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

Debate between Lord Hope of Craighead and Lord Howarth of Newport

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

[Lord Howarth of Newport (Lab)]

My Lords, I agree that Clause 2 should not stand part of the Bill. Under our normal procedure for Committee in the Chamber, I would have been able to come in earlier when I saw how widely the debates on previous groups were ranging. However, with the rigidity of Virtual Proceedings, I was unable to do so.

I underscore the points made by all noble Lords, all of whom—except the Minister—have objected to Clause 2. This clause is constitutionally offensive on a variety of grounds. The issues that arise in private international law are many, varied and important. They may be complex and technical, but they are not obscure or trivial. In family disputes, questions of divorce, child custody and child maintenance can cause great anguish to all concerned. By definition, if a commercial dispute comes to court, it is of great importance to the parties involved.

What is Parliament for? Our responsibility is not simply to wave through significant new legislation, but to scrutinise it and satisfy ourselves on behalf of the people of our country that it is appropriate. That can be done only through the processes of primary legislation. It cannot be done through our procedures for regulations. Even my noble and learned friend Lord Falconer’s super-affirmative procedure would not be satisfactory. The Minister has suggested that these regulation-making procedures provide ample opportunity, but they do not because there is no scope for amendment and scrutiny is still relatively perfunctory compared to the lengthy process of primary legislation.

Hitherto, new private international law has been incorporated into our domestic law by way of primary legislation. The Minister disputed that, but he was unable to give us convincing examples of when that had not happened. What we are seeing is part of an objectionable behaviour pattern on the part of the Government. They seek to evade full parliamentary scrutiny and arrogate power to themselves to save themselves inconvenience.

The noble and learned Lord, Lord Judge, was about to discourse on the matter of Henry VIII powers—I hope he will. We see egregious Henry VIII powers in this Bill, including an open-ended power to implement any future international agreement, even if it overthrows existing primary legislation. We see the deployment of those innocent-sounding but weasel words "in connection with", "consequential" or "supplementary" legislation, which would enable this Government to smuggle in very significant legislative changes in an arbitrary fashion.

Clause 2(5)(a) and Schedule 6, concerning enforcement powers, would allow the creation of new criminal offences, the extension of existing ones or increases in the penalties applying to them. Again and again, your Lordships’ House has said that is not an acceptable practice on the part of the Government when legislating. We see in Clause 2(5)(b) the Government taking a cavalier approach to questions of data protection, which are extremely sensitive and important matters in this era of surveillance capitalism and in the context of measures being taken to protect us against a pandemic.

At Clause 2(5)(c) a power to alter the regime for legal aid without scrutiny is brought in. This too is a super-sensitive policy and legal area, as we know from the history of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, in consequence of which, I am sorry to say, the Government forfeited the trust of Parliament, the people and the legal profession.

The Government’s justifications for taking these open-ended, wide-ranging powers in Clause 2 are specious. They suggest that there may be an urgent need to legislate; we have had a significant discussion about the Lugano convention. The intervention by the noble and learned Lord, Lord Mance, made it very clear that, while there may be urgency for us as a country to resolve whether or not we wish to participate in the Lugano convention, that is certainly not something to be dealt with by statutory instrument. It will possibly need to be dealt with by fast-track legislation, though again we should always be wary of that. There is certainly no case for allowing it to go through under the terms of this law.

It is almost comic to see the Government plead that they will be eager to implement Hague conventions. Let me gently remind the Minister that successive Governments of this country took 63 years to legislate to implement in our domestic law the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. It did not get on to the statute book until 2017; despite endless pressure from Parliament, successive Governments refused to make time to legislate for it.

The Government make the case that, as there is little or no scope to amend international agreements, scrutiny by Parliament would be otiose. However, it is for Parliament to determine on principle whether or not to adopt important new legislation. If it decides that it is appropriate, it is again for Parliament to determine the manner in which that legislation is to be implemented in the specific circumstances of the United Kingdom—what we might refer to as the vernacular of implementation.

The Minister conceded that the Constitutional Reform and Governance Act 2010 would not permit scrutiny of model laws, but he went on to say that model laws are a very important area of law. Surely, therefore, we need something beyond the zero scrutiny that CRaG would permit. The point has just been made by the noble Lord who spoke previously that statutory instruments fail to provide the same legal certainty as primary legislation. Recourse can be had to the provisions of the Human Rights Act and it may always be possible that what is legislated by way of statutory instrument can subsequently be modified and superseded by the development of the common law.

The Minister sought to assuage the anxieties of some of us that the provisions in the Bill would ride somewhat roughshod over devolution and fail to respect the status and responsibilities of the devolved Administrations. He gave some satisfaction in what he said about Scotland, but I think no satisfaction to the noble Lord, Lord Thomas of Gresford, or myself about how the provisions affect Wales. Of course, in Wales there is no provision for co-decision by Ministers in the devolved territory as there is in Scotland and Northern Ireland.

Finally, the Minister, in pleading with us to be reassured, pointed out that, up until now and for a long period, the adoption of private international laws had been a matter for European Union competence. But we have just spent four years in a political convulsion to establish the right to make our own laws in our own Parliament, accountable to our own people, and for Parliament not to be obliged to rubber-stamp obscure deals made on our behalf by people who are not accountable. We have sought in all the agonising political disputes of the last four years to re-establish not executive absolutism but parliamentary governance. Having gone to all this trouble, we cannot accept the provisions of this legislation. Clause 2 should not stand part of the Bill.

[Lord Hope of Craighead]

My Lords, this matter has been so fully covered by the speeches already made that I have little to add other than my full support for what has been said. I hope very much that we may be able to hear from the noble and learned Lord, Lord Judge, before the Minister speaks.

I do, however, wish to emphasise two points. First, I refer to what I said in support of Amendments 7 and 8 in the name of the noble Lord, Lord Foulkes of Cumnock. The lack of clarity about whether it is the Scottish Ministers or the Secretary of State who are to exercise the powers referred to in Clause 2(1) and Clause 2 (2) is surely an indication, among others, that this Bill is seeking to do too much. The umbrella phrase “any international agreement”—I stress the word “any”—indicates that it is intended to catch a wide variety of international transactions and model laws relating to private international law. At present, with the possible exception of Lugano, we have very little idea of what they might be. It seems likely, however, that they will not be many. The pressure on Parliament, if we were to proceed by way of public Bills and not statutory instruments, would be quite limited. It is therefore hard to see why we are having to go down this road at all.

Secondly, there is no sunset clause in the Bill. I could understand it, although I would not like it, if the Bill were designed to deal only with measures that needed to be enforced before the end of the implementation period or shortly afterwards. But without such a clause, the Bill is entirely open-ended; committing all international agreements and model laws to the statutory instruments procedure, as a permanent feature of our laws whatever they may be, seems to me to be a hostage to fortune.

Wales Bill

Debate between Lord Hope of Craighead and Lord Howarth of Newport

Monday 7th November 2016 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I want to add just a word or two from the Scottish perspective to what has just been said. I was involved in the consideration of the Scotland Bill that became the Scotland Act 1998, some considerable number of years ago. One of the groups of sections, which is now to be found in Sections 52 to 56 of the Scotland Act 1998, dealt with ministerial functions. The critical section, which is closely aligned with what is proposed in this amendment, is Section 53, which says in subsection (1) that:

“The functions mentioned in subsection (2) shall, so far as they are exercisable within devolved competence”—

those critical words—

“be exercisable by the Scottish Ministers instead of by a Minister of the Crown”.

That was part of the whole structure of the Scotland Act, which, as the noble Baroness, Lady Morgan, has noted, was designed on a reserved powers basis but is very much relevant to what has been designed for Wales today, dealing as it does with the idea that anything to do with devolved competence so far as Ministers are concerned should be within the functions of Scottish Ministers in place of Ministers of the Crown.

The functions listed in subsection (2) were three. The first is,

“those of Her Majesty’s prerogative and other executive functions which are exercisable on behalf of Her Majesty”.

I do not think it is being suggested that that should be done in this case. The second is,

“other functions conferred on a Minister of the Crown by a prerogative instrument”.

The third and important one for the present purpose is,

“functions conferred on a Minister of the Crown by any pre-commencement enactment”.

Those are the words we see echoed in subsection (1) of proposed new Section 58B. We then have a definition in the Scotland Act of what a pre-commencement enactment means, which is exactly as set out in the amendment.

So far as Scotland is concerned, the effect of Section 53 was to achieve complete clarity and make it very simple for those who were designing statutory instruments to give effect to the transfer of functions to find a solid base for what they were proposing to do. Again, I was quite closely involved in observing the way in which the functions were transferred. It seemed to me that the matter went very smoothly, given the clarity set out in the Scotland Act.

Although I certainly am not as fully aware of the position in Wales as those who have already spoken are, I think, with great respect, that there is great force in the idea that an amendment of this kind should be made. It is part of the development that the noble Lord, Lord Thomas of Gresford, mentioned earlier of progressing the Welsh Assembly and its Ministers into the modern structure that suits the evolving nature of what is now taking place in Wales.

[Lord Howarth of Newport]

My Lords, the call for the alignment of legislative and executive powers is not just a call for tidying-up: it is a call for clarity of accountability. Unless we have that alignment, in the same devolved matter, Welsh government Ministers will be accountable to the Welsh Assembly on some aspects and Ministers of the Crown will be responsible to this legislature on others. That makes for confusion and a political mess. Is not it far better to get some coherence and clarity of accountability, as my noble friend and other noble Lords are calling for?