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

Alex Cunningham Excerpts

Consideration of Lords amendments & Ping Pong & Ping Pong: House of Commons
Tuesday 24th November 2020 Commons Chamber

[Madam Deputy Speaker (Dame Rosie Winterton)]

I call the shadow Minister, Alex Cunningham.

[Alex Cunningham (Stockton North) (Lab)]

Thank you very much, Madam Deputy Speaker—from one Alex to another.

When I stood at the Dispatch Box some weeks ago for the Bill’s Second Reading, I made Labour’s position very clear: we absolutely understand and appreciate the need for the Bill. The Minister was rightly wholehearted in his endorsement of the Bill and provided us with some excellent examples of how it will work and what it will mean. He even mentioned that it will apply to widgets. Perhaps when he does his summing up, he can tell me what a widget is.

In a post-Brexit world, it is essential that individuals, families and businesses have access to fair and clear legal mechanisms for dealing with international disputes. This has never been contentious and, from the very beginning, Labour made its support for clause 1 of the Bill clearly known. Labour welcomes the principle of the Bill because it maintains and perhaps enhances our legal co-operation across jurisdictions and provides certainty and fairness for those involved in cross-border litigation. In a post-Brexit world, this is essential to maintaining a prosperous economy, protecting our legal system and providing for families and individual claimants engaged in cross-border disputes. International agreements provide clear and reciprocal mechanisms for dealing with international disputes. In doing so, they are crucial in protecting our country’s proud reputation as the world’s centre for resolving complex disputes while offering us a competitive advantage in finance, business and trade.

This is also a Bill that will affect human beings and human stories. A wide range of family law issues can lead to cross-border disputes—for example, when one partner takes a child abroad and there is a disagreement about parenting arrangements, when making arrangements for divorce in similar circumstances, and on issues of abduction and adoption. Over the years, many of us have seen examples of that in our constituencies, when a child has been removed from this country against the will of another parent, and yet we have struggled, even with the existing laws, to resolve those sorts of disputes. Of course, this is also about keeping our citizens safe. We must ensure that we have robust international agreements so that justice can be done.

On Second Reading and in Committee, we were content to give our full support to clause 1, which gives effect to international treaties in domestic law through primary legislation, because we recognised that it is both necessary and welcome. It is hoped that these provisions, which affect the rules on jurisdiction and the recognition and enforcement of judgments overseas, will play a crucial role in building a strong economy and provide some certainty for families in often desperately trying circumstances.

Labour welcomes the principle of the Bill, but we remain of the opinion that there was no need for clause 2. Attempts by those in the other place to persuade the Government to ditch the unnecessary and, some would say, dangerous provisions covered by clause 2 were successful. Sadly, their decision was not appreciated by the Government and, despite the pleas and arguments put forward by their lordships, the Government felt compelled to reinstate the clause when it came back to the Commons. The House will be aware that despite the clear and sensible arguments of the Opposition and others, ultimately the Government are the Government and use their majority to prosecute their will, and, with no surprise, succeeded in reinstating clause 2.

[Christian Matheson]

My hon. Friend is right that the Government have the right to push through their agenda even in the face of well-meant advice either from the Opposition or the lordships’ House. I wonder whether there are any other independent expressions of concern, perhaps from the legal system, that also concur with the view that perhaps clause 2, as it was, was not the best way forward.

[Alex Cunningham]

Yes, there are many organisations, including the Bar Council, and I will develop that point later in my speech. It is important to recognise that this is not a case of the people sitting down the other end of the corridor making things up on the hoof. They were doing it on the basis of expertise and the opinions of others.

It was not the end of the matter after the Commons sent the Bill back to their lordships. Their lordships were intent on their ambition and refused to let the matter drop. Happily, that situation has been improved somewhat in recent days. I will return to the message from their lordships quite soon. Before I do that, I am happy to reiterate our support for the Bill’s provisions in clause 1, which give effect to key international conventions in our domestic law. That is very welcome on these Benches.

--- Later in debate ---

[Christian Matheson]

My hon. Friend is outlining one of the concerns that I raised earlier, which is about wider concerns raised by experienced legal sources. There may be—and I might ask the Minister to comment on this later—inconsistencies between agreements between the UK and one country and agreements with another country that are achieved through secondary legislation. If the agreement with that particular country is different, citizens will be treated differently depending on the terms of a particular statutory instrument.

[Alex Cunningham]

My hon. Friend is correct. That could lead to considerable confusion in the system. What happens if a family member is moved from country to country? They will be subject to different jurisdictions and different laws, and it would be all the more complicated and difficult for resolutions to be made.

There appeared to be intense opposition to what the Government were trying to do, and it was not just from the other place; it was coming from all over the place. The Bar Council, in its helpful briefing, was highly critical of this new constitutional grab. It was somewhat concerned that the power in clause 2 to proceed by delegated legislation was very broad, and that, for instance, it enabled the appropriate national authority to make regulations for the purpose of or in connection with implementing any international agreement. To give effect to international treaties in domestic law is not a rubber-stamping exercise. The effect, implementation and enforcement of such provisions require robust debate, and we must protect the parliamentary scrutiny of such important legal provisions at all costs.

The Government attempted to raise arguments as to why that new constitutional measure would be necessary, but all of them have failed to convince. The first argument was that the new provision would allow the Government to implement each new international agreement without unnecessary delay, but there is no evidence to suggest that fast-track legislation is required. The implementation of international agreements in the past has often taken years, and there is nothing to suggest that implementing them through primary legislation would cause any difficulties without having to subject legislation to normal parliamentary scrutiny.

The Government raised the 2007 Lugano convention, which deals with the jurisdiction and enforcement of judgments between members of the European Union. The Government’s arguments appear to be that there may be only a short period in which to legislate to give effect to the Lugano provision at the end of the transition period. That is not an argument for developing that new Executive power more generally. The Government have not provided for clause 2 in relation to Lugano but, as the Chairman of the Select Committee, the hon. Member for Bromley and Chislehurst (Sir Robert Neill), said, there appears to be some movement on that, and I look forward to clarification from the Minister.

The Government also claimed that the Constitutional Reform and Governance Act 2010 allowed for sufficient parliamentary scrutiny. Once again, that argument does not carry much weight. As a result of clause 2 as originally drafted, the Government would be able to give force to model law without being subject to the scrutiny mechanism under the 2010 Act, which does not allow for the amendment of treaties or consideration of measures to implement them. That is a red herring, and the argument unravelled when subjected to expert scrutiny.

Even some of the Government’s own Members were rightly worried. It is worth putting on the record again a statement by the Conservative peer, Lord Garnier:

“Unquestionably, the provisions in Clause 2, which give the Executive the extensive future law-making powers originally in the Bill, have been shown to be constitutionally awkward and unwelcome”.—[Official Report, House of Lords, 29 June 2020; Vol. 804, c. 483.]

I think that the Minister has begun to address those issues.

Sadly, the Lords asked the Government to drop clause 2. The Government used their majority. A Conservative peer asked that them not to do so, but that is what they chose to do, so clause 2 was reinstated. As I have said, their lordships were not about to roll over, and they were determined that the Government should not get away with a smash-and-grab raid on our constitution and the way in which we do business in this country. It is no good at all our trumpeting a return of control of our own affairs—control for our Parliament to make decisions on the issues that affect our country and citizens—only for Parliament to surrender that control to an overbearing Executive who appear to be seeking shortcuts to creating legislation and regulations. That is not what the British people handed the Government a majority to do. I do not think they would tolerate the sidelining of MPs they elected to serve them. More importantly, we want to ensure that laws in this land are not just fit for purpose, but have been subjected to the widest possible scrutiny. Opposition Members have always been opposed to the power in clause 2 to implement future international agreements by secondary legislation, but we recognise that change to that clause can be made.

As I mentioned, both the House of Lords Constitution Committee and the Delegated Powers and Regulatory Reform Committee considered whether the power in clause 2 was appropriate, and both made it clear that it was not. None the less, Labour welcomes amendments 1A and 1B, tabled in the other place, which act as a safeguard to clause 2, as reintroduced here. It was good to hear the Minister speak with some affection for those in the other place, and their expertise and skills. Although Labour Members remain disappointed that clause 2 has been reintroduced, the Government have heeded some of the Opposition’s concern by agreeing to the five-year sunset clause to clause 2.

Let me turn to amendments 4A and 4B. Labour also welcomes the amendment to remove the power from the Bill to create criminal offences that are punishable by imprisonment. For obvious reasons, this is a sensitive issue and it is only right that the Government act with caution in this area. Finally, Labour supports the amendment to place an obligation on the Secretary of State to consult before using the implementing power contained in clause 2 or before extending it for a further five-year period. Ideally, we would like to have seen further detail on who the Government are obliged to consult, but this is none the less better than nothing. That said, the Minister might like to address that issue in his summing up.

Before I conclude, I wish to pose a few questions to the Minister, where he could go some way to alleviating the remaining concerns many of us, in and out of this place, have about the amended clause 2. Will he give assurances to the House that any consultations on the implementation of a PIL agreement will be held in public rather than in private? Will he confirm that any consultations on the implementations of a PIL agreement will be announced in good time to allow experts to offer their views? Will he give assurances that the Government will produce a report on the outcome of such consultations and ensure that it is widely available to Members of this House? To sum up, although the Opposition would ideally have liked to see clause 2 taken out completely, or for greater restrictions to have been placed on its power, it is clear that the Government have listened to the concerns of the House and have taken some action to address them. We will therefore support these amendments this afternoon.

[Kenny MacAskill (East Lothian) (SNP)]

Obviously, I rise to support the general principles of the Bill. The Scottish National party, in giving support to this legislation, takes the view that it is not where we wish to be, but in the circumstances of where we find ourselves, it is the best that can be done. It has to be put in the context, both legal and political, of where we find ourselves. In the legal context, many others have mentioned, correctly, that private international law is not even noted a great deal within the wider sphere of law and is rather a specialist niche. I say that as someone who was a lawyer and practised for 20 years, who was a Justice Secretary for seven and a half years and who was the Convenor of the Subordinate Legislation Committee when the Scottish Parliament was first established. Private international law does occasionally result in people’s eyes glazing over, but it is fundamentally important. Significantly, subordinate legislation is equally of great importance and far too frequently missed. Both require to be addressed, because as the Minister and the hon. Member for Stockton North (Alex Cunningham) have mentioned, they are fundamental. This is fundamental to business contracts, as we seek to promote business in a globalised world. It is fundamental to ensuring that litigation can take place if accidents occur abroad, and in the world in which we travel more that is understandable. In family matters, it is fundamental because children are taken, and deeply distressing custody battles are waged over abducted children not only across the border between Scotland and England but around the world. It is also important for the enforcement of aspects such as aliment, as we call it in Scotland, or alimony, as it is referred to down here. All those things depend on the ability to settle on a jurisdiction—a jurisdiction of choice, or sometimes one that is required—in which rights can be enforced.