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

Alex Chalk Excerpts

Committee stage & 3rd reading & 3rd reading: House of Commons & Committee stage: House of Commons & Committee: 1st sitting & Committee: 1st sitting: House of Commons & Report stage: House of Commons
Tuesday 6th October 2020 Commons Chamber

We believe that the Labour amendments to new clause 5 provide the Government with a constructive and reasonable approach. The amendments allow the Government to achieve the objective they claim is behind new clause 5: to implement the Lugano convention while also protecting parliamentary scrutiny. Nothing in these amendments, or any of the other amendments, hinders the Government in their stated aim. Indeed, they serve no other purpose than to protect parliamentary scrutiny. If the Government vote against them, they will be voting for, as the hon. Member for Huntingdon quite rightly said, one of the largest potential power-grabs ever seen by the Executive in this Parliament. I hope that this Government do the right thing and show that they do indeed value the role of the House and the role and value of parliamentary scrutiny.

[The Parliamentary Under-Secretary of State for Justice (Alex Chalk)]

It was a great pleasure to listen to the powerful advocacy of the right hon. Member for Tottenham (Mr Lammy). Unfortunately, on this occasion, I am unable to agree with him, but out of courtesy to him I will explain why.

It is a real pleasure to address the Committee of the Whole House on a Bill which, while technical, is of great importance. Private international law is not just an arcane and abstract legal construct. As my hon. Friends the Members for Broadland (Jerome Mayhew), for Derbyshire Dales (Miss Dines) and for Aylesbury (Rob Butler), among others, have indicated, it is a very real framework for the dispute resolution of cross-border civil and family justice matters that affect families and businesses in our country. Indeed, the hon. Member for Midlothian (Owen Thompson) made the point that every time we enter into one of these agreements we strengthen the international rules-based order. That is a point we should not lose sight of either.

I am very grateful for the quality of the debate that we have witnessed today, as well as on Second Reading. It has been, if I may say in all sincerity, a debate of conspicuous clarity and ability. I really do appreciate the interest that has been shown in these important matters. I thank colleagues from across the Committee for the time they have taken to prepare the amendments and for the explanations that they have provided. Even where the Government take a different view—which, as I say, I will come on to explain—I recognise that these are serious amendments that have been tabled in good faith in an endeavour to improve the legislation.

Let me begin, if I may, by turning to amendments 5 and 6, new clause 5, new schedule 4 and amendment 7. Taken together, these amendments, in effect, restore the implementing power that was deleted in the other place and reverse the consequential amendments that flow from their deletion. The ability to be able to implement PIL agreements in a timely and effective manner is important. One of the things that really shone out from the excellent contributions that we heard was the word “agility”, which was used by my hon. Friend the Member for Derbyshire Dales in referring to the context of family agreements, and by my hon. Friend the Member for Broadland and, indeed, by my hon. Friend the Member for Henley (John Howell) in talking about the Singapore mediation agreement. That agility is important. It is what allows the UK to be a credible negotiating counterparty, so that if British Ministers agree a PIL agreement—which, incidentally, strengthens the international rules-based order—it can be brought into effect in an agile way.

If indeed, as we all appear to accept, such agreements are good for citizens and businesses, we want to make sure that there is no undue delay in rolling out those benefits. There is a public interest in ensuring that implementation and scrutiny mechanisms are proportionate—again, a word that shone out from the contributions we have heard—in striking the important balance between timely implementation and appropriate scrutiny. If I may make one point about the contribution by the right hon. Member for Tottenham, I think it is fair to say that he did not dwell particularly on the scrutiny procedures that are in place. I will develop that a little bit, and I hope that will put his mind at rest. I do not suppose that I will be able to get him to join us on the Government Benches, but I live in hope.

The provisions are necessary and proportionate because the agreements are recognised across the House as manifestly in the public interest. If I may say respectfully to my hon. Friend the Member for Huntingdon (Mr Djanogly), one of the principal points he made actually, I suggest, undermined his argument. He said, “These are very rarely party political.” The right hon. Member for Tottenham said, “I don’t recall it being vaguely contentious.” He is absolutely right. These agreements are not contentious.

Indeed, if we look at the previous Lugano convention in 2007, or at the previous Hague conventions, which we are introducing under clause 1, nobody ever prayed against them. Equally, on the old Lugano convention—the 1988 one, which preceded the 2007 one—I think only three of their lordships spoke in the other place, there were no amendments and nothing was said here. We must ask ourselves: if my hon. Friends accept that this is non-contentious, why go for what might be perceived to be the disproportionate step?

[Mr Djanogly]

I intervene only because the Minister suggested that I said something. I may have said that this is not party political, but that does not mean to say that it is not important, complicated and potentially contentious—but not for party political reasons.

[Alex Chalk]

But ultimately, my hon. Friend cannot have it both ways. If we accept that it is not contentious, it is important that the mechanisms that are in place are proportionate to that. Indeed, the Opposition knew this when they were in government, because of course all these rule-making powers were on the statute book and they did not repeal them. There was the Administration of Justice Act 1920, the Foreign Judgments (Reciprocal Enforcement) Act 1933, the Maintenance Orders (Reciprocal Enforcement) Act 1972—I could go on. They stayed on the statute book because they are not really offensive to the constitutional balance that we enjoy, but not only were they not repealed; they were used.

The right hon. Member for Tottenham knows that because he was the Minister at the time. He was Minister at the Department for Constitutional Affairs when the British Government used the Foreign Judgments (Reciprocal Enforcement) Act 1933 to bring into force an international agreement with who? With Israel. He knows that because he was the Minister at the time. Who was the Lord Chancellor at the time? Lord Falconer. The right hon. Gentleman cannot very well say that these are a monstrous and egregious affront to our constitution when they were used, because they were used a second time in 2007. They created a power to give effect to bilateral agreements with the United States on reciprocal enforcement of family maintenance orders.

Just to complete that point, not only were those powers used; the right hon. Gentleman, for whom I have enormous respect, created new ones of his own. In 2005—[Interruption.] He is laughing, but he knows it is true. He was the Bill Minister on the Mental Capacity Act 2005, which, incidentally, on this very rainy weekend I had a chance to re-read. That Act created a wide delegated power to introduce international agreements in that area.

I do not want to labour this point too much, but I had a chance to look at proceedings in Committee on that Bill, during which a Conservative hon. Member talked about that specific power and effectively asked the right hon. Gentleman, “Is he sure that he wants to do this?” He added:

“Those in another place get very excited about any sort of Henry VIII clause.”

The right hon. Gentleman responded, effectively, “Don’t worry,” saying that

“they are technical and necessary provisions.”––[Official Report, Mental Capacity Public Bill Committee, 4 November 2004; c. 406-407.]

Is not that precisely the point? What was technical and necessary when he was in government has now become an egregious affront to our constitution.

[Mr Lammy]

The very able Minister has put his argument, but I remind him that under the previous Labour Government, we were in the European Union. This debate is about being outside it, and the best architecture for scrutiny in this House in those circumstances.

[Alex Chalk]

But the point is that when we were in the European Union and the European Union had competence to enter into PIL agreements, those would be brought into effect in the United Kingdom via the doctrine of direct effect. What role did this Parliament have? None. We are seeking to introduce much more by way of parliamentary scrutiny—the points, respectfully, that the right hon. Gentleman did not advert to. First, there is the CRaG procedure, and secondly there is the affirmative procedure.

I am at pains to mention that because I talked just a few moments ago about the Israeli agreement and the United States agreement. How did those come into force? Not through the affirmative procedure, not even through the negative procedure, but through an Order in Council. In other words, normal hon. Members—mere mortals like most of the people in the Chamber—had no say at all; just Privy Counsellors. We therefore respectfully say that it does not lie in the mouth of the Opposition to raise these concerns.

My hon. Friend the Member for Bishop Auckland (Dehenna Davison) made the point powerfully that this precedent, which the Opposition understood when they were in government, recognises that there is an opportunity cost. If we start filling up the parliamentary timetable with such legislation, which everyone accepts is not controversial, there is less time and less space for schools, hospitals and transport, etc.

On the point about criminal offences, which was made powerfully by the Chairman of the Select Committee, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), this is an area where it is important to move cautiously. We will continue to reflect on the range of views expressed. I agree with him that an awful lot of offences are created by statutory instruments, but we need to take care, none the less.

[Sir Robert Neill]

I am grateful for the Minister’s observations in relation to criminal offences, and I will take him at his word as far as that is concerned. I know that he will want to take away, perhaps, how we deal with that proportionately.

The Minister refers to the value of the affirmative procedure, as is proposed. That, of course, is used when the PIL treaty first comes into force in our domestic law, but often these treaties or agreements can be modified as they go along. Can he help me with the concerns raised by the Bar Council and the Law Society about how the proposed scrutiny regime would deal with, for example, declarations that are attached to international agreements when we bring them into force? Such declarations can sometimes modify or limit their scope. Secondly, how will we deal with model laws, which are now often used in international trade negotiations?

[Alex Chalk]

If I may respectfully say so, that is an excellent point. That is one of the reasons why we seek to frame things this way, because one of the points my hon. Friend made most powerfully is that there are shortcomings in the Lugano convention. He talked about the Italian torpedo, but there are others, some of which Lord Mance referred to in the other place, for example.

How are we to be expected, in an agile and proportionate way, to address those changes, supposing they are negotiated, if we effectively have to have a new Act of Parliament each time? With respect, that would be wildly disproportionate. It would clog up this place unnecessarily, because there may be very good opportunities to improve those agreements and get them on to the statute book.

Let me deal with this business about Lugano, in amendments 1 to 4, 8 and 9, new clauses 1 and 2, new schedule 1, new schedule 3, new clause 5 and amendments (a) to (g). First, it is premature to put Lugano into the Bill while our application is outstanding, even if amendment 2 specifically includes reference to this being contingent on the UK’s accession. It is also inadequate—this is the point I was adverting to—as additional provisions will be required, mostly of a procedural or consequential nature, to properly implement to Lugano convention into domestic law.

For example, the civil procedure rules might need to be changed. What if Lugano is improved, as I indicated? What, also, if our application is unsuccessful? We may then need to move quickly. With whom will we want to move quickly? As my hon. Friend well knows, Norway, Iceland and Switzerland have published statements of support for our Lugano application, and that may be a route we would want to go down.

The most important point is that we have, and indeed should have, ambitions beyond Lugano. We must stay at the forefront of developments, whether the Singapore convention on mediation, as my hon. Friend the Member for Henley (John Howell) powerfully referred to, or the Hague convention on recognition and enforcement of foreign judgments in civil or commercial matters, also known as Hague ’19.

I advert to the fact that the Bill properly complies with the devolution settlement. We take that extremely seriously. As the hon. Member for Midlothian (Owen Thompson) indicated, both the Scottish Parliament and the Northern Ireland Assembly have passed legislative consent motions for the Bill, and the Welsh Government have agreed that an LCM is not required as PIL is almost entirely reserved. There is a small exclusion for Cafcass Cymru, but that is really it.

The right hon. Member for Tottenham spoke about the super-affirmative procedure, and I accept this amendment was submitted in the spirit of trying to be helpful. I entirely acknowledge that. These proposals are contained within paragraph 4 of new schedule 3, tabled by the Opposition, and there is a similar proposal in new schedule 2, although the SNP new schedule would introduce a super-affirmative scrutiny power only for Lugano. I respectfully make the point, and I appreciate that this is to the hon. and learned Member for Edinburgh South West (Joanna Cherry), but why would we need a super-affirmative scrutiny power for Lugano, which we have been operating for years? That is not very obvious to me.

The bar for the super-affirmative scrutiny procedure has always been high. Let us look at the context. Section 85 of the Northern Ireland Act 1998 provides for a super-affirmative procedure for regulations that deal with changes to reserved matters as set out in that Act. The Human Rights Act 1998 provides for such a procedure for remedial orders that deal with legislation that has been found to be incompatible—declarations of incompatibility. Under the Public Bodies Act 2011, a super-affirmative procedure is needed for orders that abolish, merge or change the constitutional funding arrangements. I dealt with those quickly, but the point is that super-affirmative procedure is reserved for matters of key constitutional importance. We must not forget that in the case we are discussing, we have the additional CRaG brake.

If we drill into the detail of super-affirmative procedure, it creates additional stages, but I query whether it results in improvements to the proposed regulations. Instead, it simply delays. It would also create a potential discrepancy between England and Wales and the devolved jurisdictions. One could easily imagine a situation whereby two litigants lived five miles either side of the border and the cases were dealt with differently, to the disadvantage of a litigant in England, because the Scottish Parliament had got on with it and simply brought an agreement into force. That would be unsatisfactory. I do not suggest that that is what the right hon. Member for Tottenham intends, but I fear it could be a consequence.

New clauses 1, 6 and 7 deal with laying the report. New clause 6 would require a report to be laid in Parliament before the UK ratifies an agreement. New clause 7 would require the Government to lay a report in Parliament for 10 House of Commons sitting days before a draft statutory instrument was laid. I accept the need for clear and detailed explanations, but it is not immediately obvious that new clause 7 would add anything to the current process. All SIs are already accompanied by an explanatory memorandum. I dug one out to prepare for the debate. It deals with the Civil Jurisdiction and Judgments Act 1982. It runs to 18 pages and is very detailed and helpful. Other than requiring the information 10 days earlier, I cannot see that new clause 7 would make a difference. We should not forget that an SI is typically laid several weeks before the House gets to debate it. None the less, I accept the point that my hon. Friend the Member for Bromley and Chislehurst made about the need to reach out to distinguished practitioners and jurists. It is right that we should do that, and I am keen for that happen.

I am very grateful for the consideration of the Bill in Committee. I share the desire to ensure that PIL agreements that we wish to join and domestically implement are appropriately scrutinised. All Governments must balance the need for scrutiny with the need to move in a timely manner to ensure that British citizens can enjoy the benefits of PIL agreements as soon as it is properly possible to provide for them. Those benefits are significant, and if the House gets the balance wrong, our citizens will be denied them by an unnecessarily labyrinthine process.

The proposed procedures provide for scrutiny of a delegated power using an affirmative SI together with the CRaG procedure to implement the agreements. That is a balanced and proportionate approach.

[Sir Robert Neill]

Before the Minister sits down—

[Alex Chalk]

Just in the nick of time.

[Sir Robert Neill]

Perhaps the Minister can help my hon. Friend the Member for Huntingdon (Mr Djanogly) and me. I understand what the Minister is saying, and none of us wishes to create a labyrinthine process. Does he accept that it may be necessary to learn from experience with CRaG as we go forward? Are the Government closing their mind to the idea that we could seek refinements and improvements to the CRaG process as we operate it? The answer might help us.

[Alex Chalk]

I thank my hon. Friend for raising that point. There is no doubt that the CRaG process is evolving and maturing. Proper points have been made about the need to consider it and how it should evolve over time. I certainly do not want to shut my eyes or my ears to my hon. Friend’s proposals.

The Bill takes a balanced and proportionate approach. I therefore invite hon. Members to support the Government amendments and reject the remainder.

[Mr Djanogly]

The debate has been interesting and gone some way towards creating a more common understanding of the important issues at stake, the balance between efficient process and appropriate parliamentary scrutiny, and why, as I have argued, we need a more modern process of scrutiny for PIL treaties as much as for the ministerial orders that are derived from them.

--- Later in debate ---

[Alex Chalk]

I beg to move, That the Bill be now read the Third time.

Let me start by thanking all the right hon, hon. and , in particular, learned Members from all parts of the House for their careful scrutiny of the Bill at each stage of its passage. A variety of opinions have been expressed, and I value all the contributions made on these important issues. We have been fortunate, throughout the passage of this Bill, that the debates have been genuinely enriched by the experience and expertise of the speakers, both in this House and in the other place. One thing that has been raised time and again from all involved is an acknowledgement of the importance of private international law and the real-world impact it can have on our constituents.

I have to accept that historically that acknowledgement has not always been in place. A former Lord Chancellor, Lord Hailsham, who introduced a key piece of private international law legislation, the Civil Jurisdiction and Judgments Bill, into the House of Lords in 1981 opened the Second Reading debate by saying:

“I rather feel that it should be accompanied by a Government health warning. There is nothing whatever that I can do to make my speech short, and those who expect to find it of throbbing human interest will, I fear, be wholly disappointed.”—[Official Report, House of Lords, 3 December 1981; Vol. 425, c. 1126.]

But of course we know in this House that this is extremely important. Reciprocal private international law rules provide a framework to enable UK businesses, families and individuals to resolve their difficult and challenging situations. They help to avoid confusion for all parties, by preventing multiple court cases from taking place in different countries on the same subject and reaching potentially different conclusions. Such reciprocal rules also allow for the decisions of UK courts to be recognised and enforced across borders. All of this helps to reduce costs and anxiety for the parties involved. It is therefore vital that in future our country is able not only to continue to co-operate on private international law matters with existing partners, but to implement in our domestic law new agreements that are fit for the 21st century.

The Bill underpins our ambition to deliver real and tangible benefits for the United Kingdom—for our citizens—both now and in the years to come. I reassure Members on a point that I know they realise but that can never be emphasised enough: although private international law can support and underpin cross-border trade, the Bill is not about the implementation of free trade agreements. The terms on which trade between two countries takes place are clearly outside the scope of the Bill.

Over the next few years, we face the challenge of replacing and updating the UK’s private international law framework, recognising our regained competence in this area of law. Although we have not yet agreed, as between this House and the other place, on how best to scrutinise future agreements, I am now confident that there is an eagerness to do so effectively. That eagerness recognises the overwhelming public interest of such agreements.

More broadly, I am pleased that, whatever the outcome of ping-pong, we will have in place legislation that allows the UK to realise the future opportunities in this area of law. I think all parties in this House are agreed not only that we want the UK to remain at the forefront of delivering justice internationally and to ensure that our legal services sector continues to flourish, but that we want to ensure that we are at the forefront of the international rules-based order—we want to see it strengthened and we want to play our part.

I conclude simply by thanking all Members for their contributions. I commend the Bill to the House.