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

Lord Thomas of Gresford Excerpts

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

[Lord Mance]

Yes, it is very helpful. Have I started addressing Amendment 3 by mistake? I certainly did not intend to. I want to address Amendment 11, which seeks to include the words “or arbitral award” in the definition of private international law.

As I said, I declare an interest as an arbitrator. Perhaps I might mention that, although I may not speak on this, I chair the Lord Chancellor’s Advisory Committee on Private International Law, which is referred to later, in proposed Amendment 20. I assure the Committee that that committee had nothing to do with that amendment.

To go back to arbitral awards, the recognition of arbitration clauses and the enforcement of arbitral awards are matters governed by special international agreements, most notably the highly successful 1958 New York convention and the 1966 International Centre for the Settlement of Investment Disputes convention, also known as the World Bank convention. The current Brussels regime, the Lugano convention, the Hague Convention on Choice of Court Agreements and the 2019 Hague Convention are all extremely careful to exclude arbitration expressly. But this definition for some reason includes it. One of the virtues of the 2012 recast of Brussels 1 was to reinforce that exclusion still further. London is a world centre of arbitration, and there would be concern about any suggested intervention by delegated legislation.

The inclusion of a reference to an “arbitral award” is therefore inappropriate and will arouse concern. It will also raise the further question: if arbitral awards are within private international law, what about international agreements on the jurisdiction of arbitrators? Is the word “jurisdiction” in Clause 2(7)(a) to be interpreted as enabling delegated legislation about arbitral jurisdiction?

The response at Second Reading from the noble and learned Lord, Lord Keen, was not comforting. He said:

“We do not intend to intrude wholesale on the New York convention or other aspects of arbitration, but it might be that there will be bilateral or multilateral … issues where a party wishes to refer to arbitration … we will want to have the power to proceed with such an agreement.”—[Official Report, 17/3/20; col. 1451.]


On the face of it, that suggests that, so far as the Government have any clear conception of why these words are there, they would cover jurisdictional issues—in other words, issues about where a party wishes to refer to arbitration and not just the recognition and enforcement of arbitral awards. That is an unwise and unnecessary indication of possible future interference by international agreement and delegated legislation in one of this country’s more successful export activities.

Surely the better approach is: if it ain’t broke, don’t fix it. If, at the international level, the New York or ICSID convention is supplemented, their domestic implementation should be by primary legislation, as it currently is under the Arbitration Act 1996 and the Arbitration (International Investment Disputes) Act 1966.

Finally, on Amendment 16, I endorse what has been said by my noble friend Lord Anderson and the noble and learned Lord, Lord Falconer. Admirable though they may be, model laws do not have the same status as international agreements and frequently need close attention before domestic implementation.

[Lord Thomas of Gresford (LD)]

My Lords, in his letter of 19 April in response to the report of the Delegated Powers Committee, the Minister said:

“The Committee’s Report implies that the power in clause 2 of the Bill would allow the Government to implement agreements on any aspect of private law with a foreign element, rather than merely agreements on the much narrower subject area of private international law, as defined by clause 2(7) of the Bill. … It will not be possible for matters outside of the areas indicated by the definition of ‘private international law’ in clause 2(7) to be implemented using the power.”


The Minister echoed what was set out in paragraph 7 of the Explanatory Notes, which state:

“PIL agreements cover a discrete area of law that is narrowly defined.”


One would therefore have expected that the interpretation of Clause 2(7) to be narrowly defined, but as the noble and learned Lord, Lord Falconer, pointed out, there is a width and uncertainty about these provisions that really do not follow the expressions being used.

For example, the definition clause for “international agreement”, which Amendment 9 deals with, includes,

“an agreement to which the UK is, or is expected to become, a party.”

What does that mean? Does that mean that legislation will be brought forward under these provisions and regulations brought forward in respect of an agreement to which we are not a party? As the noble and learned Lord, Lord Falconer, pointed out, what happens if the agreement is not ultimately made and the negotiations fall through? We would then, presumably, have regulations on the statute book dealing with an agreement to which we were not a party.

The definition of “private international law” is also contained in that same subsection, and Amendments 10, 12 and 13 demonstrate the loose wording that is used in case anything has been missed. That is rather typical of the drafting of the legislation. It is so drafted that anything can be bought in and the door is kept open. For example, it includes “rules and other provisions”, and there is to be co-operation in relation to the

“service of documents, taking of evidence and other procedures”

not defined. Paragraph (c)(ii) deals with

“anything within paragraphs (a) and (b).”

It is so loose and ill-defined.

So the purpose of the amendment moved by the noble and learned Lord, Lord Falconer, is to define the scope of regulation-making powers of the Bill so that the regulations should be confined exclusively to the field of private international law. Any provisions that trespass into any other territory could not be incorporated into domestic law by these regulations. I wholly support what he says about that.

I also support what was said by the noble and learned Lord, Lord Manse, on arbitral awards and model laws.

But I am interested in Amendment 6. Perhaps the Minister will share his thoughts about any proposed regulations concerning legal aid. What proceedings in the field of private international law does he envisage? To what is this directed? Would these be additional provisions to existing legal aid regulations? Would there be more hoops or fewer? Would there be more generous or less generous provision, and in what fields?

[Lord Keen of Elie]

My Lords, I begin with Amendment 2, which as the noble and learned Lord, Lord Falconer, noted, would seek to limit the scope of the Clause 2 power to implement agreements to those that relate exclusively to private international law, whereas of course in its present form of drafting it is clearly intended to extend to the implementation of private international law provisions in wider agreements. In previous correspondence, as noted by the noble and learned Lord, Lord Mance, I referred, as an example, to the jurisdiction of the provisions of the 1961 Warsaw Convention, which is concerned with international carriage by air. The point made by the noble and learned Lord, Lord Mance, was: why would you seek a power to implement such a private international law provision outwith the wider terms of the relevant international agreement? There may be some force in that point. It is one that I would like to consider further, and I will do so before we reach Report.

Amendment 6, which was just referred to by noble Lords, seeks to remove legal aid from the scope of the matters about which Clause 2 regulations can make provision. In the light of the observations of the noble Lord, Lord Thomas, perhaps I should explain that the Bill as presently drafted does not expressly include legal aid in the scope of the definition of private international law. However, under Clause 2(5)(c), it allows for regulations that implement or apply a private international law agreement to make provision for legal aid. This would mean that, where a private international law agreement to which the UK chose to become a party included obligations in relation to legal aid, those could be given domestic effect through Clause 2 regulations.

The reason for that approach to the matter of private international law and legal aid in the Bill is that, although there is some doubt about whether legal aid is typically encompassed in the scope of what is referred to as private international law as generally understood by practitioners and academics, there are circumstances in which a private international law agreement could contain specific legal aid provisions. This normally arises, as one might expect, in the field of family law. For example, there is a requirement in the 1980 Hague Convention on international child abduction for a contracting state to apply the same legal aid rules to citizens of, and persons habitually resident in, other contracting states in matters covered by the convention as it would to its own citizens and residents. It is therefore the Government’s view that, should similar conventions arise in the future providing for critical cross-border co-operation in matters of private international law, it would be unfortunate if there were to be a delay in people benefiting from the provisions of such an important convention.

Where a private international law agreement imposes requirements relating to legal aid that go beyond the sorts of areas for which the United Kingdom Government currently provide such funding domestically, we would need to think very carefully before proceeding. However, the normal process of consultation during the development of, and before taking the international steps to join, a convention of this nature would provide an opportunity for consideration of any legal aid implications.

In short, the amendment would create unhelpful doubt around whether the Clause 2 power could be used to implement a private international law agreement that included provisions relating to legal aid, and indeed it might even render that impossible.

Amendment 9 seeks to restrict the Clause 2 power to implement in domestic law only the private international law agreements to which the UK is already a contracting party and nothing further. It will not be possible for the Government to take the final steps necessary under international law for the United Kingdom to become bound by a new agreement in this area, such as depositing an instrument of ratification, because, in order to do that, the necessary implementing legislation must already have been made and, as a result of this amendment, it would need a different legislative vehicle.

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[Lord Adonis]

I have nothing to add on this group.

[Lord Thomas of Gresford]

My Lords, I am of course speaking as a Welshman. We have a very limited interest in the provisions being discussed, but I have some questions. Since the time of Henry VIII, who has a great deal to answer for, the jurisdiction of England and Wales has been merged. Only in very recent years has there been a suggestion that Wales should have its separate jurisdiction. We are one of the three jurisdictions that will be subject to the Bill’s provisions; we go along with England. I would like to know whether there is any prospect of consultation with Welsh Ministers about what provisions are being brought into effect, because private international law covers such a wide range of things. It has particular relevance to family life in Wales as much as anywhere else. Will there be any consultation? If so, what will it be?

[Lord Falconer of Thoroton]

I simply underline the points made by my noble friend Lord Foulkes and the noble and learned Lords, Lord Wallace and Lord Hope. As far as my noble friend Lord Foulkes is concerned, the purpose of these amendments is to probe; as far as I am concerned, they illustrate the lack of thought that has gone into Clause 2. They simply underline the sense that there should not be a Clause 2.

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Some matters here need careful scrutiny. I hope we will get a clear response and undertaking from the Minister that they are being kept under careful and constant review. I beg to move.

[Lord Thomas of Gresford]

My Lords, I have nothing to add to the points succinctly made by the noble Lord, Lord Foulkes.

[Lord Adonis]

I have nothing to add.

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[Baroness Jones of Moulsecoomb (GP)]

My Lords, like the noble Baroness, Lady Taylor, and the noble Lord, Lord Foulkes, I am not a lawyer, but I care about democracy and I care very much that if the Government make promises, they should actually deliver on them. Clause 2 is a case of the Government reneging on promises made only last year. I voice my concern about Clause 2, which would allow Ministers to subjugate our national law to international agreements and the jurisdiction of foreign courts, with minimal parliamentary scrutiny from people such as noble Lords, who actually know what they are talking about.

Last year, the Government promised us that we would take back control of our laws and our courts; there was no caveat that we would then delegate our laws to international organisations with nothing more than a tick-box exercise by Parliament. The clause gives far too much power to international trade organisations and allows model laws to be imposed on us at the whim of a trade Minister.

I am also concerned that this measure would be better addressed in the Trade Bill, so that we could develop a comprehensive and coherent system of scrutiny for agreements relating to international trade. Otherwise, we end up with different scrutiny arrangements for trade agreements and the private international law agreements that might go alongside them. Will the Minister please explain how this clause fits with the Government’s promise of Parliament taking back control of our laws and courts? I look forward to Report and the vote that I am positive will happen.

[Lord Thomas of Gresford]

Two questions arise when laws are made by secondary legislation: is there democratic legitimacy and has there been proper scrutiny? If private international law raised simply technical issues, that might be less important. But as has been said so often today, private international law raises a wide of range of matters; in particular, family law issues, where basic human rights are frequently involved.

On parliamentary scrutiny, the Minister referred to the ample opportunity for debate in the affirmative procedure. We all know about the affirmative procedure. It is a yes/no question, as the noble and learned Lord, Lord Goldsmith, pointed out a moment ago. The matters before the House cannot be amended and frequently, nothing happens as a result of any Motion that may be moved in opposition. If it is Her Majesty’s Opposition’s policy not to vote in favour of a fatal amendment, the whole process is completely nugatory. I have heard Labour Whips tell their members not to vote in the case of a fatal amendment simply for that reason alone. Their turn will come.

The affirmative procedure is not in any way proper parliamentary scrutiny. Scrutiny under the Constitutional Reform and Governance Act 2010 has proved to be a non-event. It has already been quoted, but I will do so again: the Constitution Committee referred to that procedure being “limited and flawed” and indeed never properly applied.

It could be said that you can have democratic legitimacy providing there is direct participation in the legislative process by means of consultation. It is very noticeable that in this Bill there is no provision for consultation. Schedule 6 is devoid of any mention of it. That gives an opportunity for those affected by legislation directly to influence its content. Consultation is not everything: it has its problems. There are issues, for example, about the quality of the consultation document. That document may not reach the hands of everybody who is affected. The choice of who gets the document will be with the Government. Organisations or individuals may not have the time or the skills to deal with it. Strong groups who are well organised may have a disproportionate influence in the consultation process. It is of course useless, unless the Government are prepared to take the views of the consultees into account.

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

Lord Thomas of Gresford Excerpts

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

[Lord Falconer of Thoroton]

This is, in effect, a probing group of amendments, repeating many of the arguments that we discussed on day one in Committee, and the amendments do two things. Amendment 19 would delete the power of the regulation-making authority to create, amend or extend a criminal offence. Amendments 20 and 21 say that the regulation-making power should be subject to the super-affirmative resolution procedure in the UK Parliament; and, in particular, that before any such instrument was made final a consultation would have to be undertaken with the Lord Chancellor’s advisory committee on private international law and the European Union Select Committee of the House of Lords.

I make it clear, as I did on the previous occasion, that I am not in favour of this order-making power at all. I refer to Amendment 19 simply to indicate the width of this power, which includes the making or changing of criminal offences. In relation to the super-affirmative procedure, again, I am against it. There should not be that power at all. It gives me an opportunity, though, to make the point that the Lord Chancellor’s advisory committee on private international law has been an important source of advice over a long period to the Lord Chancellor and the Ministry of Justice on private international law agreements. It was not referred to at all in the suite of maybe a dozen statutory instruments introduced under the withdrawal Act, in the wake of us changing our private international law arrangements with the European Union. That led to a great loss in the preparation of those statutory instruments. I very much hope that the Minister will give an under- taking that in any subsequent changes in private international law, the Government will consult unquestionably the Lord Chancellor’s advisory committee and, as much as possible, the European Union Select Committee of this House. I beg to move.

[Lord Thomas of Gresford (LD)]

My Lords, first, I draw attention to paragraph 41 of the memorandum concerning the delegated powers, which says:

“We do not anticipate using the power to create, extend or increase the penalty for, a criminal offence very often, however it may be needed, in very limited circumstances, in order to implement effective enforcement provisions for some potential future PIL agreements.”


I stress: some potential future PIL agreements.

I want to speak mainly to Amendment 19, although I support what the noble and learned Lord, Lord Falconer, said in relation to Amendments 20 and 21 and his criticisms of the super-affirmative procedure. The Committee may recall that in its first sitting, I made comments about the necessity for democratic legitimacy and scrutiny when it comes to the making of legislation in this form. I do not consider that the form of approach of an affirmative resolution on its own is enough. I certainly do not think that the super-affirmative procedure adds very much to that. As for scrutiny, the noble and learned Lord has already referred to the fact that the Lord Chancellor’s committee was not given an opportunity to consider the Bill.

Criminal offences are set against the background that everybody is presumed to know what the law is. To put it another way, familiarly, ignorance of the law is no excuse. Any criminal offence created requires clarity, certainty and proportionality. I illustrate this by referring to what is very much in the public eye at the moment, the Health Protection (Coronavirus Restrictions) (England) Regulations 2020. No draft was laid or approved by Parliament by reason of urgency, and one understands entirely that reason, but the instrument has been amended twice since it was passed in March and the latest version came into force on Monday. It had 12 regulations and two schedules in its original form and Regulation 6(1) provides that everyone must stay overnight at

“the place where they are living”.

There are certain exceptions, including, at Regulation 6(2)(d),

“to provide care or assistance, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding of Vulnerable Groups Act 2006, to a vulnerable person”.

At that point I gave up further research, but I do not think that particular exception can possibly refer to ordinary childcare. Yet there has been controversy. The Prime Minister and four of the Cabinet have taken one view or interpretation of these regulations and almost everybody else has taken a completely different view on whether what happened was legal or not. An unlimited fine is payable on summary conviction, which can be avoided by complying with a fixed penalty notice. Noble Lords will appreciate that that is typical of the sort of offence that can be created by secondary legislation that nobody understands—I say “nobody understands”; many people understand the drift of it, but the particular detail can be the subject of controversy.

Coming back to the Bill, it is obviously undesirable that there should be a lack of clarity in drafting criminal offences when it is possible for those criminal offences to result in a penalty of up to two years’ imprisonment. An unlimited fine is quite a burden, but imprisonment through regulations that refer to other Acts of Parliament—subsection this and sub-subsection that—is entirely undesirable and never gets, whether by the ordinary affirmative procedure or the super-affirmative procedure, adequate scrutiny and understanding by the authorities that have to put it into effect and, most relevantly, by the people who are affected by it and who have to obey the law.

Public international law covers, as we discussed, a wide variety of issues. It is not at all satisfactory for the wide power that I referred to—for some potential future PIL agreements to create criminal offences—to be put in the hands of Ministers. For that reason, this is an aspect of the Bill, never mind the whole of Schedule 2, that I find offensive.

[Lord Mackay of Clashfern]

My Lords, the Act referred to in the Bill is dated 1982, which shows that we are concerned with the time when I was Lord Advocate and before devolution. I remember it lucidly. It fell to the Lord Advocate to deal, inter alia, with the Scottish position and what the detail involved. I strongly oppose the group of amendments in the name of the noble and learned Lord, Lord Falconer of Thoroton. My understanding of the principle that rules in this area is that when the United Kingdom undertakes an international obligation, that does not become part of the law of the United Kingdom until it becomes part of the domestic law of the United Kingdom and, since devolution, that may apply differently in devolved jurisdictions. A suggestion has been made that the principle goes further and requires that the result can be achieved only by primary legislation doing so directly, without the intervention of subordinate legislation. I do not agree with that. I can see no logical requirement to restrict the power of Parliament in that way.

My noble and learned friend the Minister has already given examples. Since we joined the EU, this has been achieved by a statutory instrument naming the treaty involved, without any further detail. The year 1982 yields another striking example. Section 60 of the Civil Aviation Act 1982 confers power by Order in Council to make provision for carrying out the Chicago convention. If the principle were as claimed, surely the Act could not confer this power. I regard the provisions of the Bill as entirely adequate. Once we undertake an international obligation, it seems right to implement it in our law as soon as possible. The ordinary affirmative procedure seems entirely adequate, particularly since the other place now has power in relation to international obligations.

The noble Lord preceding me, an expert in many of these matters, particularly in the criminal law, requires that the criminal law should not be specified except very clearly and very occasionally in statutory instruments. In my respectful submission to your Lordships, this is a space in which the international agreement must have in it the criminal offence in question, because it is only a reflection of what is in the international obligation that will become part of the law under Clause 2. This seems to me to adequately secure the definition of the offence in question. I will add only that I would like to see the Lord Chancellor’s advisory committee consulted as much as possible: it is a very well informed, very good source of solid advice. I also add that if the Government’s ambitions are fulfilled for many international agreements in the future, it would be a great pity to saddle the procedure to implement them into our law with unnecessary delays.

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

Lord Thomas of Gresford Excerpts

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

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

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

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

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

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

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

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

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


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

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

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

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

Suetonius wrote of Augustus:

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


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

[Lord Mance (CB) [V]]

My Lords, I declare my interest in the field of private international law and arbitration. I am also chair of the Lord Chancellor’s Advisory Committee on Private International Law, which was not involved in the Bill generally but has, since Second Reading, been asked to advise on the subject of the government amendments to Schedule 5, which we will come to later and which the committee blessed. I have nothing to add on Clause 1, which is admirable and conventional. On Clause 2, I am grateful personally to the noble and learned Lord the Advocate-General for Scotland for engaging with me, but I regret that his response strikes me as a little like that of the Black Knight in the Monty Python sketch; having lost the arms and legs of his argument, he still comes forward with the Bill—particularly Clause 2—between his teeth.

Opinion is almost universally against Clause 2. The two committees that have reported have categorically condemned it. The argument based on the existence of CRaG 2010 has been described by the Constitution Committee as limited and flawed, and I will come back to that. The speeches at Second Reading and in Committee were almost unanimously against Clause 2. One wonders, as the noble Lords, Lord Thomas of Gresford and Lord Holmes of Richmond, have hinted, why this House exists as a revising Chamber at all if such universal adverse opinion is ignored.

It is true that Parliament generally has not had a major role in private international law since we became an EU state but, as noble Lords have pointed out, one thought that the purpose of recent events was to restore UK institutions to a fuller role. There is no real explanation or justification for Clause 2, an indefinite provision without a sunset clause, as my noble and learned friend Lord Hope has just pointed out.

Private international law is important, both to individuals personally, in areas such as divorce and family, and to businesses. It merits direct parliamentary scrutiny. The Government’s justification for Clause 2 is simply that it would be very convenient and might speed things up. The same reasoning would justify removing any role for Parliament at all, just leaving it to bless by affirmative order on a yes/no basis any subordinate legislation devised by the Executive.

As my noble friend Lord Pannick pointed out, the prior Acts relied on do not justify this large extension. The 1920 and 1933 Acts were confined in scope to recognise jurisdictions, starting with Her Majesty’s overseas jurisdictions and then other comparable foreign jurisdictions, and were limited to recognition and enforcement of judgments only. We are concerned in this Bill with wide-ranging schemes such as those we will lose the benefit of at the end of the implementation period for allocation of jurisdiction, dealing with things such as concurrent proceedings in two states. These are very controversial issues.

Although by itself the Lugano convention may well be the best we can go for in the present state, it merits parliamentary debate. There are defects in the Lugano convention compared with our present state of affairs as a member of the EU. There are very considerable questions whether one might not be better off with other arrangements. Still, while one might have accepted Lugano alone, the wide-ranging nature of Clause 2 means that it applies to anything indefinitely in the future.

The only things actually suggested are Lugano and passing references to the Singapore mediation convention, which is an extremely minor area of the law—it is important when mediation occurs, but there is probably no difficulty in any event enforcing mediation results under present domestic law. There is also the 2019 Hague Convention, which has many merits but is in complete infancy. It has only two signatories: Uruguay and Ukraine. That is a long way down the road. There is no urgency. There are no model laws pointed to, even if it were desirable to give the Government this power in respect of model laws. As my noble and learned friend Lord Thomas of Cwmgiedd said a moment ago, private international law measures proceed at glacial pace.

I revert to the position on CRaG: quite apart from the inadequacy of its procedures, reliance on CRaG is fallacious for two reasons. The Explanatory Notes say that everything will already have been scrutinised by CRaG before domestic legislation takes place; Parliament will already, through CRaG, have agreed that the UK should join. That is not right; it is the wrong way round. Normally—this was practice until today—domestic legislation is enacted before ratification, and CRaG comes into operation only at ratification. There are a number of examples of that; in the case of the Civil Jurisdiction and Judgments Act, the convention was 1978, the domestic Act was 1982 and ratification was one or two years later. There is the same pattern with the Warsaw convention and the CMR convention on the carriage of goods by road. The domestic legislation preceded ratification by six years for the Warsaw convention and two years for the CMR convention, I think. CRaG does not help for that reason.

CRaG also does not help for a different reason: ratification may be subject, like signature, to reservations or declarations which are permitted by the relevant international agreement or are not inconsistent with its object and purpose. That is Article 19 of the Vienna convention of 1969. It is not therefore merely a question of whether to implement or the manner in which to implement domestically, as my noble friend Lord Pannick suggested. There are huge questions at the level of international law about what declarations or reservations to make, or there can be.

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[Lord Pannick [V]]

As the noble and learned Lord, Lord Falconer, said, Amendment 10 is now academic, but it provides an opportunity to mention that one of the concerns of your Lordships’ Constitution Committee is that Bills regularly seek to confer on Ministers the power to create criminal offences.

Paragraph 21 of the committee’s report on this Bill— HL Paper 55—said that the conferral of delegated powers to create criminal offences, particularly those that are subject to imprisonment, is “constitutionally unacceptable”. We made the same point in paragraph 30 of our report of 9 June—HL Paper 71—on the constitutional issues raised by Brexit legislation. There needs to be a strong justification for departing from that general principle. I hope, as I know do the other members of your Lordships’ Constitution Committee, that Ministers will take account of these important principles. If they do not and they bring forward similar clauses in other Bills, we will report on them accordingly to the House.

[Lord Thomas of Gresford [V]]

My Lords, as I said in Committee, it is a matter of important principle that criminal offences must be clearly defined. I pointed to the criminal offences created, without consultation or debate, by way of regulations, in connection with the current lockdown. I pointed to the fact that they had caused confusion between the Prime Minister and his cohorts and virtually the rest of the country. Since I spoke on that matter, these offences are being amended, or new offences are being created, on, it seems, almost a weekly basis.

As my noble friend Lord Marks pointed out in the previous debate, there can be no clarity as to even the topic of a future international agreement, so there is no clear context within which this House can consider the power to create criminal offences in the field of private international law.

Last week, when we came to debate the Agriculture Bill, I was interested to note that precisely this point had been made by the Delegated Powers Committee: that it was against principle for sentences of imprisonment to be imposed by way of regulation. That was part of the original agriculture Bill, which fell at the time of the general election. In the new Agriculture Bill, Defra has withdrawn its position and is no longer asking for the provision of power, by regulation, to create criminal offences punishable by imprisonment. To my mind, this is a very good way of proceeding, and I hope that it spreads to other government departments.

[Lord Hope of Craighead [V]]

My Lords, it is all too easy to think that a sentence of imprisonment for a term of not more than two years, which is what paragraph 1(1)(b) of Schedule 6 by implication permits, is a relatively light matter. It certainly is not. Any conviction for a criminal offence, whatever the sentence that results from it, can have the most serious consequences for the individual; for example, opportunities for travel, employment and obtaining insurance can all be affected. The issue, therefore, is one of principle. It should not be for Ministers to create criminal offences by statutory instrument.

--- Later in debate ---

[Lord McConnell of Glenscorrodale (Lab)]

My Lords, I too am grateful to my noble friend Lord Hain for the opportunity to raise some issues on Report, not least because it gives an opportunity to emphasise the different situations in Scotland, Northern Ireland and Wales and, very specifically, the different situation between Scotland and Northern Ireland and Wales, given the legislative competencies that exist in Scotland and Northern Ireland. That was perhaps highlighted earlier today in the amendment tabled by the noble and learned Lord, Lord Wallace of Tankerness, on the Hague convention. He reminded us that the Hague convention was carried into Scots law in 2003, when he was Deputy First Minister and I was First Minister, and it is still outstanding in UK law for England and the rest of the country.

I want to ask where we have reached with the legislative consent Motion for the Bill in the Scottish Parliament. I would be grateful if the Advocate-General would update us on that. I would also be grateful for his consideration of this issue of consultation and engagement with the devolved Governments and Parliaments on international treaties. It is accepted in the Scotland Act and the other Acts of 1998 that there is a reserved responsibility on international treaties, but it has been accepted ever since, most recently perhaps in the concordat on international relations between the UK Government and the devolved Governments, that there are joint interests here in relation to devolved legislative competencies and reserved legislative competencies. We can surely do better, as the Law Society of Scotland and others have argued now for many years, in finding systems for the engagement of devolved Governments and Parliaments in advance of treaties being negotiated and signed, rather than afterwards. It seems to me that we are long overdue a formal structure for the engagement of devolved Ministers and Governments in the agreement of negotiating mandates for treaties, rather than simply information, consultation and then approval afterwards. I would be interested to hear the views of the Advocate-General on that as a way forward.

[Lord Thomas of Gresford [V]]

My Lords, I support this amendment and I, too, was shocked by the lack of response to the very detailed speech by the noble Lord, Lord Hain, in Committee. It seemed to me that the Minister did not give a proper response to what had been said. I think it underlines the Conservative Party’s problem with devolution: either it does not understand it or, if it does, it does not accept it. To give one example, a Conservative Member of Parliament called for the end of devolution to Wales altogether and the scrapping of the Senedd, because his constituents could not, as they normally do at this time of year, go to the Welsh beaches to swim in the sea. That was sufficient to call for the end of devolution in Wales. With that sort of attitude, and with the noble and learned Lord’s attitude to the speech by the noble Lord, Lord Hain, it really makes the case that the Conservative Party is at odds with devolution and what it means.

Throughout the legislation going through Parliament at the moment, there is a gap in recognising the need for consultation and if possible agreement with the devolved Administrations. This is so on the Agriculture Bill, as I pointed out last week. The Joint Ministerial Committee is a joke; it has never worked properly and is ignored by English Ministers. These are great gaps that have to be filled if the devolution settlements are to be properly appreciated.

[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.

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

Lord Thomas of Gresford Excerpts

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

[Lord Foulkes of Cumnock (Lab Co-op) [V]]

My Lords, I enjoyed the speech of the noble and learned Lord, Lord Garnier, especially when, having made a couple of political points, he asked us to cast political points aside. It is nice to see that he is in his usual jolly form.

I am very pleased that the Government have decided to remove Clause 2 and Schedule 6 from the Bill. I agree with my noble and learned friend Lord Falconer. We would not want to give the Government carte blanche on any agreement, especially at a time when the Civil Service is being taken over by political ideologues—friends of Mr Cummings. But, like the noble and learned Lord, Lord Garnier, having made a couple of political points, I have two specific questions for the Minister. First, on the state of play in discussions with the Crown Dependencies and Overseas Territories, have any memoranda of understanding been agreed, and what does he expect the final outcome to be?

Secondly, as a delegate from this Parliament to the Parliamentary Assembly of the Council of Europe I noted that paragraph 5 of the Explanatory Note states that

“Agreements containing PIL rules may also be negotiated through the Council of Europe.”


I am keen to know what agreements would come into that category. I would be grateful if the Minister could respond today, but if he cannot, I would appreciate his response in writing.

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

My Lords, I too am glad to see that Clause 2 and the schedule will go and I fully support the amendments brought forward by the noble and learned Lord, Lord Falconer. Is it the Government’s intention to replace Clause 2 and in particular Schedule 6 when the matter goes to the other place? If so, is it their intention to have criminal offences, which are punishable by imprisonment, by secondary legislation? I made that point at an earlier stage of the Bill. In principle, it is quite wrong for imprisonment to be imposed as a result of secondary legislation. In this particular instance it is even worse, because the scope of private international law is so wide that anything could be the subject of it within the principles of private international law. There is no clarity at all about where a criminal sanction involving imprisonment would be imposed. I would be grateful if the Minister could deal with that point.

[Lord McConnell of Glenscorrodale (Lab)]

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

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

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


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

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

Lord Thomas of Gresford Excerpts

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Thursday 19th November 2020 Lords Chamber

The present phrase has a certain bathetic quality about it, which the Minister has done a considerable amount to dispel. I repeat my welcome for that but I ask him to give the assurances requested by the noble Lords, Lord Marks and Lord Pannick. On that basis, the Bill would be on a sounder footing and those of us who had understandable concerns about it would, I hope, find them considerably alleviated.

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

My Lords, it is indeed a privilege to follow the magisterial and extensive exposition of the noble and learned Lord, Lord Mance, whose depth of experience and knowledge I defer to. He referred to the Bill as an intruder, which was an interesting description.

The Second Reading took place on 17 March, just at the beginning of lockdown. The noble and learned Lord, Lord Keen of Elie, outlined the wide scope of the issues raised by the Bill. He said:

“Without private international law agreements, UK businesses, individuals and families would struggle to resolve the challenges they face when dealing with cross-border legal disputes.”—[Official Report, 17/3/20; col. 1439.]


The Minister echoed that opening today but I was surprised when he suggested that the area of law was narrow. As we have heard from the noble Lord, Lord Berkeley, it may encompass disappearing railway carriages in Italy, which has an Agatha Christie ring about it.

The new clause inserted by the other place reflects that width. The Westminster Government or a devolved Government may, by regulation, implement any international agreement so far as it relates to private international law. Further, the appropriate national authority may, by regulation, apply any agreement between the different jurisdictions within the United Kingdom or give effect to any arrangements between the UK Government and the British Overseas Territories, the Isle of Man or the Channel Islands. The emphasis throughout is on any future agreement of whatever nature that involves private international law anywhere in the world or internally within the United Kingdom.

It would appear that the Government have listened to the many voices suggesting that these clauses are excessively wide. Consequently, in response, the Minister today introduced the outline of a sunset clause, limited in the first instance to five years. He said that the urgent need is “ to update the framework” lost by our leaving the EU. The principle that there should be a temporal limit to the exercise of these wide powers in the uncertainties of the present time is clearly a good one. Unfortunately, the Government have decided that, like the British Empire, the sun shall never set upon these provisions. That is the effect of granting power to extend the operative period, not just for a further period of five years but, under proposed new subsection (3D), to renew the power to extend the period indefinitely. It just keeps rolling along. That makes a mockery of a sunset clause; consequently, I am delighted to support the amendment in the name of the noble and learned Lord, Lord Falconer.

As I said at earlier stages of the Bill, our hugely unsatisfactory procedures for passing secondary legislation by resolution, whether affirmative or negative, may be tempered in the interests of democracy by consultation with interested parties. Amendment 4 pays lip service to that concept but, in effect, gives power to the Minister to choose whomsoever he thinks appropriate to consult. The wording is loose, such that although there is a duty to consult if the Minister thinks subjectively that there is nobody appropriate—as the noble Lord, Lord Pannick, said—he does not have to exercise that choice; or, as the noble and learned Lord, Lord Mance, said a moment ago, he could walk out into the street and consult someone.

The purpose of the amendment in the name of my noble friend Lord Marks of Henley-on-Thames is to bring some objectivity to the exercise. The Minister may be surprised to know that the shelf life of a Minister in this and the previous Government tends to be no more than two years, and that Secretaries of State come and go through the various offices of state without necessarily knowing anything at all about their work. As WS Gilbert put it over 100 years ago, the way to advancement may well be to polish up the brasses on the big front door of No. 10.

Consequently, it is only sensible to have the guiding hand of the head of the judiciary in the various jurisdictions. No doubt the Sir Humphreys of this world can suggest that the Secretary of State rounds up the usual suspects, but that is no substitute for the Lord Chief Justice and his peers, who have a lifetime of experience of the legal world and the whole of the judiciary to draw on for advice as to who the suspects should be. As the noble Lord, Lord Pannick, said, it is inconceivable that they should not be consulted in any event.

I support the amendment in the name of my noble friend Lord Marks and, in particular, his call for a full and transparent report on the fruits of the consultation.

[Lord Stewart of Dirleton (Con)]

My Lords, I begin by thanking noble Lords for their thoughtful and erudite contributions. I thank them also for their courteous and warm words of welcome to me at the Dispatch Box. I echo the words of the noble and learned Lord, Lord Falconer of Thoroton, in a phrase that I think will resonate with the entire House and with which none of us would disagree: our imperative is the preservation of this country’s good name and its standing in private international law matters.

The matters raised in the course of our discussions overlapped to some extent but I will, if I may, do my best to treat the contributions to the debate in the order in which they were made. First, I shall address the comments of the noble and learned Lord, Lord Falconer of Thoroton, in relation to Amendment 1C, which omits some text from my Amendment 1A, the effect of which would be to allow the sunset period—which my amendment allows to be extended for five years by affirmative statutory instrument—to be extended only once.