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

Lord Holmes of Richmond Excerpts

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

[Lord McConnell of Glenscorrodale (Lab)]

My Lords, these are sensible amendments and I support the Bill as it now stands. There was an interesting exchange on Report in relation to devolution issues, particularly in relation to Wales following the amendment moved by my noble friend Lord Hain. It was an informative debate. During that discussion, I raised the issue of the arrangements in place to involve the devolved Governments in the discussion of international treaties. There is a commitment in the concordat between the UK Government and the devolved Governments to ensure that there is prior consultation in relation to appropriate international treaties.

In that debate on my noble friend’s amendment, I asked specifically if it might be appropriate at some stage for us to move towards an institutional framework for the involvement of the devolved Governments in the agreement of negotiating mandates for international treaties, rather than simply a preference from Government to Government on consultation. I heard the response of the noble and learned Lord, Lord Keen, on that day and I read it again afterwards. The Government’s wording is carefully chosen. He said:

“We are very conscious of our responsibilities under the devolution settlements, and our approach in this area is always to seek to engage early and often when any questions arise. It is my view that such an approach of early engagement is the best way to make consultation genuinely meaningful.”—[Official Report, 17/6/20; col. 2251.]


That is of course very sensible. But will the Minister reflect on the opportunity for this and other Bills that will come before us as a result of our departure from the European Union and other factors to prompt us along the road of a better institutional framework for the engagement of the devolved Governments in negotiating mandates for international treaties? Perhaps, outwith a piece of legislation that might just polarise us in debate, there might be scope for a debate on this in your Lordships’ House in the future.

[Lord Holmes of Richmond (Non-Afl) [V]]

My Lords, I support the three amendments, largely for the reasons already eloquently elucidated by other noble Lords. I spare a word for my noble and learned friend the Minister in his dogged determination in the way that he has taken this Bill through. Perhaps he, like others, will agree that the Bill will now leave this place in a better state than when it arrived. We all hope that we are bidding au revoir to Clause 2 and hope that when the Bill appears in the other place it will in no sense be à bientôt.

In making those points, I underscore the important place of London as a centre for international dispute resolution. I ask my noble and learned friend, as I have on each occasion, to underline our gift—a gleaming jewel—in having English law and the jurisdiction of the courts of England and Wales.

[Lord Mann (Non-Afl) [V]]

My Lords, it is a little disconcerting to end up being thought by the noble and learned Lords, Lord Garnier and Lord Falconer, to be on the side of the angels, but I concur with the consensus that has emerged on the Bill. When we left the European Union, we did not leave in order to give the Executive more power. The argument that was put was that power would be transferred back to the British Parliament. There is a substantive difference between Parliament and the Executive in our democracy, and it would behove the Government in future to be significantly less reliant on so-called Henry VIII powers. That is not taking back control of democracy; it is ceding control to the Executive. That will come back and bite the Executive politically in the view of the general public at some stage in future. I am pleased that we have a consensus today.

Finally, I add to the question posed by the noble Lord, Lord Foulkes, to clarify what the situation will be in relation to Northern Cyprus.

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

Lord Holmes of Richmond Excerpts

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Wednesday 17th June 2020 Lords Chamber

[Lord Holmes of Richmond (Non-Afl) [V]]

My Lords, I want first to say how privileged I am to be sandwiched in the list between two noble and learned Lord Thomases, emanating as I do from the junior branch of the legal profession. I ask my noble and learned friend the Minister, as I did in Committee, to affirm, in the light of the impending Brexit deal or no deal, his full support for the power of English law internationally and, indeed, for the jurisdiction of the courts of England and Wales. We have a unique gem here, which can not only speak to our international role but, as he knows, can be of such benefit to so many private international deals; this can only be built upon. I urge him to take every opportunity to push the positivity around English law and the jurisdiction of the courts of England and Wales.

Secondly, I ask the Minister, in the most delicate and humble way: if Brexit was all about repatriating powers to Parliament, how does the current Clause 2 sit with that aim?

[Lord Thomas of Gresford (LD) [V]]

The Government’s position appears to be that the incorporation into domestic law of the terms of a treaty, or of an international agreement involving private international law, should not require any detailed scrutiny by Parliament. The Government’s reasoning is that the time for stakeholders to make representations is before the international agreement is made. Once the rules have been agreed, they say, a Minister has little or no discretion to exercise in framing the requisite statutory instrument. It is all over and there is no need for any shouting.

This would be all very well if we could have the slightest confidence that the negotiations of that agreement were transparent; but we have seen in the Brexit negotiations a complete lack of transparency. Many times, pleas were made to Ministers to outline our negotiating position. “Oh, we couldn’t do that,” the Minister would reply, “because that would undermine our bargaining position.”

The noble and learned Lord, Lord Keen, in his response of 17 April to the report of the Delegated Powers Committee, said:

“As the UK develops its wider trading policy with the EU and rest of the world, agreements on private international law will be key to supporting cross-border commerce by providing businesses, investors and consumers with greater confidence that disputes across borders can be resolved in a clear and efficient way.”


This surely underlines the importance of the issues that we are discussing today. The question of jurisdiction and the enforcement of judgments is crucial. Just because the word “private” is attached in the title to “international law”, it should not be thought that we are concerned merely with family disputes and the enforcement of access to children or maintenance orders in different jurisdictions. Important as those issues undoubtedly are, the significance of these provisions goes very much to the heart of rebuilding our economy and regaining our leading trading position in the world, not least in the provision of financial and legal services. For example, in the current negotiations concerning our leaving the European Union, with or without a trade deal, one stumbling block appears to be the jurisdiction of the European Court of Justice. For 40 years, we have accepted its jurisdiction and an analysis of its judgments demonstrates the overwhelming success of British lawyers before that court. We have lost very few contested cases and settled others very satisfactorily on agreed terms.

Jurisdiction is important. I cannot see why the Prime Minister thinks that the European Union is likely in these current negotiations to accept the British rejection of the European Court of Justice as a tribunal for resolving disputes, but that it will accept our Supreme Court as the ultimate arbiter. Such an approach seems to me to be in cloud-cuckoo-land.

Where there are critical issues such as jurisdiction to be resolved, obviously it is wholly inadequate to tell business and other stakeholders that they may make their case only before the details of a treaty or agreement emerge into the light of day. As for Parliament, do we have the slightest idea of the detailed negotiating position in these current talks? What possible contribution can parliamentarians make to the rules of our future trade with Europe, which may emerge by the end of October or by Christmas Day?

Government negotiators should have to bear in mind that any agreement or treaty they may enter into will require full analysis and debate in Parliament before being given the full endorsement of incorporation into domestic law. I was disappointed, as was the noble Lord, Lord Blunkett, by the gloomy comments of the noble and learned Lord, Lord Garnier, in Committee. In effect, he said that we all agree in principle to parliamentary accountability, but in government, the reality is that the only consideration is time—getting the business over and done with. It was interesting that the noble and learned Lord, Lord Keen, in his letter to the Committee, used the expression “in a timely manner” no fewer than five times, and with something of a Homeric ring. Come to think of it, the Prime Minister might pin on his wall in No. 10 the Greek motto of the Roman emperor Augustus: “speude bradeos”, or “hasten slowly”.

Suetonius wrote of Augustus:

“Nihil autem minus perfecto duci quam festinationem temeritatemque convenire arbitrabatur”,


meaning, “He thought nothing less becoming in a well-trained leader than haste and rashness.” Well, Augustus was a pretty successful politician. He really did rule the whole of the known world.

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.