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

Lord Keen of Elie Excerpts

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

Moved by

[Lord Keen of Elie]

17: Clause 4, page 4, line 17, at end insert—
“( ) Her Majesty may by Order in Council provide for section 2 (including Schedule 6) and section 3(2) and (3) to extend, with or without modifications, to the Isle of Man.”Member’s explanatory statement
This amendment inserts a new subsection into Clause 4. This allows Her Majesty by Order in Council to extend Clause 2 (including Schedule 6) and subsections (2) and (3) of Clause 3 to the Isle of Man.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, this government amendment seeks to allow certain provisions of the Bill to be extended to the Isle of Man through what is commonly known as a permissive extent clause. This is a well-established method of enabling UK legislation to be extended to the overseas territories and Crown dependencies.

I should clarify that the amendment was explicitly requested by the Isle of Man Government due to the legislative pressures that Tynwald, the island’s parliament, currently faces. I want to be clear with noble Lords that I am moving the amendment to allow debate and to put on record the request from the Isle of Man Government. I recognise that some noble Lords expressed concerns in the earlier parts of this Committee stage about both the scope and purpose of Clause 2, to which this amendment relates. I will therefore seek to withdraw the amendment once noble Lords have had an opportunity to speak to it.

Returning to the detail of the amendment, this permissive extent clause provides for the addition of a narrow delegated power that, when activated, will allow certain provisions of the Bill to apply in the Isle of Man. The power is exercisable by an Order in Council, which can be made at a time agreed between the UK Government and the Isle of Man Government.

Once made, the Order in Council would extend the Clause 2(1) power to the appropriate authority on the Isle of Man. This would enable the Isle of Man to make its own regulations to implement international agreements on private international law. This power could be used only to implement agreements that the United Kingdom has extended to apply in the Isle of Man, which means that both the United Kingdom and the Isle of Man would be able to operate the agreement between their own jurisdictions and the other contracting parties.

In addition, the amendment would enable the Isle of Man to implement an arrangement to apply the terms of a private international law agreement, subject to necessary modifications, between the Isle of Man and the United Kingdom. Clause 2(3) already provides this power to the United Kingdom. The amendment will enable that power to be extended to the Isle of Man to give it the power to do the same, alleviating the need for it to enact its own primary legislation to implement such an arrangement. Of course, in both cases, the arrangement will be about operating a private international law agreement that the United Kingdom has joined, as anything else would fall outside the scope of the power.

The amendment would not affect the United Kingdom directly. It would require the Queen to approve an Order in Council at a meeting of the Privy Council and would allow the Isle of Man also to make use of this important legislation. Should there be any effect on the UK, it is likely that any agreed arrangement relating to applying private international law agreements between the UK and the Isle of Man could be implemented efficiently both here and in that dependency by mutual agreement.

As I have already stated, this measure is limited to the Isle of Man simply because it issued a formal request for the Bill to include this permissive extent clause. We have engaged with the other Crown dependencies and overseas territories on the Bill; they have not requested that this provision be extended to them. In these circumstances, I beg to move.

[Lord Adonis (Lab)]

I have an obvious question relating to what the noble and learned Lord said. Why does he think that the Isle of Man wants this power but other Crown dependencies do not?

--- Later in debate ---

[Lord Falconer of Thoroton (Lab)]

I am grateful to the Minister for indicating that he is not going to proceed with this amendment today and that he has moved it simply to open it for debate. We oppose the amendment because we oppose in principle Clause 2, which inappropriately gives the Government the power by secondary legislation to introduce important changes to domestic law to reflect private international law agreements. At the moment, if that is the principle that we stand on, in our view it is wrong to say that the Isle of Man, of all the parts of the Crown dependencies, should have a special right to do it by statutory instrument. That, as previous Lords have indicated, would differentiate it from everyone else. We are against it for that reason.

We are also against it because this change would allow for differential application of international agreements as between the various parts of the United Kingdom and, for the reasons we gave the previous time this Committee met, we are against that. So, we oppose the amendment.

[Lord Keen of Elie]

I am obliged to noble Lords for their contribution to the debate, and note what has been said. Perhaps I may respond to the points made by the noble Lords, Lord Adonis and Lord Mann, and touched upon by the noble and learned Lord, Lord Falconer—although I have a correction to make there. The reason why this is being done only in respect of the Isle of Man is that the Isle of Man has specifically requested that this mechanism should be available, so that we can proceed by way of an Order in Council from the Privy Council. It will be for the other Crown dependencies to determine whether and when they wish to implement primary legislation within their own legislatures to come within the ambit of such international agreements as the United Kingdom draws down.

The noble and learned Lord, Lord Falconer of Thoroton, referred to variation between parts of the United Kingdom but of course the Crown dependencies are not part of the United Kingdom. They have a unique status and it is for them to determine whether and to what extent they wish to become a party to legislation that draws down into domestic law international treaty obligations. I continue to believe that this amendment is important and respect the request of the Government of the Isle of Man. However, I recognise the concerns expressed about the links between this amendment and the Clause 2 power to which exception is taken. The noble Lord, Lord Marks, and the noble and learned Lord, Lord Falconer of Thoroton, made that point. In these circumstances I will therefore withdraw the amendment, but I intend to continue this discussion at a later date. For present purposes, I beg leave to withdraw the amendment.

Amendment 17 withdrawn.

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

My Lords, on these Benches we are firmly with the noble and learned Lord, Lord Falconer, in opposing Clause 2 of the Bill, in line with the virtually unanimous view of those who spoke on 13 May and for all the reasons stated on day one in Committee. We will support the noble and learned Lord in opposing Clause 2 on Report. Therefore, it is with some regret that I find myself disagreeing with the noble and learned Lord, Lord Mackay of Clashfern, in particular in respect of the creation of criminal offences. He seemed to be suggesting that such offences would derive from the provisions of the international treaties themselves, rather than the provisions of the delegated legislation and, for that reason, the power in the Bill should be accepted.

However, that is not inevitably so. Under the Bill as it stands, new criminal offences could be introduced by the regulations giving the force of domestic law to private international law conventions and the implementation of those conventions, not by the treaties themselves. I therefore agree with the noble and learned Lord, Lord Thomas of Cwmgiedd, on that issue and the possibility that he raised of new offences being introduced under the regulations.

These two amendments are, of course, alternatives to the removal of Clause 2, as the noble and learned Lord, Lord Falconer, pointed out. Both amendments would plainly be right if we came to the position, contrary to what we believe should happen, that we were stuck with Clause 2. Amendment 19 on criminal offences raises an important principle. I agree with and endorse everything said by my noble friend Lord Thomas of Gresford, as supported by the noble and learned Lords, Lord Thomas of Cwmgiedd and Lord Hope of Craighead, and the noble Lord, Lord Kennedy of Southwark. In this country we have always had a strong and principled objection to making new criminal offences or otherwise changing the criminal law by secondary legislation. The noble Baroness, Lady Jones of Moulsecoomb, expressed that principle forcefully and eloquently. It is an important principle, which I think we should be very firm about upholding.

Amendment 20 is on the super-affirmative procedure. Of course, it would be better than the affirmative procedure and clearly better than any negative procedure —which is not proposed. However, it is a poor alternative to requiring primary legislation to give international treaties the force of domestic law. Paragraph 31.14 of Erskine May says this about the super-affirmative procedure:

“The super-affirmative procedure provides both Houses with opportunities to comment on proposals for secondary legislation and to recommend amendments before orders for affirmative approval are brought forward in their final form. (It should be noted that the power to amend the proposed instrument remains with the Minister: the two Houses and their committees can only recommend changes, not make them.)”


That paragraph is accurate in respect of the super-affirmative procedure proposed by the noble and learned Lord’s Amendment 20. It follows that Parliament would have no right to amend, and that is why super-affirmative is still a poor alternative. It ultimately leaves legislative power with Ministers and not with Parliament.

It is also a fact that success in changing delegated legislation by the super-affirmative procedure comes very rarely—a point made by the noble and learned Lord, Lord Garnier. We perhaps ought to return to that matter in the future. We should perhaps try to formulate a procedure that goes some way to meet the criticism he made—a procedure that permits Parliament to approve an instrument conditionally on its being amended in a way acceptable to both Houses. That might solve some of the problems that we have with delegated legislation. But I agree that that is for another day. Our position is that we support these amendments if we are stuck with having to use them in place of striking out Clause 2.

[Lord Keen of Elie]

My Lords, taken together, the amendments relate broadly to either narrowing the scope of the Clause 2 power or increasing parliamentary scrutiny for use of that power, and I recognise the observations made by a number of noble Lords and noble and learned Lords that this is very much secondary to the opposition expressed to Clause 2 itself. I note the observation of the noble and learned Lord, Lord Falconer of Thoroton, that this is essentially a series of probing amendments.

Before I look at the various amendments, I note that the noble and learned Lord, Lord Falconer, and other noble Lords referred to the role of the Lord Chancellor’s Advisory Committee on Private International Law and the importance of consultation with it, with which I entirely concur. I am now co-chair of that committee, together with the noble and learned Lord, Lord Mance. Its recent meeting was extremely useful. We looked at some technical issues surrounding the application of the Hague conventions of 2005 and 2007 at the end of the transition period. We may hear a little more of that in due course.

Amendment 19 deals with the creation of a criminal offence in the implementation in domestic law of a relevant private international law agreement. The use of the Clause 2 power to create a criminal offence there is very constrained. It is true that private international law agreements do not generally require contracting parties to create criminal offences, and there are no such requirements in the private international agreements that the UK is currently considering joining and implementing under the powers in this Bill. However, it remains a very real possibility that we might negotiate or seek to join a new agreement where a power to create or extend existing criminal penalties will be needed to fully implement the international law obligation. Take an agreement on reciprocal recognition and enforcement of protection measures, for example. In England and Wales, protection measures such as non- molestation orders or injunctions may be made by the courts under the Family Law Act 1996 or the Protection from Harassment Act 1997. Breaches of those orders are punishable by criminal penalties. Any future private international law agreement in this area on reciprocal recognition of such orders, if successfully negotiated, would particularly benefit those who are most vulnerable in our society and reliant on such protection measures, whether they remain within the United Kingdom or travel abroad, where they would wish to retain the protection of such orders.

If we entered into such an agreement, it would seem reasonable and appropriate to exercise the Clause 2 power so that, for example, we could extend criminal penalties for breach of a UK order to also apply to the breach of an order issued by a relevant foreign court. Breach of an order issued by a foreign court would in effect carry the same criminal penalty as that for breach of an equivalent UK order. But that criminal offence-making ability would of course be subject to the limitations within the Clause 2 power itself as currently drafted. Let me be clear: we could not create an offence under this power which would carry a term of imprisonment of more than two years, for example. That is an important safeguard on the exercise of the Clause 2 powers in this area.