My Lords, I thank the noble Baroness, Lady Kennedy of The Shaws, for raising this important issue. We discussed it at some length in Committee and I will not repeat the points I made at that stage. But, as the Government outlined in their position paper published in August last year, we are committed to continuing civil judicial co-operation with the EU once we leave. That of course includes the area of family law as covered by Brussels II and Brussels IIa, as it is clearly in the interests of all individuals and families both in the UK and throughout the rest of the EU that there should be an effective area of civil judicial co-operation for these purposes. Of course, that will be the subject of negotiation.
Amendment 14, while clearly well intentioned, is potentially burdensome and I venture to suggest is not necessary. My noble and learned friend Lord Mackay of Clashfern pointed to what is potentially a deficiency in the drafting of subsection (1) of the proposed new clause, but I do not take issue with that. I understand the point that is being made about the underlying principles of reciprocity and its importance in this context.
To suggest a six-month period for a report is of course an arbitrary deadline, which makes no reference to the position of the negotiations between the EU and the UK at that stage, or to any other steps that have been taken by the Government in regard to these issues. The Government are concerned not only with the final agreement reached in negotiations but in addressing what will be done with regard to retained EU law, including retained family law. Ultimately, any agreement that takes place between the United Kingdom and the EU to reflect not only our domestic position but the need for reciprocal enforcement will be the subject of the upcoming withdrawal agreement and will be legislated for in what is proposed to be the Withdrawal Agreement and Implementation Period Bill—so it is not something that will be the subject of the present Bill.
But I stress that the Government share the view expressed by the noble Baroness and others in the House on the importance of maintaining an effective system for resolution of cross-border family law disputes once we leave the EU. It will be an important part of the partnership that we seek to maintain with the other EU 27 countries. The Government certainly believe that intergovernmental co-operation and mutual recognition is of benefit to all parties. This is not an instance in which the EU has one particular interest and we have another. We all understand that the individuals and families concerned are affected right across the EU. We have made it clear that civil judicial co-operation in respect of family matters will be part of our future relationship with the EU.
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Indeed, the EU, in its Article 50 negotiating guidelines, has stated that options for judicial co-operation in matrimonial, parental responsibility and other related matters should be explored. We are committed, apart from anything else, to continuing with our membership of the Hague conference on private international law and participating in all the conventions that relate to family law, going back to 1970 with the recognition of divorces and legal separations, the civil aspects of child abduction covered in the 1980 convention, the issues on protection of children in the 1996 convention and also the convention on the recovery of maintenance, which was a point raised by the noble Baroness—albeit that the EU is a signatory of that part of the convention and we will have to address our individual and independent signature to that part of the convention.
We are entirely conscious of the need to do that, which is one reason why we looked at the implementation period up to 31 December 2020 in order to address these matters. During the implementation period, the current reciprocal rules, including the key EU family law instruments and Hague conventions, will continue
to apply as they do now. So we do not consider that a report of the type specified by the amendment is realistically a way forward. What is required and what we are committed to is ongoing negotiations with the EU in order to secure an agreement on reciprocal rights with regard to family law.
On Amendment 20, with reference to the Court of Justice of the European Union and the point raised by the noble Lord, Lord Marks, I do not believe that it is necessary for the UK to subject itself unilaterally to the jurisdiction of the CJEU in order to secure a reciprocal agreement in this field. I certainly do not accept the fourth point made by the noble Lord, Lord Marks, that somehow we have to embrace the jurisdiction of the CJEU in order to secure a suitable international agreement with regard to mutual recognition in this regard. That is simply not the case. Of course, the CJEU will remain the final arbiter of EU law in this context, just as the UK’s Supreme Court will be the final arbiter of our law. It is not exceptional or unusual to find circumstances in which there is reciprocity and mutual recognition without the embracing of one single court.
An example of that is the Lugano convention, which covers countries such as Norway, Iceland and Denmark in circumstances where the CJEU has no jurisdiction over the Lugano convention countries but there is an agreement whereby the national courts of the Lugano countries will respect the decisions of the CJEU and the CJEU will respect the decisions of the national courts of the Lugano convention countries for the purposes of applying these mutual arrangements. There is nothing exceptional about that aspect of it.
We therefore have to be clear about what the present Bill is designed to do. It is legislating not for the future agreement between the United Kingdom and the EU, but to provide a stable and certain domestic statute book on exit day. For that reason alone, we could not accept the sort of proposal set out in Amendment 20 that would pre-emptively tie our domestic courts to the CJEU in one particular area.
What I seek to stress is our determination to secure by negotiation—it will have to be by way of negotiation —suitable agreements with regard to family law, mutual enforcement and mutual recognition in these areas. I underline the term “mutual”. We are not talking about trying to secure a benefit for the United Kingdom at the expense of the EU, or trying to secure a benefit for the United Kingdom when there is no benefit for the EU. We are talking about something that is to the mutual benefit of all parties to such an agreement. That is why we continue to entertain a degree of confidence in being able to secure this during the course of the implementation period when we come to negotiate the whole area of judicial co-operation—which, of course, goes beyond the realms of family law and embraces other areas such as contract law, commercial law and indeed insolvency.
In these circumstances, I invite the noble Baroness, Lady Kennedy, to withdraw her amendment. I feel I have to add that we will not reflect further on this issue between now and Third Reading—so if she does wish to test the opinion of the House, this would be the time to do so.