HANSARD
Mutual Recognition of Protection Measures in Civil Matters (Amendment) (EU Exit) Regulations 2019
- Considered in Grand Committee
- 4:47 pm
- Moved by
- That the Grand Committee do consider the Mutual Recognition of Protection Measures in Civil Matters (Amendment) (EU Exit) Regulations 2019
- 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.
- 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?
- 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.
- It is really a clarification in the drafting—it does not change anything. That is my point.
- That is entirely right.
- 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?
- My Lords, I broadly welcome this measure and that the Government has in this case taken a humane approach and decided unilaterally to accord recognition to the question of reciprocity, other than the state’s protective measures for the safety of parties, particularly for domestic proceedings and vulnerable citizens. We understand the limited exceptions where such measures being enforced here would be manifestly contrary to public policy or inconsistent with a subsisting United Kingdom judgment.However, I take the opening point made by the noble and learned Lord that it is important to consider what can be negotiated. What contact has there been at Secretary of State level to see whether some reciprocity of consideration could be given to enforcing protective measures granted by United Kingdom courts in the rest of Europe? Why was that not done a great deal of time ago and outside the context of the other negotiations?I do not agree with the point made by the noble Lord, Lord Beecham, that we should worry about the cost in the United Kingdom of enforcing protective measures from other member states which we have agreed humanely to enforce. That is a cost we have to absorb. In areas such as this, I believe that accepting that a degree of reciprocity is not essential to achieving a satisfactory outcome for both sides is helpful. I hope that we will get unilateral action the other way in due course. It will certainly make negotiation a great deal easier.
- 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.
- 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.
- Motion agreed.