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

Lord Garnier Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 3rd June 2020 Lords Chamber

It comes as no surprise that I view the Bill with some scepticism on the principle of building consent. I therefore ask the Minister to give a copper-bottomed guarantee that full consultation will take place well in advance over any issues that might arise from this legislation that fall within a devolved competence in either Wales, Northern Ireland or Scotland.

[Lord Garnier (Con)]

My Lords, as the noble and learned Lord, Lord Falconer of Thoroton, explained in Committee on 13 May, the Official Opposition had no objection to the three treaties covered by the Bill being brought into domestic law via primary legislation, but they had very considerable objections to Clause 2. Their primary objection to Clause 2 on 13 May, repeated today, was that it would allow the Government to change the law by delegated legislation.

I have no doubt that other noble Lords who have yet to speak, like noble and learned Lords and noble Lords who have already spoken, will support the noble and learned Lord, Lord Falconer, in his arguments while paying due regard to the contribution of my noble and learned friend Lord Mackay of Clashfern. For my part, I agree with the noble and learned Lord, Lord Falconer, on the matter of principle but gently remind your Lordships’ House that none of his arguments based on constitutional impropriety found favour with the Government of which he was a distinguished member between 1997 and 2007.

I spent a fair amount of time, when on the Opposition Benches, arguing with the noble and learned Lord’s colleagues, as he does now with mine, that the misuse of secondary legislation to alter or extend primary legislation is wrong. I thought it was then and I think it is now. If, as he appears to have done, he has changed his mind, I am delighted, but he must know, having been in Governments with majorities of 179, 167 and 157, why Governments with large majorities resort to this device: it is expedient, it is convenient and they can.

There is generally far too much legislation and most of it is inadequately considered in the House of Commons. Bills are closely whipped and programmed and Governments of all stripes—Conservative, Labour and the recent coalition—have used Henry VIII powers allowing Ministers to make law with insufficient parliamentary scrutiny. I make that observation coolly.

I am neither shocked nor surprised that the Bill contains such provisions, nor that the Official Opposition have taken the stance they have on the question, today and in May. I simply point out, as the noble and learned Lord, Lord Falconer, must know, that this is what happens and will continue to happen until Governments with large majorities do less and do it better.

I think I am right in saying that only two of us speaking to this group of amendments—the noble Lord, Lord Hain, and I—were Members of Parliament, and government and shadow Ministers, in the other place before arriving in your Lordships’ House. I am quite sure that the noble Lord, Lord Hain, will not agree with me when I say that we have brought with us a degree of realism or cynicism, but as Front- and Back-Benchers we served on Bill committees and secondary legislation committees using the affirmative and negative resolution procedures. We know how Governments manage the agenda in the other place.

Therefore, when I see Amendment 20, which would ensure that all regulations made under Clause 2 were subject to a lengthy and protracted super-affirmative resolution procedure, I see a procedure which, if it cannot be killed at birth, will be neutered. I do not wish to be unhelpful, and I readily acknowledge that the noble and learned Lord has said that this is a probing amendment, but I fear that what I see is a cul-de-sac. I confess that I took part in similar debates on Henry VIII powers when in opposition to his Government. His fellow Ministers smiled sweetly and the provision was passed into law exactly as they had drafted it. My noble and learned friend Minister will be less direct than me, but one only has to read the terms of the amendment to realise that, but for the noble and learned Lord’s advertised withdrawal of it, it is heading nowhere but the butcher’s block, if not in your Lordships’ House then when it gets to the other place.

The noble and learned Lord, Lord Falconer of Thoroton, is of course right to highlight the constitutional problem, a problem that he could not see quite so clearly when he was in government. I do not wish to discourage others from arguing against these ministerial powers even if, as I learned when I was in opposition, nothing will come of them today through the Bill. The arguments must be made, but in the context of the Bill I do not want the migration of these conventions into UK law delayed by this bigger constitutional question. I thus urge your Lordships to let it through unamended, not because I agree with the overuse of Henry VIII powers but because it is going to happen anyway and today is not the day to reform their use piecemeal. That said, I hope this very necessary reform will soon come about more widely with the agreement of both Houses and all parties.

[Lord Bhatia (Non-Afl)]

My Lords, the Bill is highly technical for a person who is not trained as a lawyer and does not have a degree in international law. I am not one of those legal minds. I have gone through the various features of the Bill and its policy background in some previous debates.

My concern is about divorces. Children often suffer most when a divorce takes place. The Advocate-General for Scotland, the noble and learned Lord, Lord Keen of Elie, said in a debate in March:

“Private international law is viewed by some as a technical and specialist area of law, but it is an essential one. Without private international law agreements, UK businesses, individuals and families would struggle to resolve the challenges they face when dealing with cross-border legal disputes.”


He went on to say that

“if a family relationship breaks down and one spouse moves abroad, they make it easier to sort out arrangements in the best interests of their children.”—[Official Report, 17/3/20; col. 1439.]

These issues become very important when the marriage has taken place in a religious ceremony in a foreign country and one of the spouses is not British and the other is British by nationality. Often the non-British spouse gets the children and goes back to their country of birth. Here I refer to the sub-continent countries such as India and Pakistan. The spouse who is British and lives in the UK finds it difficult to fight a legal battle over the custody of the children when the other spouse is in India or Pakistan. The issue is further compounded because the cost of litigation is high and the British spouse cannot afford it. The other issue is that the legal processes in these countries can take many years to go before a judge because of the calendar of the courts, which have to deal with many cases each day. In many cases the British Embassy tries to lend assistance, but there is a limit to how much it can help.

I do not wish to raise the issue of forced marriages in this debate. I am just raising this issue because I feel that it will raise its head in future. From 1 February this year the UK has regained full competence to enter into international agreements on PIL in its own right. Such agreements with many countries will take a long time and could cause considerable costs and delays to pending court cases. Can the Minister assure the House that special arrangements will be made for such pending cases, particularly where children are involved?

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

Lord Garnier Excerpts

3rd reading & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords
Monday 29th June 2020 Lords Chamber

[Lord Falconer of Thoroton (Lab)]

I am obliged to the noble and learned Lord. There is no dispute between us; all three amendments should be approved, to reflect the changes resulting from removing the wider power. The Minister repeated his argument for why that power should be there. We have had this argument three times now. It was rejected when he put it to the Delegated Powers Committee, rejected when it was put to the Constitution Committee, and massively rejected when it was put before your Lordships’ House, so there is no point repeating it again.

The Minister said that we should be dealing with subsequent conventions by secondary legislation. We have made amendments in this Bill to the three conventions that we are bringing in today. We could not have done so if his Clause 2 powers had been there. I hope that he will bring back what was the view of everybody in the Chamber, apart from him—namely that the Clause 2 power should not be there.

[Lord Garnier (Con) [V]]

My Lords, as is often the case with legislation bringing treaties into domestic law, the meat of this Bill is to be found in the schedules rather than the clauses. Unfortunately, there was some gristle in Clause 2 that made it less palatable. That said, there has been a universal desire to see the three conventions in question come into our post-EU domestic law, and, subject to the already-announced recognition of the points made on Report on 17 June by the noble and learned Lord, Lord Wallace of Tankerness, in relation to the Hague Convention 2000, the real substance of this Bill has been agreed. I congratulate my noble and learned friend the Advocate-General, who has been carrying the Bill more or less on his own.

However, I also commiserate with him on coping with the gristle. He has not looked, still less asked, for sympathy from any of us. I dare say that he might have hoped for more voluble support from this side of the House, but as the experienced advocate that he is, he has not revealed his disappointment, even when the noble and learned lord, Lord Mance, disobligingly compared him to Monty Python’s armless and legless Black Knight.

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.

Having said that, I would not want the noble and learned Lord, Lord Falconer of Thoroton—who is just as much a politician as he ever was in government 15 years ago—or the Labour Party, to claim that the amended Bill shows them in an altogether angelic light. In these proceedings they have no halo to burnish. As they know only too well, and as was graciously accepted by the noble Lord, Lord Blunkett, in Committee, there were times when the noble and learned Lord, Lord Falconer, and his colleagues in government enthusiastically gave the Executive extensive Henry VIII powers—powers he now decries. The same could be said of my Liberal Democrat partners in the coalition Government and, I readily confess, of me.

However, let us in a Bill of this type and content, cast political point-scoring aside and do two things. First, we should send this Bill to the other place with our strong advice that those Henry VIII powers that were once in the Bill should stay out of it so that the three conventions can be brought back into our national law as soon as can be sensibly arranged. Secondly, we should invite a Joint Committee of both Houses thoroughly to investigate and review the use of Henry VIII powers and make recommendations on their future use. The Clause 2 powers were by no means the most egregious example of them, but I am not alone in thinking that Ministers should not make or amend the criminal law or the substantive law more generally by secondary legislation. That should be confined to administrative and simple regulatory matters.