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

Lord Adonis Excerpts

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

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

My Lords, this government amendment seeks to allow certain provisions of the Bill to be extended to the Isle of Man through what is commonly known as a permissive extent clause. This is a well-established method of enabling UK legislation to be extended to the overseas territories and Crown dependencies.

I should clarify that the amendment was explicitly requested by the Isle of Man Government due to the legislative pressures that Tynwald, the island’s parliament, currently faces. I want to be clear with noble Lords that I am moving the amendment to allow debate and to put on record the request from the Isle of Man Government. I recognise that some noble Lords expressed concerns in the earlier parts of this Committee stage about both the scope and purpose of Clause 2, to which this amendment relates. I will therefore seek to withdraw the amendment once noble Lords have had an opportunity to speak to it.

Returning to the detail of the amendment, this permissive extent clause provides for the addition of a narrow delegated power that, when activated, will allow certain provisions of the Bill to apply in the Isle of Man. The power is exercisable by an Order in Council, which can be made at a time agreed between the UK Government and the Isle of Man Government.

Once made, the Order in Council would extend the Clause 2(1) power to the appropriate authority on the Isle of Man. This would enable the Isle of Man to make its own regulations to implement international agreements on private international law. This power could be used only to implement agreements that the United Kingdom has extended to apply in the Isle of Man, which means that both the United Kingdom and the Isle of Man would be able to operate the agreement between their own jurisdictions and the other contracting parties.

In addition, the amendment would enable the Isle of Man to implement an arrangement to apply the terms of a private international law agreement, subject to necessary modifications, between the Isle of Man and the United Kingdom. Clause 2(3) already provides this power to the United Kingdom. The amendment will enable that power to be extended to the Isle of Man to give it the power to do the same, alleviating the need for it to enact its own primary legislation to implement such an arrangement. Of course, in both cases, the arrangement will be about operating a private international law agreement that the United Kingdom has joined, as anything else would fall outside the scope of the power.

The amendment would not affect the United Kingdom directly. It would require the Queen to approve an Order in Council at a meeting of the Privy Council and would allow the Isle of Man also to make use of this important legislation. Should there be any effect on the UK, it is likely that any agreed arrangement relating to applying private international law agreements between the UK and the Isle of Man could be implemented efficiently both here and in that dependency by mutual agreement.

As I have already stated, this measure is limited to the Isle of Man simply because it issued a formal request for the Bill to include this permissive extent clause. We have engaged with the other Crown dependencies and overseas territories on the Bill; they have not requested that this provision be extended to them. In these circumstances, I beg to move.

[Lord Adonis (Lab)]

I have an obvious question relating to what the noble and learned Lord said. Why does he think that the Isle of Man wants this power but other Crown dependencies do not?

[Lord Mackay of Clashfern (Con)]

My Lords, I have always understood that the Isle of Man is different and that special provision therefore needs to be made for it, particularly at its request. Long ago, when I was Lord Advocate, I was called to defend an action of the UK Government, which had imposed restrictions on fishing in the waters surrounding the Isle of Man that were different from the common fisheries policy. I was constrained to argue that the Isle of Man was not subject to the common fisheries policy, since it was different from the United Kingdom. I regret to say that the Isle of Man was not sufficiently different for me to succeed.

I support the amendment as something that is utterly important for the Isle of Man and perfectly in order.

--- Later in debate ---

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will speak briefly in support of the amendments put forward, in the event that such amendments become necessary. I will speak first to Amendment 19.

Private international law, by its very nature, is concerned generally with private individuals and private law. It seems to me, therefore, that if there are circumstances where the ordinary powers of the courts—for example, powers relating to injunctive or contempt proceedings—are insufficient, Parliament ought to have the opportunity of considering whether, in such circumstances, a criminal sanction should be imposed.

As to Amendment 20, it is fair to say that, from my own experience—save as is illustrated by what has happened on this Bill—the Ministry of Justice is fairly good at consulting widely. However, my experience of other ministries is, I regret to say, not as favourable. Therefore, I think it right that, in the event that these provisions become necessary, there be an express obligation, set out in some detail, in relation to consultation.

This has two purposes. First, it makes certain that each department has to think carefully as to whether there is a provision in the agreement it has made, and then set about a proper consultation. Secondly, it is always of value in international obligations to be able to say that the particular obligation concerned, in so far as it affects domestic law, has to be approved by Parliament. One notes that, quite often, this is a matter used by the United States with quite considerable effect. It seems to me that, at this stage, we do not have sufficient experience of knowing how effective CRaG will be.

We have to be very cautious these days in circumstances where framework legislation is now becoming so extensive. If we are to have much more framework legislation—and it looks as if we are going that way—we really have to look much more at our own procedures for considering regulations made under such framework legislation, which this is, in effect.

In the event that it is necessary to have an amendment of this kind, I therefore warmly support that put forward by my noble and learned friend Lord Falconer of Thoroton.

[Lord Adonis]

Virtually every speaker in the debate has supported what my noble and learned friend Lord Falconer said. The obvious question to the Advocate-General is this: will he reconsider this matter before Report?