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

Baroness McIntosh of Hudnall Excerpts

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

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

My Lords, I thank all noble Lords for their contributions to the debate. I shall of course speak to each of the amendments, Amendments 1, 4 and 5. When taken together, as the noble and learned Lord, Lord Falconer, observed, they have the effect of restricting the power to implement international private law agreements contained in Clause 2 in the 2007 Lugano Convention. But they not only limit the power of the United Kingdom to implement private international law agreements in this way, they also restrict our ability to mirror any such arrangements as between the United Kingdom’s different legal jurisdictions, and indeed as between the United Kingdom and the Crown dependencies and overseas territories.

Of course we accept, as we have previously, that the most pressing need for the power is in relation to the Lugano convention itself. Our application to rejoin the convention as an independent contracting party was made on 8 April—

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

We appear to have lost the noble and learned Lord the Minister. Is he still with us?

[Lord Keen of Elie]

I think that I am coming back. I apologise, but something happened on the computer.

We have made the application and it is hoped that, subject to agreement, we will be able to rejoin the Lugano convention from the end of the transition period.

I will pause to notice some of the observations made by my noble friend Lady McIntosh of Pickering and the noble Lord, Lord Marks, with reference to Brussels Ia and IIa restated. My noble friend asked in a number of ways what steps we are taking with regard to what she termed the Brussels convention and what progress is being made on that matter. I think we have to remind ourselves that Brussels Ia and IIa do not form an international convention; they are internal instruments of the EU to which you may be a party only if you are a member of the EU. We of course have the transition period during which we enjoy the benefits of Brussels Ia and IIa until the end of the year, but there is no basis on which we can be members of Brussels, as was suggested, after the end of the transition period. That is why we are concerned to apply for membership of Lugano.

With regard to a number of the observations made by the noble and learned Lord, Lord Mance, of course I readily acknowledge that Lugano is not as well developed in a number of respects as the Brussels Ia and IIa restated provisions. We are well aware of that. We would hope to advance Lugano once we are a member, but we have to acknowledge that it is not on a par with Brussels Ia and IIa.

However, Lugano is not the only potential use of the power in Clause 2. For instance, Amendment 1 would prevent us joining two other private international law agreements on which the Government are currently considering their position. They are the Singapore convention on mediation and the Hague judgments convention of 2019. I will return to the latter in a moment because it has been mentioned before.

With regard to the Singapore convention, I have shared with noble Lords a copy of an exemplar statutory instrument to demonstrate the sorts of agreements that we may wish to implement under the Clause 2 power. While the final decision on joining that convention is still to be taken, I invite noble Lords to look at that exemplar statutory instrument when considering the ways this power might be used. The instrument contains what are, essentially, technical implementing regulations for a treaty agreed at the level of international law. The choice for this House and the other place at the point of implementation is about not the specific provisions of an agreement, but whether to approve the United Kingdom’s implementation of the whole agreement in domestic law.

Beyond those two examples of private international law agreements which already exist, and which the UK is considering joining, we are actively engaged in work through the Hague conference to develop rules on jurisdiction in international civil and commercial cases. The global arena of private international law is constantly developing. We have been active in it in the past, and hope and intend to take a leading role in the future.

Restricting the scope of the Clause 2 power in the way envisaged by this amendment would, I suggest, prevent the United Kingdom implementing any future agreements in a timely manner. That would in turn delay the benefit of those agreements to citizens and businesses. I regard that as an unsatisfactory position, given that in many cases there is considerable advantage to be gained from such international co-operation in the area of private international law. It would also mean that primary legislation will be needed to insert into a schedule to the Civil Jurisdiction and Judgments Act 1982 the text of the United Kingdom’s declarations and reservations in relation to the 2005 Hague Convention and the 2007 Hague Convention, in the absence of which the terms of the United Kingdom’s accession to those agreements will be far less accessible to users.

I also point out that it will mean that the definition of “relevant international agreement”, as used in subsections (2) and (3), and presently defined in subsection (7) by cross-reference back to subsection (1), will be unclear. That term is also used in Schedule 6 and defined by cross-reference back to Clause 2. In addition, the way that Amendment 1 has been drafted would not in practice allow us to make implementing regulations in advance of becoming a contracting party but only after joining. In that respect, I venture that it is defectively drafted because, essentially, one has to take these things in a particular order.

I turn to Amendment 4. As drafted, Clause 2(2) allows the terms of an international agreement, subject to suitable modifications, to be applied between United Kingdom jurisdictions: for example, between England and Scotland. Amendment 4 seeks to restrict this power to allow for only the Lugano convention to be applied in this way. International agreements on private international law would not ordinarily apply between the United Kingdom’s three jurisdictions because such agreements apply only between contracting parties and it is the United Kingdom Government, not their separate jurisdictions, who join international agreements. Although the relationship between the different parts of the union are perhaps far deeper than they are between foreign jurisdictions and ourselves, it often means that the rules between different UK jurisdictions need to be detailed and bespoke. Applying the same rules between United Kingdom jurisdictions that we apply with foreign jurisdictions will, not invariably but very often, be desirable. For example, it could reduce the number of sets of rules that courts need to apply in cases raising cross-border issues, making them more efficient and easier for courts, lawyers and litigants to understand. It would also mean that intra-UK private international law rules are at least as effective and up to date as the rules applied between the United Kingdom and foreign jurisdictions. Clause 2(2) allows for such keeping pace but would be exercised only if the relevant jurisdictions agree that it is beneficial to do so.

These sorts of arrangements are not without precedent. All three UK jurisdictions already apply rules that mirror the EU Brussels 1A regulation on jurisdiction for cross-border cases and much of the EU maintenance regulation as between themselves. The fact that, thanks to Schedule 4 to the Civil Jurisdiction and Judgments Act 1982, a modified version of the Brussels 1A rules is applied to cases between Scotland, Northern Ireland and England and Wales means that there might be limited prima facie rationale for suggesting that we replace this with the application of the rules under the Lugano convention. The rules are already substantially similar.

However, in addition, the amendment that I referred to has an altogether more significant deficiency. By limiting the intra-UK application of private international law agreements to the Lugano convention, the amendment may well result in the perverse situation in which the intra-UK rules are out of step, out of date and less effective than those governing the relationship between all three of these jurisdictions and a foreign jurisdiction. If the amendment were accepted, separate primary legislation would be needed to achieve this, potentially resulting in the intra-UK rules being less effective and less comprehensive than the rules that we apply with foreign jurisdictions until such primary legislation was passed.

Perhaps I may give an example. If the United Kingdom decided in future to join a new private international law agreement dealing with cross-border cases regarding children, the inability to implement that agreement between the UK’s jurisdictions at the same time as implementing an agreement between the UK and foreign jurisdictions could lead to families finding it more difficult to resolve disputes where parents live in, say, Northern Ireland and England than where one parent lives in the United Kingdom and the other in a foreign country. That would be a very strange outcome.

Amendment 5 has an effect similar to that of Amendment 4 in that it seeks to restrict the ability, under the Clause 2 power, for the United Kingdom to enter into arrangements with the Crown dependencies and overseas territories that mirror, subject to suitable modifications, the provisions of a private international law agreement to which the United Kingdom is a party. As I explained in relation to Amendment 4, the UK Government are the contracting party to international agreements on private international law. As such, these agreements would not ordinarily apply as between the United Kingdom and one of the Crown dependencies or overseas territories.

However, as with the relationships between the different legal jurisdictions of the UK, applying the same rules between the UK and the Crown dependencies and overseas territories that we apply with foreign jurisdictions will sometimes be desirable. It can ensure that the relationships between the various members of the wider UK family can be at least as effective and up to date as those applied between the United Kingdom and foreign jurisdictions. Clause 2(3), as presently drafted, allows for such keeping pace but only if the relevant territorial Government agree that it is beneficial to do so.

I submit that this builds on a significant body of precedent. Both the Administration of Justice Act 1920 and the Foreign Judgments (Reciprocal Enforcement) Act 1933 enable the Government, via Order in Council, to recognise and enforce civil and commercial judgments from the Crown dependencies and overseas territories where reciprocal arrangements have been entered into with them. Furthermore, Section 39 of the Civil Jurisdiction and Judgments Act 1982 enables the Government, by Order in Council, to apply a modified version of the Brussels 1968 convention between the United Kingdom and a Crown dependency or overseas territory. Indeed, an order was made in respect of Gibraltar in 1997 to do exactly that: applying a modified version of this convention to relations between the UK and Gibraltar—an arrangement that sustains to this day.

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Again, I thank noble Lords for their submissions to the debate but ask the noble and learned Lord, Lord Falconer, to withdraw the amendment.

[The Deputy Chairman of Committees]

My Lords, the following noble Lords indicated a wish to speak after the Minister: the noble Lord, Lord Foulkes of Cumnock, the noble Baroness, Lady McIntosh of Pickering, the noble and learned Lord, Lord Mance, and the noble Lord, Lord Marks of Henley-on-Thames. I shall call them in that order and ask the Minister to respond to each of them in turn.

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

I had not intended to intervene at this stage. However, since this, is or ought to be, very similar to Committee if we were sitting in the Chamber, I hope that Members will understand why I do so. It is not to deal with questions that the Minister raised about Crown dependencies and overseas territories—although he answered the question that I had intended to ask later on, on other amendments, so that will shorten the debate later—nor indeed about the different jurisdictions within the United Kingdom. Again, that will be dealt with in subsequent amendments and I can come back to that during that debate.

I want to say two things. First, I agree totally with what my noble and learned friend Lord Falconer said; that will surprise neither him nor the Minister. Secondly, the noble Lords, Lord Adonis and Lord Pannick, made important points, which the Minister just touched on. As the noble Lord, Lord Adonis, said, we should note the significance of this being the first Committee stage of a Bill that we have held virtually. It is very important that we see that it operates properly.

As it happens, two members of the Procedure Committee are in this debate: the noble and learned Lord, Lord Morris of Aberavon, and me. At the committee’s last meeting, we asked for a report on the workings of this Committee stage—that is, how it will proceed. At its next meeting, the committee will discuss the procedure for virtual voting. If my noble and learned friend Lord Falconer hopes to divide the House on Report, as he indicated—I hope that he will—that cannot be done without virtual voting. It would be improper and unconstitutional for that to take place. My noble friend Lord Adonis should be reassured by that.

Finally, I hope that the Minister will treat this Committee stage just as he treats Committee stages on the Floor of the House—that is, take account of what has been said, be prepared for a challenge on these issues on Report and bear all this is mind before bringing the Bill in its present form back on Report. I hope he takes note of that.

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[Lord Keen of Elie]

I thank the noble and learned Lord, Lord Mance, for his further observations. I simply notice this: for the last 20 years, Parliament has had no oversight of the drawing down of these obligations into domestic law because it has been an EU competence. That has not led to any dramatic constitutional issue, as far as I am aware.

In the meantime, however, we have introduced CRaG, which means that the entering into a treaty at the level of international law is now subject to scrutiny by Parliament. After that scrutiny, the Executive can enter into the relevant treaty. Then, when it is drawn down into domestic law, the affirmative statutory instrument procedure ensures that both Houses of Parliament have an opportunity to scrutinise and debate this. There is no difficulty about that; it is the outcome that matters.

However, I notice the noble and learned Lord’s observation that there is little that can be done by way of amendment at that stage. That is why we would suggest that the affirmative procedure was a perfectly adequate mechanism, as distinct from primary legislation.

[The Deputy Chairman of Committees]

My Lords, before I call the noble Lord, Lord Marks, I should say that the noble Lords, Lord Adonis and Lord Pannick, have indicated their wish to speak after the Minister. I shall call them in that order after the contribution from the noble Lord, Lord Marks of Henley-on-Thames.

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[Lord Keen of Elie]

My Lords, I thank the noble Lord for what I understand are, again, probing amendments. As I perhaps explained, the Crown dependencies and overseas territories have a constitutional relationship with the United Kingdom whereby the United Kingdom is responsible for their foreign relations. This means that the Crown dependencies and overseas territories do not generally themselves join international agreements, including agreements in the area of private international law, which we are concerned with here. Instead, an agreement that applies in the United Kingdom can usually be extended to apply also in a Crown dependency or overseas territory. We work with those Crown dependencies and overseas territories to determine where and when they would wish to have a private international law agreement apply between them and other contracting parties. The scope of the United Kingdom’s ratification of that agreement is then extended to them. This means that multilateral agreements extended to the Crown dependencies and overseas territories apply only between those jurisdictions on the one hand and the other contracting parties on the other, but not between the Crown dependencies and overseas territories and the UK. To apply the agreement with the UK, there needs to be a separate mirroring arrangement, as it is sometimes termed. I referred to that in responding to earlier amendments.

The general power within Clause 2(3) allows the United Kingdom to maintain and develop a private international law framework with the Crown dependencies and overseas territories as well as with foreign partners. That is the intent here.

The noble Lord asked about consultation. There was consultation, not with the governors of the Crown dependencies and overseas territories, but with each attorney-general and their officials. My understanding is that they were entirely content with the way in which these provisions are extended to the benefit of the Crown dependencies and overseas territories.

The noble Lord raised the question of entrustment. It does not directly arise in this context, but entrustment is where the United Kingdom essentially consents to a Crown dependency, for example, entering into an agreement at the level of international law. That can sometimes happen where, for example, a Crown dependency wants a reciprocal agreement with a foreign partner.

The behaviour of the overseas territories is monitored by the Foreign and Commonwealth Office and there are instances in which, for the purposes of good governance, the United Kingdom will intervene in the affairs of an overseas territory. The noble Lord himself gave an example in respect of the Turks and Caicos Islands where that has been done.

As regards the choice of court or arbitration that the noble Lord referred to, in so far as I understand his point, I would respond that it is up to parties to a private contract to determine how their disputes, if any, will be resolved. For that purpose, the parties can choose a law or legal system to apply to their private contract and the jurisdiction in which their disputes will be resolved. That is an issue that arises only in the context of their private contract and in the context of what we are dealing with here, which is private international law. At the level of private international law, we are concerned with the way in which other jurisdictions respect that law, respect the choice of jurisdiction and, indeed, then respect the judgment of that jurisdiction when it comes to enforcement.

I hope that answers the points raised by the noble Lord. I thank him for the probing amendments, but I invite him to withdraw Amendment 14.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I am not aware that any other noble Lords have expressed a wish to speak after the Minister, so I call the noble Lord, Lord Foulkes of Cumnock.

[Lord Foulkes of Cumnock]

My Lords, I am really very grateful to the Minister for a helpful reply; he has dealt with each of the points that I raised very properly and helpfully. This is an issue that I feel strongly about generally and will need to pursue in another context in the light of that. I beg leave to withdraw my amendment.

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[The Deputy Chairman of Committees]

I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. It would be helpful if anyone intending to say “Not content” when the question is put made that clear during debate. It takes unanimity to amend the Bill in this Committee; this Committee cannot divide.

[Lord Falconer of Thoroton]

My Lords, I believe that Clause 2 should not stand part of the Bill. We have discussed these matters at considerable length today. I simply make the point that it will be constitutionally unprecedented if we end up in a situation where the Government have complete power in relation to private international law agreements in the future, not only to implement the changes to domestic law that are required by secondary legislation but to make regulations that relate to those agreements or connect with them, which goes very much wider than the terms of the agreement itself.

We have discussed considerably today the justification for this unprecedented power and it has been demonstrated —mainly on the question about timely implementation—not to withstand any degree of examination. I feel strongly that the House should reject Clause 2; we cannot do it in this Committee but, when the time comes, we should vote to remove it from the Bill. I think it is a separate debate as to whether there should be a special power in relation to Lugano, but this provision gives unlimited power for an unlimited time to introduce the consequences of international agreements into our domestic law with no primary legislation.

One final point, which has been made by the Constitution Committee, is that the consequence of doing this by secondary legislation is that it can be challenged in the courts and set aside by the courts on the grounds of judicial review. So not only is it constitutionally inappropriate, not only will it damage the quality of our private international law, but it will lead to legal uncertainty. Actions will be brought in court but set aside. I will invite the House on Report not to allow this provision to stand part. There is unanimity in this Committee with the exception—the plucky exception—of the Minister in that respect.

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[Lord Judge (CB)]

During the rehearsal for this afternoon, I was asked to say my piece, and I used two words. I said, “Henry VIII”. Just in case it was not apparent to anybody who heard me say that,I was trying to convey, as I did on 17 March, when the rather claustrophobic shades of the pandemic were closing in on us, that the Bill unnecessarily invests excessive power in the Executive and does so by secondary—

[The Deputy Chairman of Committees]

My Lords, the Committee is having some problem in hearing the noble and learned Lord, Lord Judge, and I wonder whether his connection is stable.

[Lord Judge]

Shall I start again?

[The Deputy Chairman of Committees]

Perhaps start again, or perhaps go at least two sentences back.

[Lord Judge]

I will try again. On Henry VIII, I was trying to convey that the Bill unnecessarily invests excessive powers—

[The Deputy Chairman of Committees]

Lord Judge, I am afraid that there is a problem with your connection. I suggest that we move to the next speaker and hope to come back to the noble and learned Lord at the end of the list, by which I hope his connection will be better. If that is acceptable, I ask the broadcasters to please unmute the noble and learned Lord, Lord Goldsmith.

[Lord Goldsmith (Lab)]

My Lords, I was looking forward to hearing the noble and learned Lord, Lord Judge, and saying that I agree entirely with what he said. I still imagine that I will agree with him, even if he has to come in a little later in the debate.

I start by declaring two interests. The first is as a practising lawyer whose practice includes international, commercial and public law cases, so some of the things discussed today affect the practice that I carry on. The second, and more important for present purposes, is that I am the recently appointed chairman of your Lordships’ EU Sub-Committee on International Agreements. It is in that capacity that I put my name forward to speak today.

My focus is on Clause 2. I have not spoken in any of the other debates that have taken place but, for all the reasons powerfully advanced by my noble and learned friend Lord Falconer of Thoroton, my noble friend Lady Taylor of Bolton and the noble Lord, Lord Pannick —and in the future, no doubt, by the noble and learned Lord, Lord Judge—I see this as a very unusual and constitutionally unprecedented thing. I could not improve on the speeches made already, including those of the noble and learned Lord, Lord Mance, in an earlier debate, and the noble Lord, Lord Anderson of Ipswich.

However, I want to deal with one aspect in my capacity as chairman of the EU International Agreements Sub-Committee. It has authorised me to write to my noble friend Lady Taylor expressing its agreement with the conclusion that the Constitution Committee had reached in its report and concurring with its opinion that the clause, if it goes through, would reduce parliamentary scrutiny of international agreements inappropriately.

It is not an answer, as my noble and learned friend Lord Falconer has rightly said, to say that this is dealing purely with technical things. I know from experience that, although they may be technical, they are matters of great moment and matters of great importance both to the people who are making agreements and to this country. It is common for lawyers to be asked to advise which law should be put into an agreement or which law should govern any disputes that have to be dealt with, and the Bill would affect that.

As I understand it, two principal answers have been given about why the Government say this is appropriate. One is that all agreements will have been subject to parliamentary scrutiny, and that is the bit on which I particularly want to focus. The problem with that is that, as the Constitution Committee said,

“current mechanisms available to Parliament to scrutinise treaties through CRAG are limited and flawed”.

That is particularly so because of the gaps in the CRaG coverage—some of them have been mentioned today, such as model law—and the timing of CRaG means that an agreement will have been concluded by the time, strictly speaking, that the CRaG processes come into effect.

I shall quote one paragraph, paragraph 19, from the Constitution Committee’s report on CRaG, Parliamentary Scrutiny of Treaties. Professor David Howarth from the University of Cambridge observed:

“From the Whitehall point of view, everything is perfect. The whole process is under the control of Ministers. Parliament does not really get a look-in until after signature and, even after signature, the CRAG processes are very difficult for anyone to operate, especially in the Commons where the Government controls the agenda.”


That is the problem with CRaG.

The committee which I am honoured to chair may be an important part of the response to that lack of scrutinising ability. We are only in the foothills of our work, and we do not yet know how well this will work. Quite a lot will depend on how the Government engage with us and with Parliament more generally. I hope that they will wholeheartedly engage not only once an agreement has been concluded but at earlier stages. I know there is some disappointment already that, for example, the amendments made by this House to the previous Trade Bill have not found a place in the current incarnation of the Trade Bill.

Some assurances have been given in the context of the conclusion of trade agreements. Dr Fox made some important statements about the consultation and engagement that will take place. In its paper Public Consultation on Trade Negotiations with the United States, the DIT repeated the assurances that it gave. For example, paragraph 39 of that report repeats commitments made in its earlier paper, including,

“confirmation that at the start of negotiations, the Government will publish its Outline Approach, which will include our negotiating objectives, and an accompanying Scoping Assessment, setting out the potential economic impacts of any agreement.”

The second argument perhaps put forward is that the issue will be only yes or no and therefore the affirmative procedure, as proposed in the Bill, will be enough. I am not persuaded by that argument. It will often not be a question of yes or no. For example, there are treaties which contain options for the member states, such as powers to derogate from particular provisions. Under this binary approach to approval or engagement by Parliament, how will those treaties be considered? Or there may be methods of implementation which are available under the agreement. But more fundamental is the fact that if there is a power to amend that could strengthen the hand of the Government in negotiations, and there is some evidence that in some countries where scrutiny is not limited to yes or no, that is the case.

It seems inevitable that unless the Government drop this, as many noble Lords are urging them to do, this will come back on Report. If in doing so, the Government intend to rely upon the argument about the effect of parliamentary scrutiny under CRaG, they will need to give a very clear explanation of how they will engage with Parliament and the EU International Agreements Sub-Committee so that we can see the reality of what parliamentary scrutiny of the negotiation and conclusion of agreements will be. I look forward to those explanations being given, and in the meantime I support the amendment.

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Therefore, I hope that it is possible for our colleagues on the Procedure Committee to take back what I think will be the strong feeling in the Committee based on today’s proceedings that it is not good enough to have just an online process of voting. We need debates to take place in the Chamber on a hybrid basis, obviously allowing people to participate from outside too, but with real interaction and engagement in the Chamber leading up to the vote so that we have the best approximation possible to proper parliamentary debate and engagement before we divide.

[The Deputy Chairman of Committees]

: My Lords, I am hoping to call the noble and learned Lord, Lord Morris of Aberavon, in a second, but, before doing so, I should say that after the noble and learned Lord I intend to call the noble and learned Lord, Lord Judge, whose contribution we were not able to hear earlier. I understand that his connection is now properly established. I call the noble and learned Lord, Lord Morris of Aberavon. Is he with us? I think we must assume that the noble and learned Lord, Lord Morris, will not be joining us at this time. Is the noble and learned Lord, Lord Judge, available?

[Lord Judge]

Can you hear me?

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[The Deputy Chairman of Committees]

I can certainly hear you, Lord Judge.

[Lord Judge]

Good. Do you mind if I ask whether you heard anything that I said when I started last time?

[The Deputy Chairman of Committees]

In the interest of making sure that everybody hears everything that the noble and learned Lord has to say, perhaps I may suggest that he starts again from the top. I think that would be preferable to trying to start in the middle.

[Lord Judge]

I thank the Deputy Chairman very much. I apologise to those who have already heard me say this but, when I was tested at the rehearsal to make sure that my machine was working and I was well plugged in, my only response was “Henry VIII”. It was a wonderfully short speech. Effectively, it said what I wanted to say. However, just in case anybody does not know what I meant, I was intending to convey my view of the Bill, as I did on 17 March at Second Reading, when the awful, claustrophobic shades of the pandemic were closing in on us. Having listened to the debate and read the report of the Constitution Committee, I summarised my view of the Bill by saying that it unnecessarily vests excessive power in the Executive by means of secondary, not primary, legislation. It is a very simple principle and it is wrong. At the time, I submitted to the House in what I hope was my characteristic way—understated—that it was not exactly regulation-light.

The result of reading the report and listening to today’s debate—I do not wish to add to the many wonderful contributions that have been made—is that I can be less circumspect this time: this Bill is now heavy. It is overweight with regulation.

Why can we not be realistic about what the affirmative process actually does? It is not a means of controlling the Government. When, in 2015, a go was had at trying to stop a Conservative Government using Labour Government legislation to achieve £4.5 billion-worth of change to fiscal issues, it was apparently regarded as a constitutional outrage. That is us. As far as the Commons is concerned, unless something has happened very recently, it is 1979 since it rejected an affirmative resolution. That suggests that if we are honest with ourselves, the affirmative resolution process, even the super-affirmative, is not nearly as good as every Government of any colour always says it is supposed to be.

The fact of the matter, although I cannot identify a particular Henry VIII clause here save and except the usual ones about amending and getting rid of primary legislation, is that, from his underworld, Henry VIII has hacked into departmental computers. Alternatively, he has been inserted—resurrected and put into departmental computers. We must be very careful about attaching so much weight to the use of secondary legislation that might affect individuals’, companies’ and organisations’ rights. That is really all I want to say at this stage. I will say something about the regulations relating to the creation of criminal offences, but I support the concerns that have been expressed all round. Thank you very much for helping me to get that through, Deputy Chairman.

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[The Deputy Chairman of Committees]

We were very glad to have your contribution.

[Lord Marks of Henley-on-Thames]

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

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

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


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

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


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

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

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

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

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