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

Debate between Baroness Taylor of Bolton and Lord Pannick

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Wednesday 13th May 2020 Lords Chamber

[Lord Pannick]

My Lords, I agree with the observations of the noble and learned Lord, Lord Falconer of Thoroton. I gave my reasons earlier for thinking that Clause 2 should not stand part and I shall not repeat them. I shall add just one further point. There has been discussion this afternoon, particularly from the noble Lords, Lord Adonis and Lord Foulkes of Cumnock, about the disadvantages of Virtual Proceedings, disadvantages notwithstanding the exceptional efforts made by the clerks and the staff, for which we are all very grateful, to ensure that these Virtual Proceedings can take place. The additional disadvantage that I want to mention—additional to those who have already been identified—arises from the correct observation of the noble and learned Lord that the Minister stands alone on this subject; all other speakers have explained why Clause 2 is objectionable.

The point is that if we were on the Floor of the House, the Minister would not just hear and see those who are speaking; he would see and hear expressions of disapproval from all around the House, including from his own Benches; he would sense the degree of concern that there undoubtedly is about the constitutional implications of Clause 2. This debate has highlighted those concerns, but I hope the Minister will understand that there is a very widespread concern around the House, not just from those who have spoken today but from those who would be present in Committee were normal proceedings to apply. By their presence and their body language, other Members of the Committee would indicate their profound concern. I hope he will take all that into account before Report.

[Baroness Taylor of Bolton (Lab)]

I am in a slightly different position from many noble Lords because I joined this Committee sitting simply because of the strong feeling on the Constitution Committee, which I chair, that Clause 2 should not be part of the Bill. I am not a lawyer, so I have listened to the last nearly four hours with great interest. I knew that this was a complex area; having listened to all that has been said I think it even more incredible that the Government are actually suggesting that issues of this kind should be decided simply on their say-so and by secondary legislation. I cannot comment on the details and complexities of Lugano or anything else, but I have heard qualified senior lawyers talking about this, and anyone who has heard that would be convinced that there should be proper parliamentary consideration of all these issues before the Government are allowed to take any direct action. It is simply wrong, I think, that these matters will be determined by secondary legislation.

The Constitution Committee was unanimous in its view: we do not divide on party lines anyway, but it was not a difficult discussion, because members of the committee thought it was blindingly obvious that Clause 2 should not be part of the Bill. 

We did, of course, have another thought at the back of our minds. That is the fact that we have been increasingly concerned, over many years, by the way in which the Government have used—or maybe abused—secondary legislation. We have seen an increase in the powers taken through secondary legislation. It is a question of not just the number of SIs but their content. The noble Lord, Lord Pannick, referred earlier to some of the consequences that might arise from this situation in the creation of new criminal offences if Clause 2 remains. We have seen new criminal offences created by SIs produced by the Government. I know that the noble and learned Lord, Lord Judge, will speak later; I am sure that he will emphasise this very significantly.

Put simply, the Constitution Committee thinks it wrong that international agreements should be dealt with by the Government through secondary legislation. I certainly hope that either the Government will think again about this or that this clause can be taken out on Report. I share the concerns expressed by my noble and learned friend Lord Falconer, my noble friend Lord Adonis and others about the procedure whereby we cannot vote at this time and express our opinion properly. However, I urge the Government to consider absolutely all that has been said today and realise that it is not good for parliamentary democracy and accountability for Clause 2 to remain part of the Bill.