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

Lord Blunkett Excerpts

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

I think that makes the case for these amendments, probing or not, compelling. In Amendment 20(2)(c) there is provision for other persons or organisations representing various interests that might substantially be affected by the proposals. There is a mechanism for consulting those bodies. I do not think it is a matter for consultation only among the legal parts of the state but among all those who have to try to make sense of it for British citizens when they find themselves in trouble. You want the maximum guidance possible and therefore maximum visibility of what has been decided. Henry VIII powers do not generally do that so I say, with great respect, to the noble and learned Lord, Lord Garnier, that we may all find ourselves arguing for these things in particular cases but the reality is that it needs to be in a clear, accessible and visible form if we are to really help people who fall into difficulty with these laws. In my view, there is an obligation to help them. Private international law is not much discussed. It does not help them at all. We are duty bound to do so.

[Lord Blunkett (Lab)]

My Lords, at this point in Committee deliberations, I often find that we have had tedious repetition, some of it very necessary in terms of underlying principles. On this occasion, some extremely valuable contributions have brought in extraneous issues that I certainly had not thought of, including those raised by my noble friend Lord Hain.

I speak in support of the points raised by my noble and learned friend Lord Falconer. He and I shared the pleasure of working together when the Home Office had what are now the powers of the justice ministry. We were, of course, faced from time to time with the desire to engage with a plethora of delegated legislation which would ease our burden and make the business of government easier. The noble and learned Lord, Lord Garnier, is correct in identifying that Governments wish to do this and Oppositions seek to check it. That is a perfectly reasonable combination because Governments have the dynamic of seeking to deal with issues that they will return to in an easier form and Oppositions, quite rightly, have to challenge, as is the case this afternoon, the reasons for that and whether they are acceptable.

I take, for instance, my noble and learned friend Lord Thomas of Cwmgiedd’s third point about the framework of legislation now, in which we have become accustomed to dealing with underpinning issues. However, when principles relate to the extension of criminal offences and penalties, as my noble and learned friend pointed out at the beginning of this debate, we have to be extremely cautious.

The noble Lord, Lord Thomas of Gresford, in a very entertaining and important diversion, referred to our present situation not just in terms of the underpinning measures that allow people to travel great distances but not to stay overnight, which are perverse in terms of trying to get Parliament up and running, by the way. Measures have applied in history, sometimes by necessity, such as Regulation 18B in 1940, but with consequences that had to be dealt with at length, with the picking up of thousands of people, some of whom should never have been interned in the way they were. Caution is always valuable in these circumstances so that consequential and unforeseen actions are avoided wherever possible. An example is the laying of regulations under both Public Health Acts and the emergency powers that we passed through this House on 25 and 26 March this year, which will be laid in the Commons later this afternoon, in respect of unworkable laws attempting to quarantine people coming from countries with less infection than we have ourselves.

Caution is necessary to make good law, as the noble and learned Lord, Lord Garnier, said. It tries to look down the line at what the consequential outcomes might be. That is why I think this has been a very useful debate and I hope that the noble and learned Lord, Lord Keen, will reflect on this, given that, as the noble and learned Lord, Lord Garnier, said, substantial majority Governments can push through whatever they like but other people have to live with the consequences.

[Lord Marks of Henley-on-Thames]

My Lords, on these Benches we are firmly with the noble and learned Lord, Lord Falconer, in opposing Clause 2 of the Bill, in line with the virtually unanimous view of those who spoke on 13 May and for all the reasons stated on day one in Committee. We will support the noble and learned Lord in opposing Clause 2 on Report. Therefore, it is with some regret that I find myself disagreeing with the noble and learned Lord, Lord Mackay of Clashfern, in particular in respect of the creation of criminal offences. He seemed to be suggesting that such offences would derive from the provisions of the international treaties themselves, rather than the provisions of the delegated legislation and, for that reason, the power in the Bill should be accepted.

However, that is not inevitably so. Under the Bill as it stands, new criminal offences could be introduced by the regulations giving the force of domestic law to private international law conventions and the implementation of those conventions, not by the treaties themselves. I therefore agree with the noble and learned Lord, Lord Thomas of Cwmgiedd, on that issue and the possibility that he raised of new offences being introduced under the regulations.

These two amendments are, of course, alternatives to the removal of Clause 2, as the noble and learned Lord, Lord Falconer, pointed out. Both amendments would plainly be right if we came to the position, contrary to what we believe should happen, that we were stuck with Clause 2. Amendment 19 on criminal offences raises an important principle. I agree with and endorse everything said by my noble friend Lord Thomas of Gresford, as supported by the noble and learned Lords, Lord Thomas of Cwmgiedd and Lord Hope of Craighead, and the noble Lord, Lord Kennedy of Southwark. In this country we have always had a strong and principled objection to making new criminal offences or otherwise changing the criminal law by secondary legislation. The noble Baroness, Lady Jones of Moulsecoomb, expressed that principle forcefully and eloquently. It is an important principle, which I think we should be very firm about upholding.

Amendment 20 is on the super-affirmative procedure. Of course, it would be better than the affirmative procedure and clearly better than any negative procedure —which is not proposed. However, it is a poor alternative to requiring primary legislation to give international treaties the force of domestic law. Paragraph 31.14 of Erskine May says this about the super-affirmative procedure:

“The super-affirmative procedure provides both Houses with opportunities to comment on proposals for secondary legislation and to recommend amendments before orders for affirmative approval are brought forward in their final form. (It should be noted that the power to amend the proposed instrument remains with the Minister: the two Houses and their committees can only recommend changes, not make them.)”


That paragraph is accurate in respect of the super-affirmative procedure proposed by the noble and learned Lord’s Amendment 20. It follows that Parliament would have no right to amend, and that is why super-affirmative is still a poor alternative. It ultimately leaves legislative power with Ministers and not with Parliament.

It is also a fact that success in changing delegated legislation by the super-affirmative procedure comes very rarely—a point made by the noble and learned Lord, Lord Garnier. We perhaps ought to return to that matter in the future. We should perhaps try to formulate a procedure that goes some way to meet the criticism he made—a procedure that permits Parliament to approve an instrument conditionally on its being amended in a way acceptable to both Houses. That might solve some of the problems that we have with delegated legislation. But I agree that that is for another day. Our position is that we support these amendments if we are stuck with having to use them in place of striking out Clause 2.

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

Lord Blunkett Excerpts

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Wednesday 17th June 2020 Lords Chamber

[Lord Hope of Craighead (CB) [V]]

My Lords, the matter has been so fully covered by the speeches already made that I have little to add, other than my full support for what has been said. However, I wish to emphasise three points.

First, the devolution arrangements in this clause have always troubled me. I refer to what I see as a lack of clarity about whether it is the Scottish Ministers or the Secretary of State who will exercise the powers referred to in Clause 2(1) in relation to “implementing” the international agreement on the one hand and “applying” it on the other. This is an indication, surely, that the Bill is seeking to crowd too much into this clause. It would be far better to leave these matters to primary legislation according to the ordinary and well-understood rules as to which legislature is to deal with what, according to what is reserved and what is not.

Secondly, the umbrella phrase “any international agreement”—I stress the word “any”—indicates that it is intended to catch a wide variety of international transactions relating to private international law. At present, leaving aside Lugano, we have no idea of what they might be. It seems likely, however, that they will not be many, but any one of them could be very important and raise issues which should not be left to the exercise of Executive power. The pressure on Parliament if we were to proceed by way of a Public Bill in the ordinary way and not by way of statutory instrument would be quite limited. Therefore, it is hard to see why we have to go down this road at all.

Thirdly, there is no sunset clause in the Bill. I could understand it if it had been intended to deal only with measures that needed to be in force before the end of the implementation period or measures that were otherwise urgent and short term, but, without such a clause, this Bill is entirely open ended. Committing all international agreements to the statutory instrument procedure at Westminster and in the devolved legislatures as a permanent feature of our law, whatever the political situation might be, seems to be highly undesirable.

[Lord Blunkett (Lab) [V]]

My Lords, I speak in support of my noble and learned friend. He will recall that in Committee, when we debated this matter briefly, the noble and learned Lord, Lord Garnier, laid down a challenge. He said that those who are in government are in favour of secondary legislation but, when they are in opposition, they are against it. I think that the case has been made this afternoon very clearly that this is an extension of the way in which Governments apply secondary legislation, and the Constitution Committee and Delegated Powers Committee have reinforced that very strongly.

As a politician—I am not a lawyer, although I am in the company of distinguished lawyers—I am reminded of the kinds of proposals that used to be brought before Labour Party conferences in the 1980s. A number of rather sensible measures—my noble and learned friend mentioned the 1996, 2005 and 2007 measures—are completely undermined by something highly controversial and unnecessary which is thrown in.

We are dealing with this matter in our virtual Parliament and seeking to find a way through. I hope that, as this amendment to delete this clause is pushed to a vote, the Government will think again and be prepared to attend to the major issues, rather than push through an extension of delegated power, including to complementary and associated measures and model laws, as has been described. We could then have wholehearted agreement.

[Lord Thomas of Cwmgiedd (CB) [V]]

I too support this amendment. In the light of what has been said by the noble Lords and noble and learned Lords who have already spoken, I can confine my remarks to a very few sentences.

Essentially, the constitutional position is one of long standing and should not be changed without justification. That justification has to be seen in the context of a significant move towards Bills becoming more of a framework and with more being done by secondary legislation. We should take a firm stand that that should happen only where necessary. No justification has been put forward for it being necessary. For example, most international conventions and model laws are negotiated at a glacial pace. There can rarely be any justification for the need for legislation to be implemented quickly.

I should add that of course there might have been an exception in the case of Lugano but, as the noble and learned Lord, Lord Falconer of Thoroton, has already explained, that could have been dealt with. Of course, it is a convention that many lawyers in the UK want and hope that we shall accede to in the interests of the UK economy and of the position of London, but the Minister has taken the view that the clause cannot be confined to that. In those circumstances, I fully support, and will support in a Division, the amendment put forward by the noble and learned Lord, Lord Falconer.