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

Lord Bhatia Excerpts

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

[Lord Garnier (Con)]

My Lords, as the noble and learned Lord, Lord Falconer of Thoroton, explained in Committee on 13 May, the Official Opposition had no objection to the three treaties covered by the Bill being brought into domestic law via primary legislation, but they had very considerable objections to Clause 2. Their primary objection to Clause 2 on 13 May, repeated today, was that it would allow the Government to change the law by delegated legislation.

I have no doubt that other noble Lords who have yet to speak, like noble and learned Lords and noble Lords who have already spoken, will support the noble and learned Lord, Lord Falconer, in his arguments while paying due regard to the contribution of my noble and learned friend Lord Mackay of Clashfern. For my part, I agree with the noble and learned Lord, Lord Falconer, on the matter of principle but gently remind your Lordships’ House that none of his arguments based on constitutional impropriety found favour with the Government of which he was a distinguished member between 1997 and 2007.

I spent a fair amount of time, when on the Opposition Benches, arguing with the noble and learned Lord’s colleagues, as he does now with mine, that the misuse of secondary legislation to alter or extend primary legislation is wrong. I thought it was then and I think it is now. If, as he appears to have done, he has changed his mind, I am delighted, but he must know, having been in Governments with majorities of 179, 167 and 157, why Governments with large majorities resort to this device: it is expedient, it is convenient and they can.

There is generally far too much legislation and most of it is inadequately considered in the House of Commons. Bills are closely whipped and programmed and Governments of all stripes—Conservative, Labour and the recent coalition—have used Henry VIII powers allowing Ministers to make law with insufficient parliamentary scrutiny. I make that observation coolly.

I am neither shocked nor surprised that the Bill contains such provisions, nor that the Official Opposition have taken the stance they have on the question, today and in May. I simply point out, as the noble and learned Lord, Lord Falconer, must know, that this is what happens and will continue to happen until Governments with large majorities do less and do it better.

I think I am right in saying that only two of us speaking to this group of amendments—the noble Lord, Lord Hain, and I—were Members of Parliament, and government and shadow Ministers, in the other place before arriving in your Lordships’ House. I am quite sure that the noble Lord, Lord Hain, will not agree with me when I say that we have brought with us a degree of realism or cynicism, but as Front- and Back-Benchers we served on Bill committees and secondary legislation committees using the affirmative and negative resolution procedures. We know how Governments manage the agenda in the other place.

Therefore, when I see Amendment 20, which would ensure that all regulations made under Clause 2 were subject to a lengthy and protracted super-affirmative resolution procedure, I see a procedure which, if it cannot be killed at birth, will be neutered. I do not wish to be unhelpful, and I readily acknowledge that the noble and learned Lord has said that this is a probing amendment, but I fear that what I see is a cul-de-sac. I confess that I took part in similar debates on Henry VIII powers when in opposition to his Government. His fellow Ministers smiled sweetly and the provision was passed into law exactly as they had drafted it. My noble and learned friend Minister will be less direct than me, but one only has to read the terms of the amendment to realise that, but for the noble and learned Lord’s advertised withdrawal of it, it is heading nowhere but the butcher’s block, if not in your Lordships’ House then when it gets to the other place.

The noble and learned Lord, Lord Falconer of Thoroton, is of course right to highlight the constitutional problem, a problem that he could not see quite so clearly when he was in government. I do not wish to discourage others from arguing against these ministerial powers even if, as I learned when I was in opposition, nothing will come of them today through the Bill. The arguments must be made, but in the context of the Bill I do not want the migration of these conventions into UK law delayed by this bigger constitutional question. I thus urge your Lordships to let it through unamended, not because I agree with the overuse of Henry VIII powers but because it is going to happen anyway and today is not the day to reform their use piecemeal. That said, I hope this very necessary reform will soon come about more widely with the agreement of both Houses and all parties.

[Lord Bhatia (Non-Afl)]

My Lords, the Bill is highly technical for a person who is not trained as a lawyer and does not have a degree in international law. I am not one of those legal minds. I have gone through the various features of the Bill and its policy background in some previous debates.

My concern is about divorces. Children often suffer most when a divorce takes place. The Advocate-General for Scotland, the noble and learned Lord, Lord Keen of Elie, said in a debate in March:

“Private international law is viewed by some as a technical and specialist area of law, but it is an essential one. 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.”


He went on to say that

“if a family relationship breaks down and one spouse moves abroad, they make it easier to sort out arrangements in the best interests of their children.”—[Official Report, 17/3/20; col. 1439.]

These issues become very important when the marriage has taken place in a religious ceremony in a foreign country and one of the spouses is not British and the other is British by nationality. Often the non-British spouse gets the children and goes back to their country of birth. Here I refer to the sub-continent countries such as India and Pakistan. The spouse who is British and lives in the UK finds it difficult to fight a legal battle over the custody of the children when the other spouse is in India or Pakistan. The issue is further compounded because the cost of litigation is high and the British spouse cannot afford it. The other issue is that the legal processes in these countries can take many years to go before a judge because of the calendar of the courts, which have to deal with many cases each day. In many cases the British Embassy tries to lend assistance, but there is a limit to how much it can help.

I do not wish to raise the issue of forced marriages in this debate. I am just raising this issue because I feel that it will raise its head in future. From 1 February this year the UK has regained full competence to enter into international agreements on PIL in its own right. Such agreements with many countries will take a long time and could cause considerable costs and delays to pending court cases. Can the Minister assure the House that special arrangements will be made for such pending cases, particularly where children are involved?

[Lord Holmes of Richmond (Con)]

My Lords, this is a short piece of legislation but an incredibly significant one. That why I wanted to speak to this group of amendments.

Before going into the detail, I would like to make a general point to my noble and learned friend the Minister. Does he agree that the very nature of English law—how it has developed and how it is seen around the world—gives us huge potential post December as a tremendous export as it is respected and highly used across the globe, and we really should seek to maximise its positive impact to this respect?

I turn to the amendments. We see, as we have heard from other noble Lords, that it is envisaged that these powers would be used only infrequently—infrequently, yes, but with potentially extraordinarily huge impact for the individual. So, building on other noble Lords’ comments, my concluding question for my noble and learned friend the Minister is: as currently constructed without these amendments, how does he see the necessary level of scrutiny taking effect? What is his overall view of the coherent use of secondary powers and the coherent and sustainable way to legislate not just on matters such as these but across the piece?