Private International Law (Implementation of Agreements) Bill [Lords]

(Limited Text - Ministerial Extracts only)

2nd reading & 2nd reading: House of Commons
Wednesday 2nd September 2020 Commons Chamber

[The Lord Chancellor and Secretary of State for Justice (Robert Buckland)]

I beg to move, That the Bill be now read a Second time.

Private international law might sound rather dry and technical—[Laughter.] I get ready assent from the hon. and learned Member for Edinburgh South West (Joanna Cherry)—but at its heart sit the lives of real people and the challenges they face when legal disputes arise in relation to cross-border matters. I am talking about people such as the parents who need to make arrangements in the best interests of their children when a relationship breaks down and one spouse moves abroad, or the small business left out of pocket by a supplier based in another country needing to seek redress in the courts.

Reciprocal private international law rules provide a framework to allow businesses in the United Kingdom, families and individuals to resolve these difficult and challenging situations. They help to avoid confusion for all parties by preventing multiple court cases taking place in different countries on the same subject and potentially reaching different conclusions. Such reciprocal rules also allow for the decisions of UK courts to be recognised and enforced across borders. All this helps to reduce cost and anxiety for the parties involved. It is vital, therefore, that in the future the UK can not only continue to co-operate on private international law matters with existing partners, but implement new agreements into our domestic law that are fit for the 21st century, and this Bill underpins our ambition to deliver real and tangible benefits for our country and our citizens both now and in the years to come.

I would also like to reassure right hon. and hon. Members that whilst private international law can support and underpin cross-border trade, the Bill is not about the implementation of free trade agreements. The terms on which trade between two countries take place are clearly outside the scope of the Bill.

During our membership of the EU, we helped to build, develop and refine an advanced framework of rules on private international law. On 31 January 2020 we marked the first time in more than 20 years that full competence in this area of law returned to the UK. It is important that we acknowledge this new reality and take appropriate steps, and those include ensuring that our statute book is fit for purpose. The Bill achieves this by reimplementing in domestic law three key private international law agreements in which we currently take part so that in future we do not need to rely on retained EU law as the main legal basis for our continued participation.

These three agreements are Hague conventions, adopted under the auspices of the Hague conference on private international law. The UK currently operates them due to our previous membership of the EU, but we will become an independent contracting party to them in our own right at the end of the transition period. Our continued membership of these agreements is widely supported by interested parties in the legal and finance sectors, and indeed by Members in this House and the other place. Clause 1 ensures that these important conventions can continue to operate effectively in the future by stating that they

“shall have the force of law in the United Kingdom”

from the end of the transition period, instead of relying upon retained EU law for their implementation domestically beyond then. This will make their implementation clearer and more straightforward for practitioners, litigants and, indeed, our international partners.

These three conventions cover distinct areas of private international law in the fields of commercial and family law. The 2005 Hague convention increases legal certainty in disputes that relate to cross-border commercial contracts, which include an exclusive choice of court clause. It does this by ensuring that there is no dispute over where a case should be heard and enables any resulting judgment to be recognised and enforced across borders.

These types of choice of court clause are common in high-value commercial contracts, but in family law we are also reimplementing two conventions that cover sensitive and important issues for individuals and families who become engaged in cross-border disputes when a relationship unfortunately breaks down. The 1996 Hague convention improves the protection of children in cross-border disputes and helps families to resolve issues such as residence of and contact with children whose parents live in different countries. Finally, the 2007 Hague convention provides for the recovery of child support and other forms of family maintenance across borders.

The Government made a number of minor and technical amendments in the other place, which received widespread support, to provide a clearer and simpler approach to the implementation of the transitional provisions relating to the 2005 and 2007 conventions. However, the reimplementation of the Hague conventions is only a measure for the status quo. We need to ensure that we are ready for the opportunities that will arise in the future.

I firmly believe that we must now seize that opportunity of regaining full competence in this area by building on our long and proud history in private international law and cementing our role in international forums, such as the Hague Conference, the Council of Europe, the United Nations Commission on International Trade Law and the International Institute for the Unification of Private Law. We have long been a world leader in this field, and we should aspire to remain so. While being justifiably proud of our achievements in this space thus far, to really harness our potential we need a legislative vehicle to be able to implement any new agreements successfully negotiated with our international partners.

[John Redwood (Wokingham) (Con)]

This is an extremely good, positive vision. Can my right hon. and learned Friend give one or two examples of the kind of reforms or improvements that he would be looking to make when we exercise our influence?

[Robert Buckland]

I am grateful to my right hon. Friend, who will share my strong belief in the success of the legal services sector both in England and Wales, and in Scotland, as well as in the Northern Ireland jurisdiction, and the importance of maximising the advantage that we have not just in our outstanding rule of law reputation, but our reputation as an international forum for the resolution of disputes. I can think in particular of issues related to arbitration and mediation, where important international conventions are being developed, where the United Kingdom not only needs to be part of it, but to be at the heart of it when it comes to improving not just the prospects for legal services, but the opportunities for the businesses and the citizens we serve.

[John Howell (Henley) (Con)]

My right hon. and learned Friend mentioned the Council of Europe. I want to stick on that, because it works on the basis of signing international treaties to get things done. At the moment, they take forever to get through, and the UK is one of the worst signers of them. Is this going to help to speed up the process?

[Robert Buckland]

I share my hon. Friend’s enthusiasm and sense of impatience about the pace of change in fora such as the Council of Europe. I just need to caution him on this basis. When it comes to the use of the powers that we anticipate under this Bill, we are talking about a narrowly defined type of agreement—practical, detailed but important changes that will lead to the sort of improvements that I referred to in responding to my right hon. Friend the Member for Wokingham (John Redwood). I am sure that as he hears not just my contribution but the one made in winding up by the Under-Secretary of State for Justice, my hon. Friend the Member for Cheltenham (Alex Chalk), he will be even clearer about the particular role that this Bill will play in the incorporation of international law.

That is very important, because concerns were raised in the other place that somehow this was a Trojan horse or an invitation to open the floodgates, to allow for the incorporation of major swathes of international treaty law into domestic legislation with minimal scrutiny. Nothing could be further from the case.

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

Will my right hon. and learned Friend give way?

[Robert Buckland]

I give way to my hon. Friend the Chair of the Justice Committee.

[Sir Robert Neill]

I know that we will move on to the question of what is not in the Bill and what might be later, but before the Lord Chancellor leaves the issue of improving our access to international legal agreements, he has not yet mentioned our application to accede to the Lugano convention, which many regard as critical, it being markedly superior in a number of respects to those listed on the face of the Bill. There is a concern that the Commission is currently recommending against Britain joining the convention, even though the European Free Trade Association members of that convention support it. What is the position on that? Will he assure us that the Government regard this as one of the highest priorities in our ongoing negotiations? It should not be allowed to be hijacked and held as a hostage to fortune in other negotiations.

[Robert Buckland]

I can assure my hon. Friend that not only do the Government place a very high premium upon the importance of accession to Lugano, but I personally have vested my own time in direct discussions with counterparts at the Commission and other member states of the EU. In fact, in Zagreb, at the final Justice and Home Affairs Council, I took the opportunity to discuss this at length with several other member states and, indeed, the then newly appointed Commissioner for Justice, and we had a very productive discussion.

My view and that of Her Majesty’s Government is very straightforward: the application for Lugano is a discrete matter. It is separate from the negotiations that are ongoing with regard to a future free trade agreement, and it should be treated as a separate matter. The time for ideology has gone. This is a time for us all to remember that the interests of the citizens that member states serve are paramount, and the interests of ensuring that civil judgments are enforced as swiftly as possible are clear. I call upon all interested parties to put those priorities first, and then hopefully we will see a swifter conclusion to the negotiations, but I welcome the warm support we have had from EFTA countries both prior and subsequent to our application.

[Mr Jonathan Djanogly (Huntingdon) (Con)]

I thank my right hon. and learned Friend for giving way on this Lugano point. I agree with everything he says: it should be treated as a discrete treaty, separate from us leaving the EU, and it is very important for our future trade. But if that is the case, why does he not mention Lugano on the face of the Bill? By doing so, he could perhaps limit the scope of the wide statutory instrument powers—the so-called Henry VIII powers—that I think he will talk about bringing back. He would then have the specific Bill that would make the other place a bit happier.

[Robert Buckland]

I am always grateful to my hon. Friend, who served with distinction as a Justice Minister, for his long interest in these matters as a member of the profession. I did indeed consider whether this Bill should be a Lugano-specific Bill, but I took the view—and I will explain it in more detail in the body of my remarks—that, because of the narrow ambit of what we are seeking to achieve here, there was a necessary flexibility in allowing the United Kingdom Parliament, by affirmative resolution and therefore by debate on the Floor of the House, to determine whether particular future treaties could be incorporated into domestic law.

I do not regard these as Henry VIII powers. I accept the point that there is a distinction to be drawn in relation to the bringing forward of primary legislation, but as a matter of strict interpretation these are not powers that would allow us unilaterally to amend primary legislation, which, of course, is what a Henry VIII power is. These are powers that will allow us to use secondary legislation, but with the necessary parliamentary scrutiny before the incorporation in domestic law of these treaties. Let’s face it, while we were members of the EU, in large measure, because of the competence of the EU in this area, many of these arrangements and agreements took direct effect in our domestic law without any debate whatever. In my view, this actually represents a qualitative improvement and creates a consistency with that flexibility to allow us to make the sort of advances—I know he shares my view on those—which I referred to in my remarks to my right hon. Friend the Member for Wokingham. I am very grateful not just to him, but to all Members in the other place who gave the Bill detailed and careful consideration. However, we believe that it is constitutionally appropriate and proportionate to deploy delegated powers to implement the type of international agreement envisaged in the Bill.

This delegated power, in my strong view, is narrow, well defined and proportionate. Indeed, private international law itself is still a very narrowly defined area of law. It is familiar in scope and content to courts, legal advisers and experts in the field. The type of international agreement which can be implemented under the delegated power relates primarily to jurisdiction: rules that determine where a dispute is heard, rules that determine which country’s law applies, and rules on the recognition and enforcement of legal decisions or judgments in cross-border cases. No agreement could be implemented that was not related to these specific sorts of issues, which arise in relation to the resolution of cross-border disputes.

On that point, we recognise that the Delegated Powers and Regulatory Reform Committee’s report on the Bill recommended the removal of the proposed delegated power, but it is our view that that is, respectfully, a misinterpretation of the breadth of the powers sought and the types of international agreements it can cover. Many of the examples given in its report that had previously been implemented by primary legislation are not actually private international law agreements in themselves. Although those agreements contain specific private international law provisions, they are wider in their overall scope and could not have been implemented using the proposed delegated power to be reintroduced into the Bill.

It was also said in the other place that the use of delegated powers to implement private international law agreements would be constitutionally unprecedented. With the greatest respect, I wholly disagree. There are delegated powers to implement new bilateral agreements on recognition and enforcement of civil judgments via Orders in Council under the Administration of Justice Act 1920, the Foreign Judgments (Reciprocal Enforcement) Act 1933, the Maintenance Orders (Facilities for Enforcement) Act 1920 and the Maintenance Orders (Reciprocal Enforcement) Act 1972. Indeed, the powers under the 1933 Act were used as recently as 2003 by the Labour Government to update a bilateral agreement with Israel relating to the recognition and enforcement of judgments, and extending that agreement to cover judgments of the Israeli magistrates courts. However, while it is important to look back at the precedents that exist, it is vital that we look forward, too. The powers contained in those Acts only allow us to implement bilateral agreements in this area. Frankly, the world has moved on significantly since the ’20s and ’30s, because most private international law agreements are now made on a multilateral basis. We need to ensure that the necessary powers exist to implement such agreements in a timely manner.

Parliamentary scrutiny procedures have moved on as well, and our proposals recognise this by requiring statutory instruments made under the delegated power to implement new agreements to be subject to the affirmative resolution procedure, which provides much more scrutiny than the Order in Council process. Any decision for our country to join a particular agreement in this area of law would also still be subject to successful completion of parliamentary scrutiny procedures under the provisions of the Constitutional Reform and Governance Act 2010—CRAG—which many of us got to know intimately in the context of last year’s machinations on Brexit.

The delegated power in the Bill would not alter the well-established approaches to parliamentary scrutiny of treaties and the process of approving ratification under CRAG. Instead, it would simply be a mechanism to draw down the resulting treaty obligations into domestic law in readiness for the ratification of the treaty. The Government recognise that Parliament has begun to strengthen the scrutiny procedures under CRAG, including, importantly, the establishment of the International Agreements Sub-Committee in April of this year under the chairmanship of Lord Goldsmith. We look forward to working with the Committee, including on the scrutiny of the private international law agreements.

[Mr Djanogly]

Does my right hon. and learned Friend appreciate that that is the exact same Committee that has constantly been attacking CRAG as totally inadequate and unfit for purpose?

[Robert Buckland]

Indeed it has made some very trenchant comments about CRAG, and that is precisely why it is important that that Committee does its work on improving and enhancing the procedure. I welcome its work and we will actively engage and ensure that that is so.

The most pressing need for the delegated power is to implement what we hope to see—namely, the Lugano convention, which we have already discussed. As I have said, we still do not know the outcome of our application. It is being considered by the contracting parties to the convention, including the EU. It currently underpins our private international law relationship with Switzerland, Norway and Iceland, but could also be used to underpin our relationship with the EU after the end of the transition period. It would provide valuable certainty on cross-border recognition and the enforcement of civil and commercial judgments, as well as clarity on which country’s courts may hear a dispute.

[Sir Robert Neill]

I welcome my right hon. and learned Friend’s commitment to joining Lugano. It is important for all the reasons he has set out. There was compelling evidence given to the Justice Committee over a number of years about the importance of this. Also, is it not important that we join so that we can then, as one of the convention parties, seek to influence the development of the convention—for example, to avoid a race to the bottom in jurisdictional terms in dealing with the threat, as it is sometimes called, of the Italian torpedo? We cannot deal with the Italian torpedo until we are in Lugano to sort it out, so is that not all the more reason to reflect on putting this on the face of the Bill? Perhaps nothing would be lost by doing that.

[Robert Buckland]

I am grateful to my hon. Friend. The Italian torpedo is not a reference to the successful naval action by the Royal Navy against the forces of fascist Italy in the second world war. This is a particular device taken by parties who issue proceedings in a jurisdiction that they know will not accept control over the particular proceedings. It is, in other words, a massive delaying tactic that can cause real obstruction to the course of justice and to the resolution of important disputes, and that is why he is right to say that Lugano would be very much a beginning when it comes to the development and refinement of that type of important co-operation.

My hon. Friend the Member for Huntingdon (Mr Djanogly) asked why we do not mention Lugano. Well, there is an obvious argument that I should have addressed, which is that, as we have not yet been able to join it, it would perhaps be premature for us to refer to it directly on the face of the Bill, as opposed to the Hague conventions, which we have joined. Regrettably, there will not be time to bring forward further primary legislation before the end of the year, should our application be approved within the next few months. Therefore, for that sad but practical reason, it would be right not to pass anticipatory legislation but rather to await the outcome of the negotiation and then to allow the use of the delegated power.

The power could also be used to implement other agreements. I have talked about mediation, and in particular the 2019 Singapore convention on mediation and 2019 Hague judgments convention. We have not yet taken a formal decision on either of those, but of course I am happy to talk more about those conventions with hon. Members during the passage of this Bill and, indeed, in the future as we decide on our final approach to these instruments.

[John Howell]

If I catch your eye, Mr Deputy Speaker, I will speak a little more about the Singapore mediation convention, because I think everyone approves of it. All it does is bring mediation settlements under UK law in the same way that arbitration settlements are included within the New York convention. I hope that my right hon. and learned Friend’s offer to speak to people who are involved with this includes me, because I would be very happy to discuss it further.

[Robert Buckland]

I am grateful to my hon. Friend and he is right to mention the New York convention. Indeed, it develops the point I made to my right hon. Friend the Member for Wokingham about our ambition on the recognition of arbitral decisions and mediation resolutions, too.

The reintroduced delegated power would allow us to strengthen our internal UK and our wider UK family relationships, including those with the Crown dependencies and the overseas territories, by allowing us to apply and to implement the terms of an international agreement between the different jurisdictions of the UK or, indeed, to apply and implement an arrangement or a memorandum of understanding based on the terms of an agreement between a self-governing territory or a dependency and the United Kingdom. Of course, this would be done only with the agreement of the relevant devolved Administration or self-governing territory or dependency, because the Government recognise that private international law, including the implementation of agreements, is indeed fully devolved to Scotland and Northern Ireland, and this will continue to be reflected in any reintroduced delegated power in the Bill.

In summary, this Bill will allow our country to capitalise on regaining full competence to enter into international agreements on private international law in our own right after our withdrawal from the EU. It simplifies the implementation of three important Hague conventions in domestic law, to which the UK will be an independent party from the end of the transition period. The reintroduction of the former delegated power will also allow us quickly to implement any new agreements we strike with our international partners, thereby remaining at the forefront of promoting global co-operation and, indeed, best practice in this area. Finally, it will also allow our citizens to harness the benefits of these agreements in a timely manner, including to assist in the resolution of cross-border disputes. I commend the Bill to the House.

[Alex Cunningham (Stockton North) (Lab)]

Labour welcomes the principle of the Bill to maintain and enhance our legal co-operation across jurisdictions and to provide certainty and fairness for those involved in cross-border litigation. In a post-Brexit world, this is essential in attempting to maintain a prosperous economy, protecting our legal system, and providing for families and individual claimants engaged in cross-border disputes. International agreements provide clear and reciprocal mechanisms for dealing with international disputes. In doing so, they are crucial in protecting our country’s proud reputation as the world centre for resolving complex disputes, while offering us a competitive advantage in finance, business and trade.

However, this Bill, and the Chancellor talked about this, will also affect human stories. A wide range of family law issues can lead to cross-border disputes, including when one partner takes a child abroad and there is a disagreement about parenting arrangements—I have had such cases in my own surgeries—as well as when making arrangements for divorce in similar circumstances and, of course, issues relating to abduction and adoption. To keep our citizens safe, we must ensure we have robust international agreements so that justice can be done. Clause 1, which gives effect to international treaties in domestic law through primary legislation, is therefore both necessary and welcome. It is hoped that the provisions affecting the rules on jurisdiction and the recognition and enforcement of judgments overseas will play a crucial role in building a strong economy and provide some certainty for families in often desperately difficult circumstances.

Although we welcome the principle of the Bill as it currently stands, it must be noted that this is largely due to the successful efforts in the other place of my noble and learned Friend Lord Falconer and others to remove clause 2 of the Bill—[Laughter.] I am glad the Lord Chancellor finds that amusing. I will touch on that in due course, but, first, let us come to the specific points of the Bill on which we agree.

Clause 1 gives effect to key international conventions in our domestic law, which is welcomed on the Opposition Benches. The Lord Chancellor spoke of these issues. The 1996 Hague convention on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children is critical to improve the protection of children in cross-border disputes. The 2005 Hague convention on choice of court agreements aims to ensure the efficacy of exclusive choice of court agreements between parties to international commercial transactions. We support this incorporation into domestic law, as such clauses are commonly provided for in high-value commercial disputes.

The 2007 Hague convention on the international recovery of child support and other forms of family maintenance provides for the international recovery of child support and spousal maintenance. It is abundantly clear that this is a positive move, which will help to ensure that parents pay their fair share when providing for their children. We welcome these provisions and hope most certainly that we can offer that certainty in other areas of cross-jurisdictional disputes—I have just managed to tie my tongue in knots.

Labour will not, however, support any attempt by the Government to reintroduce clause 2, which would allow for the future agreements to be implemented via secondary legislation only. As we heard in the other place, this provision would be of profound constitutional significance. Labour is concerned that the reintroduction of clause 2 would represent an extension of the power of the Executive into uncharted territory, amending the convention that international legal agreements that change our domestic law can only be given force by an Act of Parliament.

[Robert Buckland]

I am listening with great interest to the hon. Gentleman’s speech. Would he care to comment on the involvement of the noble Lord Falconer as a Minister in the passage of the Mental Capacity Act 2005, which did precisely what the hon. Gentleman complains of with regard to the incorporation of important international agreements on mental capacity? I would be very interested in his view.

[Alex Cunningham]

The Lord Chancellor has an advantage over me; he has expertise in this particular area. I accept that we may have dealt with things quite differently in the past, but it is important that we recognise that this is a matter of international law.

I was rather surprised to hear the Lord Chancellor effectively rubbish the concerns of those in the other place, particularly given their comprehensive arguments. The House of Lords Constitution Committee said that this change would represent a

“significant new power that would change the way this type of international agreement is implemented in UK law and how Parliament scrutinises them.”

The House of Lords Constitution Committee and the Delegated Powers and Regulatory Reform Committee both considered whether the secondary legislating power should be granted, and both were very clear that it should not. The Constitution Committee stated:

“If the balance between the executive and Parliament is to be altered in respect of international agreements, it should be in favour of greater parliamentary scrutiny and not more executive power.”

As his lordship, Lord Mance—the chair of the Lord Chancellor’s Advisory Committee on Private International Law and perhaps the pre-eminent expert in this area of law—told the other place:

“Opinion is almost universally against Clause 2. The two committees that have reported have categorically condemned it.”—[Official Report, House of Lords, 17 June 2020; Vol. 803, c. 2228.]

Lord Pannick, another pre-eminent constitutional lawyer, argued in the debate that there is

“no justification for allowing the law of this country to be changed by statutory instrument in this context without full parliamentary debate. That is because important policy decisions might arise in this context both on whether to implement an international agreement in domestic law and on the manner in which such an agreement is to be implemented.”—[Official Report, House of Lords, 17 June 2020; Vol. 803, c. 2224.]

The Delegated Powers and Regulatory Reform Committee also offered a stern warning about the unprecedented nature of the constitutional change, saying:

“For the first time there will exist a general power to implement international agreements on private international law by statutory instrument, thereby obviating the need for an Act of Parliament. This will be so regardless of the nature or importance of the agreement.”

In its briefing, the Bar Council was also highly critical of this new constitutional grab, stating:

“The Bar Council is…somewhat concerned that the power in section 2”—

that is, clause 2—

“to proceed by delegated legislation is very broad. For instance, it enables the appropriate national authority…to make regulations ‘for the purpose of, or in connection with, implementing any international agreement’”.

The power could extend to matters in our criminal law, such as increasing or, indeed, reducing the penalties for criminal offences.

To give effect to international treaties in domestic law is not a rubber-stamping exercise. The effect, implementation and enforcement of such provisions requires robust parliamentary debate; we must protect the parliamentary scrutiny of such important legal provisions at all costs. The Government have attempted to make arguments as to why the new constitutional measure would be necessary, but all have failed to convince. Their first argument was that the new provision would allow the Government to implement each new international agreement without unnecessary delay, yet there is no evidence to suggest that fast-track legislation is required. In the past, the implementation of international agreements has often taken years, and there is nothing to suggest that implementing them by primary legislation would cause any difficulties beyond the Government’s having to put legislation through normal parliamentary scrutiny.

The Government raised the 2007 Lugano convention, which deals with the jurisdiction and enforcement of judgments between members of the European Union. The Government’s argument appears to be that there may be only a short period during which to legislate to give effect to the Lugano provision at the end of the transition period. Of course, that is not an argument for developing the new executive power more generally. The Government have not considered providing for clause 2 only in relation to Lugano, which might be more amenable—why not? That question has already been posed this afternoon. The Lord Chancellor said that is the main reason that the Government want to have the delegated powers; if that is so, why does he not just put that on the face of the Bill and recognise the issues that have been raised in the other place?

The Government claimed that the Constitutional Reform and Governance Act 2010 allows for sufficient parliamentary scrutiny. Once more, that argument does not carry much weight. As a result of clause 2, the Government would be able to give force to model law without being subject to the scrutiny mechanism under the 2010 Act. That Act does not allow for the amendment of treaties or the consideration of measures to implement treaties. It is a red herring and the argument has unravelled when subjected to expert scrutiny.

This is an issue of constitutional propriety for a Government with a reputation for constitutional vandalism. The Conservative peer Lord Garnier stated:

“Unquestionably, the provisions in Clause 2, which gave the Executive the extensive future law-making powers originally in the Bill, have been shown to be constitutionally awkward and unwelcome, by the Constitution Committee, the Delegated Powers Committee and contributors to these debates. When the Bill goes to the other place, I trust that the Government will not use their large majority there to restore the Bill to its original form.”—[Official Report, House of Lords, 29 June 2020; Vol. 804, c. 483.]

Unfortunately, we on the Labour Benches fear that that is the very intention of the Government, who on so many occasions have shown themselves to be keen to avoid parliamentary scrutiny.

As Members of Parliament, we have a duty to tread with real care when reforming our constitution, especially when the Executive is empowered and the power of Parliament is undermined. There is no evidence before us as to why the reintroduction of clause 2 would be necessary or right; with that in mind, Labour will support the Bill as it currently stands but wholeheartedly oppose any attempts to reintroduce clause 2 as the Bill progresses through its remaining stages.

--- Later in debate ---

[The Parliamentary Under-Secretary of State for Justice (Alex Chalk)]

I want to begin by expressing my gratitude to all Members who have contributed to the debate, with speeches of conspicuous clarity of thought. It is clear that across the House there is proper concern about the balance that exists between the powers of the Executive and the powers of the legislature. I will return to that, because it is absolutely right that those important points are engaged with fully. But first let me make some brief introductory remarks, setting the stage for why this matters and why, indeed, the Government are taking the approach we are.

As others have indicated, the Bill might at first glance appear somewhat dry and academic, but, as my hon. Friend the Member for West Bromwich West (Shaun Bailey) noted, it is of great practical importance for the lives and livelihoods of individuals and businesses in all our constituencies. It is also important—this point should not be lost—for the international rules-based order, which we can and must consolidate and strengthen in the months and years ahead. My hon. Friend the Member for Henley (John Howell) made the excellent point about the urgency of a mediation agreement, but in summary this Bill provides a legal framework for resolving cross-border disputes, and that framework provides legal certainty about jurisdiction, recognition and enforcement for both businesses and individuals whose legal affairs cross borders.

As has been noted, it benefits individuals where, for example, the relationship with the former partner has broken down but both parties need to resolve the child contact arrangements where one parent lives overseas. Such cases have arisen in my constituency surgery in Cheltenham. They are very painful cases, and are more painful still without these rules in place. It benefits businesses, too, for example where suppliers are abroad and the parties want to know that the agreement to litigate any dispute in a particular country will be honoured and upheld internationally, and it matters that when our jurisdiction is chosen by the parties in a commercial agreement other courts and states will recognise and enforce that jurisdiction. That is really what matters.

How does this Bill achieve that? In essence, in two ways: first, it carries over international treaties that we were parties to by dint of our membership of the EU; and secondly—this is the point that has attracted the most attention in this debate—it creates a mechanism for us to participate in future agreements and, in doing so, to strengthen the international rules-based order for the benefit of all our citizens. I just want to underscore that point. There is a countervailing public interest in our being able to do that in a timely and efficient way, because the longer that we delay in implementing these arrangements, the longer the delay in strengthening the international rules-based order.

It is important to be clear what the Bill is not about. The Lord Chancellor did that before me, but it is right that I underscore it. It is not about trade agreements. Private international law agreements remain distinct from free trade agreements both in content and scope. As hon. Members well understand, FTAs are agreed between countries, and they remove or reduce tariffs and other restrictions on most goods traded between them to allow easier market access. FTAs rarely, if ever, contain specific private international law provisions.

Promoting international recognition of jurisdiction and enforcement is important because the UK is the chosen court centre for so much of the world’s litigation: 40% of all global corporate arbitrations used English law in 2018, 75% of cases in the UK commercial court in the same year were international in nature and English law is the leading choice of law for commercial contracts. That is underpinned by the excellence and integrity of our judiciary and the calibre of our legal practitioners. It is right to pay tribute to them, and I am pleased to have the opportunity to do so.

As a result, our successful legal sector contributed £26.8 billion to the economy in 2017 and employs over 300,000 people. To sustain that, we in the United Kingdom must be ready to contribute more than ever to the international rules-based order. For the UK to remain a progressive force in the field of private international law, we must be able both to negotiate and then to implement into British domestic law modern agreements with our international partners once the UK has decided to become bound by them.

The hon. Member for Strangford (Jim Shannon) made the point—he will forgive me for paraphrasing—“Look, will the British Government impose things on Northern Ireland?” The answer to that is no. Just as we recognise, of course, the distinct and distinguished legal arrangements that exist in Scotland, so it is in Northern Ireland, and no doubt that is what lay behind the legislative consent motions. While it would be the British Government who negotiate the agreement, the decision on whether to bring it into force is a devolved matter for the Ministers in Scotland and, indeed, in Northern Ireland, respectively.

Let me turn to what the Government are proposing to do in respect of clause 2 as was, before the other place removed it. The reintroduction of the delegated power to implement private international law agreements into domestic law via secondary legislation is necessary, proportionate and constitutionally appropriate. My hon. Friend the Member for Huntingdon (Mr Djanogly), in a characteristically eloquent speech, referred to this at one stage as, I think, the largest potential power grab for some time. I think that was his point, but I respectfully suggest that that needs to be placed in some wider context.

Let me first underscore the point that was touched on by my hon. Friend the Member for West Bromwich West, but also by the Lord Chancellor. Lest we forget, the arrangements that prevailed when we were in the European Union operated a bit as follows: the European Union, on behalf of all the member states, would go out to negotiate these agreements, and having reached an agreement with another country, it would fall to the UK Government in effect to implement it. How would that take place? It would take place either under the doctrine of direct effect, which lawyers in this Chamber will remember stems from the case of Van Gend en Loos, which essentially means—[Interruption.] The right hon. Member for Walsall South (Valerie Vaz) perhaps remembers; I am not sure.

The case of Van Gend en Loos means that, so long as such an agreement satisfies certain appropriate criteria, it would take effect in this country with no parliamentary intervention at all. In other words, hon. and right hon. Members would be entirely ousted from the process of its taking effect in the United Kingdom. However, even if it did take effect by way of direct effect, the effect of section 2(2) of the European Communities Act 1972 means that it would be Ministers using the negative resolution procedure who brought it into effect in this country.

[Joanna Cherry]

Of course that is accurate, but as I said earlier, the whole point of Brexit was to take back control. If that is really what Brexit was about, why are the Government reintroducing clause 2 without any of the compromises that I and others have suggested? The whole project of leaving the EU was about taking back control—so we are told—yet the Government are taking that control, rather than giving it to the House or indeed the people.

[Alex Chalk]

When we talk about taking back control, it is important to note that in future it will not be the EU but the British Government negotiating private international law agreements. I am simply pointing out that when the EU negotiated the arrangements and Parliament had no role at all, it did not seem to attract any concern in this place, yet when it is the British Government negotiating them on behalf of the UK, it seems to create difficulties.

[Mr Djanogly]

rose—

--- Later in debate ---

[Alex Chalk]

I will come to the hon. and learned Member’s second point in a moment, but first I will let my hon. Friend come in on this point.

[Mr Djanogly]

The difference is that in the EU the Parliament has a vote and a potential veto on international trade agreements. My hon. Friend is arguing in effect that we move back to the position before we were in the EU. I think the point the hon. and learned Lady is making, which I would back up is, that we do not want to go back to what we had before we were in the EU; we want to move forward and have a system that is relevant to today’s democracy.

[Alex Chalk]

I take that point completely. I will answer it by touching first on what the situation was before we entered the EU and then on how it ought to evolve in a way that I hope meets my hon. Friend’s concerns. He is right—others have touched on this—that arrangements were in place prior to our entering the EU, albeit on a bilateral basis, for us to enter into these sorts of agreements. Two have been touched on because they have been used quite recently: the Foreign Judgments (Reciprocal Enforcement) Act 1933 and the Maintenance Orders (Reciprocal Enforcement) Act 1972.

It is worth taking a moment to consider them. How is the first Act used in practice? In 2003, it was used for us to enter into a PIL agreement with Israel that had a significant impact: namely British courts would have to give effect to what magistrates courts in Israel said. Yet how was that brought into force in the UK? Was it brought into force through an Act of Parliament? No. Was it was brought into force through the affirmative resolution procedure? No. It was brought into force through an Order in Council. It states:

“Her Majesty, in exercise of powers conferred on Her by section 1(4) of the Foreign Judgments (Reciprocal Enforcement) Act 1933, is pleased, by and with the advice of Her Privy Council, to order”—

and then she gave effect to this private international law Bill. My point is simply that this procedure, which was used in 2003, is far inferior to what we are introducing in clause 2. We are doing away with any idea of an Order in Council, which we accept would be too old fashioned. The appropriate way to apply scrutiny in this House is through the CRAG procedure and the affirmative resolution procedure.

The second Act was used in respect of a US agreement in 2007 as a result of which an Order in Council had the effect that an order on maintenance would have to be given effect in the UK. How was that PIL agreement given effect in the UK? It was not through an Act of Parliament but again through an Order in Council, and again we are going beyond that in this Bill.

In dealing with this matter, I want to make one final and very important point. Not content with simply using Orders in Council to introduce PIL agreements in the past, in fact the House has legislated in recent memory to include more scope to introduce PIL agreements by way of delegated legislation. First, the House passed the Insolvency Act 2000, which created a power to introduce regulations in 2006. Secondly—this is the final point that I will make on this issue, but it does seem relevant—the House passed the Mental Capacity Act 2005. That Act created powers to make further provision as to private international law. Paragraph 32(1) of schedule 3 states:

“Regulations may make provision—(a) giving further effect to the Convention”—

that is the convention on the international protection on adults—

“or (b) otherwise about the private international law of England and Wales in relation to the protection of adults.”

In other words, it was being created in 2005.

[Mr Djanogly]

I appreciate that, but it did not provide a statutory instrument for looking at international financial bonds, insolvency law or other jurisdictional issues; it was focused on that specific area. The point that has been made by many hon. Members this afternoon is that this is too broad.

[Alex Chalk]

I accept my hon. Friend’s point, but the way it has been framed thus far is, “Look, this is constitutionally unprecedented.” It is not constitutionally unprecedented, and that ought to be borne in mind.

The distinguished Chair of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), made the proper point about criminal laws, and I recognise that that is something that we should look at carefully. It would be going too far to suggest that delegated legislation is not used to introduce criminal laws. An extremely distinguished paper was produced by academics at the University of Glasgow which went so far as to say that the overwhelming majority of criminal offences are created by delegated legislation, particularly where they are highly specific, technical, environmental offences and so on, so it is not without precedent at all, but I recognise that the point requires consideration.

In short, the Bill will future-proof our legislative requirements in this area for the years to come, while at the same time ensuring that UK businesses, individuals and families can continue to benefit from an efficient and effective framework to help resolve cross-border disputes. It will also ensure that our domestic laws can keep up to date with the latest developments in private international law in international forums, and that the UK can implement any agreements it intends to join in a timely manner while maintaining appropriate parliamentary oversight. I commend this Bill to the House.

Question put and agreed to.

Bill accordingly read a Second time.

PRIVATE INTERNATIONAL LAW (IMPLEMENTATION OF AGREEMENTS) BILL [LORDS]

Motion made, and Question put forthwith (Standing Order No. 83A(7)),

That the following provisions shall apply to the Private International Law (Implementation of Agreements) Bill [Lords]:

Committal

1. The Bill shall be committed to a Committee of the whole House.

Proceedings in Committee, on Consideration and up to and including Third Reading

2. Proceedings in Committee of the whole House, any proceedings on Consideration and any proceedings in legislative grand committee shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which proceedings in Committee of the whole House are commenced.

3. Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day.

4. Standing Order No. 83B (Programming committees) shall not apply to proceedings in Committee of the whole House, to any proceedings on Consideration or to other proceedings up to and including Third Reading.

Other proceedings

5. Any other proceedings on the Bill may be programmed.—(Leo Doherty.)

Question agreed to.

[Mr Deputy Speaker (Mr Nigel Evans)]

We will now suspend the sitting for three minutes; those who are leaving the Chamber should do so carefully.