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

Lord Falconer of Thoroton Excerpts

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

Moved by

[Lord Falconer of Thoroton]

1: Clause 2, page 2, line 27, leave out subsection (1) and insert—
“( ) The appropriate national authority may make regulations for the purpose of, or in connection with, implementing the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters signed at Lugano on 30th October 2007 (the “2007 Lugano Convention”), in the event that the United Kingdom becomes a party to the Convention in its own right.”

[Lord Falconer of Thoroton (Lab)]

My Lords, the effect of the three amendments in this group—Amendments 1, 4 and 5—is that the power in Clause 2 which allows a Minister by regulations to change the law of the United Kingdom to reflect an international treaty on private international law that the country has entered into would be restricted to the Lugano convention only.

It is perhaps sensible if, in addressing the three amendments in this first group, I set out the context, in effect, of most of my amendments in Committee. Clause 1 introduces into the domestic law of the UK the content of three private international law treaties: one dealing with the abduction of children from one country to another; one dealing with the enforcement of child support and family maintenance orders; and one dealing with commercial agreements where a choice of court clause is specified in the agreement. The effect of bringing these three conventions into UK law is that the terms of those conventions become part of our domestic law and are what our courts then give effect to as part of the law. For example, the Hague abduction treaty means that where a couple bring up a child in one country, where there is custody with one parent, and that child is abducted by the other parent to another country—for example, the UK—then, according to that convention, the UK courts, as a matter of domestic law, should return the child to its normal place of residence and should refuse to do so only if there is fear for the child’s safety.

These private international law agreements change the law of the country as a result of agreements that the Executive have entered into. We on these Benches have no objection to those three treaties being brought into domestic law—this is a piece of primary legislation—but we have very considerable objections to Clause 2, and our primary position is that it should not stand part of the Bill. It allows the Government to change the law of the country by delegated legislation, even by changing primary legislation, to give effect to agreements that they have entered into in private international law.

Our objections are, in effect, threefold. First, as a matter of constitutional propriety, this is wrong. It is wrong that there should be such little accountability by Parliament in respect of potentially very significant changes in the law. In support of that principled constitutional objection, I have the support of the Constitution Committee, which is chaired by my noble friend Lady Taylor, the Delegated Powers Committee, which is chaired by the noble Lord, Lord Blencathra, and the chair of the Treaties Sub-Committee, my noble and learned friend Lord Goldsmith. All see this as a matter of constitutional impropriety.

In the face of that unanimity of view about what is a constitutionally improper thing to do, what is the Government’s justification for doing this? I have scanned carefully the two speeches by the noble and learned Lord the Advocate-General for Scotland, Lord Keen of Elie, at Second Reading about why this move is justifiable. He gave no general explanation in either speech. He acknowledged in his opening speech that there might be an issue about the Lugano convention, which deals with the jurisdiction and enforcement of judgments between, among other things, members of the European Union. He said that we might end up in a situation where we want to join the Lugano convention, that we have to do it before the end of the transition period, and that we would negotiate it only at the very end of the period. He said that because of those exceptional circumstances there should be power to join the Lugano convention by delegated legislation.

For that reason—and that is the only example given —we have tabled, by way of probing amendments, Amendments 1, 4 and 5, which restrict the power to the Lugano Convention because of those special circumstances. There is a live debate about whether the UK should join the Lugano Convention, and in his speech at Second Reading the noble and learned Lord, Lord Mance, set out the shortcomings of the convention.

My preference is that we delete Clause 2 altogether and that, if the Government of the day join an international convention that has effects on our domestic law, that should be approved only by primary legislation. It is said that private international law is a “narrow” and “specialist” topic. The complex rules surrounding it can be both narrow and technical, but they deal with hugely important issues that affect everybody, such as family life, consumer, personal injury and international trade issues. That the law is complex does not mean that the issues covered are not of real significance.

I invite noble Lords to consider whether they wish to restrict Clause 2 only to the Lugano Convention, but that is in the wider context of urging them not to allow the Government this wholly inappropriate power, never used previously and for which no proper justification has been given. I beg to move.

[Lord Pannick (CB)]

My Lords, I support the observations so powerfully made by the noble and learned Lord, Lord Falconer of Thoroton. I too am concerned about the width of Clause 2. My concern arises from the discussions and conclusions of your Lordships’ Constitution Committee, of which I am a member, serving under the distinguished chairmanship of the noble Baroness, Lady Taylor of Bolton.

As the noble and learned Lord, Lord Falconer, said, the committee concluded that Clause 2 raises matters of considerable constitutional concern. The concern is that, with the exception of EU law—from which we are in the process of extracting ourselves—it is a fundamental principle of our constitution that international agreements can change the content of our domestic law only if and when they are given force by an Act of Parliament. The Constitution Committee saw no justification for the change that Clause 2 would introduce—that is, to confer on Ministers a power to achieve such a result by statutory instrument.

We recognise that many of the international agreements to which Clause 2 would apply are technical in nature and that their text cannot be changed after negotiations have concluded; nevertheless, we think there is no justification for allowing our law to be changed by statutory instrument without the need for full parliamentary debate. Clause 2 will allow not just for the implementation of the text of the international agreement but for “consequential, supplementary, incidental” provisions. It will allow Ministers to create new criminal offences by statutory instrument. These are matters requiring detailed scrutiny of a Bill through the various stages of the parliamentary process, during which amendments can be debated and, if necessary, divided on. Members of the Constitution Committee are concerned to maintain ministerial accountability to Parliament. This is not emergency legislation; it is a proposal for a permanent shift in power to the Executive.

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[Lord Keen of Elie]

There may of course be incidental policy issues that arise when we come to draw down into domestic law an obligation, or obligations, undertaken at the level of international law. Clearly, in circumstances where there were policy choices to be made, a Government would consult upon those matters to bring forward policy choices that were acceptable to stakeholders. If they were not acceptable to Parliament, even after consultation, Parliament would not pass the affirmative SI in question. I do not accept that it is necessary in each and every instance to bring forward primary legislation for this purpose. In those exceptional cases where there may be consequential issues to be addressed, clearly they will be addressed at policy level. They will be consulted upon and the matter brought forward. The Government will not bring forward a policy proposal for an incidental measure without realising that Parliament would be prepared to accept it. That would be a pointless exercise.

[Lord Falconer of Thoroton]

This very interesting debate has raised, in effect, two substantial questions: as a matter of principle should there be the Clause 2 power at all and, if not, should we nevertheless make an exception for the Lugano convention?

First of all, should there be this power at all? In a speech that might be described as a Scottish smokescreen —because it dealt primarily with drafting issues and issues about the dependent territories and, important as those are, did not really address the principle at all—the noble and learned Lord, Lord Keen of Elie, gave one line to justify this unprecedented power. He said that not having this power under Clause 2 would prevent implementation of any international treaty “in a timely manner”. I forgive the noble and learned Lord for putting it in such wide terms and assume he means private international law treaties only. With respect, what he says is plainly wrong.

The noble and learned Lord was given the opportunity on two occasions to provide evidence that it would prevent the implementation of private international law treaties in a timely manner, once before the Delegated Powers Committee of this House and once before the Constitution Committee. The Delegated Powers Committee said that the Ministry of Justice

“offers no empirical evidence that delay has been caused to stakeholders by late implementation of private international law agreements … The argument from delay, apart from involving unsubstantiated assertion, might justify dispensing with Acts of Parliament in other areas where governments need to legislate quickly.”

It rejected it on grounds of lack of evidence and on grounds of principle.

The Constitution Committee also looked at the very same assertion made to it, and said:

“However, the Government offers no evidence to support this argument. The UK has become a party to only 13 Hague Conventions over the course of nearly 60 years. In respect of some of the Conventions the UK has signed, full ratification and implementation has taken years to complete. The Hague Convention of 13 January 2000 on the International Protection of Adults … was ratified for Scotland in 2003 but has not been ratified for England and Wales or for Northern Ireland … While there may or may not be an increase in the number of PIL agreements that are made in the coming years, there is nothing to suggest that PIL agreements will be produced at a rate that would preclude implementing them via primary legislation, nor that there are exceptional circumstances so urgent that resort to a fast-track bill would be impossible. It is therefore difficult to give weight to the Government’s argument that reputational damage will result from not having the power.”


Anybody who has looked at this in detail thinks the Minister’s argument is rubbish. It is not surprising that he never mentioned it at Second Reading.

The Minister then cited occasions when it has been done before, in particular two primary Acts of Parliament: the Administration of Justice Act 1920 and the Foreign Judgments (Reciprocal Enforcement) Act 1933. Reading those is worth while. The 1920 Act refers to a provision whereby a judgment obtained in one dominion can be enforced in other dominions as long as the dominion passes a power to agree to that. The 1920 Act—the 1933 Act is the same, but not in respect of the Empire—says that if another country agrees to this convention, we can add the name of that dominion or country to the list, having approved the convention by primary legislation. The idea that those two Acts give support to the proposition that we can now import wholesale into our domestic law every international treaty we enter into is absolute nonsense. They provide no sort of precedent at all. I really hope the Minister has noted that every single person who spoke took the view that Clause 2 was inappropriate.

As far as Lugano is concerned, I thought the points made by the noble and learned Lord, Lord Mance, were powerful. I do not know whether they are right or wrong, but they illustrate that we need a proper debate about Lugano: we cannot just import Lugano into our law by secondary legislation. Our debates about Lugano today—which, as one speaker identified, were not answered by the Minister; we never debated Lugano, we simply debated the principle of whether Lugano could be an exception to the deletion of Clause 2—illustrate that this very important convention, about which two views prevail, should be the subject of primary legislation. Of course, I will come back to this on Report.

The important point that was made about procedure, and which is worth emphasising, is that we cannot change a Bill unless there is consent, or as a result of a Division which agrees to change that Bill. It means that we cannot proceed with legislation until we have the ability to divide on legislation, whether remotely or in person. We cannot get to the next stage of this Bill until we have the power to divide. With the permission of the House, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

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Moved by

[Lord Falconer of Thoroton]

2: Clause 2, page 2, line 29, leave out “relating to” and insert “that agreement exclusively relates to”
Member’s explanatory statement
This amendment ensures that Clause 2 shall apply only to those international agreements that exclusively relate to private international law.

[Lord Falconer of Thoroton]

My Lords, I shall try to deal with this group very quickly. It illustrates the width and uncertainty of the power given in Clause 2. Clause 2(1) states:

“The appropriate national authority may make regulations for the purpose of, or in connection with, implementing any international agreement, as it has effect from time to time, so far as relating”.


As I understand it, if there is a treaty that relates partly to private international law and partly to other things, the Government can use regulations to implement the part that relates to private international law and make any regulations relating to that. For legal certainty, it would be much more appropriate if this power could be used only if the agreement it covers relates exclusively to private international law. That is what Amendment 2 does.

The next amendment in the group is Amendment 6. Clause 2(5) states:

“Regulations under this section may include provision about … legal aid.”


For reasons that are completely mysterious, provisions about legal aid can be made under a Bill on private international law. There should not be power under this Bill to deal with legal aid. If the Government want to make provisions about legal aid that might relate to the consequences of a private international law agreement, they should be made under legal aid legislation, not under this Bill.

Line 22 of page 3 of the Bill allows the Government, by regulation, to introduce changes to our domestic law in respect of not only agreements that have been entered into but of agreements to which we are expected to become a party. That would mean that if the Government reasonably believe they are about to sign something they can pass legislation that gives effect to it. What happens if we do not sign it? I suggest that we restrict the power to where the United Kingdom is a party to such an agreement. It would not cause a problem in relation to time. We normally sign and become a party before ratification, so the amendment would not cause any difficulties.

Amendments 10, 11, 12 and 13 would restrict the definition of private international law in a variety of ways. Currently, the definition of private international law in the Bill is not an inclusive definition but states what private international law includes but not exclusively. It says that it includes

“jurisdiction and applicable law … recognition and enforcement in one country or territory of … a judgment, order or arbitral award … an agreement, decision or authentic instrument determining or otherwise relating to rights and obligations”

and “co-operation between … countries”. First, for legal certainty reasons it should not be a definition that includes only some examples and nothing else. It should relate only to those for the purposes of legal certainty. Secondly, it should not deal with arbitral awards because if it does it will be stamping on the toes of other bits of legislation. Thirdly, when the Bill refers to

“an agreement, decision or authentic instrument determining or otherwise relating to rights and obligations”

that covers practically everything. It needs to be restricted.

The final amendment in this group relates to Clause 2(8), which allows model laws to be introduced. Model law is where a number of countries agree, for example on insolvency, that certain principles should be agreed across borders to apply to that area of law. There is no reciprocal requirement for each country to introduce the model law and it is for each country to decide how it implements a model law. Clause 2(8) would allow, for example, the UK to introduce by statutory instrument wholesale changes to our insolvency law, even though there was no reciprocity with other countries. It would be a door that opened a range of legislation on insolvency simply because some of the provisions included model laws. It is wholly inappropriate that this should be in the Bill. I beg to move.

[Lord Anderson of Ipswich]

My Lords, those of us who are less than happy with Clause 2 have three options: restricting it to Lugano, as we have just debated; voting to remove it altogether, as both the Delegated Powers and Regulatory Reform Committee and the Constitution Committee have recommended; or voting to trim its scope in a variety of respects, as the amendments in the name of the noble and learned Lord, Lord Falconer, in this and the following group seek to achieve. I welcome the amendments in this group, essentially for the reasons given by the noble and learned Lord, which there is no point in my repeating.

However, Amendment 16, which would remove the reference to model laws, is particularly important for two reasons. First, as the noble and learned Lord said, model laws are not international conventions but, as expressed by the Bar Council, collections of soft law provisions which often need to be modified substantially before being given effect in domestic law. The noble and learned Lord, Lord Falconer, illustrated that very well with the example of insolvency. Secondly, model laws are not subject to the provisions of CRaG and cannot benefit from such “limited and flawed” comfort—in the words of the Constitution Committee from April 2019, repeated today by the noble and learned Lord, Lord Mance —as may be given by the operation of its mechanisms.

That said, I incline to think that these amendments, even viewed collectively, are insufficient to meet the substantial constitutional concerns that the Constitution Committee identified in its recent report on this Bill, concerns which to my mind the Minister has not yet allayed, for example with his remarks on timing and reputational damage. That is a matter for the debate on whether Clause 2 should stand part, on which I see that a good deal of firepower has been virtually assembled and which I do not seek to pre-empt or express a final view on at this stage.

Finally, I think we all want to acknowledge the enormous efforts made by the staff of the House to ensure that debates on legislation such as this can take place in a coherent manner. I hope that I do not tempt the fates by saying that. However, I echo the comments of my noble friend Lord Pannick and the noble Lord, Lord Adonis, that voting on the Bill must be possible, by whatever means, when it is brought back on Report. I am grateful for the reassuring words of the Minister on that, but I would be even more grateful if he would upgrade his reassurance into an undertaking, which I think he indicated it was not.

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[Lord Falconer of Thoroton]

The extraordinary tedium of that answer should not detract from the enormity of what the Minister has just said. He basically said “I can’t really give you a definition in the Bill of a private international law agreement but we, the Government, will know it when we see it. Yes, it’s true that we’re taking power to do things that nobody really wants us to do, but generally we won’t do it—and if we were thinking of doing it, we’d consult first.” That was in relation to arbitral awards. In relation to model laws, he was saying, “It did occur to us that this looked like quite a convenient power for us to have, so could we have it?”

My answer is that this debate illustrates what a danger Clause 2 constitutes. I also look with real scepticism at the suggestion that the Government would consult, when they did not consult the Lord Chancellor’s Advisory Committee on Private International Law, chaired by the noble and learned Lord, Lord Mance, at all on the network of private international law instruments they introduced in the light of us leaving the European Union; they did not consult at all on this constitutionally unacceptable Bill. Although it was very hard for us to listen to that speech, it was quite an important one. I beg leave to withdraw my amendment.

Amendment 2 withdrawn.

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Moved by

[Lord Falconer of Thoroton]

3: Clause 2, page 2, line 31, leave out subsections (2) and (3)

[Lord Falconer of Thoroton]

My Lords, we have adumbrated many of the same points over and over, because they keep coming up again and again, so I will try to restrict my remarks on these amendments to essentially only new points. This group of amendments effectively deletes the Government’s regulation-making power where the regulations in effect intend to say how an international treaty shall apply either as between Scotland, England, Wales and Northern Ireland—within the United Kingdom—or as between the United Kingdom and the Isle of Man, any of the Channel Islands or a British Overseas Territory.

The effect of my amendment is that the Clause 2 power cannot be used where it is proposed to apply an international convention between the parts of the UK; to apply an international convention between the UK and a relevant territory; or to amend, extend, adapt or revoke any declaration made at the time of ratification. It is wholly wrong that any of these things should be done by regulation as opposed to primary legislation. I use these amendments simply to indicate the width of the power being sought. I beg to move.

[Lord Wallace of Tankerness (LD)]

My Lords, I will make two preliminary points. The first echoes what has been said in many of our proceedings so far this afternoon. Perhaps not surprisingly, as a member of the Constitution Committee, I do not think that Clause 2 should be in the Bill, for all the reasons already outlined both in committee reports and by a number of your Lordships in debates on earlier groups. I have not yet been persuaded or heard any argument to the contrary, so my primary position is that Clause 2 should not be there.

The second point is that, where these amendments relate to jurisdictions within the United Kingdom, it is a question not of whether it should be done but of how. In his response to the first group of amendments, the noble and learned Lord, Lord Keen, gave some good reasons why, as a matter of public policy, there should be certainty in the arrangements, for argument’s sake, for enforcing a Scottish court’s order in England, as there would be for enforcing an English court’s orders in France. Therefore, it is a question not of whether there is merit in having some kind of intra-UK arrangements but rather of how it should be done.

During Second Reading I reflected briefly on this and referred to the briefing from the Bar Council. It is perhaps worth going back to it and reminding ourselves what it said in relation to the provisions in Schedule 6:

“The question, however, whether to apply an international convention’s rules between parts of the United Kingdom is often a very difficult one. Where it is to be applied, extensive amendments to that convention are often appropriate, (an example being the provisions in the Civil Jurisdiction and Judgments Act 1982, which apply a substantially modified form of the European Union rules to intra-United Kingdom cases). The Bar Council is concerned that schedule 6 does not provide sufficient safeguards in this respect and considers that it should be amended to provide the requisite clarification.”


I endorse that. It is not a question about whether it should be done. We have heard that, for example, in the Civil Jurisdiction and Judgments Act 1982 there were requirements to amend or change the rules for intra-UK cases.

It is also important to note that we are giving powers to the national authorities—not just the United Kingdom Parliament but to Scottish Ministers and Northern Ireland Assembly Ministers. As far as I can see—I stand to be corrected if I have not noticed something —these regulations would be brought in without any consultation between the different Administrations. There is no doubt that private international law is a devolved matter as far as the Scottish Parliament is concerned, but negotiating international treaties does not affect the sovereignty of the United Kingdom, and it seems to make some sense that there should be some negotiation, or at least consultation and discussion among the constituent parts of the United Kingdom, before regulations are brought forward. As far as I can see, neither Clause 2(2) nor Schedule 6 makes any provision for that.

My position is that it is not a question about whether it is right and proper that there should be intra-UK arrangements but rather that what is proposed in the Bill does not provide adequate safeguards about how that should be done.

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[Lord Falconer of Thoroton]

The Minister remorselessly misses the point over a period of time. The purpose of the amendment is to ask the question: is it right that you can have a different private international law settlement as between the two countries or as between the United Kingdom and the other territories? Should that be decided upon by a Minister without primary legislation? The way the Minister answers that is to say, “You have to assume that it’s got to be done by secondary legislation”, which does not deal at all with the point. I beg leave to withdraw my amendment.

Amendment 3 withdrawn.

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[Lord Thomas of Gresford]

My Lords, I am of course speaking as a Welshman. We have a very limited interest in the provisions being discussed, but I have some questions. Since the time of Henry VIII, who has a great deal to answer for, the jurisdiction of England and Wales has been merged. Only in very recent years has there been a suggestion that Wales should have its separate jurisdiction. We are one of the three jurisdictions that will be subject to the Bill’s provisions; we go along with England. I would like to know whether there is any prospect of consultation with Welsh Ministers about what provisions are being brought into effect, because private international law covers such a wide range of things. It has particular relevance to family life in Wales as much as anywhere else. Will there be any consultation? If so, what will it be?

[Lord Falconer of Thoroton]

I simply underline the points made by my noble friend Lord Foulkes and the noble and learned Lords, Lord Wallace and Lord Hope. As far as my noble friend Lord Foulkes is concerned, the purpose of these amendments is to probe; as far as I am concerned, they illustrate the lack of thought that has gone into Clause 2. They simply underline the sense that there should not be a Clause 2.

[Lord Keen of Elie]

My Lords, I am obliged to the noble Lord, Lord Foulkes of Cumnock, for tabling what he very candidly pointed out were probing amendments. I am also obliged to the noble and learned Lord, Lord Wallace, who drew on his experience of the devolved Administrations and was able to outline the position in this matter. I will come in a moment to address the questions raised by the noble and learned Lord, Lord Hope, in the context of these provisions.

As the noble Lord, Lord Foulkes, pointed out, two authorities are identified in this part of the Bill that might proceed to implement matters of private international law in Scotland. That is consistent with legislation in other areas. The Secretary of State might decide, with the consent of the Scottish Ministers, to make UK-wide provision for implementation. That is why he is one of the identified national authorities, because there are circumstances in which the Scottish Ministers would be entirely content for there to be UK-wide provision.

Alternatively, if that is not the case, Scottish Ministers may themselves then proceed as a national authority to implement the matter in domestic law. That is because, as the noble and learned Lord, Lord Wallace, pointed out, the position is that—I am sorry, something came up on another phone and rather distracted me—the implementation of private international law is a devolved issue under the Scotland Act, so allowance is made for both provisions.

As regards this Bill, an LCM was discussed between officials. The Scottish Ministers have recommended that such an LCM should be provided, and the noble and learned Lord, Lord Wallace, pointed out the terms of the recommendation that Scottish Ministers have made to the Scottish Parliament with regard to this matter. Indeed, there was prior discussion about these proposals last year, when the Lord Chancellor, for example, was in communication with the Scottish Government on matters of the convention. Perhaps I can clarify this by reference to the points made by the noble and learned Lord, Lord Hope. The Secretary of State may be a national authority with the consent of Scottish Ministers because Scottish Ministers may, as sometimes happens, wish to see UK-wide regulations made here for implementation. Alternatively, as the national authority, they may choose to do that for themselves. The Secretary of State clearly does have the power to do that because under the Scotland Act there is the power to legislate for the entirety of the United Kingdom as regards the implementation of a matter that is otherwise within the devolved competences, so that does not raise an issue either.

With regard to the matter of whether or when it would be one national authority or the other, that is simply a matter that will be discussed, as it is in other contexts, between the United Kingdom Government and Scottish Ministers. If Scottish Ministers are content that the UK Government should legislate UK-wide on this matter, that will happen. If they are content for that to be done, then Scottish Ministers will deal with the matter. The Secretary of State cannot deal with the matter without the consent of Scottish Ministers, so I hope that that puts minds at rest in this regard.

As regards the identification of the Secretary of State as an authority and the reference, for example, in the Scotland Act to a Minister of the Crown, I accept that the reference in this Bill is more limited. Because I cannot answer immediately, I will consider why it was thought appropriate to limit it to the Secretary of State as opposed to the wider reference to a Minister of the Crown. But I will look at that to see whether there is an issue there that needs to be addressed.

As regards consultation on the implementation of international treaties, that is not an issue, but as regards entering into international treaties, that is of course a reserved matter. I recognise that it is appropriate that Scottish Ministers and others should be consulted on these matters for their interests when they arise. I do not understand that to be a difficulty in this context, nor a matter that would require express provisions in the terms of this Bill.

I thank the noble Lord, Lord Foulkes of Cumnock, for his probing amendment and I hope that I have been able to put minds at rest as regards why there are two identified national authorities for the purposes of Clause 2. In the event that Clause 2 stands, these are appropriate alternative mechanisms for the implementation of these provisions.

One final matter raised by the noble Lord, Lord Foulkes, was the issue of contract, but of course, where you have a contract, it will have a choice of jurisdiction and a choice of law. If the contract has Scotland as a choice of jurisdiction and Scots law as the choice of law, that will be binding if we have a situation in which, for instance, the Lugano provision applies. I hope that that answers the query in so far as I have understood it.

I cannot give a precise date for the provision of the LCM, but as the noble and learned Lord, Lord Wallace of Tankerness, himself indicated, Scottish Ministers have recommended the granting of an LCM, and it is not anticipated that there will be any difficulty. With that, I invite the noble Lord to withdraw the amendment.

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[Lord Adonis]

I have nothing to add.

[Lord Falconer of Thoroton]

I have nothing to add.

[Lord Keen of Elie]

My Lords, I thank the noble Lord for what I understand are, again, probing amendments. As I perhaps explained, the Crown dependencies and overseas territories have a constitutional relationship with the United Kingdom whereby the United Kingdom is responsible for their foreign relations. This means that the Crown dependencies and overseas territories do not generally themselves join international agreements, including agreements in the area of private international law, which we are concerned with here. Instead, an agreement that applies in the United Kingdom can usually be extended to apply also in a Crown dependency or overseas territory. We work with those Crown dependencies and overseas territories to determine where and when they would wish to have a private international law agreement apply between them and other contracting parties. The scope of the United Kingdom’s ratification of that agreement is then extended to them. This means that multilateral agreements extended to the Crown dependencies and overseas territories apply only between those jurisdictions on the one hand and the other contracting parties on the other, but not between the Crown dependencies and overseas territories and the UK. To apply the agreement with the UK, there needs to be a separate mirroring arrangement, as it is sometimes termed. I referred to that in responding to earlier amendments.

The general power within Clause 2(3) allows the United Kingdom to maintain and develop a private international law framework with the Crown dependencies and overseas territories as well as with foreign partners. That is the intent here.

The noble Lord asked about consultation. There was consultation, not with the governors of the Crown dependencies and overseas territories, but with each attorney-general and their officials. My understanding is that they were entirely content with the way in which these provisions are extended to the benefit of the Crown dependencies and overseas territories.

The noble Lord raised the question of entrustment. It does not directly arise in this context, but entrustment is where the United Kingdom essentially consents to a Crown dependency, for example, entering into an agreement at the level of international law. That can sometimes happen where, for example, a Crown dependency wants a reciprocal agreement with a foreign partner.

The behaviour of the overseas territories is monitored by the Foreign and Commonwealth Office and there are instances in which, for the purposes of good governance, the United Kingdom will intervene in the affairs of an overseas territory. The noble Lord himself gave an example in respect of the Turks and Caicos Islands where that has been done.

As regards the choice of court or arbitration that the noble Lord referred to, in so far as I understand his point, I would respond that it is up to parties to a private contract to determine how their disputes, if any, will be resolved. For that purpose, the parties can choose a law or legal system to apply to their private contract and the jurisdiction in which their disputes will be resolved. That is an issue that arises only in the context of their private contract and in the context of what we are dealing with here, which is private international law. At the level of private international law, we are concerned with the way in which other jurisdictions respect that law, respect the choice of jurisdiction and, indeed, then respect the judgment of that jurisdiction when it comes to enforcement.

I hope that answers the points raised by the noble Lord. I thank him for the probing amendments, but I invite him to withdraw Amendment 14.

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[The Deputy Chairman of Committees]

I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. It would be helpful if anyone intending to say “Not content” when the question is put made that clear during debate. It takes unanimity to amend the Bill in this Committee; this Committee cannot divide.

[Lord Falconer of Thoroton]

My Lords, I believe that Clause 2 should not stand part of the Bill. We have discussed these matters at considerable length today. I simply make the point that it will be constitutionally unprecedented if we end up in a situation where the Government have complete power in relation to private international law agreements in the future, not only to implement the changes to domestic law that are required by secondary legislation but to make regulations that relate to those agreements or connect with them, which goes very much wider than the terms of the agreement itself.

We have discussed considerably today the justification for this unprecedented power and it has been demonstrated —mainly on the question about timely implementation—not to withstand any degree of examination. I feel strongly that the House should reject Clause 2; we cannot do it in this Committee but, when the time comes, we should vote to remove it from the Bill. I think it is a separate debate as to whether there should be a special power in relation to Lugano, but this provision gives unlimited power for an unlimited time to introduce the consequences of international agreements into our domestic law with no primary legislation.

One final point, which has been made by the Constitution Committee, is that the consequence of doing this by secondary legislation is that it can be challenged in the courts and set aside by the courts on the grounds of judicial review. So not only is it constitutionally inappropriate, not only will it damage the quality of our private international law, but it will lead to legal uncertainty. Actions will be brought in court but set aside. I will invite the House on Report not to allow this provision to stand part. There is unanimity in this Committee with the exception—the plucky exception—of the Minister in that respect.

[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.