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

Lord Holmes of Richmond Excerpts

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

[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?

[Lord Holmes of Richmond (Con)]

My Lords, this is a short piece of legislation but an incredibly significant one. That why I wanted to speak to this group of amendments.

Before going into the detail, I would like to make a general point to my noble and learned friend the Minister. Does he agree that the very nature of English law—how it has developed and how it is seen around the world—gives us huge potential post December as a tremendous export as it is respected and highly used across the globe, and we really should seek to maximise its positive impact to this respect?

I turn to the amendments. We see, as we have heard from other noble Lords, that it is envisaged that these powers would be used only infrequently—infrequently, yes, but with potentially extraordinarily huge impact for the individual. So, building on other noble Lords’ comments, my concluding question for my noble and learned friend the Minister is: as currently constructed without these amendments, how does he see the necessary level of scrutiny taking effect? What is his overall view of the coherent use of secondary powers and the coherent and sustainable way to legislate not just on matters such as these but across the piece?

[Lord Triesman (Non-Afl)]

My Lords, I am afraid I must start by disappointing the noble and learned Lord, Lord Garnier: I have not been discouraged from pursuing the point that a number of noble Lords have made in this debate. I strongly support my noble and learned friend Lord Falconer’s amendments. I do so for all the reasons that have been given about the need for scrutiny, questioning and elaboration. Because a number of other noble Lords have made those points, I will not make them again, other than to say that they seem to me to have considerable force.

Like the noble Lord, Lord Bhatia, I am not a lawyer, but I share with my noble friend Lord Hain the honour of having been a Foreign Office Minister. One of the things that was in my portfolio was the consular service. I know in practice from the responsibilities that the consular service laid on me that, particularly where there were criminal cases or the kinds of cases that the noble Lord, Lord Bhatia, has mentioned, which touch on people considerably because they have to do with marriage, children and so on, there was a huge expectation on the part of UK citizens that the Foreign Office would be able to offer them competent advice and help through the consular service. Frequently, in order to work out what was needed, we found that we also, although not lawyers, turned to the Lord Chancellor’s advisory committee. We tried to make sure that we had a very strong sense of what was and what was not possible, and from that we could work out what sort of help we could—or, sadly, on some occasions could not—provide to British citizens.

The biggest liability for British citizens was of course that, as in many cases in domestic law, they were not absolutely clear about what the law was or what it might imply for them. They could see nothing of considerable relevance to go back to in the debates there had been about it. Indeed, they probably did not even go back to those debates very frequently, but nor could we—the people who were trying to work out what should be provided through the service.