Rule of Law

Lord Marks of Henley-on-Thames Excerpts

Thursday 10th September 2020 Lords Chamber

[Lord Keen of Elie (Con) [V]]

I do not accept that. This is not a case of the Executive or Ministers seeking to act contrary to the will of Parliament. This is a case in which Ministers have brought legislation and laid it before Parliament for Parliament to determine whether provision should be made for the contingencies to which I have referred. This shows complete respect for Parliament and if, at the end of the day, Parliament and this House do not wish to confer the ability to deal with these contingencies on Ministers, they will not. It is a matter for Parliament.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, the Government have used terms such as “clarification” and “safety net” in describing the Bill. It is nothing of the sort; it is a direct abrogation of the withdrawal agreement. This is an issue about national integrity and the rule of law, as Sir Jonathan Jones recognised in resigning as Treasury Solicitor. I ask the noble and learned Lord how he would describe a barrister with whom he had negotiated a detailed written settlement agreement, who then explicitly reneged on that agreement by announcing an intention to act in direct contravention of both the agreement and the law.

[Lord Keen of Elie (Con) [V]]

The situation outlined by the noble Lord does not reflect that which exists in the context of a potential tension between our domestic legal obligations to Northern Ireland and the terms of the withdrawal agreement, in the event that we do not achieve the goals that all parties intended, including the ability to ensure the maintenance of the Belfast agreement.

Rehabilitation of Offenders Act 1974 (Exceptions) Order 1975 (Amendment) (England and Wales) Order 2020

Lord Marks of Henley-on-Thames Excerpts

Thursday 10th September 2020 Lords Chamber

[Lord Marks of Henley-on-Thames (LD)]

My Lords, we welcome these orders and the comprehensive way in which the noble and learned Lord has opened this debate. As we have heard, the order under the Police Act changes the arrangements for disclosure by the Disclosure and Barring Service.

The first change removes youth cautions and reprimands and warnings given to persons under 18 from the disclosure requirement. This is obviously sensible and necessary. The whole point of youth cautions has been to enable the police to deal with children and young people informally, without criminal prosecution. The disclosure requirement is therefore an anomaly. Secondly, the removal of the multiple conviction rule eliminates another anomaly. The effect of a second conviction, of whatever nature, has hitherto been to open up disclosure of all previous convictions, again of whatever nature.

The order under the Rehabilitation of Offenders Act achieves the same two effects in respect of disclosure by applicants for employment to potential employers—again, obviously sensible and desirable. But these two orders are laid not because the Government suddenly realised that the existing provisions were unwise, unfair and unlawful but because of the Supreme Court’s decision last year in the four cases of P and others, as the noble and learned Lord acknowledged. The unfairness of the existing law is illustrated by the facts of those cases, which I hope I will be forgiven for summarising.

In 1996 Mrs G was fined £35 in all for seat-belt offences, then in 1998 a further £80 for similar offences. She has no other convictions. In 2014, 16 years later, now a qualified care worker, she applied for a job at a day centre for adults with learning disabilities, but her disclosure of her historical convictions was incomplete and her job offer was withdrawn after the enhanced criminal record certificate disclosed all her previous convictions.

In 1999 P was cautioned for stealing a sandwich from a shop and conditionally discharged for stealing a book worth 99p and failing to surrender to bail. She was then 28, homeless and suffering from mental illness. She has committed no further offences. Now a qualified teaching assistant, she has not been able to find employment, she believes as a result of her disclosure obligations.

In 1982 W, aged 16, received a conditional discharge for an assault during a fight with other boys. In 2013, aged 47, he began a course in teaching English to adults. He believed his chances of obtaining teaching employment would be prejudiced by the need to obtain a criminal record certificate.

Finally, in 2006 G, aged 13, was arrested for two trivial offences of sexual assault on two younger boys. The police accepted that the offences were consensual and in the form of dares. He was reprimanded by police and has not offended since. In 2011 he was required to apply for an enhanced criminal record check because his work as a library assistant involved contact with children. As a result, he withdrew the application and lost his job.

The Supreme Court judges decided unanimously, though their reasons differed slightly, that the existing provisions infringed the applicants’ Article 8 rights to privacy. This case has powerful support for two pillars of our liberty. The first is the European Convention on Human Rights, which in recent years has been frequently under attack. The second is the right of citizens to apply for judicial review in respect of claims that their human rights have been breached. That right too remains under attack.

The Government and their supporters are often heard to complain of judicial activism and lawyers whom some would describe as activist lawyers overruling the supremacy of Parliament, but we should not forget that the Police Act and the Rehabilitation of Offenders Act and the orders made under them were passed by our sovereign Parliament. Nor should we forget that these judicial review cases were pursued by the Government, opposing the applicants all the way through the courts to the Supreme Court of the United Kingdom, notwithstanding a decisive finding at a lower level that the existing provisions were incompatible with the applicants’ Article 8 rights.

In the context of discussions on legal aid, we should also note that P did not have a solicitor and was represented by Liberty; nor did G, who was represented by a non-profit organisation called Just for Kids Law.

This debate reminds us of the need for judicial and extraterritorial checks on parliamentary sovereignty and the importance of constant vigilance.

Human Rights Act 1998 (Remedial) Order 2019

Lord Marks of Henley-on-Thames Excerpts

Thursday 3rd September 2020 Grand Committee

[Baroness Warsi (Con)]

My Lords, I support the remedial order and welcome the Government’s changed position. The draft order originally laid was too narrow. I will make three short points.

First, I believe and hope that this process has not cast doubt on the importance of judicial immunity, a vital bedrock of our system. Judicial independence is a principle that has universal support but, in an area as fundamental as a violation of a person’s right to liberty under Article 5 or to a fair trial under Article 6, as a result of a judicial act, even when done in good faith, it is only right that damages follow in those extremely rare cases where no other remedy is possible, as was the case in Hammerton v UK.

As has already been said, an independent and impartial judiciary is one of the cornerstones of a democracy. However, as was said in the other place, depriving judges of the power to award damages against the state does not strengthen independence. The order that now allows damages to be awarded to judicial acts done in all proceedings and in relation to all breaches of Article 6 that have led to a person spending time in prison or being detained is an important position, both in principle and symbolically.

Secondly, I pay tribute to the Joint Committee on Human Rights—particularly the noble Baronesses, Lady Ludford and Lady Massey of Darwen, who are taking part in today’s proceedings—for assisting the Government in reaching the right place. It was right to ensure that we maintain a spirit of generosity in embracing the human rights framework.

Finally, Professor Richard Ekins of Oxford University presented an alternative view in a paper published by Policy Exchange and referred to today by my noble and learned friend Lord Mackay of Clashfern. He made a case for the proposition that the Human Rights Act does not authorise its own amendment in the way that is proposed in this order. It is comforting, however, to hear that the Government continue to remain committed to ensuring that legislation takes effect only in so far as it is in compliance with the convention. It was, after all, the purpose behind the Act to ensure that we were, and continue to remain, convention compatible. It would be an odd outcome of the process designed to ensure compatibility existed with regard to all other legislation that it was cited to prevent the same in relation to the Act itself.

With those comments, I support the order as now drafted.

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords—[Inaudible.]

[The Deputy Speaker (Lord Faulkner of Worcester) (Lab)]

I am afraid that we cannot hear you, Lord Marks. The sound quality is terrible. Can you get nearer to the microphone, perhaps?

[Lord Marks of Henley-on-Thames (LD) [V]]

I hope so. Is that any better?

[The Deputy Speaker (Lord Faulkner of Worcester) (Lab)]

Slightly. Let us hope that the Minister can hear you.

[Lord Marks of Henley-on-Thames (LD) [V]]

I will start again. The principal substantive point that I wish to make is that the decision in Hammerton and this remedial order highlight the importance of Article 13, which provides

“an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity.”

The article enshrines the principle that breaches of the convention must give rise to an effective remedy.

Furthermore, for all that the language may be dry, it is that article that ensures that the convention does not stop at declaring citizens’ human rights, to which this country is bound by international obligation, but also guarantees a remedy for the violation of those rights. Crucially, such a remedy must be available where the violation is a result of action by the state.

In the Hammerton case, the violation was of Mr Hammerton’s Article 6 right to a fair trial, including his right to legal representation when his liberty was at stake. This required a remedy to be available, which it was not pursuant to Section 9(3) of the Human Rights Act as unamended.

This is why the convention is such a powerful protection for individual citizens, because Governments may well find it undesirable and inconvenient to ensure that citizens’ rights against the state are consistently respected and enforced. As the Explanatory Memorandum puts it:

“The courts found that the applicant … had spent extra time in prison as a result of procedural errors during his committal proceedings, which were such that his rights under Article 6 … were breached. However, he was unable to obtain damages in the domestic courts … The ECtHR found that the applicant’s inability to receive damages … had led to a violation of Article 13.”


I believe that this remedial order illustrates the intelligent way in which Section 10 of the Human Rights Act operates in respecting the sovereignty of Parliament. That is achieved by its providing for the Government to give effect to decisions of the ECHR to the effect that UK legislation is incompatible with the convention, while leaving it to Parliament to make the necessary amendments to that legislation. This is a textbook example of that process in action. I do not believe that this is in any way a misuse of Section 10, and I agree with the conclusion of the noble and learned Lord, Lord Mackay, that the remedial order is appropriate. I see the point about swiftness in this case, but it seems to me that this order is nevertheless the right way to proceed.

The thoroughness and care of the Joint Committee on Human Rights was reflected in its report. First, it found that the remedial order originally proposed was too narrow, as was pointed out by the noble Baroness, Lady Warsi, and by my noble friend Lady Ludford. In paragraphs 23 and 24 of its second report, it considered how far judicial acts done in good faith may lead to a violation of other convention rights. It concluded, as the noble Baroness, Lady Massey, said, that

“such situations are difficult to foresee …and therefore do not fall within the remedial Order requirement of being ‘necessary to remove the incompatibility’.”

I stress again how important it is that the recommendations of the Joint Committee on Human Rights are given full weight by the Government, as they were in this case. I firmly believe that, in the interests of human rights, all the recommendations of that committee should be implemented unless there are extremely powerful reasons why they should not be followed.

Competition Appeal Tribunal (Coronavirus) (Recording and Broadcasting) Order 2020

Lord Marks of Henley-on-Thames Excerpts

Wednesday 15th July 2020 Lords Chamber

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords, I welcome this order as a way of ensuring that proceedings of the CAT continue to be in public given that the usual public access is constrained by the Covid-19 crisis.

As the Minister has explained, the provisions of the Coronavirus Act provided for broadcasting of a wide variety of court and tribunal proceedings, which has arguably been successful. This SI rightly addresses the anomaly that has been pointed out that proceedings of the CAT are not covered by this legislation. So, at present, hearings of the CAT are proceeding remotely but effectively on a closed basis, which, the Minister seemed to agree, is in breach of Rule 99(1) of the CAT rules to the effect that every hearing should be public except where confidential information is being considered. That breach could, theoretically at least, open the system to challenge.

However, in my view, the arrangements set out in the SI should not be restricted to the currency of this crisis but should become a permanent and expected feature of the CAT subject to the safeguards in this order. Indeed, I would go further. On 8 June, we debated the broadcasting of sentencing remarks in criminal cases and of Court of Appeal hearings in family cases. Along with many noble Lords, I expressed my long-held view that broadcasting of court proceedings should be substantially extended on the ground that open justice is generally better justice.

The same principle applies to tribunals just as it does to court proceedings, and I would argue that broadcasting should be permissible unless there is a countervailing interest to the contrary, whether to protect necessary privacy or legitimate confidentiality, to meet genuine concerns for the protection of witnesses, jurors or others, or otherwise in the interests of justice.

The CAT’s hearings are of widespread and legitimate public interest, as my noble friend Lord Thomas of Gresford pointed out. Its more important cases often attract the attendance of 100 or more people, from the parties, the press and the public, as the noble Baroness, Lady Anelay, reminded us. Its cases include appeals from decisions of the Competition and Markets Authority and from regulators, particularly in the telecoms, utilities and transport sectors. The CAT also has an important review function in respect of Ministers’ decisions covering wide areas of the economy. By way of example, recent cases have included disputes concerning the merger of Sainsbury’s and Asda, and the sale of a significant share- holding in Lebedev Holdings Limited to International Media Company.

Of course, CAT hearings are in general already public, and the CAT goes to considerable lengths to make its proceedings accessible by publishing transcripts of hearings on its website. However, the availability of broadcasting technology, particularly over the internet, has the potential to make the processes of justice far more accessible to the public and far better understood—points strongly made by the noble and learned Lord, Lord Hope of Craighead, who has been a trailblazer in this area.

I regard the safeguards set out in this SI as admirably succinct and sufficient to protect the interests of justice. The requirements for permission, the assurance that copyright will remain with the tribunal and the limits on what may be recorded will enable recordings to be appropriately controlled and monitored, and the tribunals can be relied on to ensure that they are. Of particular interest in this order is that witness evidence may be recorded and broadcast. Although I entirely accept that in many cases witnesses need protection from excessive publicity, I do not see why that should be the case in most CAT proceedings. That goes particularly for expert witnesses. In my view, these arrangements can be expected to work in the wider public interest and in the long term.

We have been reminded that the expiry of the order is 25 March 2022, when the Coronavirus Act expires. By then, we will have had a good opportunity to consider the impact of broadcasting of CAT hearings. My hope is that the legislation restricting their broadcasting, along with the restrictions on broadcasting of court and tribunal proceedings in general, can at that stage be thoroughly overhauled to ensure that much more open justice is achieved.

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

Lord Marks of Henley-on-Thames Excerpts

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

[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.

[Lord Marks of Henley-on-Thames (LD) [V]]

I welcome these sensible amendments which tidy up the Bill, but I also welcome them for an important reason, which is that in removing Clause 2 this House made an important constitutional decision. I welcome the thrust of much of what the noble and learned Lord, Lord Garnier, said. However, I doubt that we need a thoroughgoing review of delegated legislation or the powers to delegate legislation. What we need is to respect more thoroughly the views of the Delegated Powers and Regulatory Reform Committee and the principles that it applies, which are well known and are often stated and applied by this House and were importantly so stated and applied during debates on the removal of Clause 2.

I regard it as a shame that the Minister opened this afternoon’s discussion with a reassertion of the position that he enunciated during earlier stages of the Bill— that Clause 2 was constitutionally proper and not inappropriate. This House decisively rejected that view. I hope that the Government will listen to what has been said today and, more importantly, will consider the arguments that were advanced during the earlier stages of the Bill, change their mind and decide not to reinstate Clause 2 and send it back to this House, taking advantage of their majority; and, rather than having a thoroughgoing review, will decide to exercise some self-control in future and not put before us Bills which contain delegated powers that most of us regard as entirely wrong and inappropriate.

[Lord Keen of Elie]

My Lords, as the noble and learned Lord, Lord Thomas of Cwmgiedd, and my noble friend Lord Holmes observed, it is important that we maintain the position of English law and the jurisdiction, particularly in London, with regard to commercial dispute resolution just as it is maintained under the New York convention with respect to arbitration. That is why we have made our application to the council of the Lugano convention to join that body, but it is step that can be taken only with the consent of the member states and the EU. We recognise that if our application is accepted it is a matter of urgency for us to draw down that treaty into domestic law, which in part explains the position that we have adopted with regard to Clause 2.

It is not often that I find myself in a position where I have to correct the noble Lord, Lord Foulkes of Cumnock. Indeed, I regard this as highly unusual, but I observe that where he said that the Government had decided not to proceed with Clause 2 that was not entirely accurate. It was decided for us, and there is a distinction to be drawn there. As regards the state of play with the Crown dependencies, the provision with respect to the Isle of Man fell with the amendments to the Bill in this House. As regards the Council of Europe, while in theory it may seek to promote some issues in respect of private international law, I do not understand that it has done so or that it imminently intends to do so, but I will make further inquiry and if necessary write to the noble Lord.

The noble Lord, Lord Thomas of Gresford, talked about a matter of principle with regard to the introduction of what would amount to a criminal offence of some limited penalty by way of secondary legislation or something other than primary legislation, a situation that has obtained for almost 50 years since the European Communities Act 1972.

The noble Lord, Lord McConnell of Glenscorrodale, raised prior consultation. I reiterate the points I made at an earlier stage with regard to that. Both the Government of Wales and the Government of Scotland granted an LCM to the Bill in its original form, so they appeared to be relatively content with its provisions.

I am not clear about the reference made by the noble Lord, Lord Mann, to Northern Cyprus in the context of the Bill, but I understand the complications that arise with regard there to private international law, and I would be content to speak to him later if there is a further point that he would like to elucidate, and I would be happy to consider it.

The Government are content to support this group of amendments as they relate to elements of the Bill which no longer function without the delegated power previously in Clause 2. However, as I have made clear, the Government’s position on the Clause 2 delegated power has not changed.

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

Lord Marks of Henley-on-Thames Excerpts

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

[Lord Wallace of Tankerness (LD) [V]]

My Lords, the amendment follows on from my contribution at Second Reading on 17 March. I tabled an identical amendment in Committee but withdrew it from the Marshalled List, having been invited to a further meeting with the Minister, the noble and learned Lord, Lord Keen of Elie. At the outset, I express my thanks and appreciation to him, his officials and his Bill team for their constructive—and, I hope, productive —engagement with me since before Second Reading.

Basically, the purpose of the amendment is something akin to jurisdictional catch-up. It seeks to give force of law in England, Wales and Northern Ireland to the provisions of Hague Convention 35 of 13 January 2000 on the International Protection of Adults. Section 85 of and Schedule 3 to the Adults with Incapacity (Scotland) Act 2000, which I had the privilege to sponsor in the earliest days of the Scottish Parliament, paved the way for ratification of the Hague Convention by the UK Government in respect of Scotland in November 2003.

The convention is intended to give support to vulnerable adults who, by reason of impairment or insufficiency of personal faculties, need legal protection, specifically when there are interests in different international jurisdictions. For example, the convention can determine: which court has jurisdiction in relation to protective measures; the law to be applied in particular circumstances; and the establishment of central authorities, which can locate vulnerable adults, give information on the status of vulnerable persons to other authorities and facilitate mutual recognition of relevant orders.

In supporting ratification, the briefing from the Law Society of England and Wales states:

“Due to not being party to the convention, England and Wales does not have a central authority to issue the relevant certificates of authority for powers of attorney to act outside the jurisdiction. This gives rise to unnecessary difficulties in relation to the protection of overseas property and welfare by attorneys and deputies who have been appointed to protect potentially vulnerable people.”


I believe that there is a compelling case for ratification in respect of all parts of the United Kingdom. In this way, those resident in Glamorgan, Gloucester or Belfast will be on comparable terms to citizens in Glasgow or Banff in relation to recognition and enforcement of relevant court orders in 2000 convention contracting states. One might say that it would be a good example of levelling up.

Indeed, the primary legislation to give effect to the convention provisions is already in place for England and Wales through Section 63 of and Schedule 3 to the Mental Capacity Act 2005 and, in the case of Northern Ireland, through Section 283 of and Schedule 9 to the Mental Capacity (Northern Ireland) Act 2016. It would be helpful if, in his reply, the Minister could give an indication not only of the Government’s intentions but of discussions with the Northern Ireland authorities. Given that the Assembly passed the 2016 legislation, I hope that progress toward ratification for Northern Ireland can also proceed.

The long-overdue ratification of this convention would be beneficial for vulnerable adults and those who support them in England, Wales and Northern Ireland. I commend the amendment to the House and I am hopeful that the case for ratification will commend itself to the Minister. I beg to move.

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords, I fully support the amendment moved by my noble and learned friend Lord Wallace of Tankerness. It is plainly an anomaly that the 2000 Hague Convention does not at this stage apply throughout the United Kingdom. The inclusion of the convention in Clause 1 will achieve this. I hope that the Government will accept the amendment to achieve the end that my noble and learned friend seeks.

[Lord Falconer of Thoroton (Lab)]

My Lords, the noble and learned Lord, Lord Wallace of Tankerness, makes a very strong case. It is extraordinary that this has not yet been incorporated into the law of England, Wales and Northern Ireland. I very much hope that the noble and learned Lord, the Minister, will explain why that is not the case and, at the very least, give us a timetable for it becoming part of our domestic law.

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I join the opposition to Clause 2 and simply add that there are ancillary objections to it: its non-exhaustive definition of private international law, its inclusion of a reference to arbitral awards, which has not been satisfactorily explained, and its inclusion of a reference to penal provisions, to which we will come later. The fundamental objection remains to erosion of Parliament’s proper realm.

[Lord Marks of Henley-on-Thames [V]]

My Lords, I have added my name to this amendment, which I support wholeheartedly. I will be relatively brief because I set out my reasons at some length in Committee, and because the noble and learned Lord, Lord Falconer of Thoroton, and all other noble Lords and noble and learned Lords who have spoken have argued the case so persuasively.

To give private international law treaties the force of domestic law is not a trivial rubber-stamping exercise. It may involve significant and complex law in relation to treaty implementation and enforcement provisions. Those were points well made by the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Mance. It is not just the breadth of the possible future treaties that might be affected by this clause but the sheer unpredictability of such treaties that we may consider in future. There is no way that that is defined or limited satisfactorily by the provisions of the Bill.

There is also a strong argument that this clause would open the way to the Executive further usurping the role of Parliament in an extension of what has been widely and rightly criticised as a thoroughly unwelcome trend for Parliament to have its role circumscribed by delegation of powers to the Executive. This type of argument is often dismissed as a “floodgates” or “thin end of the wedge” argument, because it is said to ignore the detail of the particular case under consideration. However, these arguments are real and, given the respect that we rightly pay to precedent in our constitutional discussions and in the context of our having an unwritten constitution, such arguments deserve to be taken seriously. If private international law treaties today, why not other international treaties tomorrow and a still less constrained role for the Executive further down the line?

No matter how often Ministers say that the availability of the affirmative resolution procedure or even the super-affirmative procedure gives Parliament a right to scrutinise and vote down delegated legislation, we all know the reality: that unamendable regulations are extremely difficult in practice to get changed, withdrawn or rejected as a result of parliamentary scrutiny. That is why removing this clause from the Bill is so important.

A particularly pernicious aspect of this clause is the power to create new criminal offences by regulation, even those carrying sentences of imprisonment. One can foresee that enforcement in particular of international treaty obligations may indeed involve criminal sanctions against non-compliant individuals. We may return to this with Amendment 10, if that turns out to be necessary. However, it would be far better for us to get rid of Clause 2 altogether—a change we may just succeed in holding when the Bill goes to the Commons.

I also remind the House of the important point, made in the Constitution Committee’s report, that regulations are amenable to judicial review and so could be challenged in the courts. Clause 2 would risk the unattractive position that, having entered into international obligations by treaty and Ministers having passed regulations to give them the force of domestic law and to enable compliance and enforcement, the courts would then be entitled to quash those regulations if they were challenged. That would be seriously unsatisfactory.

The Constitution Committee rested its argument on the valid ground of legal uncertainty. I add that such a position would undermine us internationally, further damaging our reputation for being good for our word and bringing our democratic legal processes into disrepute. This is an important point, but I wind up by saying that it is a subsidiary reason for removing Clause 2. The central point is the point of principle on which I suggest the House has a constitutional duty to vote this clause down.

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[Lord Mance [V]]

My Lords, as my noble and learned friend Lord Keen has just said, these amendments were considered by the advisory committee that I chair. We welcome them. They are a wonderful simplification compared with the huge complexity of the previous Schedule 5, which introduced savings on savings on what was already, in Section 4 of the withdrawal Act, a saving. They also correct one important misconception or potential error that had crept into the drafting of some of the previous instruments by making it absolutely clear that, insofar as the Hague 2005 choice of court convention will be relevant—and it will not be very relevant if we join Lugano—it will be relevant in respect of all agreements since October 2015, when the UK was originally signed up to the convention as a member of the EU. That is a point on which the noble and learned Lord and I had personal communication after Second Reading.

I will mention just one further point. That protects, or would protect insofar as it applies, choice of court clauses made after October 2015 that fall within Hague 2005. That means probably only exclusive choice of court clauses. There are two categories that are therefore not potentially covered: first, non-exclusive, asymmetric choice of court clauses, which are very important on the London market and are frequently used in banking documentation; and, secondly, pre-2015 choice of court clauses. At the moment, they are protected under the Brussels regime—the Brussels regulation recast in 2012, of which we are going to lose the benefit.

I know that the Minister has this in mind, but I mention it openly: we should surely, domestically, introduce as much protection for those clauses as we now can. It may not be reciprocal, because we can legislate in this area only domestically unless we can persuade other states to agree with us. But domestically, we should protect clauses, particularly those favouring London, and we should avoid people who rely on such clauses having to go through the formality of seeking leave to serve out of the jurisdiction of the court. At the moment, under the Brussels regime, these clauses are protected, whether they are exclusive or non-exclusive, whenever they were made and we do not have to seek leave to serve out—so I urge the noble and learned Lord to pursue that message, as I know he has it in mind already.

[Lord Marks of Henley-on-Thames [V]]

My Lords, I will add only this: I urge the Minister to heed what the noble and learned Lord, Lord Mance, has just said in looking at ways in which we can give further protection to choice of court clauses—those that favour London are to our greatest advantage—and that he does so as far as possible after the implementation period ends.

[Lord Falconer of Thoroton]

My Lords, I support the amendments. I will make two points. First, had the noble and learned Lord had his way in Clause 2, he could not have made these amendments, which indicates the importance of primary legislation. Secondly, I hope that he heeds what the noble and learned Lord, Lord Mance, said in his closing remarks. They were important. In the future, it would be more sensible to consult the Lord Chancellor’s Advisory Committee on Private International Law before producing primary legislation, rather than after.

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I will end with an inquiry. The amendment has been described as academic and so it might seem at the moment, Clause 2 having been removed. May I inquire, more out of ignorance—I am sure others know the answer—if we do not press it to a Division today, what happens if Clause 2 is restored in the other place? Surely, we ought to consider at least ensuring that the amendment succeeds in eliminating the reference to penal offences.

[Lord Marks of Henley-on-Thames [V]]

My Lords, I addressed this issue in the group on the removal of Clause 2. I agree with everything that has been said so far in the debate on this amendment, which I support. Once again, we have unanimity. Although it might not be directly relevant in the light of the removal of Clause 2, I note the points made by the noble and learned Lord, Lord Mance, as to what will happen should Clause 2 be restored in the other place. I suspect that that would be curable here by passing a similar amendment, but I invite the Minister to consider that position as well.

[Lord Keen of Elie]

My Lords, clearly, given that Clause 2 is no longer part of the Bill, this amendment would have no effect. However, I understand why the noble and learned Lord moved it—to allow further discussion of the issue. We believe that the inclusion of the provision to which the amendment relates would have been important in allowing the implementation of private international law agreements that necessitate the creation of a criminal offence, particularly in the family law area. I mentioned that in Committee.

In response to the observations of the noble and learned Lord, Lord Mance, I am not aware of any current examples where we have provided for criminal penalties when implementing a private international law agreement. However, that does not mean that it would not be the appropriate step to take in future agreements, for example, on mutual recognition and enforcement of protection measures, where the equivalent domestic orders were enforceable by criminal penalties such as orders under the Family Law Act 1996, or, indeed, injunctions under the Protection from Harassment Act 1997. One is looking to the equivalents of such orders made by a foreign court when it comes to enforcement in the United Kingdom.

I continue to suggest that the safeguards on the power that I outlined in Committee, including use of the affirmative procedure as a matter of course, would be effective and appropriate in this regard. However, since the Clause 2 delegated power is no longer part of the Bill, I invite the noble and learned Lord to withdraw his amendment. In the event that Clause 2 comes back to this House, it appears that there might be scope for him to revisit this issue.

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

My Lords, under Amendment 11

“the Secretary of State must consult … Scottish Ministers … Welsh Ministers, and … the Northern Ireland department.”

Can the Minister confirm that this has been done and that the three departments are fully satisfied?

My main concern is about family law. There are family litigations in progress in the courts. A light has been shone on what happens if one of the spouses is resident in the UK and the other is in another EU country and has a different nationality. The question of the children’s custody will have to be resolved. As the UK will be out of the EU by the end of 2020, there are bound to be pending cases that will have to be resolved. Ratifying the Hague conventions will also have to be done.

There are other problems when one spouse is British and the other is in the subcontinent with the children. In such cases the children suffer the most, as the questions of their upkeep and final custody remain unresolved. This will be a very complex issue, and solutions will have to be found with diplomacy and patience. It would be useful if the Minister could explain how the above issues of children’s maintenance, cost and custody will be dealt with.

[Lord Marks of Henley-on-Thames [V]]

My Lords, I have nothing to add to what was said by my noble friend Lord Thomas of Gresford on this amendment, which we support.

[Lord Falconer of Thoroton]

I support the principle of this amendment. It is all of a piece with the way this legislation has been conducted. My noble friend Lord Hain described the attitude of the Minister when this was raised with him in Committee as “high-handed” and “cavalier”. Prior to that, as my noble friend said, there had not been proper consultation with the devolved Welsh Administration. The noble Baroness, Lady Ritchie, indicated that the Northern Ireland Assembly did not feel it had been consulted. The noble and learned Lord, Lord Hope of Craighead, said earlier that the devolution aspect of this had not been thought through. As became apparent during the earlier stages of this Bill, the Lord Chancellor’s Advisory Committee on Private International Law was not consulted at all before the Bill was laid before Parliament.

This is not the right way to legislate. I very much hope that the Minister will reflect on the failures properly to deal with this Bill and the inadequacies in it as a result, in particular Clause 2 and the need significantly to amend Clause 1. Both Clause 1, which has broad support throughout the House, and the need for its amendment indicated how misjudged Clause 2 is. If the Minister has any respect for this House, he will properly respond to the points raised on this amendment.

Probation Services

Lord Marks of Henley-on-Thames Excerpts

Monday 15th June 2020 Lords Chamber

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, I am speaking to reforms to the probation service in England and Wales—that is the Statement I am responding to. I thank the Deputy Speaker and the Minister for repeating the Statement made by the Secretary of State in the other place. We welcome the U-turn announced by the Government, which is something that the Labour Party and the trade unions have been pressing for over many years. The probation service is a Cinderella service. It is forgotten by most members of the public who never come into contact with its services, but offenders, sometimes victims and those involved in the criminal justice system know how vital it is to keeping us safe, making community-based sentences effective and proportionate and attempting to reduce reoffending.

As a London-based magistrate, over the years, I have read hundreds of probation reports, so I am well aware of the practicalities and difficulties of managing offenders in the community. However, since 2015, there has been a sorry tale of ideologically driven reform and failure. Cost-cutting measures were dressed up as reform and reoffending rates have since climbed by up to 32%. The stated principal objective of the reforms was to reduce reoffending, and against that simple, fair and objective measure, they have been an abject failure.

I am glad that the noble Lord, Lord McNally, is taking part in today’s short debate. He was of course the Minister responsible in this House for introducing the original reforms by the coalition Government. I do not want to rehash the many debates we had both at the time and since about the state of the probation service. I want to make a positive comment about what the noble Lord said at the time. If I remember correctly, he said that he was proud of introducing a National Probation Service. But with these further reforms, we are now moving towards a unified model for probation services and a whole-system national model to run the services, although elements of the delivery will still be done by voluntary sector charities and some private sector companies. I hope that the Minister, and indeed the noble Lord, Lord McNally, will agree that this unified model is more likely to deliver the primary objective of reducing reoffending. Does the Minister also agree that if the new national whole-system model is to work to best effect, it needs to be properly funded and have well-established working relationships with local authorities, the NHS and support services?

The key to reducing reoffending for a very large proportion of offenders is the same today as it has always been—namely, stable housing, work or education opportunities and stable personal relationships. Very often, those three elements need to be fulfilled to encourage people not to offend. You need a network of services for the probation service to work constructively and to reduce reoffending.

The trade unions—that is, the National Association of Probation Officers and UNISON—have been at the forefront of leading the opposition to the 2015 reforms. As noble Lords will know, there has been industrial action and a judicial review. It is clearly the trade unions’ role to protect the interests of their members. What can the Minister say about encouraging the probation staff who are currently in the private sector to continue their work and enhance their training when they move to the new unified model? There is an opportunity here to properly recognise the work of all probation staff and to give them the career opportunities and training that they deserve. I urge the Government to seize this opportunity.

The Government might want to say that these reforms are due to coronavirus, but we all know that the problems go much deeper than that. As my right honourable friend David Lammy said in the other place when responding to this Statement,

“probation is founded on the idea of second chances”.—[Official Report, Commons, 11/6/20; col. 428.]

As he also said, we want to give the Government a second chance. Therefore, I support this reform and I hope that the Government succeed in their original objective of reducing reoffending, but they can do that only by properly supporting the probation service.

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords, we, too, welcome the thrust of the Government’s change of direction in abandoning the failed community rehabilitation companies and moving back towards provision by a National Probation Service.

I am grateful to the Minister for writing to me last Thursday explaining the Government’s thinking behind the changes, particularly those rowing back on the involvement of the charitable, voluntary and private organisations in probation provision. However, those changes still come as a disappointment, and I regret that his explanation does not justify them.

Many in this House have called for significant reform of the probation service to co-ordinate the services for offenders in custody and for those serving community sentences, all to secure the best possible outcomes—improving rehabilitation, cutting reoffending and turning lives around. The failed CRC arrangements were memorably criticised by Dame Glenys Stacey when she was Chief Inspector of Probation—in no small part because they failed to involve the voluntary sector in supplementing that work and in providing effective through-the-gate services at the end of prison sentences.

Dame Glenys’s report reflected the reality that the system failed to harness the skills and enthusiasm of small and committed private and voluntary sector organisations. Therefore, when the decision was, rightly, made to end the CRC contracts, we were promised more specialist resettlement and rehabilitative support from independent probation delivery partners, as they were to be called, in each region. The new proposals planned in May last year were structured so as to encourage charities and other small voluntary and private sector bodies, many of them with specialist expertise, to get fully involved in providing rehabilitation services, whether in addressing addiction and mental health issues or in providing education, training and employment opportunities.

Sadly, today’s Statement sucks the life out of many of those proposals. The noble and learned Lord has suggested that that is all because of the disruption caused by Covid-19. No one wants to downplay that, but will he explain how the coronavirus crisis demands this retrograde structural retreat? How do the Government think that bringing delivery of all unpaid work and behavioural programmes back within the National Probation Service will work? Dame Glenys’s successor as Chief Inspector of Probation, Justin Russell, has constantly pointed out how understaffed the service is. Now, he has had to stall recruitment, and that has been as a result of the coronavirus crisis.

We all know that morale among probation officers, as their union leaders remind us, is at an all-time low because officers are overloaded with work and have no time to give a proper service. Will the Minister please explain how the Government intend to maintain the present level of service, let alone improve it, by abandoning the commitment to bring in probation delivery partners? Contracts worth £100 million, organised and run by the National Probation Service for the voluntary sector and others, will hardly provide the innovative and morale-boosting changes that probation delivery partners were going to inject into the process. Can the noble and learned Lord explain how much autonomy organisations from within the voluntary and private sectors will have in delivering services under today’s proposals? Will he say how much money these new proposals will save?

Finally, does the Minister share my concern that this change of plan is not really about responding to the coronavirus crisis, nor about improving rehabilitation, but more about delivering on the Government’s commitment to make community sentences tougher and to punish offenders more firmly, just as his letter to me stated?

[Lord Keen of Elie [V]]

My Lords, I thank the noble Lord, Lord Ponsonby, for his observations, but I say this: I do not consider that we are engaging in a U-turn. We are engaging in a further development of the probation service, prompted by a catalyst—namely Covid-19—that has underlined the need for us to take perhaps greater direct control of the service.

The noble Lord referred to the reforms of 2015 as a failure. I do not accept that. It was part of a journey, and we have now come to a point where we believe that it is appropriate to take direct control, through the National Probation Service, of all matters except rehabilitation and resettlement, and to encourage the engagement of the voluntary and charitable sector in the provision of those rehabilitation and resettlement services, which the noble Lord himself acknowledged were so important. In developing this, we have engaged with the voluntary sector and with Clinks, the organisation for the voluntary and charitable sector.

I am asked what we intend to do to engage with funding for this. The noble Lord, Lord Marks, referred to the idea of savings, but that is not what we are concerned with. Here, we are determined that, through the dynamic framework for the provision of rehabilitation and resettlement services, the National Probation Service should engage with the voluntary and charitable sector. We anticipate that, eventually, we will be expending something in the region of £100 million per annum in the engagement of those services.

We have the highest regard for probation service staff, both at the national level and at CRC level. We are encouraged by the idea that many of those who are engaged in CRC probation delivery will move over to the National Probation Service and bring with them their experience and depth of knowledge. We will be encouraging that as we go forward.

On funding, for the 2019 spending round, we have already increased the annual funding for probation by some £155 million above the current spending levels. There is, of course, a case for maintaining that increase.

While I understand that some would regard this as a move away from the existing model, I suggest that it is a proper development of the model and of the way in which we set out the proposals for dealing with CRCs going forward. We believe that the voluntary and charitable sector will continue to have a major part to play in the delivery of probation services.

Crown Court (Recording and Broadcasting) Order 2020

Lord Marks of Henley-on-Thames Excerpts

Monday 8th June 2020 Lords Chamber

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords, I have long argued for more broadcasting of court proceedings on the simple ground that open justice is generally better justice—a point endorsed by the noble and learned Lords, Lord Morris of Aberavon and Lord Thomas of Cwmgiedd. The noble Lords, Lord Reid, Lord Wei, Lord Foulkes and others have also eloquently emphasised the importance of the public understanding of the justice system.

We have long seen open justice as central to the rule of law and to our liberties, but, until recently, public access to proceedings was limited to the admission of the public to open court hearings and to their fair and accurate press reporting. In principle, I see little distinction between admitting the public to open court proceedings and permitting press reporting, and allowing broadcasting of those proceedings. I accept that there should be limits to broadcasting in the interests of justice, particularly to protect jurors and witnesses, including vulnerable witnesses in sensitive cases, from being inhibited or frightened. Nevertheless, I would argue that we can move, incrementally certainly, towards a more open system. These two orders take small but significant steps along the road to more open justice, and I support them.

On broadcasting judges’ sentencing remarks, we have all seen how, too often, public perception of sentencing is distorted by sensationalist coverage in the printed media. Broadcasting would increase awareness of the reasoning behind sentencing in particular cases—a welcome benefit. But I agree with the noble Baroness, Lady Anelay, and the noble Lords, Lord Harris and Lord Bourne, that we should go further, with pilot schemes and further consultation, as appropriate, in the future.

I agree with lifting the exception to broadcasting family appeals to the Court of Appeal. That is in line with the general recognition that family proceedings have been too secretive in the past and should be more widely understood.

Perhaps I may make a few further general points. First, the broadcasting of Supreme Court proceedings has clearly been a great success. In many cases, members of the public follow the argument in detail and with care. We have heard today from the noble and learned Lords, Lord Keen and Lord Garnier, who appeared in the Miller and Cherry cases on the unlawful prorogation of Parliament last year. Many who would have missed it without broadcasting will remember the decisive contribution that the noble and learned Lord, Lord Garnier, made to the argument in that case on behalf of Sir John Major.

For my part, I do not believe that the current blanket bar on broadcasting evidence in trials is supportable. It is permitted in a number of common-law jurisdictions to a greater or lesser extent: not only in the United States, where it is widely permitted, but—subject to limitations—in New Zealand, Australia and Canada. While I accept that there are risks in the unlimited broadcasting of lay witness evidence, I am unconvinced that expert evidence needs or ought to be similarly protected. There may be an important public interest in more scrutiny of expert witness evidence in securing genuinely impartial evidence that is less likely to be skewed in favour of their clients in a case.

More controversially perhaps, I also believe that the public have a right to witness first-hand the conduct of parties’ advocates and the reaction of judges to their conduct of litigation. When broadcasting cases was first mooted, there was much talk of a fear of counsel grandstanding for the camera. But we have seen little evidence of that in the Supreme Court and other appellate courts.

Finally, I would mention a little-noticed but significant effect of the coronavirus lockdown; this point was mentioned by the noble Baroness, Lady Jones of Moulsecoomb, and others including the noble Baroness, Lady Kennedy. Civil trials have gone ahead virtually, in accordance with paragraphs 8 and 22 of the Protocol Regarding Remote Hearings published on 26 March by the senior judiciary. Paragraph 8 says that

“remote hearings should, so far as possible, still be public hearings. This can be achieved in a number of ways:”

The third of those ways is

“live streaming of the hearing over the internet, where broadcasting hearings is authorised in legislation (such as the new s85A recently inserted into the Courts Act 2003).”

That section authorises video broadcast of proceedings, where the court agrees.

The protocol goes on:

“The principles of open justice remain paramount.”


I agree with that. During lockdown, I have conducted a High Court trial with a significant number of witnesses in accordance with that protocol. The trial worked well, although I agree with the noble Baroness, Lady Jones of Moulsecoomb, that such trials must not be difficult to access. Private evidence in that trial was kept private; the principle of open justice was maintained. I endorse it and suggest that it could be extended when we get back to normality.

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

Lord Marks of Henley-on-Thames Excerpts

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

[Lord Mann (Non-Afl)]

My Lords, in Clause 2(7), “relevant territory” is defined as

“the Isle of Man … any of the Channel Islands … a British overseas territory.”

On what basis should there be a differentiation for the Isle of Man as opposed to the others—as the noble Lord, Lord Adonis, rightly asked—particularly regarding the two Crown dependencies of Guernsey and Jersey? Would it not be sensible from a UK stance to have consistency, particularly between the Crown dependencies and on our approach to defining “relevant territory”, as covered by Clause 2(7)?

[Lord Marks of Henley-on-Thames (LD)]

My Lords, we have no objection to the Bill as passed extending to the Isle of Man at its request, but that is of course subject to the whole question of our objection to Clause 2 standing part of the Bill and to any other amendments to the Bill that may be passed to it. In those circumstances, it is right that the Minister is not pursuing this amendment today, and it would be right that we should reconsider our position on Report.

[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.

--- Later in debate ---

[Lord Blunkett (Lab)]

My Lords, at this point in Committee deliberations, I often find that we have had tedious repetition, some of it very necessary in terms of underlying principles. On this occasion, some extremely valuable contributions have brought in extraneous issues that I certainly had not thought of, including those raised by my noble friend Lord Hain.

I speak in support of the points raised by my noble and learned friend Lord Falconer. He and I shared the pleasure of working together when the Home Office had what are now the powers of the justice ministry. We were, of course, faced from time to time with the desire to engage with a plethora of delegated legislation which would ease our burden and make the business of government easier. The noble and learned Lord, Lord Garnier, is correct in identifying that Governments wish to do this and Oppositions seek to check it. That is a perfectly reasonable combination because Governments have the dynamic of seeking to deal with issues that they will return to in an easier form and Oppositions, quite rightly, have to challenge, as is the case this afternoon, the reasons for that and whether they are acceptable.

I take, for instance, my noble and learned friend Lord Thomas of Cwmgiedd’s third point about the framework of legislation now, in which we have become accustomed to dealing with underpinning issues. However, when principles relate to the extension of criminal offences and penalties, as my noble and learned friend pointed out at the beginning of this debate, we have to be extremely cautious.

The noble Lord, Lord Thomas of Gresford, in a very entertaining and important diversion, referred to our present situation not just in terms of the underpinning measures that allow people to travel great distances but not to stay overnight, which are perverse in terms of trying to get Parliament up and running, by the way. Measures have applied in history, sometimes by necessity, such as Regulation 18B in 1940, but with consequences that had to be dealt with at length, with the picking up of thousands of people, some of whom should never have been interned in the way they were. Caution is always valuable in these circumstances so that consequential and unforeseen actions are avoided wherever possible. An example is the laying of regulations under both Public Health Acts and the emergency powers that we passed through this House on 25 and 26 March this year, which will be laid in the Commons later this afternoon, in respect of unworkable laws attempting to quarantine people coming from countries with less infection than we have ourselves.

Caution is necessary to make good law, as the noble and learned Lord, Lord Garnier, said. It tries to look down the line at what the consequential outcomes might be. That is why I think this has been a very useful debate and I hope that the noble and learned Lord, Lord Keen, will reflect on this, given that, as the noble and learned Lord, Lord Garnier, said, substantial majority Governments can push through whatever they like but other people have to live with the consequences.

[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.

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

Lord Marks of Henley-on-Thames Excerpts

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

I therefore suggest that the Government should think again about the desirability of dealing with important, even if technical matters, in the manner proposed indefinitely by Clause 2. In the present context in particular, that means in respect of any measure going beyond Lugano.

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I have added my name to the objection to Clause 2 standing part of the Bill, to be moved by the noble and learned Lord, Lord Falconer, for all the reasons that he gave, supported by the noble Lord, Lord Pannick, and others. That will be addressed in more detail in group 6, later today.

As has been said, this amendment is a limited version of the removal of Clause 2, permitting the Lugano convention to be implemented. Indeed, the Lugano convention was cited at Second Reading by the Minister as a reason for taking this power to implement international conventions by regulation. He confirmed at Second Reading the Government’s intention to implement the Lugano convention.

In the Government’s response to the report of the Delegated Powers and Regulatory Reform Committee, the Minister claimed that the urgency of implementing Lugano is such that it could not be done in time for the end of the transition period. He is supported in that by the briefing of the Bar Council for this Committee stage, which wants to see the convention implemented as part of domestic law before the end of the transition period. Indeed, it mounts a powerful argument for that. However, I am not convinced.

For my part, I would prefer to see Clause 2 removed in its entirety, because there should be no reason why the Government cannot lay primary legislation before the House before implementing Lugano. Even given the difficulties of Virtual Proceedings and the hybrid Parliament, provided that we could vote, it could be done. That would be the correct way to do it, and it would allow for proper and informed debate on the Lugano convention, which, at the moment, we are to be denied.

At Second Reading, as he has today, the noble and learned Lord, Lord Mance, stressed the importance of the English choice of jurisdiction clauses in commercial contracts of many types to the status of London as a legal centre and to the status and recognition of English commercial law, which contributes not just to London lawyers but to London’s centrality to the global commercial system. The recognition and enforcement of English jurisdiction clauses is under threat as a result of our leaving the European Union and losing the protection of the 2012 Brussels recast regulation.

As the noble and learned Lord has pointed out, the problem—along with other problems with the Lugano convention, to which he has drawn attention, both at Second Reading and today—is that that convention does not replicate Brussels recast, in a number of ways. He has drawn attention to the “Italian torpedo”, whereby a choice of court clause can be overridden by subsequent litigation commenced in defiance of an English jurisdiction clause. He has also drawn attention to the advantage of the 2019 Hague Convention, coupled with the 2019 choice of court convention, to which we could sign up. The particular relevant advantage is that, under the 2019 convention, courts may refuse to recognise a judgment given in a contracting state if that judgment breaches a choice of court clause. If we sign up to Lugano as it stands then, even if we later signed up to the 2019 Hague Convention, as the noble and learned Lord, Lord Mance, pointed out, Lugano would trump that protection.

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

My Lords, I was not suggesting—and neither, I believe, was the noble Baroness, Lady McIntosh—that we can stay in Brussels recast or rejoin it after the end of the transition period. I was merely regretting the loss of the benefits of Brussels recast and pointing out that Lugano, if we joined it after the transition period ended, would not offer us comparable benefits. Apart from conceding that point, the Minister has not addressed the points made—notably by the noble and learned Lord, Lord Mance—that joining Lugano may be undesirable, and that we are deprived of the opportunity of debating that in the context of primary legislation. That, I think, is a point that he needs to address.

[Lord Keen of Elie]

On that point, of course I accept that Lugano does not go as far as Brussels Ia and IIa—Brussels restated. We are all well aware of that. As regards the interplay between Lugano and the Hague Convention 2019, one has to bear in mind that Hague has not been signed or acceded to by the EU. We do not know if or when it may intend to do so. Indeed, it is noteworthy that it took the EU 10 years to sign and accede to the Hague Convention 2005. On the other hand, Lugano is there and available as a convention. A number of noble and learned Lords have acknowledged its importance in the context of private international law. Therefore, it is appropriate that we proceed with Lugano at this stage.

--- Later in debate ---

[Lord Adonis]

I have nothing to add to this discussion.

[Lord Marks of Henley-on-Thames]

My Lords, the question raised by my noble and learned friend Lord Wallace of Tankerness is about how legislation should be made regulating implementation between jurisdictions within the UK and between the UK and other relevant territories. It seems to me that Clause 2(2) and (3) and Schedule 6 infringe the principles of devolution, particularly in the lack of provision for consultation with Scotland and Northern Ireland, as he pointed out. They also infringe the autonomy of the other relevant territories. For those reasons it seems to me that, in addition to the general reasons about the width of Clause 2 and the points already made by the noble and learned Lord, Lord Falconer, we will support amendments such as these on Report.

[Lord Keen of Elie]

My Lords, as with the previous groups of amendments, the underlying theme is that Clause 2 should not stand part of the Bill, but we have to look at these amendments in the context that it does stand part. They would therefore limit the power conferred by that clause—that context is important.

When discussing Amendments 4 and 5, I pointed out that, in the context I have just described, they in turn would result in an unacceptable restriction of the power in Clause 2 and would mean that co-operation on private international law matters between different parts of the United Kingdom family would be significantly less well developed than it is between the United Kingdom and international partners. As a matter of policy, we see no way to justify such a position. Why, for example, should two parties in London and Edinburgh have less legal certainty about the way in which their dispute will be resolved than if the dispute was between parties based in London and Paris or New York? Of course, the point is then made that it is not a question of whether, but how. If you are able to have this regulatory-making power under Clause 2 with regard to foreign jurisdictions, why not intra-UK?

If, as suggested by the noble and learned Lord, Lord Wallace, the concern is the power being perceived as risking imposing a position on Scotland, Northern Ireland, the Crown dependencies or overseas territories without consultation or consent, I would seek to assuage those concerns. Such arrangements under the power would require the agreement of all the relevant Administrations—the United Kingdom Government and the Government of the relevant devolved Administration, Crown dependency or overseas territory. Indeed, such a measure would be considered only after the Government had consulted appropriately with relevant stakeholders, and the statutory instrument to give effect to such a “mirroring” provision—that is what it would be—would still be subject to the scrutiny of the affirmative procedure, as I noted before.

There are examples where such mirroring-type relationships already apply. We apply a modified version of the terms of the 1968 Brussels Convention, an instrument that was the forerunner to Brussels I and the recast Brussels IA regulation, between the United Kingdom and Gibraltar. That works perfectly well. Therefore, assuming Clause 2 stands part of the Bill, we do not see any reason why it should be amended in the way suggested.

I now turn to Amendment 18, which would in turn require fresh primary legislation if the UK wished to amend or revoke, at a later date, any declarations it chose to make when it first implemented a new international agreement. This would mean, for example, that if, in implementing the 2005 Hague Convention, the Government decided to replicate the current EU declaration in regard to certain insurance contracts being out of scope of the convention and then wished to review that decision later, primary legislation would be required to implement that change.

Our policy intention is to replicate the current EU declaration in relation to the exclusion of certain insurance contracts when we accede to the 2005 Hague Convention later this year, because this is how the convention rules currently apply here and, given the tight timeframe between now and the end of the transition period, it makes sense to maintain the status quo and then review in the longer term. Under the proposed amendment, if we wished to change our position following that review, we would have to wait for a primary legislative vehicle to give effect to that change. In our view, that would simply create undue delay on a matter which could be addressed through secondary legislation without losing any of the desired scrutiny. It is in these circumstances that I respectfully ask the noble and learned Lord not to press his amendments.

--- Later in debate ---

[The Deputy Chairman of Committees]

We were very glad to have your contribution.

[Lord Marks of Henley-on-Thames]

My Lords, for some years I had the privilege of serving on the Delegated Powers and Regulatory Reform Committee under the chairmanship of my noble friend Lady Thomas of Winchester. That committee has increasingly come to stand as a crucial protector of the role of Parliament, alongside the noble and learned Lord, Lord Judge, whom I was delighted we were able to hear. The committee has acted in attempting to limit the Executive improperly taking powers for government Ministers to change the law by delegated legislation in significant ways and ways for which delegated legislation has never in the past been deemed appropriate.

The committee usually expresses itself, or certainly has until recent years, in circumspect terms and the Government have traditionally accepted its recommendations. The committee has left it to the House to implement its recommendations if the Government do not agree to do so. The clarity and decisiveness of the recommendation in paragraph 15 of the committee’s report on this occasion is anything but circumspect. The conclusion speaks for itself:

“We are of the view that clause 2 represents an inappropriate delegation of power and we recommend that it should be removed from the face of the Bill.”


The committee is forcefully supported by the report of the Constitution Committee, chaired by the noble Baroness, Lady Taylor, from whom we have heard, and includes the noble Lord, Lord Pannick, from whom we have also heard. Paragraph 19 of that report contains the kernel of its conclusion:

“We are not persuaded by the arguments the Government has made in support of this power. If the balance between the executive and Parliament is to be altered in respect of international agreements, it should be in favour of greater parliamentary scrutiny and not more executive power.”


Another important point made by the Constitution Committee, mentioned by the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Howarth, is that delegated legislation is amenable to judicial review so that future regulations implementing international treaties could be the subject of challenge. It is entirely right that delegated legislation, which involves an exercise of executive power of itself, should be capable of being challenged as unlawful.

However, it would be a highly undesirable consequence of the Bill if, when enacted, the lawfulness of conventions entered into by the United Kingdom Government as a matter of our domestic law could not be guaranteed to our international convention partners until such challenges were determined.

I also agree with the point made by the Constitution Committee, my noble friend Lord Thomas of Gresford and the noble and learned Lord, Lord Goldsmith, that the CraG procedure is at present inadequate and ineffective as an instrument of parliamentary scrutiny.

In the light of all that, can the Minister say whether, given the Constitution Committee’s report published on 4 May, he is prepared to go away and reconsider his extremely negative response, dated 17 April, to the Delegated Powers Committee’s report? I ask, because if these important committees of your Lordships’ House are going to be routinely ignored by government, parliamentary democracy is entering treacherous territory, in which the conventional boundaries between executive power and parliamentary sovereignty are roughly and unceremoniously shifted by the failure of government to adhere to well-established, valuable and principled conventions.

The central point is this. As it stands, the Bill involves moving a whole area of legislation—that of implementing private international law treaties in domestic law—from Parliament to the Executive. That is a dangerous extension and an unwelcome trend—noted by the noble Baroness, Lady Taylor—in our constitutional arrangements from parliamentary democracy to government by an overmighty Executive. If it is private international law agreements this year, what might follow next year? This House has rightly sought to resist the trend, which is dangerous and must be stopped. As parliamentarians, and respecting the traditional role of this House as a guardian of the constitution, we have a responsibility to stop it.

[Lord Keen of Elie]

My Lords, I thank noble Lords and noble and learned Lords for their contribution to this part of the debate. Since the commencement of this Committee, the matter of whether Clause 2 should stand part of the Bill has in a sense been the elephant in the virtual Chamber—or perhaps the virtual elephant in the Chamber. I therefore do not intend to rehearse or repeat the arguments that have been made repeatedly in Committee. However, I want to make it clear that the Government regard the powers in Clause 2 as essential to achieving their objective to build up the United Kingdom’s position in private international law, not only in the immediate future but in years to come.

Of course, there is one particularly pertinent example of our ambition; namely, our ambition to accede to the 2007 Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, and the desire—indeed, the need—to do that before the end of the transition period. It would be gravely unfortunate if a gap was to emerge between the end of the transition period, when we continue to look to the Brussels I and IIa regime, and the application of the 2007 Lugano Convention. We are concerned that that should be avoided.

Briefly, first, we consider that the proposal in Clause 2 is not only essential but proportionate. International law agreements are generally uncontroversial and technical in nature, and the detailed content of the private international law agreements to which the Bill will apply will already be determined at the international level; they are by their very nature clear and precise in their terms.