Equalities, Human Rights and Civil Justice Committee [Draft]

Meeting date: Tuesday, December 5, 2023

Official Report 555KB pdf

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United Kingdom Subordinate Legislation

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Civil Jurisdiction and Judgments (Saving Provision) Regulations 2023

Good morning and welcome to the 26th meeting of 2023 of the Equalities, Human Rights and Civil Justice Committee. We have received no apologies this morning.

Our first agenda item is consideration of a type 1 consent notification for the Civil Jurisdiction and Judgments (Saving Provision) Regulations 2023. This is a proposed United Kingdom statutory instrument on which the UK Government is seeking the Scottish Government’s consent to legislate in an area of devolved competence. On 9 November 2023, the Minister for Victims and Community Safety notified the committee of the UK SI. The committee’s role is to decide whether it agrees with the Scottish Government’s proposal to consent to the UK Government in the manner that it has indicated.

I welcome to the meeting Siobhian Brown, who is the Minister for Victims and Community Safety, and her supporting officials. Simon Stockwell is head of family law policy and Stephanie Smith is a senior policy adviser on courts and tribunals. Both are from the Scottish Government’s justice directorate. Good morning and thank you for joining us.

I refer members to paper 1 and I invite the minister to make a brief opening statement.

As members know, the Scottish Government opposed both Brexit and the Retained EU Law (Revocation and Reform) Act 2023. However, we recognise that we need to take technical action to ensure that things work as smoothly as possible. In some cases that involves working with our colleagues at Westminster.

The purpose of the Westminster statutory instrument is to continue the savings that were made at European Union exit to ensure that the 2007 Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters can continue to apply in certain legacy cases. The 2007 Lugano convention contains rules governing jurisdiction in civil and commercial matters when a case has connections to more than one country, and it contains rules that provide for recognition and enforcement of judgments in such matters.

The convention is a treaty between EU member states, Norway, Iceland and Switzerland, and was entered into by the EU on behalf of member states while the UK was itself a member state. At EU exit, the convention was revoked for the UK because the UK’s convention membership was dependent on its status as a member state and because its operation relied on reciprocal application, which would no longer occur.

However, the convention was saved for transitional cases—that is, to save the jurisdiction rules for cases that were commenced before the end of the transition period and to save the recognition and enforcement rules for judgments that were issued in cases that were commenced before then.

The savings provision relied in part on section 4 of the European Union (Withdrawal) Act 2018; section 2 of the Retained EU Law (Revocation and Reform) Act 2023 will repeal section 4 of the European Union (Withdrawal) Act 2018 at the end of the year, which creates a risk that the savings that have been put in place will fall away. The proposed SI will use transitional powers under the 2023 act in order to continue the savings provision. Given that the original savings for transitional cases extended UK-wide, the UK Government proposes to extend the SI UK-wide.

As I said, the Scottish ministers remain opposed to Brexit. However, in order to minimise the damage that EU exit brings, this technical SI is necessary to ensure continuity in respect of relevant judgments and those that were issued before the end of the transition period. It will also save the recognition and enforcement rules for judgments that have been issued in cases that were commenced before the end of the transition period.

The relatively small number of statutory instruments that have been proposed under the 2023 act that are notified to committees—seven so far, including this one—reflects the fact that the Government will never consent to proposals that threaten the vital safeguards and high standards that Scotland benefited from when the UK was part of the European Union. The programme for government commits the Scottish Government to maintaining alignment, where that is possible and meaningful, with EU law, and this SI has implications for devolved responsibilities. I invite the committee to agree that the Scottish ministers should consent to the SI being made.

Thank you, minister. Do members have any questions?

Good morning, minister. Thank you for being here this morning. I have a quick question on issues that could have arisen after the transition period.

Given the commitment to alignment that the Scottish Government has made, are there measures in place that we can take independent of the UK legislature on cost savings beyond transition, or is that it? Essentially, I am asking whether there is a way that we can continue to be aligned with the likes of Iceland, Norway and Switzerland beyond the cut-off period.

My understanding is that savings will diminish in time and that a limited number are going through at the moment, but I will bring in Simon Stockwell on that question.

Thank you, minister. It might be difficult for Scotland to align by itself, because much depends on international arrangements, which are reserved to the UK Government. The UK Government is planning to sign and ratify the HCCH 2019 judgments convention, which is about mutual recognition of civil and commercial judgments. The UK has just confirmed that it intends to do that: Scotland will be part of that, so there will be moves to ensure that we continue to have mutual recognition with other jurisdictions. However, it is hard for Scotland to do that alone, given that treaty negotiations are reserved to the UK.

Thank you. That is helpful.

Are members content?

Members indicated agreement.

Thank you.

I will move on to the substantive question for this item. Is the committee content that the provisions that are set out in the notification should be made in the proposed UK statutory instrument?

Members indicated agreement.

We agree. Thank you. We will write to the Scottish Government to that effect.

That concludes consideration of the UK statutory instrument. I thank the minister and her officials for their attendance. We will now suspend briefly to allow a changeover of supporting officials for our next agenda item. Thank you.

09:52 Meeting suspended.  

09:53 On resuming—