
Thank you very much for coming to give oral evidence, as well as submitting your written evidence. Of course, we have had quite a volume of other written evidence, which is all part of our inquiry. I wonder if you can help me. The analysis that we have done of what we have had so far seems to suggest that perhaps the key issue from the commercial law point of view around Brexit is mutual recognition and enforceability of judgments. Are we right in coming to the conclusion that that is the No. 1 item, although not the sole one?
Patrick Robinson: That is probably right. There are a number of concerns, but the portability of English judgments and having them automatically recognised within the European Union is a considerable advantage. There is a risk—it is not clear how high the risk is—that they are no longer going to be recognised and enforced in the same way, at least in some places. It may be a theoretical risk, but commercial parties do not like risks. They like certainties. Faced with uncertainty, people may react and do things differently.
Q3 Chair: In a nutshell, Dr Lein, what is the advantage we have at the moment, if we could say to the general public why what we have is good?
Dr Lein: The advantage at the moment is that we have a system that works well. It is the Brussels I regulation for the recognition and enforcement of judgments, which works very well together with the Rome I and Rome II regulations. There is quite a coherent system on jurisdiction, recognition and enforcement as well as applicable law, and that gives a lot of certainty and predictability to litigants. It is of huge benefit to the UK. As Patrick Robinson mentioned, if you litigate here, the judgment can be enforced anywhere in Europe without any problem, as if it was given in another member state. That is a huge benefit. The legal market here benefits a lot from that.
Q4 Chair: At the moment, the UK legal market is worth a considerable amount to the UK economy; remind me, Mr Campkin.
Gary Campkin: It is indeed. It is one of the jewels in the crown. Indeed it is part of the reason why London, and the UK, is the leading global financial centre. It is also a reason why people come to London and the UK. They come here to access the law. They come here to deal with a situation where the courts provide certainty and fairness, and where the judiciary have a very strong reputation for impartiality. We believe very strongly that this is not just about the legal services industry itself but about the underpinning that English law gives the wider economy and business relations. It is a very important part of the UK offering.
Q5 Chair: It comes back to the point that parties have a choice as to which law they choose to contract in and which jurisdiction they choose. At the moment, we seem to be a jurisdiction of choice. Is the key driver behind that the integrity of the system, or are there other things, such as the nature of our business environment or tax regimes? What do parties tend to prioritise?
Gary Campkin: Businesses come to the UK for a whole range of reasons. One of them is the business climate, but we should not forget the value of the law and legal certainty. Also, if you are looking at the dynamics of English law itself, it is the law of commerce. It is the law that brings flexibility and adaptability. If you are looking at jurisdictions and the ability to enforce judgments, the UK is right at the top of the tree and it needs to stay there.
Patrick Robinson: I agree with that. One can see parties across the globe choosing to contract under English law and to have their private law relationship governed by this system of law, even if they have no other actual connection to this jurisdiction. The key to that is the way that English law recognises party autonomy. Parties can set their own terms.
There are relatively few grounds, compared with other systems of law, for a court interfering with that bargain. There are fewer doctrines of things like good faith or reasonableness for enforcing the contractual terms. People like that, and they also like coming to the English courts to enforce the bargain, because, as has been said, the courts have a good reputation. There is a fairly predictable process and a fairly predictable outcome—not wholly predictable, obviously. There is depth of precedent. In English courts, people know that when they choose to document their bargain the chances are that the court is going to give effect to it as it is written.
Q6 Chair: People might say that all those advantages will apply when we leave the EU, so what risk does that create?
Patrick Robinson: Quite right. I do not think EU law in commercial contracts has a tremendous bearing on how contractual law works. People are still going to be free to choose English law as the governing law for their relationship. That will still be recognised where Rome I stays in place. However, if you do not have comparable access to the English courts, or even if you still have access to the English courts, your judgment will not be quite so effective if you need to enforce it somewhere else. That is a big if.
Q7 Chair: The judgment is great providing you can enforce it; that is what it comes down to.
Dr Lein: There might be repercussions ultimately on the choice. If you do not know whether the judgment will be recognised when you litigate under English law, would you still choose English law if you wanted to litigate somewhere else? Usually parties like to litigate in a court and the court applies the law of that country.
Q8 Chair: I understand that. We mentioned Rome I, and we will come on to that, and we will come to Brussels I recast. Are there particular provisions that are especially important for commercial law in the UK among Brussels I, or is it the whole package? Do we have to keep all of it? If we had to keep parts of it, which bits do you want to see retained?
Patrick Robinson: The whole package works very well. It is really in two parts. One determines the common rules for taking jurisdiction, telling a court within a member state when it can and cannot hear a case. Having a common predictable system across Europe allows the courts to work out who has precedence.
Taking oneself outside that regime creates all sorts of problems, particularly where there will be some doubt, in a way there is not currently, as to whether a choice of court clause in favour of the UK courts—the English courts—will be given effect in remaining EU member states. The other part of it, as we have already discussed, is the common regime, the reciprocal regime, on recognition and enforcement of judgments—the portability of judgments. Those two are a package and would sensibly be addressed together in the way the Hague convention of 2005 does on exclusive jurisdiction.
Q9 Chair: Does that require some sort of bespoke deal or can we adopt some other existing arrangements?
Dr Lein: The best option would probably be to try to reach a bespoke deal on the Brussels I regulation, because that is the system that works best and is the most modern. There is also the Lugano convention of 2007 and the 2005 Hague choice of court convention, but the Hague convention covers only part of the problem—only exclusive situations with exclusive choice of court agreements. The Lugano convention is modelled alongside the 2001 Brussels I regulation, meaning that it is not updated as the recast 2012 Brussels I regulation.
The big advantage of the 2012 regulation is that the enforcement regime is easy because there are no exequatur proceedings. It is a very straightforward, easy and quick system. You have that only in the Brussels I regulation; you do not have it yet in the Lugano convention. There is also increased protection of exclusive choice of court agreements under the recast regulation; for instance, if exclusive choice of an English court had been made, and the case was brought before another court, the other court would have to give priority to the chosen court. That was not the case before, and it is not the case in the Lugano convention.
Q10 Alex Chalk: Could you explain that last point again? You said it quite quickly and I just want to understand it. You said that they would have to give precedence to their choice. Could you just explain that?
Dr Lein: If you include in your contract an exclusive choice of court agreement, under the Brussels I recast regulation it is protected, in the sense that if one of the parties decided to bring the case to another court—
Q11 Alex Chalk: Supposing they choose that England is to be the jurisdiction and then one of the parties tries to sue in France—
Dr Lein: In Italy, France, wherever.
Alex Chalk: France would have to void the proceedings.
Dr Lein: They would have to stay the proceedings and it would be the English courts that decided, but that has not been the case under the Brussels I regulation.
Alex Chalk: Thank you.
Q12 Chair: That is very helpful. I get the sense that you agree, Mr Robinson.
Patrick Robinson: Absolutely. That was one of the big improvements under the recast—the famous torpedo action where someone sues in breach of an exclusive jurisdiction clause. You would often have to wait years for that to be resolved. The new system, in our example of France or Italy, would have to say, “No, you have chosen the English courts and the English courts have to hear this.”
Q13 Chair: I think you agree too, Mr Campkin.
Gary Campkin: Yes, I do. There are a number of things that can be done quite simply. We mentioned Rome I and Rome II, because Rome II is also quite important. That will not have any impact at all in terms of the negotiations with the EU. It can be done now and settled. I absolutely concur with my colleagues about the nature of the recast regulation.
One other dynamic that is important for business is the fact that under the Hague convention, because in effect it only came into force in October 2015, any contracts or arrangements before then are not subject to the Hague convention. The recast directive allows from the point of proceedings to be applied rather than from October 2015. That is quite an important difference.
However, we think it is critical that the Government prioritise and expedite a clear statement of choice about the future legal framework for commercial contracts, and the recognition and enforcement of judgments. We suggested in our evidence reaching a Denmark-style arrangement, which we believe can deal with this particular issue. I would note that that does not necessarily mean that the status of the European Court of Justice and its judgments would necessarily apply. We think that that can be resolved by reaching agreement that the UK courts should have regard to, or take account of, the ECJ. Again, it is a package of issues: Rome I and II, a Denmark-style arrangement, the Lugano convention and the Hague convention. We believe those will meet most of the issues that are on the table.
Q14 Chair: If there is some trading that has to go on around that, what bits do you think we should be prepared to trade?
Dr Lein: A big issue is going to be the role of the Court of Justice. The idea of combining it with a Lugano II style protocol is probably a good one, because it gives a bit more flexibility. As my colleague said, you have to take account of the case law of the Court of Justice. Whether that works is another question. It might be that a bigger role should be given to the Court. The question is, would it really be a disadvantage if that was necessary to reach a bespoke deal? Ultimately, the Court helps to interpret uniform rules. You can ask the Court to assist in the interpretation of those rules. You might not like every judgment the Court makes, but ultimately most of the judgments help the national courts to go forward with the application of the regulation. That is going to be an issue. You can expect some—
Q15 Chair: We may explore that a little bit more. From the practitioners’ angle, Mr Robinson, do you think there are things we might have to trade on? What bits would you say are give and take around it?
Patrick Robinson: There could be an element of give and take. Obviously this has to be seen in its wider context. The reason we have common rules for applicable law and judgments is that article 81 of the treaty of Lisbon says that member states are supposed to co-operate closely and give effect to each other’s judicial systems.
What we see in Rome I, Rome II and Brussels reflects that. It is having proper respect for each other’s systems and treating them as fairly equivalent. The UK leaves. The remaining EU states may say, “If you have taken yourself out of that bargain, why should we continue to leave the rules in place?” There is an answer to that, which is that it is in the UK’s interest and the EU’s interest to maintain the status quo, where European parties want to come to England and use English law for perfectly proper reasons. A deal can be put in place between the UK and the EU that continues to give those advantages to all parties. I completely agree that on things like applicable law—Rome I and Rome II—the UK can to some extent act unilaterally. There will need to be a bargain struck on replicating the Brussels regime or something close to it.
Q16 Alex Chalk: I think a lot of the ground has been covered, so I am just trying to draw the threads together. As I understand it, you are suggesting that Brussels I recast is definitely the best single vehicle and therefore we should be looking to have a new version or a variant of that as we go forward. You make the point that there may need to be a bit of give and take.
I want to understand this: some might say that, given the UK has a strong competitive advantage and is the preferred jurisdiction for a lot of this litigation, it would be in the interests of the other side to drag out any bespoke deal for England—the United Kingdom—because it might then lead to business going overseas. Were that to be the case, what do you think the UK should be doing? In other words, if it were dragged out and that was having a knock-on impact in terms of people suddenly finding that England was not being chosen as a preferred jurisdiction, what do you think we should do?
Gary Campkin: I reinforce the point that Patrick made about the deal being the right one for the United Kingdom, the right one for the EU27 and the right one for international and global stability. That includes contracts and the stability that business decision making is founded on.
You are right to say that competitiveness is absolutely important. Other jurisdictions, of course, even before the Brexit vote, were nipping at the UK’s heels. This is not a new issue. Indeed, a number of innovations in the Rolls Building—such as the financial list, electronic case management and so on—were specifically designed to deal with the competitiveness threat, and we support those very strongly.
We have also called for there to be interim arrangements—this comes to the nub of your question—that bridge from when the negotiations start to where they end, and then an adaptation period from when the negotiations actually finish to whatever the landing zone is. Business, if it is about anything, is about certainty, clarity and stability. It is important for business to have that in interim and bridging arrangements.
Q17 Alex Chalk: Just so that I understand that, if we had a great repeal Bill and we incorporated Brussels I recast into UK legislation, would that be sufficient to retain the status quo? I do not think it would.
Patrick Robinson: That would not work at all.
Q18 Alex Chalk: Explain why it would not.
Dr Lein: Because it is a reciprocal system. It is a system based—
Q19 Alex Chalk: Unless there is buy-in from them, there is no mutual enforceability.
Patrick Robinson: Exactly.
Dr Lein: You could apply Brussels I, but they would not, because we would be considered a third state.
Q20 Alex Chalk: We would simply be enforcing their judgments but there would not necessarily be any reciprocity.
Dr Lein: Not necessarily, no.
Patrick Robinson: I agree with that. It would be entirely useless. I do not think a great repeal Bill can do very much there. It can do things on applicable law, but not on jurisdiction.
Q21 Alex Chalk: Can I play devil’s advocate and, genuinely, take a global view? You are looking at the importance of our being able to have mutual enforceability within what we think of as the European Union. Is there an argument for saying, “Actually, what we should be doing is taking a global position and looking to have lots of bespoke arrangements with mutually enforceable judgments with the United States, South Korea and goodness knows what, and not get so hung up and spend huge amounts of time on this”? Why should we be spending so much time focusing on it?
Patrick Robinson: Historically, that is what happened. Before the EU acquired competence to enter into these arrangements on behalf of the UK, the UK had in place lots of reciprocal treaties. In fact, they are still on the statute book. There are lots of historic ones from the 1930s. That depends on the other state being willing to do a deal.
The US does not have deals like that. You cannot necessarily be confident that you are going to get a common system. Things like the Hague convention from 2005, which is getting increasing traction, provide that certainty, and there is an international forum to get common arrangements in place. To have something in place with the other EU states, we would have to do it with the EU because the EU has competence. Guess what; it would probably look a lot like the Brussels recast.
Q22 Alex Chalk: It is already there and it makes sense for us to try and dovetail with it; is that right?
Patrick Robinson: Yes.
Chair: There seems to be unanimity on that.
Q23 Kate Green: We have already touched on issues around Rome I and Rome II, but I would like to explore them a bit further. Can you tell us a bit about the advantages and disadvantages for the UK of being within the Rome regimes?
Dr Lein: They are regimes that provide for legal certainty and clarity in the system. They establish a system that is coherent with Brussels I as well. The three regulations were meant to be a coherent system, and they work together very well. If you were thinking about a bespoke deal on Brussels I, it makes total sense to do a deal that also covers the Rome I and Rome II regulations. If those regulations were no longer in place, you would need to replace them with domestic legislation, especially in the area of tort. There has not been much happening and there are not sufficiently modern rules at the moment so you would have to work on those. Why would you work on them when you have a system that already works reasonably well, is in place and could be kept in place very easily? That is for the Rome II regulation.
Similarly for the Rome I regulation, the only issue I see is that there was an earlier Rome convention. That convention was transferred into the regulation for practical purposes, because each new member state that accedes is automatically included in the regulation and does not need to sign a convention. If that regulation ceases to apply, the question is whether the Rome convention is still there. If you copy Rome I into domestic law, there is an issue, because the convention will take priority over the domestic Rome I regime. Ideally, you should include Rome I and Rome II in a deal together with the Brussels I regulation and find a way to give a role to the Court of Justice. I think that would probably be the best solution because of those technicalities.
Gary Campkin: I reinforce what was said earlier about the importance of respecting choice and party autonomy on law for both contractual and non-contractual obligations. Our understanding is that Rome I broadly equates with English common law practice in any event. It is Rome II that is the more difficult one. The Private International Law (Miscellaneous Provisions) Act 1995 can be applied, but unfortunately that does not do quite as much as Rome II. Rome II is really important. As I said before, this can be done now unilaterally and without any implication at all on the negotiations with the EU27.
Patrick Robinson: I agree with that. It is not giving away any bargaining chips, if I can use that sort of language, because it is simply adopting the current private international law rules that are already in use by the courts and by commercial parties routinely making the sort of choices governing law for non-contractual obligations and expecting them to be respected by a court.
Q24 Kate Green: If Rome II were autonomously adopted into domestic law, it has been suggested that that would avoid the European Court of Justice having a binding effect. Would that be advantageous? Would there be any desire for that?
Patrick Robinson: Coming out of the EU of course means that the UK no longer has a seat at the table. It no longer has a judge or the power to influence future developments. Being outside the EU, one will have to think carefully about the extent to which the CJEU will have an influence on the way English law goes. Unilateral replication of the existing rules could be done in a way that gives the Supreme Court the ultimate authority to say how the new English rules, which would look a lot like the old rules, need to be interpreted. It is perfectly possible to include in that legislation an obligation on the Supreme Court to have regard to or take into proper account the existing body of law, or the future body of law developed by the CJEU. You can hitch yourself to that wagon, not knowing where it will go. There will be different views as to the desirability of that, but in my view it is a workable solution.
Q25 Chair: The point is that having due regard to, and so on, is not the same as being bound by—any more than one is bound by a decision of an Australian court, but it is still persuasive.
Patrick Robinson: Although it would be a decision on exactly the same—
Q26 Chair: Therefore you would have very considerable regard to it.
Patrick Robinson: Subject to future divergence, of course.
Q27 Chair: That is the bit; it is how you manage future divergence.
Patrick Robinson: Agreed.
Q28 Chair: Do you have any thoughts on that?
Patrick Robinson: The solution of incorporating it as a package, which I agree would be the cleanest way to do it, would avoid that problem; otherwise you are for ever playing catch-up. As the world changes, people will have evolving views on the desirability of using the regime we shall have.
Q29 Chair: It is almost a commercial judgment—how much divergence is acceptable or desirable and whether it makes us attractive as a business destination or not. It might be said that too much might make us unattractive.
Patrick Robinson: If you have to do your own analysis of the value of an English court judgment in every potential jurisdiction where you may have to enforce it, it becomes a very big exercise. At the moment it is quite an easy exercise. Does the counterparty have assets in Europe? If yes, good, and we can probably enforce.
Chair: There seems to be a general view on that.
Q30 Philip Davies: We have touched on some of these issues, but I wonder if you could tell me what your view is about the evidence and service regulations. If you were advising the Government in their Brexit negotiations, what would you like to see them do exactly to maintain the utility of those?
Dr Lein: They should be included in a bespoke deal. To be very honest, it is not the biggest issue. The Hague service convention and the Hague evidence convention are still there, even if the regulations cease to apply. The problem with those conventions is that they are quite old; they are from 1965 and 1970. That would still be workable, and if you reached the stage where you had a deal on Brussels I, there should not be any problem in including those regulations in the deal as well. They streamline the provision of evidence and the service of documents, so it is much quicker. Evidence can be requested from court to court. There are forms to fill in, but it is very easy to do. If you reached that level of negotiation and there was an agreement on Brussels I, I would simply include those two regulations in the package.
Q31 Philip Davies: Do you see that there will be any controversy on either side of negotiating that deal?
Dr Lein: I do not think so.
Q32 Philip Davies: You do not think there will be any issue on either side. It is just a question of including it and not forgetting about them in the negotiation. Is that your main point?
Dr Lein: I would definitely include them if you were able to make an agreement on Brussels I, but I do not think it would be a major issue to include them. If you reach agreement on Brussels I, there should not be a problem in reaching an agreement on those two regulations, in my view.
Patrick Robinson: I agree. They are already part of the package, because the judgments regulation applies. There are avenues available to litigants in Europe and in the UK to do that, but they are not mandatory; they are merely useful and there are other ways to achieve their ends. Ideally, if there is a continuing deal, absolutely they should be part of it. If people are happy to have automatic recognition of enforcement of judgments, I cannot see why they would be unhappy to have judicial co-operation to assist service and evidence, which are essentially procedural matters.
Q33 Philip Davies: You mentioned the reversion back to the 1965 and 1970 Hague conventions. What would be the problem with just reverting back to that and not having it as part of the deal?
Dr Lein: You could do that, but those regimes are not as streamlined as the regulations, so the process is quite significantly slower. If you can request evidence from court to court, and you do not have to go from a court to a Ministry and then from a Ministry to the Foreign Ministry and yet again to the court and all the way back, it makes things much easier. If you have deadlines for the submission of evidence, that makes it easier. It is just a more modern system that is more efficient, to be honest. I do not think it would be a major problem if you did not have them; it would just be much more impractical.
Gary Campkin: I have one thought on that from the user perspective, which is that, if you have more burdensome procedures, it brings more expense into the system.
Q34 Philip Davies: In terms of the relationship between the UK courts and the European Court of Justice, Mr Robinson talked about the UK courts having regard to judgments made by the European Court of Justice. You said that was an option. I was not clear whether that was your preferred option.
Patrick Robinson: I did not express a preference.
Q35 Philip Davies: Tell us what your preferred option is now.
Patrick Robinson: The current system, of course, gives the ultimate authority to the CJEU—the Court of Justice of the European Union—to tell a member state how instruments such as Brussels recast and Rome I and II work, and what they mean. The UK is not going to be part of the EU, so people are not going to want the CJEU to have jurisdiction over UK courts and tell UK courts what they have to do.
To my mind, there is no fundamental difficulty in saying to the UK courts, “You have to have regard to what the CJEU has said about an instrument that you are either using or replicating.” That is a perfectly feasible model. We see something akin to that in the Lugano convention, where the EFTA states still have their ultimate judicial authority but are required to have a look at what the CJEU is doing when giving their own decisions. Courts can do that and it presents no insuperable practical difficulty, to my mind. As a personal view, I think that would be an acceptable commercial solution to the problem we face. That is a personal view, and I accept that there will be different views, but I think that would work.
Q36 Philip Davies: What would you say to my constituents who voted to leave the EU, thinking that it was going to assert British sovereignty and independence, and may be fearful of judges in the UK courts who they feel are a bit native to the EU and all the rest of it? They feel this would be a back-room way of staying in the EU and its rules, and that they would in effect be cheated out of what they thought they were voting for in the referendum. What would you say to my constituents?
Patrick Robinson: I would say that UK courts are continuing to apply the law as it applies in the UK. If Parliament has decided on a legal system as right for the country, one can expect the judiciary to implement that legal system. The fact that it shares characteristics with a European system does not mean that UK sovereignty is in any way impaired, even if the judges are going to be looking at a body of European law, which they would be able to do whether or not there was any formal recognition of the fact that regard would need to be paid to those European decisions.
Q37 Philip Davies: To a layman, what does “have regard to” mean? Does it mean that you follow them or does it mean that you ignore them? What does “have regard to” actually mean in practice to a layman? It seems a completely pointless term, in some respects.
Patrick Robinson: I cannot speak for what was in the draftsman’s mind, but it seems to me to be a deliberately flexible term allowing people to have a look at the particular issue before the Court, and the particular dispute, and to consider whether there is any case law that assists in the determination of that point.
Dr Lein: I would tell the constituents that the regime that you are looking at in Brussels I is a regime that not only protects commercial parties but the online consumer and the person who has a traffic accident abroad. It actually concerns individuals; it does not necessarily concern only businesses. It helps them to have access to justice. It helps them to have a predictable system to solve either an online consumer dispute or a tort in an accident case. It is a system worth having because it gives them rights that they might otherwise not have.
If that system is uniform and applies here and in other countries, it makes sense to keep it as a uniform system so that everyone more or less knows how to apply the rules and applies them in the same way. What the Court is doing is ensuring that. It is not that the Court is ultimately interfering in the decision-making process, but it interferes to explain to the courts what the concepts in those regulations mean. It would not make sense, for instance, if you had a pre-contractual liability case.
In Germany, that issue would be a contractual problem because it is very closely connected to a contract. In France, it would be non-contractual because there is no contract. The vision of how to interpret particular notions can be quite different from country to country. If you want a uniform system, it makes perfect sense that you have one institution that says, “This is what we think that text means and therefore you should interpret it in that way.” That is what the Court does.
If you had a rule like my colleague suggested, not saying that you have to listen to the Court—although I still do not think it should be the biggest issue, but that is my personal opinion—and you had a more flexible system, it would allow uniformity. Ultimately that would help individuals to know what the rules are, and how they are going to be applied. It leaves a bit of leeway for the national courts. That is what I would tell them.
Q38 Philip Davies: You see, it might sound to a lot of people like a bunch of lawyers who wanted to stay in the EU going through the motions of trying to pretend that they have accepted the result of the referendum but making sure in practical terms that we have pretty much stayed in the EU. That is how many in the public world will view this.
Patrick Robinson: I speak from the perspective of someone who works with clients who like using English law and want to continue to use English law. Those may be people in the UK, they may be people in the EU or they may be people in the far east with no connection to Europe. It is, as Gary said, a major export of this nation. Parties will perhaps cease to use it in the way they do currently. That is an issue that the country faces. I do not see that it is a back-door route to staying in the EU to say that private international law instruments, which set the rules on determining the applicable law and how a nation is to deal with other nations’ judgments, effectively replicate any sort of EU membership. It is exactly the sort of deal you can compare with the Hague convention, where you have Singapore, Mexico and the EU all signed up to a common regime because it is in their mutual interest.
Q39 Alex Chalk: But isn’t it important to draw a distinction between that, which is about reciprocity of judgments and that sort of thing, and the jurisdiction of the ECJ in respect of bendy bananas? I exaggerate to make a point. These are two entirely separate issues, and one should not necessarily get bound up in the court of public opinion with those two. Is that a fair point?
Patrick Robinson: Here we are looking at the CJEU in its capacity as the body that can tell you how to interpret a European regulation, or three European regulations, rather than any broader power that it has.
Q40 Alex Chalk: If you are suggesting that the UK should be in a special position, so that, whereas other EU states must effectively apply the law, we would have regard to it, do you think that is going to be a dispensation that other European states would be happy to concede? Effectively, the UK would have a special status in that way. Won’t they say, “Look, you are either in or you are out”?
Patrick Robinson: They may say that.
Q41 Alex Chalk: I am interested that you have not mentioned that as a possibility. You effectively have said that the UK can negotiate a bespoke arrangement, but is that realistic?
Patrick Robinson: It is my personal view, as we said at the outset, that there is a strong case to make that it is in the interests of the remaining EU states to have this sort of deal in place with the UK.
Q42 Alex Chalk: Why do you say it is in their interests?
Patrick Robinson: Because people domiciled in those states are routinely happy to use English law and to use English courts to resolve their disputes. We see it all the time.
Gary Campkin: Could I add one point that I think is quite important when one looks at the function of the international financial centre based here in London and in the UK? It is the world’s leading global financial centre. It is where the world comes to do business. It is also Europe’s financial centre.
If you look at the value that has to European corporates, they are now just beginning to think through some of those issues. It is in their interest, as it is in our mutual interest, to ensure that they can continue to have access to London and the UK for raising finance, for world-class legal advice and for world-class advisory services that allow them to do their business. Ensuring that that access continues, where there is mutual advantage, is really quite important.
Q43 Chair: It is that sort of confluence of legal services and the depth of capital markets that we have to work together and maintain.
Patrick Robinson: Indeed.
Q44 Chair: Thank you very much for your help. Are there things you feel you want to add that we have not touched upon?
Gary Campkin: We will send you some additional evidence that was published yesterday. I hope that will help with the Committee’s deliberations.
Chair: Thank you very much. We are very grateful to you. It has been most useful. Thank you for your time. As with Mr Campkin, if anyone else wants to add anything upon reflection, we are always grateful to receive further evidence. Thank you for your assistance to the Committee.
Examination of witnesses
Witnesses: Philip Marshall QC, Dr Ruth Lamont and Daniel Eames.
Q45 Chair: Welcome, and thank you very much for coming to assist us with your evidence. As with the previous panel, perhaps I could ask you to introduce yourselves.
Philip Marshall: I am Philip Marshall. I am a barrister in private practice and I am currently the chairman of the Family Law Bar Association.
Dr Lamont: My name is Ruth Lamont. I am a senior lecturer in child and family law at the University of Manchester.
Daniel Eames: I am Daniel Eames, chair of Resolutions International Committee. We are an organisation of 6,500 family law practitioners who believe in a constructive and non-confrontational approach to family law.
Q46 Chair: Are you a practitioner yourself?
Daniel Eames: Yes, I am a practising solicitor.
Q47 Chair: We will talk about the family and divorce aspect of things. Much of EU family law is based on Brussels IIa, as I understand it. That seems to be pretty central. Before we go into some of the topics, could we look at it as a whole and how it may or may not continue after we leave the EU? If we leave the EU, what will be the default position in respect of family law? Let us assume that we trigger article 50, as we are committed to, and that we leave. If nothing else is done, what is the default position and the risks, with the upsides and downsides?
Philip Marshall: If we do not incorporate the current regulations into UK law, adopting the great repeal Bill method, we would revert to the domestic rules and regulations that applied before Brussels IIa, and latterly the maintenance regulation that has been brought into effect. In a sense, the same rules would apply as they would to any other third party state. As an obvious example, there are plenty of jurisdictional disputes between UK citizens and American citizens. We deal with those on a domestic, case-by-case basis. That is the prospect we would face if we did not incorporate the Brussels regulations into UK law.
Q48 Chair: Is that an onerous prospect or is it one that, as with the United States, we can manage?
Philip Marshall: I suppose it is potentially onerous, because we must assume that a good many of the EU nationals who are already here are going to stay. Some of them are here by choice and some of them are here by force of circumstance. To revert to the old rules, if I can put it that way, might be thought an unappetising prospect. It is not insurmountable but it may not necessarily be advantageous.
Q49 Chair: Is that disadvantageous to parties in terms of their options and their ability to deal with these disputes, or in terms of costs or what?
Philip Marshall: It is more personal to the parties, unlike your previous witnesses who were obviously talking in commercial terms where there is at least a perception that it is positively in the UK’s interest to encourage commercial ventures to contract here. One is talking about individuals, but one is also talking about the court’s ability to cope with what potentially might be a resurgence of a good deal more litigation that at the moment we have presumed to accept simply does not arise.
Dr Lamont: In relation to children in particular, we have conventions to fall back on. We still use the Hague convention on the civil aspects of international child abduction 1980, in relation to abductions between the UK and non-EU member states. That would just resume. We have also ratified the 1996 Hague convention. That has less in the way of global scope but it does apply to the US. I would suggest that there is less practice under that convention, so there would be a process of understanding and interpreting the rules as part of that.
Daniel Eames: It would lead to a great deal more uncertainty for families, and the same for practitioners. A whole generation has grown up just dealing with the EU system, so a good deal of retraining would have to be done. I agree that there will be problems for the courts. We would also lose a lot of useful laws at the moment that apply across borders, which will not apply unless there is reciprocity with other EU member states.
Q50 Chair: Can you give me an example?
Daniel Eames: We will lose the European civil protection measure, so if someone is suffering from harassment or domestic abuse, either from someone in another EU state or who moves from the UK to another member state, they will not have the benefit of those orders. Things like the European enforcement order, where a maintenance order is agreed by consent and automatically enforceable in another EU state, would be lost. There will be some other provisions and conventions, but they do not have the same—
Q51 Chair: The maintenance order is an interesting one. You are right; we think in terms of big commercial organisations, but those are individuals trying to get their maintenance paid to support their families. Do we know how many individuals benefit from the enforceability of maintenance orders across the EU?
Daniel Eames: I do not believe those statistics are available.
Q52 Chair: Maybe it is just not something you keep stats on.
Daniel Eames: We have much wider stats, but not at that level.
Chair: It sounds as if it is a real issue for people and not academic.
Q53 Alex Chalk: A lot of this has been covered already, but may I ask this? Would a bespoke bilateral agreement on private international family law matters provide the opportunity to improve the relationship with the EU on matters where the EU currently does not participate, namely Rome III, matrimonial property, civil partnerships and inheritance?
Daniel Eames: I am not sure that we particularly want to incorporate Rome III or matrimonial property regimes into English law, because the English courts only apply English law and therefore that would just add further complication. I do not think that would be useful, but if we are going to exit the EU, we need some form of treaty so that some of the provisions of Brussels II and the maintenance regulation can be incorporated into English law and also have right of reciprocity with the rest of Europe. I do not think that Rome III or the matrimonial property regime would be something we would want to incorporate.
Q54 Alex Chalk: Are there any other views?
Dr Lamont: I would not suggest incorporating Rome III as part of any deal. There are very good reasons why the UK chose to opt out of that arrangement.
Philip Marshall: That is right. In theory, a bespoke treaty that incorporates all that we want and nothing that we do not would be a splendid thing. The difficulty of course is that at the moment we are able to contract out of things. For example, we simply have not embraced applicable law as a concept. We do not like the idea of English judges being asked to apply Italian law, for example, which the parties may themselves have chosen and transported across when they came to this jurisdiction. The difficulty I perceive would be one of negotiation. We simply could not have all that we want.
Q55 Chair: What is in it for the other side?
Philip Marshall: Quite.
Q56 Mr Hanson: Could we turn to the question of divorce, which in the circumstances seems a very appropriate topic to discuss? Mr Marshall, your Family Law Bar Association has given us written evidence that there is divided opinion among the legal community about whether, in the absence of Brussels IIa, the lis pendens and forum conveniens systems for divorce jurisdiction should be maintained. Could you give us a view on that, and we will take other colleagues in due course?
Philip Marshall: At the moment, the rules provide certainty. There is a degree of arbitrariness about it. To give an example, if two Italian nationals are here and have spent the whole of their married life here—indeed they may have spent very little time at all in Italy—under Brussels IIa at the moment one of them can petition for divorce in Italy as of right and there is nothing the English court can do to prevent it, whereas if forum conveniens applied, first of all the other party would inevitably petition here as well; an English judge may or may not injunct the party who started the proceedings in Italy from continuing if they were an abuse of process; but equally one would hope that the judge in Italy would similarly apply a forum conveniens test. There are huge advantages in not having to have that sort of debate on a case-by-case basis. Although there will be some anomalies, at the moment at least it is perceived to be in the greater good that certainty of outcome prevails over a bespoke answer.
Q57 Mr Hanson: Is the Italian torpedo, as I think it is called, still regularly used?
Philip Marshall: Maybe Italy was a bad choice for my example. At the moment, whether one agrees with it or not, the draftsmen of Brussels IIa decided that, if both parties are nationals of an EU member state, that of and in itself is a sufficient connection with Italy, France or Spain, even if they have not set foot there since they were children. That is the reality.
Q58 Mr Hanson: Do any of your colleagues want to comment on the first question?
Daniel Eames: Philip is right that there is definitely an issue about certainty over fairness. The real problem is that the number of forum conveniens cases that would have been heard pre-Brussels II were few and far between, but now the number of international families living in England means that those cases will proliferate. Again, that will put a strain on the courts. Having said that, Brussels II prevents the opportunity for families to mediate and to reconcile, because you have to issue first; you cannot have discussions and say to someone that you are about to divorce, because if you do you may miss out on the most appropriate jurisdiction for you. There are pros and cons of both approaches.
Dr Lamont: There has been a lot of discussion about the rush to jurisdiction—that it is pushing families towards the divorce courts. The recast Brussels II proposals do not address those sorts of issues. They seem happy with that arrangement, and there is no suggestion to amend them.
Q59 Mr Hanson: We have had written evidence from the International Family Law Group arguing that lis pendens discourages mediation and can accelerate the breakdown of saveable marriages. Is that something you would share?
Philip Marshall: In absolute terms, yes, because there is a rush to issue first. Currently, Brussels II provides an absolute. If the court is seized of proceedings, that is it, and the court second-seized has to stay its proceedings to await the outcome of jurisdiction. Of course, domestically it is open to the courts of any country to have domestic rules—we have them here but they are little used—that would encourage parties to mediate or seek to bridge their differences before proceeding, but there is a moment at which one party will make a decision to commence proceedings.
Daniel Eames: I made that point. That is an issue, but, as I said, there is the conflict between avoiding issues at the start and the greater issues that there will be further on in the process if you have forum conveniens. I would say there is a real conflict there.
Q60 Mr Hanson: Does anybody think that the UK could retain the procedures and protections of Brussels IIa without accepting lis pendens as a principle?
Philip Marshall: I do not think the two things are mutually exclusive, in the sense that at the moment Brussels IIa imports into English law a whole raft of jurisdictional connecting factors. If we did away with that entirely, the default position would be that one party was domiciled here, which is really the old law before Brussels II in its original guise.
There has always been the potential for lis pendens if proceedings were up and running somewhere else. Indeed, in more recent times, for example, the current president of the family division has been more robust in injuncting parties from pursuing proceedings overseas if they are an obvious abuse of process here—if they have commenced proceedings here and then decided they want to go elsewhere. There is that element of control, but I do not think the two things are necessarily exclusive.
Q61 Mr Hanson: In your evidence, Mr Eames, you indicated that you think that courts could potentially be deluged by forum conveniens disputes.
Daniel Eames: That is my point. As I said, before 2001 when Brussels II came in, there were not as many forum conveniens disputes. Obviously, with the number of EU families living in the UK and 1.2 million British ex-pats in the EU, it is going to increase the number of cases and their complexity.
Q62 Mr Hanson: Overall, in a one-sentence reply from each of you, what do you think are the biggest priorities for divorce law, or matrimonial law broadly, in the divorce proceedings we are going through?
Philip Marshall: Trying to achieve certainty and reciprocity if we can.
Dr Lamont: Yes, certainty of jurisdiction.
Daniel Eames: Reciprocity.
Q63 Kate Green: I would like to ask similar questions in a way, but in relation to children. You have already mentioned, Dr Lamont, that we would still be able to use the Hague conventions in the absence of the EU Brussels IIa. Mr Marshall, the Family Law Bar Association said in its written evidence that there is a “complex” relationship between the Hague conventions and Brussels IIa. Could you say a little bit more about that complexity and anything that we would particularly need to take account of in the course of Brexit negotiations?
Philip Marshall: I declare, as it were, a reverse interest, in the sense that children’s law is no longer my speciality. Mr Eames is probably better placed, and it would help you more if he answered that rather than me.
Q64 Kate Green: I shall invite Mr Eames to answer.
Daniel Eames: Could you put the question again?
Kate Green: It is about the relationship between the Hague conventions and Brussels IIa in respect of child matters. In particular, is there anything that we should be mindful of in negotiating Brexit arrangements that it would be important to protect?
Daniel Eames: There are a number of issues. Certainly Brussels II provides greater speed. In Brussels II recast, which is being negotiated at the moment, the idea is to reduce the number of appeals and to have time limits, with six weeks for an application to be processed and six weeks for it to be heard.
There are also important issues in terms of the voice of the child. For local authorities, Brussels II has been particularly important in article 15 transfers, where you can transfer proceedings from one jurisdiction to another, where perhaps the local authority in the UK is looking to place a child with a parent in an EU jurisdiction. Article 15 allows for that. The local authority benefits from information and co-operation with other local authorities in EU states. That is very important, and we would not want to lose it.
Q65 Kate Green: Dr Lamont, would that work equally in both directions for the adoption of foreign national children by UK authorities?
Dr Lamont: The controversy has largely been associated with foreign national children in the UK being made subject to the English adoption system. It has attracted a great deal of controversy in Slovakia and Latvia in particular, but also in other countries. Our adoption rules are perceived to be different, even though the basis for adoption is very similar. We use adoption as part of our care system more frequently than other continental countries.
The process of using article 15 has not been entirely smooth, but the Brussels regime provides a structure, and the recast directive, as Mr Eames suggests, would reinforce that structure. The aim is to provide ease of movement in relation to social reports on children, which is not in the current regulation; and to support central authorities and make clearer the obligations on central authorities to promote co-operation. Those provisions are not part of the 1996 convention and they are not yet part of Brussels II. The Brussels II structure encourages, and the president of the family division has been very keen to encourage, the use of article 15 to transfer those cases to a better-placed jurisdiction.
Shifting to the 1996 convention, you lose the mutual trust obligation—the idea that we can trust the other member state’s system—and the processes for transfer under article 9 of the 1996 convention are not tested in the same way as for article 15. They do not have the same procedure, and local authorities are not as aware of the availability of that option as they are of article 15.
Q66 Kate Green: Following Mr Davies’s question about his constituents and what they care about, all our constituents are probably more concerned about the position of UK children who are subject to adoption proceedings in other EU states. What would be the best form of reassurance for those families?
Dr Lamont: Do you mean the families abroad or the families in the UK?
Q67 Kate Green: What would be the respective issues? Predominantly, the concern would be about families either in the UK, or with UK nationality, who faced the prospect of their children being adopted under the system of another EU country.
Dr Lamont: I cannot speak to the particular systems of adoption across the different member states, because they vary. Social protection and care proceedings vary enormously between member states, as do the processes or moments of intervention. If the equivalent to a local authority becomes involved in the care of a child abroad and you are a migrant, you are subject to the domestic family law of that country, whatever that would be. They vary enormously.
The provisions of Brussels II potentially allow that, if it went as far as court proceedings, it could be transferred back, but all other EU member states are also signatories to the 1996 convention, so there would be provision for those to be transferred back. It has been much less of an issue in terms of transfers back, apart from with Ireland, because of the advice given to some parents, when they have had children removed and the mother is pregnant again, to remove themselves to give birth in Ireland to try to avoid English care proceedings. In those circumstances, there have been several cases where the Irish local authority has taken action and the Irish court has sought to transfer the case back to the UK. That is the most common circumstance I am aware of.
Q68 Kate Green: What is going to be the best model to serve the best interests of children?
Dr Lamont: In those circumstances, it is contextual. I think my colleagues would okay that point, dealing with it in practice. It very much depends on the particular circumstances of the child, and how they ended up in a country that is not that of their nationality. There are cases where, for example, there are suggestions that the mother has been trafficked and the child has accompanied the mother to the UK. That is a different circumstance from a settled family in the UK that has given birth here; the child has a foreign nationality but has no links and no language. It is entirely contextual as to how you take the decision in relation to a particular child. There has to be scope for assessing that child’s circumstances and which court can make the best judgment as to what is going to be in the best interest of that child in the long term, be that adoption or another option.
Philip Marshall: These problems obviously arise in very different contexts. A problem that arises at a time of acute crisis will be very different from the concerns that might arise in the context of an ongoing divorce between parents who are financially well able to argue their position and to litigate here or abroad. I am not suggesting that one diminishes that as a crisis, but obviously one has to try to cover the whole spectrum of possible situations.
As a general point, one should remember that the 1980 Hague convention very much led the way on all of this. It does not cease to have all the advantages that we perceived it to have when we signed up to it before Brussels IIa plugged the gap. I suspect the reality is that it has been easier to move matters forward within the limited ambit of 28 signatory nations than it has been with the whole raft of signatory nations to the original Hague convention. That is possibly why there has not been as much pressure to move matters forward; our near geography has been provided for in a way.
Daniel Eames: If you were to ask some of our senior judges, I think they would particularly miss the use of the European judicial network provided for by Brussels II. That is not just for the benefit of judges; it is obviously for the benefit of children, because of the difference in laws and practices in different European jurisdictions. The fact that the judiciary is able to liaise easily when it has tricky issues would be a major loss if we were to come out.
Q69 Chair: Is there a means whereby that could be kept going if we came out?
Daniel Eames: Only by international arrangement. The network is set up for the purpose of Brussels II. There is co-operation between central authorities, but there is no—
Dr Lamont: There is the Hague judicial network, which works within the framework of the Hague conference on private international law, so it is broader. It is sometimes quite difficult to establish exactly what the European judicial network is doing, but it seems to promote closer co-operation and more personalised contact between judges.
Daniel Eames: That is certainly what we hear from senior judges.
Dr Lamont: That is our feeling.
Philip Marshall: It is also a question of the obligation imposed upon us. At the moment, we are obliged to ensure that we embrace, perhaps better than some other signatories, the co-operative nature of the judicial network. If we do away with that, it then becomes a question of priority for Government, which inevitably gives rise to issues about funding and politics with a small “p”.
Q70 Kate Green: Is there anything else that should be getting priority in terms of child law post-Brexit?
Dr Lamont: I would like to pick up on the point Mr Marshall made about the difficulties of pushing things forward in the Hague context. One of the areas that causes particular difficulty in relation to child abduction practice is domestic violence. There was an attempt to amend the Hague convention 1980 to take into account those sorts of circumstances. It has been easier to consider that within the Brussels II framework.
The protective measures, which Mr Eames referred to, that have been developed in the EU context provide protections that would not otherwise be available. From a child law perspective, once again it is going to be certainty, so that the grounds of jurisdiction are clear, certain and easy to apply to a particular child. The 1996 convention has been tested in that context. It is also very similar, but the big difference will be in the forms of co-operation—how you maintain closeness of co-operation in child disputes. Children’s lives change, so we need flexibility. Also, judgments need to be effectively enforced so that parents know what their position is when they migrate.
Q71 Philip Davies: Specifically on the maintenance regulation, we have a bit of evidence quite critical of it from the International Family Law Team. They were openly hostile to it, claiming that it cedes too much English ground to foreign courts on jurisdiction. Mr Marshall, the Family Law Bar Association’s written evidence was critical of the clash between Brussels IIa and the maintenance regulation. I wondered whether that was sufficient ground to let the UK’s participation in it fall after Brexit and leave it at that. Would you be that critical of it and just let it go?
Philip Marshall: That is for others to decide. Certainly I do not back away from the criticism we have made of it. There are curiosities to it. In England, judges adopt a holistic approach. We do not deal with maintenance as a separate aspect of financial remedies, as opposed to dividing up the property, the capital and the pensions, for example.
There are undoubtedly curious outcomes in some cases. By happenchance, I was involved in a case—it happened to be an Italian case—in which the parties got divorced in Italy. They dealt with their capital in Italy, but the Supreme Court in Italy referred the matter to the Court of Justice of the European Union, who said that child maintenance had to be dealt with as an ancillary aspect of parental responsibility, and because the children were in England only the English court had jurisdiction to deal with child maintenance. That is not insurmountable but it is curious. It means that there may potentially be litigation in two jurisdictions. It is fair to say that, although the maintenance regulation has been in force since June 2011—five years—we are not as comfortable with it as we are with Brussels IIa, which of course has been in its present guise for the last 11 years.
There would have to be some regulations, rules or understanding as to where jurisdiction would lie. What would be unsatisfactory, if we make all the assumptions that we have been making along the way, would be to have a court, in my hypothetical situation in Italy, making a maintenance order entirely disregarding the fact that the family is in London and the English court makes one. It is a recipe for chaos. One has to try to achieve reciprocity and comity in some way. At the moment, the regulations do it in a fairly strict and arbitrary way, sometimes anomalously, but we have to plug the gap somehow.
Q72 Philip Davies: Would you want the Government in the negotiation to try to somehow amend the terms of how it applies to the UK? Is that realistic?
Philip Marshall: I might have wished the Government to try to amend the terms before we voted to leave the EU. They did not, and they would not have succeeded in doing so for very obvious reasons. The default position of simply rejecting it entirely is not an attractive one, at least from my perspective as a lawyer.
Q73 Philip Davies: If it was a question of accepting it or rejecting it, even despite your criticisms, would you be in favour of accepting it?
Philip Marshall: I would rather accept it than have nothing. My apprehension is about applicable law, and I have made the point already. We might be required to embrace all sorts of things that we do not like, and thus far have been able to avoid, in order to obtain the advantages. Simply embracing it as part of our domestic law, which is something your previous witnesses said, is a pointless exercise if we do not also have the reciprocity and the expectation that all the other member states are going to respect our judgments.
Daniel Eames: The issue of what we are left with without the maintenance regulation is that at the moment, for better or worse, maintenance claims are founded on the maintenance regulation, so we would have to have new jurisdiction on provisions. There are definitely issues in terms of the maintenance regulation, because at the moment you cannot bring a maintenance claim if you are just relying on domicile. If you are an ex-pat living outside the EU, you do not necessarily have the jurisdiction in which to deal with your maintenance claim.
There is also a patchwork of conventions that would be left. There is a previous Hague maintenance convention. There is a UN convention from 1956. Not all the European countries are signed up to that. We do, of course, have the Hague maintenance convention. To a degree, some might see that as an improvement. The problem is that we are signed up to it as part of the EU, so we would have to sign up separately, which of course the Government could do. In theory, the EU could make a reservation against the UK. I think that would be a pretty spiteful thing for them to do, but it is possible. They do not automatically have to recognise our signing up to that.
The Hague maintenance convention of 2007, if the EU and the UK were party to that, has the same provisions in terms of enforcement of maintenance orders. It does not have direct jurisdictional rules, but it has indirect ones, so if there has already been an order in another European EU state, the other country can refuse to enforce it. You can only enforce your order in certain circumstances—for example, if either you are resident in that country or the other party is resident in that country. The Hague 2007 convention would plug that gap, provided we sign up to it as the UK rather than as the EU, and then the EU accepts our accession to that convention.
Philip Marshall: It is not perfect, in the sense that there are limits on freestanding spousal maintenance, for example, if they are not linked to child maintenance claims. It has its deficiencies.
Q74 Philip Davies: Given that you said that the maintenance regulation has deficiencies too, I guess the question from your perspective would be which was the least deficient.
Philip Marshall: The least deficient, in a way, would be the maintenance regulation, because it is clearly dovetailed with the other regulations—Brussels IIa. They are entirely complementary.
Q75 Philip Davies: You would not want to revert back to the 2007 Hague convention and just rely on that.
Philip Marshall: The reality is that most people did not know that the 2007 Hague convention existed. It is probably news to many people that it does. It was little used; let’s put it that way.
Daniel Eames: To pick up on Mr Marshall’s point, I believe the EU has said that it applies to spousal support and has extended it to that, so I do not think there would be that issue.
Q76 Philip Davies: You may well have heard the discussion we had in the previous session about the role of the Court of Justice in decisions made in the British courts. In a new civil law relationship, the previous panel’s favoured thing was that the British court should “have regard to.” What are your respective views on how much “regard” we should have to decisions made by the European Court of Justice?
Philip Marshall: I listened to your exchange with the previous witnesses, and I entirely accept the political reality of the point that you made to them, Mr Davies. Having voted to leave the EU but then to presume to bind ourselves absolutely to the judgment of the Court of Justice of the European Union would be for many an extraordinary and, I suspect, unacceptable step to take.
I suppose the reality is that to “have regard to” would apply as much to a decision in the senior courts in Australia, as you said, Chair, as it would similarly in the United States. If we wish to have what are perceived to be mutually beneficial relationships with other countries—if we look outward and not entirely inward—there has to be a degree of reciprocity.
By definition, reciprocity is a two-way street. Equally, I can see that, if we did not like a particular decision of the Court of Justice, we would not follow it. That may then undermine the foundation of any agreements that we put in place. It is a balance with a very significant political overlay, and I can see that. I speak as a lawyer, and what I perceive as a lawyer might be beneficial. I have strong views personally about these things, but I am not here to give evidence about that.
Q77 Philip Davies: Dr Lamont, what would your view be?
Dr Lamont: I also accept that political reality. I would make the point that was also made in the previous panel that the Court provides value in terms of harmonising certain terms. The one that springs to mind is the concept of habitual residence. Our traditional concept has moved as a consequence of the Court’s interpretation and has made it more child focused, but it is not a perfect family law court.
The speed of references is very slow and it takes a long time to get a case through, even with the accelerated procedure. That is not appropriate for children, although it is planned to expand the Court. You lose certain things. Article 24 of the charter of fundamental rights of the European Union makes specific reference to children’s rights, including the child’s best interest and the right of the child to be heard, which are not directly reflected in the European convention on human rights. However, the Court’s reasoning around that particular article is not strong.
If we were to fall back on the Hague convention 1980 in relation to child abduction and the Hague convention of 1996, you would lose uniformity of interpretation, but our courts would have jurisdiction over those to interpret them. There would be a discussion, as there was prior to the European Union becoming involved in child abduction, about how the convention is used within the Hague conference framework instead of the European framework. I hope that makes sense.
Daniel Eames: From a political perspective, I suppose a distinction that can be made is that this is procedural and not substantive law. We are not having foreign laws applied in England; we are just deciding which is the most appropriate court, and having reciprocity. That is where the CJEU comes in. It assists with those issues and avoids UK families having competing jurisdictions in two different countries.
Without an appellate court across the EU, why on earth would the French court or the Italian court stop its proceedings in favour of English proceedings? It works both ways; it is not just about the EU imposing laws on England. It is also about the English courts having their decisions and priorities recognised within the EU. Although it is a difficult political issue, I think that distinction can be made between procedural and substantive law.
Q78 Chair: That is helpfully put. To go back to Dr Lamont’s point, if at some point the UK Government wish to incorporate certain rights from the fundamental charter or elsewhere into domestic law, it can be done. Are there any other points that you feel we have not touched on and that would be of assistance to us?
Daniel Eames: There are a couple of points. The real concern is obviously the transitional arrangements and the hiatus we face in the meantime, which will cause families real difficulties. Therefore, if we are not going to incorporate and sign up to EU regulations, we need to ensure that the other conventions also apply and that we sign up to them with other nations. In relation to resources—I appreciate that family law may not be the Government’s priority—it will cause real issues if it is not properly resourced or if enough information and expertise is not put in.
Q79 Chair: Are you talking about public or private resources?
Daniel Eames: Public resources.
Q80 Chair: In terms of courts and advice?
Daniel Eames: Courts, training, and information to the public. As I said, there will be a real vacuum.
Philip Marshall: To echo that point briefly, obviously your previous witnesses were speaking of the financial benefits to the UK, and ensuring that we continue to attract commercial ventures and litigation to the UK. It is a trite point, but this is about individuals. Many of them are faced with having to litigate, not by choice, as it were. Commercially, one always has a choice whether to contract or not to do so. If there is a gap, it is going to impact on a huge number of people.
Q81 Chair: The logic is very often that the financially weakest are also the legally weakest, in a sense.
Philip Marshall: Quite. Stereotypically, often the financially weakest will have followed the financially stronger to this country and then find themselves at a real disadvantage.
Chair: Thank you very much. That has been extremely helpful. We are very grateful to you, both for your time and your trouble. It will be very helpful to us in our report. It is much appreciated and, as with the previous witnesses, if there are further thoughts or observations, or if people want to submit additional evidence, it will always be gratefully received.
I wish you and members of the Committee a very happy Christmas and a less eventful new year than the current one has been.