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

Lord Falconer of Thoroton Excerpts

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

Moved by

[Lord Falconer of Thoroton]

1: Clause 2, page 2, line 27, leave out subsection (1) and insert—
“( ) The appropriate national authority may make regulations for the purpose of, or in connection with, implementing the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters signed at Lugano on 30th October 2007 (the “2007 Lugano Convention”), in the event that the United Kingdom becomes a party to the Convention in its own right.”

[Lord Falconer of Thoroton (Lab)]

My Lords, the effect of the three amendments in this group—Amendments 1, 4 and 5—is that the power in Clause 2 which allows a Minister by regulations to change the law of the United Kingdom to reflect an international treaty on private international law that the country has entered into would be restricted to the Lugano convention only.

It is perhaps sensible if, in addressing the three amendments in this first group, I set out the context, in effect, of most of my amendments in Committee. Clause 1 introduces into the domestic law of the UK the content of three private international law treaties: one dealing with the abduction of children from one country to another; one dealing with the enforcement of child support and family maintenance orders; and one dealing with commercial agreements where a choice of court clause is specified in the agreement. The effect of bringing these three conventions into UK law is that the terms of those conventions become part of our domestic law and are what our courts then give effect to as part of the law. For example, the Hague abduction treaty means that where a couple bring up a child in one country, where there is custody with one parent, and that child is abducted by the other parent to another country—for example, the UK—then, according to that convention, the UK courts, as a matter of domestic law, should return the child to its normal place of residence and should refuse to do so only if there is fear for the child’s safety.

These private international law agreements change the law of the country as a result of agreements that the Executive have entered into. We on these Benches have no objection to those three treaties being brought into domestic law—this is a piece of primary legislation—but we have very considerable objections to Clause 2, and our primary position is that it should not stand part of the Bill. It allows the Government to change the law of the country by delegated legislation, even by changing primary legislation, to give effect to agreements that they have entered into in private international law.

Our objections are, in effect, threefold. First, as a matter of constitutional propriety, this is wrong. It is wrong that there should be such little accountability by Parliament in respect of potentially very significant changes in the law. In support of that principled constitutional objection, I have the support of the Constitution Committee, which is chaired by my noble friend Lady Taylor, the Delegated Powers Committee, which is chaired by the noble Lord, Lord Blencathra, and the chair of the Treaties Sub-Committee, my noble and learned friend Lord Goldsmith. All see this as a matter of constitutional impropriety.

In the face of that unanimity of view about what is a constitutionally improper thing to do, what is the Government’s justification for doing this? I have scanned carefully the two speeches by the noble and learned Lord the Advocate-General for Scotland, Lord Keen of Elie, at Second Reading about why this move is justifiable. He gave no general explanation in either speech. He acknowledged in his opening speech that there might be an issue about the Lugano convention, which deals with the jurisdiction and enforcement of judgments between, among other things, members of the European Union. He said that we might end up in a situation where we want to join the Lugano convention, that we have to do it before the end of the transition period, and that we would negotiate it only at the very end of the period. He said that because of those exceptional circumstances there should be power to join the Lugano convention by delegated legislation.

For that reason—and that is the only example given —we have tabled, by way of probing amendments, Amendments 1, 4 and 5, which restrict the power to the Lugano Convention because of those special circumstances. There is a live debate about whether the UK should join the Lugano Convention, and in his speech at Second Reading the noble and learned Lord, Lord Mance, set out the shortcomings of the convention.

My preference is that we delete Clause 2 altogether and that, if the Government of the day join an international convention that has effects on our domestic law, that should be approved only by primary legislation. It is said that private international law is a “narrow” and “specialist” topic. The complex rules surrounding it can be both narrow and technical, but they deal with hugely important issues that affect everybody, such as family life, consumer, personal injury and international trade issues. That the law is complex does not mean that the issues covered are not of real significance.

I invite noble Lords to consider whether they wish to restrict Clause 2 only to the Lugano Convention, but that is in the wider context of urging them not to allow the Government this wholly inappropriate power, never used previously and for which no proper justification has been given. I beg to move.

[Lord Pannick (CB)]

My Lords, I support the observations so powerfully made by the noble and learned Lord, Lord Falconer of Thoroton. I too am concerned about the width of Clause 2. My concern arises from the discussions and conclusions of your Lordships’ Constitution Committee, of which I am a member, serving under the distinguished chairmanship of the noble Baroness, Lady Taylor of Bolton.

As the noble and learned Lord, Lord Falconer, said, the committee concluded that Clause 2 raises matters of considerable constitutional concern. The concern is that, with the exception of EU law—from which we are in the process of extracting ourselves—it is a fundamental principle of our constitution that international agreements can change the content of our domestic law only if and when they are given force by an Act of Parliament. The Constitution Committee saw no justification for the change that Clause 2 would introduce—that is, to confer on Ministers a power to achieve such a result by statutory instrument.

We recognise that many of the international agreements to which Clause 2 would apply are technical in nature and that their text cannot be changed after negotiations have concluded; nevertheless, we think there is no justification for allowing our law to be changed by statutory instrument without the need for full parliamentary debate. Clause 2 will allow not just for the implementation of the text of the international agreement but for “consequential, supplementary, incidental” provisions. It will allow Ministers to create new criminal offences by statutory instrument. These are matters requiring detailed scrutiny of a Bill through the various stages of the parliamentary process, during which amendments can be debated and, if necessary, divided on. Members of the Constitution Committee are concerned to maintain ministerial accountability to Parliament. This is not emergency legislation; it is a proposal for a permanent shift in power to the Executive.

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[Lord Keen of Elie]

There may of course be incidental policy issues that arise when we come to draw down into domestic law an obligation, or obligations, undertaken at the level of international law. Clearly, in circumstances where there were policy choices to be made, a Government would consult upon those matters to bring forward policy choices that were acceptable to stakeholders. If they were not acceptable to Parliament, even after consultation, Parliament would not pass the affirmative SI in question. I do not accept that it is necessary in each and every instance to bring forward primary legislation for this purpose. In those exceptional cases where there may be consequential issues to be addressed, clearly they will be addressed at policy level. They will be consulted upon and the matter brought forward. The Government will not bring forward a policy proposal for an incidental measure without realising that Parliament would be prepared to accept it. That would be a pointless exercise.

[Lord Falconer of Thoroton]

This very interesting debate has raised, in effect, two substantial questions: as a matter of principle should there be the Clause 2 power at all and, if not, should we nevertheless make an exception for the Lugano convention?

First of all, should there be this power at all? In a speech that might be described as a Scottish smokescreen —because it dealt primarily with drafting issues and issues about the dependent territories and, important as those are, did not really address the principle at all—the noble and learned Lord, Lord Keen of Elie, gave one line to justify this unprecedented power. He said that not having this power under Clause 2 would prevent implementation of any international treaty “in a timely manner”. I forgive the noble and learned Lord for putting it in such wide terms and assume he means private international law treaties only. With respect, what he says is plainly wrong.

The noble and learned Lord was given the opportunity on two occasions to provide evidence that it would prevent the implementation of private international law treaties in a timely manner, once before the Delegated Powers Committee of this House and once before the Constitution Committee. The Delegated Powers Committee said that the Ministry of Justice

“offers no empirical evidence that delay has been caused to stakeholders by late implementation of private international law agreements … The argument from delay, apart from involving unsubstantiated assertion, might justify dispensing with Acts of Parliament in other areas where governments need to legislate quickly.”

It rejected it on grounds of lack of evidence and on grounds of principle.

The Constitution Committee also looked at the very same assertion made to it, and said:

“However, the Government offers no evidence to support this argument. The UK has become a party to only 13 Hague Conventions over the course of nearly 60 years. In respect of some of the Conventions the UK has signed, full ratification and implementation has taken years to complete. The Hague Convention of 13 January 2000 on the International Protection of Adults … was ratified for Scotland in 2003 but has not been ratified for England and Wales or for Northern Ireland … While there may or may not be an increase in the number of PIL agreements that are made in the coming years, there is nothing to suggest that PIL agreements will be produced at a rate that would preclude implementing them via primary legislation, nor that there are exceptional circumstances so urgent that resort to a fast-track bill would be impossible. It is therefore difficult to give weight to the Government’s argument that reputational damage will result from not having the power.”


Anybody who has looked at this in detail thinks the Minister’s argument is rubbish. It is not surprising that he never mentioned it at Second Reading.

The Minister then cited occasions when it has been done before, in particular two primary Acts of Parliament: the Administration of Justice Act 1920 and the Foreign Judgments (Reciprocal Enforcement) Act 1933. Reading those is worth while. The 1920 Act refers to a provision whereby a judgment obtained in one dominion can be enforced in other dominions as long as the dominion passes a power to agree to that. The 1920 Act—the 1933 Act is the same, but not in respect of the Empire—says that if another country agrees to this convention, we can add the name of that dominion or country to the list, having approved the convention by primary legislation. The idea that those two Acts give support to the proposition that we can now import wholesale into our domestic law every international treaty we enter into is absolute nonsense. They provide no sort of precedent at all. I really hope the Minister has noted that every single person who spoke took the view that Clause 2 was inappropriate.

As far as Lugano is concerned, I thought the points made by the noble and learned Lord, Lord Mance, were powerful. I do not know whether they are right or wrong, but they illustrate that we need a proper debate about Lugano: we cannot just import Lugano into our law by secondary legislation. Our debates about Lugano today—which, as one speaker identified, were not answered by the Minister; we never debated Lugano, we simply debated the principle of whether Lugano could be an exception to the deletion of Clause 2—illustrate that this very important convention, about which two views prevail, should be the subject of primary legislation. Of course, I will come back to this on Report.

The important point that was made about procedure, and which is worth emphasising, is that we cannot change a Bill unless there is consent, or as a result of a Division which agrees to change that Bill. It means that we cannot proceed with legislation until we have the ability to divide on legislation, whether remotely or in person. We cannot get to the next stage of this Bill until we have the power to divide. With the permission of the House, I beg leave to withdraw the amendment.

Amendment 1 withdrawn.

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Moved by

[Lord Falconer of Thoroton]

2: Clause 2, page 2, line 29, leave out “relating to” and insert “that agreement exclusively relates to”
Member’s explanatory statement
This amendment ensures that Clause 2 shall apply only to those international agreements that exclusively relate to private international law.

[Lord Falconer of Thoroton]

My Lords, I shall try to deal with this group very quickly. It illustrates the width and uncertainty of the power given in Clause 2. Clause 2(1) states:

“The appropriate national authority may make regulations for the purpose of, or in connection with, implementing any international agreement, as it has effect from time to time, so far as relating”.


As I understand it, if there is a treaty that relates partly to private international law and partly to other things, the Government can use regulations to implement the part that relates to private international law and make any regulations relating to that. For legal certainty, it would be much more appropriate if this power could be used only if the agreement it covers relates exclusively to private international law. That is what Amendment 2 does.

The next amendment in the group is Amendment 6. Clause 2(5) states:

“Regulations under this section may include provision about … legal aid.”


For reasons that are completely mysterious, provisions about legal aid can be made under a Bill on private international law. There should not be power under this Bill to deal with legal aid. If the Government want to make provisions about legal aid that might relate to the consequences of a private international law agreement, they should be made under legal aid legislation, not under this Bill.

Line 22 of page 3 of the Bill allows the Government, by regulation, to introduce changes to our domestic law in respect of not only agreements that have been entered into but of agreements to which we are expected to become a party. That would mean that if the Government reasonably believe they are about to sign something they can pass legislation that gives effect to it. What happens if we do not sign it? I suggest that we restrict the power to where the United Kingdom is a party to such an agreement. It would not cause a problem in relation to time. We normally sign and become a party before ratification, so the amendment would not cause any difficulties.

Amendments 10, 11, 12 and 13 would restrict the definition of private international law in a variety of ways. Currently, the definition of private international law in the Bill is not an inclusive definition but states what private international law includes but not exclusively. It says that it includes

“jurisdiction and applicable law … recognition and enforcement in one country or territory of … a judgment, order or arbitral award … an agreement, decision or authentic instrument determining or otherwise relating to rights and obligations”

and “co-operation between … countries”. First, for legal certainty reasons it should not be a definition that includes only some examples and nothing else. It should relate only to those for the purposes of legal certainty. Secondly, it should not deal with arbitral awards because if it does it will be stamping on the toes of other bits of legislation. Thirdly, when the Bill refers to

“an agreement, decision or authentic instrument determining or otherwise relating to rights and obligations”

that covers practically everything. It needs to be restricted.

The final amendment in this group relates to Clause 2(8), which allows model laws to be introduced. Model law is where a number of countries agree, for example on insolvency, that certain principles should be agreed across borders to apply to that area of law. There is no reciprocal requirement for each country to introduce the model law and it is for each country to decide how it implements a model law. Clause 2(8) would allow, for example, the UK to introduce by statutory instrument wholesale changes to our insolvency law, even though there was no reciprocity with other countries. It would be a door that opened a range of legislation on insolvency simply because some of the provisions included model laws. It is wholly inappropriate that this should be in the Bill. I beg to move.

[Lord Anderson of Ipswich]

My Lords, those of us who are less than happy with Clause 2 have three options: restricting it to Lugano, as we have just debated; voting to remove it altogether, as both the Delegated Powers and Regulatory Reform Committee and the Constitution Committee have recommended; or voting to trim its scope in a variety of respects, as the amendments in the name of the noble and learned Lord, Lord Falconer, in this and the following group seek to achieve. I welcome the amendments in this group, essentially for the reasons given by the noble and learned Lord, which there is no point in my repeating.

However, Amendment 16, which would remove the reference to model laws, is particularly important for two reasons. First, as the noble and learned Lord said, model laws are not international conventions but, as expressed by the Bar Council, collections of soft law provisions which often need to be modified substantially before being given effect in domestic law. The noble and learned Lord, Lord Falconer, illustrated that very well with the example of insolvency. Secondly, model laws are not subject to the provisions of CRaG and cannot benefit from such “limited and flawed” comfort—in the words of the Constitution Committee from April 2019, repeated today by the noble and learned Lord, Lord Mance —as may be given by the operation of its mechanisms.

That said, I incline to think that these amendments, even viewed collectively, are insufficient to meet the substantial constitutional concerns that the Constitution Committee identified in its recent report on this Bill, concerns which to my mind the Minister has not yet allayed, for example with his remarks on timing and reputational damage. That is a matter for the debate on whether Clause 2 should stand part, on which I see that a good deal of firepower has been virtually assembled and which I do not seek to pre-empt or express a final view on at this stage.

Finally, I think we all want to acknowledge the enormous efforts made by the staff of the House to ensure that debates on legislation such as this can take place in a coherent manner. I hope that I do not tempt the fates by saying that. However, I echo the comments of my noble friend Lord Pannick and the noble Lord, Lord Adonis, that voting on the Bill must be possible, by whatever means, when it is brought back on Report. I am grateful for the reassuring words of the Minister on that, but I would be even more grateful if he would upgrade his reassurance into an undertaking, which I think he indicated it was not.

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[Lord Falconer of Thoroton]

The extraordinary tedium of that answer should not detract from the enormity of what the Minister has just said. He basically said “I can’t really give you a definition in the Bill of a private international law agreement but we, the Government, will know it when we see it. Yes, it’s true that we’re taking power to do things that nobody really wants us to do, but generally we won’t do it—and if we were thinking of doing it, we’d consult first.” That was in relation to arbitral awards. In relation to model laws, he was saying, “It did occur to us that this looked like quite a convenient power for us to have, so could we have it?”

My answer is that this debate illustrates what a danger Clause 2 constitutes. I also look with real scepticism at the suggestion that the Government would consult, when they did not consult the Lord Chancellor’s Advisory Committee on Private International Law, chaired by the noble and learned Lord, Lord Mance, at all on the network of private international law instruments they introduced in the light of us leaving the European Union; they did not consult at all on this constitutionally unacceptable Bill. Although it was very hard for us to listen to that speech, it was quite an important one. I beg leave to withdraw my amendment.

Amendment 2 withdrawn.

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Moved by

[Lord Falconer of Thoroton]

3: Clause 2, page 2, line 31, leave out subsections (2) and (3)

[Lord Falconer of Thoroton]

My Lords, we have adumbrated many of the same points over and over, because they keep coming up again and again, so I will try to restrict my remarks on these amendments to essentially only new points. This group of amendments effectively deletes the Government’s regulation-making power where the regulations in effect intend to say how an international treaty shall apply either as between Scotland, England, Wales and Northern Ireland—within the United Kingdom—or as between the United Kingdom and the Isle of Man, any of the Channel Islands or a British Overseas Territory.

The effect of my amendment is that the Clause 2 power cannot be used where it is proposed to apply an international convention between the parts of the UK; to apply an international convention between the UK and a relevant territory; or to amend, extend, adapt or revoke any declaration made at the time of ratification. It is wholly wrong that any of these things should be done by regulation as opposed to primary legislation. I use these amendments simply to indicate the width of the power being sought. I beg to move.

[Lord Wallace of Tankerness (LD)]

My Lords, I will make two preliminary points. The first echoes what has been said in many of our proceedings so far this afternoon. Perhaps not surprisingly, as a member of the Constitution Committee, I do not think that Clause 2 should be in the Bill, for all the reasons already outlined both in committee reports and by a number of your Lordships in debates on earlier groups. I have not yet been persuaded or heard any argument to the contrary, so my primary position is that Clause 2 should not be there.

The second point is that, where these amendments relate to jurisdictions within the United Kingdom, it is a question not of whether it should be done but of how. In his response to the first group of amendments, the noble and learned Lord, Lord Keen, gave some good reasons why, as a matter of public policy, there should be certainty in the arrangements, for argument’s sake, for enforcing a Scottish court’s order in England, as there would be for enforcing an English court’s orders in France. Therefore, it is a question not of whether there is merit in having some kind of intra-UK arrangements but rather of how it should be done.

During Second Reading I reflected briefly on this and referred to the briefing from the Bar Council. It is perhaps worth going back to it and reminding ourselves what it said in relation to the provisions in Schedule 6:

“The question, however, whether to apply an international convention’s rules between parts of the United Kingdom is often a very difficult one. Where it is to be applied, extensive amendments to that convention are often appropriate, (an example being the provisions in the Civil Jurisdiction and Judgments Act 1982, which apply a substantially modified form of the European Union rules to intra-United Kingdom cases). The Bar Council is concerned that schedule 6 does not provide sufficient safeguards in this respect and considers that it should be amended to provide the requisite clarification.”


I endorse that. It is not a question about whether it should be done. We have heard that, for example, in the Civil Jurisdiction and Judgments Act 1982 there were requirements to amend or change the rules for intra-UK cases.

It is also important to note that we are giving powers to the national authorities—not just the United Kingdom Parliament but to Scottish Ministers and Northern Ireland Assembly Ministers. As far as I can see—I stand to be corrected if I have not noticed something —these regulations would be brought in without any consultation between the different Administrations. There is no doubt that private international law is a devolved matter as far as the Scottish Parliament is concerned, but negotiating international treaties does not affect the sovereignty of the United Kingdom, and it seems to make some sense that there should be some negotiation, or at least consultation and discussion among the constituent parts of the United Kingdom, before regulations are brought forward. As far as I can see, neither Clause 2(2) nor Schedule 6 makes any provision for that.

My position is that it is not a question about whether it is right and proper that there should be intra-UK arrangements but rather that what is proposed in the Bill does not provide adequate safeguards about how that should be done.

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[Lord Falconer of Thoroton]

The Minister remorselessly misses the point over a period of time. The purpose of the amendment is to ask the question: is it right that you can have a different private international law settlement as between the two countries or as between the United Kingdom and the other territories? Should that be decided upon by a Minister without primary legislation? The way the Minister answers that is to say, “You have to assume that it’s got to be done by secondary legislation”, which does not deal at all with the point. I beg leave to withdraw my amendment.

Amendment 3 withdrawn.

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[Lord Thomas of Gresford]

My Lords, I am of course speaking as a Welshman. We have a very limited interest in the provisions being discussed, but I have some questions. Since the time of Henry VIII, who has a great deal to answer for, the jurisdiction of England and Wales has been merged. Only in very recent years has there been a suggestion that Wales should have its separate jurisdiction. We are one of the three jurisdictions that will be subject to the Bill’s provisions; we go along with England. I would like to know whether there is any prospect of consultation with Welsh Ministers about what provisions are being brought into effect, because private international law covers such a wide range of things. It has particular relevance to family life in Wales as much as anywhere else. Will there be any consultation? If so, what will it be?

[Lord Falconer of Thoroton]

I simply underline the points made by my noble friend Lord Foulkes and the noble and learned Lords, Lord Wallace and Lord Hope. As far as my noble friend Lord Foulkes is concerned, the purpose of these amendments is to probe; as far as I am concerned, they illustrate the lack of thought that has gone into Clause 2. They simply underline the sense that there should not be a Clause 2.

[Lord Keen of Elie]

My Lords, I am obliged to the noble Lord, Lord Foulkes of Cumnock, for tabling what he very candidly pointed out were probing amendments. I am also obliged to the noble and learned Lord, Lord Wallace, who drew on his experience of the devolved Administrations and was able to outline the position in this matter. I will come in a moment to address the questions raised by the noble and learned Lord, Lord Hope, in the context of these provisions.

As the noble Lord, Lord Foulkes, pointed out, two authorities are identified in this part of the Bill that might proceed to implement matters of private international law in Scotland. That is consistent with legislation in other areas. The Secretary of State might decide, with the consent of the Scottish Ministers, to make UK-wide provision for implementation. That is why he is one of the identified national authorities, because there are circumstances in which the Scottish Ministers would be entirely content for there to be UK-wide provision.

Alternatively, if that is not the case, Scottish Ministers may themselves then proceed as a national authority to implement the matter in domestic law. That is because, as the noble and learned Lord, Lord Wallace, pointed out, the position is that—I am sorry, something came up on another phone and rather distracted me—the implementation of private international law is a devolved issue under the Scotland Act, so allowance is made for both provisions.

As regards this Bill, an LCM was discussed between officials. The Scottish Ministers have recommended that such an LCM should be provided, and the noble and learned Lord, Lord Wallace, pointed out the terms of the recommendation that Scottish Ministers have made to the Scottish Parliament with regard to this matter. Indeed, there was prior discussion about these proposals last year, when the Lord Chancellor, for example, was in communication with the Scottish Government on matters of the convention. Perhaps I can clarify this by reference to the points made by the noble and learned Lord, Lord Hope. The Secretary of State may be a national authority with the consent of Scottish Ministers because Scottish Ministers may, as sometimes happens, wish to see UK-wide regulations made here for implementation. Alternatively, as the national authority, they may choose to do that for themselves. The Secretary of State clearly does have the power to do that because under the Scotland Act there is the power to legislate for the entirety of the United Kingdom as regards the implementation of a matter that is otherwise within the devolved competences, so that does not raise an issue either.

With regard to the matter of whether or when it would be one national authority or the other, that is simply a matter that will be discussed, as it is in other contexts, between the United Kingdom Government and Scottish Ministers. If Scottish Ministers are content that the UK Government should legislate UK-wide on this matter, that will happen. If they are content for that to be done, then Scottish Ministers will deal with the matter. The Secretary of State cannot deal with the matter without the consent of Scottish Ministers, so I hope that that puts minds at rest in this regard.

As regards the identification of the Secretary of State as an authority and the reference, for example, in the Scotland Act to a Minister of the Crown, I accept that the reference in this Bill is more limited. Because I cannot answer immediately, I will consider why it was thought appropriate to limit it to the Secretary of State as opposed to the wider reference to a Minister of the Crown. But I will look at that to see whether there is an issue there that needs to be addressed.

As regards consultation on the implementation of international treaties, that is not an issue, but as regards entering into international treaties, that is of course a reserved matter. I recognise that it is appropriate that Scottish Ministers and others should be consulted on these matters for their interests when they arise. I do not understand that to be a difficulty in this context, nor a matter that would require express provisions in the terms of this Bill.

I thank the noble Lord, Lord Foulkes of Cumnock, for his probing amendment and I hope that I have been able to put minds at rest as regards why there are two identified national authorities for the purposes of Clause 2. In the event that Clause 2 stands, these are appropriate alternative mechanisms for the implementation of these provisions.

One final matter raised by the noble Lord, Lord Foulkes, was the issue of contract, but of course, where you have a contract, it will have a choice of jurisdiction and a choice of law. If the contract has Scotland as a choice of jurisdiction and Scots law as the choice of law, that will be binding if we have a situation in which, for instance, the Lugano provision applies. I hope that that answers the query in so far as I have understood it.

I cannot give a precise date for the provision of the LCM, but as the noble and learned Lord, Lord Wallace of Tankerness, himself indicated, Scottish Ministers have recommended the granting of an LCM, and it is not anticipated that there will be any difficulty. With that, I invite the noble Lord to withdraw the amendment.

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[Lord Adonis]

I have nothing to add.

[Lord Falconer of Thoroton]

I have nothing to add.

[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.

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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.

[Lord Pannick]

My Lords, I agree with the observations of the noble and learned Lord, Lord Falconer of Thoroton. I gave my reasons earlier for thinking that Clause 2 should not stand part and I shall not repeat them. I shall add just one further point. There has been discussion this afternoon, particularly from the noble Lords, Lord Adonis and Lord Foulkes of Cumnock, about the disadvantages of Virtual Proceedings, disadvantages notwithstanding the exceptional efforts made by the clerks and the staff, for which we are all very grateful, to ensure that these Virtual Proceedings can take place. The additional disadvantage that I want to mention—additional to those who have already been identified—arises from the correct observation of the noble and learned Lord that the Minister stands alone on this subject; all other speakers have explained why Clause 2 is objectionable.

The point is that if we were on the Floor of the House, the Minister would not just hear and see those who are speaking; he would see and hear expressions of disapproval from all around the House, including from his own Benches; he would sense the degree of concern that there undoubtedly is about the constitutional implications of Clause 2. This debate has highlighted those concerns, but I hope the Minister will understand that there is a very widespread concern around the House, not just from those who have spoken today but from those who would be present in Committee were normal proceedings to apply. By their presence and their body language, other Members of the Committee would indicate their profound concern. I hope he will take all that into account before Report.

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

Lord Falconer of Thoroton Excerpts

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

[Lord Marks of Henley-on-Thames (LD)]

My Lords, we have no objection to the Bill as passed extending to the Isle of Man at its request, but that is of course subject to the whole question of our objection to Clause 2 standing part of the Bill and to any other amendments to the Bill that may be passed to it. In those circumstances, it is right that the Minister is not pursuing this amendment today, and it would be right that we should reconsider our position on Report.

[Lord Falconer of Thoroton (Lab)]

I am grateful to the Minister for indicating that he is not going to proceed with this amendment today and that he has moved it simply to open it for debate. We oppose the amendment because we oppose in principle Clause 2, which inappropriately gives the Government the power by secondary legislation to introduce important changes to domestic law to reflect private international law agreements. At the moment, if that is the principle that we stand on, in our view it is wrong to say that the Isle of Man, of all the parts of the Crown dependencies, should have a special right to do it by statutory instrument. That, as previous Lords have indicated, would differentiate it from everyone else. We are against it for that reason.

We are also against it because this change would allow for differential application of international agreements as between the various parts of the United Kingdom and, for the reasons we gave the previous time this Committee met, we are against that. So, we oppose the amendment.

[Lord Keen of Elie]

I am obliged to noble Lords for their contribution to the debate, and note what has been said. Perhaps I may respond to the points made by the noble Lords, Lord Adonis and Lord Mann, and touched upon by the noble and learned Lord, Lord Falconer—although I have a correction to make there. The reason why this is being done only in respect of the Isle of Man is that the Isle of Man has specifically requested that this mechanism should be available, so that we can proceed by way of an Order in Council from the Privy Council. It will be for the other Crown dependencies to determine whether and when they wish to implement primary legislation within their own legislatures to come within the ambit of such international agreements as the United Kingdom draws down.

The noble and learned Lord, Lord Falconer of Thoroton, referred to variation between parts of the United Kingdom but of course the Crown dependencies are not part of the United Kingdom. They have a unique status and it is for them to determine whether and to what extent they wish to become a party to legislation that draws down into domestic law international treaty obligations. I continue to believe that this amendment is important and respect the request of the Government of the Isle of Man. However, I recognise the concerns expressed about the links between this amendment and the Clause 2 power to which exception is taken. The noble Lord, Lord Marks, and the noble and learned Lord, Lord Falconer of Thoroton, made that point. In these circumstances I will therefore withdraw the amendment, but I intend to continue this discussion at a later date. For present purposes, I beg leave to withdraw the amendment.

--- Later in debate ---

Moved by

[Lord Falconer of Thoroton]

19: Schedule 6, page 68, line 8, leave out paragraph (b) and insert—
“( ) provision that creates, amends or extends a criminal offence, or increases the penalty for a criminal offence”

[Lord Falconer of Thoroton]

This is, in effect, a probing group of amendments, repeating many of the arguments that we discussed on day one in Committee, and the amendments do two things. Amendment 19 would delete the power of the regulation-making authority to create, amend or extend a criminal offence. Amendments 20 and 21 say that the regulation-making power should be subject to the super-affirmative resolution procedure in the UK Parliament; and, in particular, that before any such instrument was made final a consultation would have to be undertaken with the Lord Chancellor’s advisory committee on private international law and the European Union Select Committee of the House of Lords.

I make it clear, as I did on the previous occasion, that I am not in favour of this order-making power at all. I refer to Amendment 19 simply to indicate the width of this power, which includes the making or changing of criminal offences. In relation to the super-affirmative procedure, again, I am against it. There should not be that power at all. It gives me an opportunity, though, to make the point that the Lord Chancellor’s advisory committee on private international law has been an important source of advice over a long period to the Lord Chancellor and the Ministry of Justice on private international law agreements. It was not referred to at all in the suite of maybe a dozen statutory instruments introduced under the withdrawal Act, in the wake of us changing our private international law arrangements with the European Union. That led to a great loss in the preparation of those statutory instruments. I very much hope that the Minister will give an under- taking that in any subsequent changes in private international law, the Government will consult unquestionably the Lord Chancellor’s advisory committee and, as much as possible, the European Union Select Committee of this House. I beg to move.

[Lord Thomas of Gresford (LD)]

My Lords, first, I draw attention to paragraph 41 of the memorandum concerning the delegated powers, which says:

“We do not anticipate using the power to create, extend or increase the penalty for, a criminal offence very often, however it may be needed, in very limited circumstances, in order to implement effective enforcement provisions for some potential future PIL agreements.”


I stress: some potential future PIL agreements.

I want to speak mainly to Amendment 19, although I support what the noble and learned Lord, Lord Falconer, said in relation to Amendments 20 and 21 and his criticisms of the super-affirmative procedure. The Committee may recall that in its first sitting, I made comments about the necessity for democratic legitimacy and scrutiny when it comes to the making of legislation in this form. I do not consider that the form of approach of an affirmative resolution on its own is enough. I certainly do not think that the super-affirmative procedure adds very much to that. As for scrutiny, the noble and learned Lord has already referred to the fact that the Lord Chancellor’s committee was not given an opportunity to consider the Bill.

Criminal offences are set against the background that everybody is presumed to know what the law is. To put it another way, familiarly, ignorance of the law is no excuse. Any criminal offence created requires clarity, certainty and proportionality. I illustrate this by referring to what is very much in the public eye at the moment, the Health Protection (Coronavirus Restrictions) (England) Regulations 2020. No draft was laid or approved by Parliament by reason of urgency, and one understands entirely that reason, but the instrument has been amended twice since it was passed in March and the latest version came into force on Monday. It had 12 regulations and two schedules in its original form and Regulation 6(1) provides that everyone must stay overnight at

“the place where they are living”.

There are certain exceptions, including, at Regulation 6(2)(d),

“to provide care or assistance, including relevant personal care within the meaning of paragraph 7(3B) of Schedule 4 to the Safeguarding of Vulnerable Groups Act 2006, to a vulnerable person”.

At that point I gave up further research, but I do not think that particular exception can possibly refer to ordinary childcare. Yet there has been controversy. The Prime Minister and four of the Cabinet have taken one view or interpretation of these regulations and almost everybody else has taken a completely different view on whether what happened was legal or not. An unlimited fine is payable on summary conviction, which can be avoided by complying with a fixed penalty notice. Noble Lords will appreciate that that is typical of the sort of offence that can be created by secondary legislation that nobody understands—I say “nobody understands”; many people understand the drift of it, but the particular detail can be the subject of controversy.

Coming back to the Bill, it is obviously undesirable that there should be a lack of clarity in drafting criminal offences when it is possible for those criminal offences to result in a penalty of up to two years’ imprisonment. An unlimited fine is quite a burden, but imprisonment through regulations that refer to other Acts of Parliament—subsection this and sub-subsection that—is entirely undesirable and never gets, whether by the ordinary affirmative procedure or the super-affirmative procedure, adequate scrutiny and understanding by the authorities that have to put it into effect and, most relevantly, by the people who are affected by it and who have to obey the law.

Public international law covers, as we discussed, a wide variety of issues. It is not at all satisfactory for the wide power that I referred to—for some potential future PIL agreements to create criminal offences—to be put in the hands of Ministers. For that reason, this is an aspect of the Bill, never mind the whole of Schedule 2, that I find offensive.

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[The Deputy Chairman of Committees (Baroness Henig) (Lab)]

No Member has indicated that they wish to speak after the Minister, so I call Lord Falconer.

[Lord Falconer of Thoroton]

I am very obliged to all noble Lords who have spoken in this debate, and I am very grateful for the almost universal support I got from the noble Lords, Lord Marks, Lord Bhatia and Lord Holmes, the noble Baroness, Lady Jones, the noble and learned Lord, Lord Garnier, and my noble friends Lord Blunkett, Lord Kennedy, Lord Hain, Lord Triesman and Lady Kennedy. I am dismayed not to be supported by the noble and learned Lord, Lord Mackay of Clashfern, but I disagree with the two propositions he made. The first was that he was happy for the criminal offences to be introduced by secondary legislation under the power of the international private law agreement. As has been made clear, including by the Minister, that is not right. Secondly, I am unfortunately not persuaded by him that it involves a similar degree of scrutiny as that which previously existed in relation to private international law. It most certainly does not. He referred to the Civil Aviation Act 1982. That refers to civil aviation, which was mostly dealt with by the European Union at that time, so it does not support the proposition that he advanced. Indeed, it was not relied on at any stage by the Minister.

I was disappointed in what the Minister said in three respects. First, he said that he was not even going to reconsider the position, even though there was practically universal opposition in the House to the idea of a Section 2 power; secondly, he failed to give any assurance to my noble friend Lord Hain in relation to the devolved Assemblies; and, thirdly, he did not give any assurance in relation to being willing to consult the Lord Chancellor’s advisory committee on justice. Of course, I will withdraw the amendment, but we will return to this in seeking to remove Clause 2 on Report.

Amendment 19 withdrawn.

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

Lord Falconer of Thoroton Excerpts

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

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords, I fully support the amendment moved by my noble and learned friend Lord Wallace of Tankerness. It is plainly an anomaly that the 2000 Hague Convention does not at this stage apply throughout the United Kingdom. The inclusion of the convention in Clause 1 will achieve this. I hope that the Government will accept the amendment to achieve the end that my noble and learned friend seeks.

[Lord Falconer of Thoroton (Lab)]

My Lords, the noble and learned Lord, Lord Wallace of Tankerness, makes a very strong case. It is extraordinary that this has not yet been incorporated into the law of England, Wales and Northern Ireland. I very much hope that the noble and learned Lord, the Minister, will explain why that is not the case and, at the very least, give us a timetable for it becoming part of our domestic law.

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

My Lords, I begin by thanking the noble and learned Lord, Lord Wallace of Tankerness, not only for his contribution to the debate but for engaging with my officials and me on this matter.

As noted, the amendment seeks to deal with the ratification of the 2000 Hague Convention on the International Protection of Adults in respect of England, Wales and Northern Ireland. Of course, the United Kingdom has ratified this convention, but the extent of this is limited to Scotland. I am pleased to confirm to the noble and learned Lord that it is our intention to extend the ratification of this convention to England and Wales. Discussions have commenced with officials in Northern Ireland to ascertain whether the Northern Ireland Executive would require the extension to apply to Northern Ireland.

The Mental Capacity Act 2005 largely implements the convention and contains powers to make any additional provision required. Schedule 3 to that Act provides for the recognition and enforcement in England and Wales of protective measures made in respect of vulnerable adults by the courts of other contracting states. Some Schedule 3 provisions are already in force and some will come into force upon ratification, at which point reciprocal recognition of domestic protective measures by other states will also come into effect. There remain some outstanding matters that require further implementation; largely, additional operational arrangements for the location or placement of vulnerable adults as between contracting states.

It is the Government’s view that the most appropriate way to implement these remaining matters is to make any additional provision required in or under the 2005 Act, using the powers provided for in that Act for this specific purpose. We will proceed with this as soon as we reasonably can, taking account of the need to take the Northern Ireland Executive with us if it is their wish that the matter be extended to Northern Ireland. In these circumstances, I invite the noble and learned Lord to withdraw this amendment.

--- Later in debate ---

Moved by

[Lord Falconer of Thoroton]

2: Clause 2, leave out Clause 2

--- Later in debate ---

[Lord Falconer of Thoroton]

My Lords, this is the main amendment on Report. It seeks to leave out Clause 2, which gives the appropriate Minister, whether in the devolved Administrations or in central government, the power subsequently to introduce changes to domestic law, including changes incidental to international treaties made with foreign countries, on the basis that domestic law should be changed because that has been agreed with a foreign country. In addition, it allows the Executive to introduce by secondary legislation changes to domestic law to give effect to model laws, for example in relation to insolvency. We oppose that extension of executive power. We believe that it represents a very substantial break with past practice, which requires treaties dealing with private international law to be introduced and change our domestic law by primary legislation, and we will press this issue to a Division.

I will set out briefly the way that we put our case in relation to this. Clause 1 gives effect, as part of the domestic law of this country, to three international agreements. The first is the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children. This convention aims to improve the protection of children in cross-border disputes. It is a thoroughly good thing; it makes significant changes, or gives effect to significant powers, in the UK family courts.

The second is the 2005 Hague Convention on Choice of Court Agreements, which aims to ensure the effectiveness of exclusive choice of court agreements between parties to international commercial transactions. These clauses are common, particularly in high-value commercial contracts. Again, this is a good convention; it makes changes to UK domestic law and we support its incorporation.

--- Later in debate ---

In summary, while I note the concerns raised about this power, for the reasons that I have sought to set out I do not accept that it is without precedent or, indeed, disproportionate. We consider it necessary and important. It is essential if we are to maintain our position as an appropriate jurisdiction and choice of law. I therefore urge the noble and learned Lord to withdraw his amendment.

[Lord Falconer of Thoroton]

I am obliged to every noble Lord and noble and learned Lord who has spoken in this debate. I have never been present when every single speaker has been against the Government, though when I heard the speech of the noble and learned Lord, Lord Keen of Elie, it was possible to understand why. He appeared to have failed completely to understand the basis of the objection to Clause 2. The basis of that objection is that the clause is wrong as a matter of principle and constitutes a change in our constitutional practice by allowing significant changes to be made in domestic law simply because we have agreed them with a foreign country.

At no stage did the Minister address that argument. Indeed, he advanced arguments which at some stages he had advanced previously but not with any degree of enthusiasm, in particular the argument that it was “essential” for the Government to have this power to remain a significant force in commercial law and financial and legal services. When one is a law officer, it is obviously okay to put forward entirely implausible political arguments—people can make their own judgment about them. These arguments went very close to the line in relation to the law. When asked to provide some justification for arguing precedent for this measure, the Minister did two things. First, he referred to EU law. It is hard to know what his answer is to the noble Lord, Lord Holmes of Richmond; I thought that the whole point of leaving the EU was to avoid powers of this very sort. He then referred to the 2005 Act bringing into force the convention in relation to vulnerable adults. He appeared not to have spotted that that was primary legislation giving effect to an international convention.

The Minister finally said that the Government would consult; for example, on arbitration. Is there any point in paying respect to that remark, when every single person in the Lords is opposed to Clause 2 and the Government have simply ignored it?

I am disappointed by what the noble and learned Lord has said, but, sadly, not surprised. I beg leave to test the opinion of the House on Amendment 2.

--- Later in debate ---

[Lord Marks of Henley-on-Thames [V]]

My Lords, I will add only this: I urge the Minister to heed what the noble and learned Lord, Lord Mance, has just said in looking at ways in which we can give further protection to choice of court clauses—those that favour London are to our greatest advantage—and that he does so as far as possible after the implementation period ends.

[Lord Falconer of Thoroton]

My Lords, I support the amendments. I will make two points. First, had the noble and learned Lord had his way in Clause 2, he could not have made these amendments, which indicates the importance of primary legislation. Secondly, I hope that he heeds what the noble and learned Lord, Lord Mance, said in his closing remarks. They were important. In the future, it would be more sensible to consult the Lord Chancellor’s Advisory Committee on Private International Law before producing primary legislation, rather than after.

[Lord Keen of Elie]

My Lords, I am most obliged, particularly for the contribution from the noble and learned Lord, Lord Mance. As he noted, as co-chair of the Lord Chancellor’s Private International Law Advisory Committee, he and I discussed this very point in detail at the May committee. I greatly appreciate not only his contribution but those of the other members of the committee, who have an in-depth understanding and knowledge of how these international agreements work and how the choice of court clauses work.

I am conscious of the issue of choice of jurisdiction and choice of law clauses arising in contracts made before 1 October 2015. I am also conscious of our need to do what we can to simplify the process in regard to that matter and, indeed, the matter of serving out of a jurisdiction, which we would have to look at in the context of the rules. These matters have been raised and I have them in mind at present, so I am most obliged to noble Lords for their contributions.

--- Later in debate ---

Moved by

[Lord Falconer of Thoroton]

10: Schedule 6, page 68, line 8, leave out paragraph (b) and insert—
“(b) provision that creates, amends or extends a criminal offence, or increases the penalty for a criminal offence.”

--- Later in debate ---

[The Deputy Speaker (Lord Duncan of Springbank) (Con)]

I remind noble Lords that Members other than the mover of an amendment and the Minister may speak only once and that short questions of elucidation are discouraged. Anyone wishing to press an amendment to a Division should make that clear in the debate.

[Lord Falconer of Thoroton]

My Lords, I will speak very briefly because this amendment has little significance now that the House has decided to remove Clause 2.

Schedule 6 deals with detailed regulation-making power under Clause 2. We will put down an amendment at Third Reading to get rid of Schedule 6, so this does not matter. I tabled Amendment 10 simply to illustrate the width of the power that was being given under Clause 2 and, had we lost the argument on Clause 2, to indicate that we would seek to remove this power. The power in Clause 2(1)(b) allows the Executive by statutory instrument to create offences in connection with the introduction of a private international law treaty with a punishment of up to two years. That is wholly inappropriate, and it illustrates the danger of what was being proposed. But I will not press this amendment to a Division because Schedule 6 will go in any event.

[Lord Pannick [V]]

As the noble and learned Lord, Lord Falconer, said, Amendment 10 is now academic, but it provides an opportunity to mention that one of the concerns of your Lordships’ Constitution Committee is that Bills regularly seek to confer on Ministers the power to create criminal offences.

Paragraph 21 of the committee’s report on this Bill— HL Paper 55—said that the conferral of delegated powers to create criminal offences, particularly those that are subject to imprisonment, is “constitutionally unacceptable”. We made the same point in paragraph 30 of our report of 9 June—HL Paper 71—on the constitutional issues raised by Brexit legislation. There needs to be a strong justification for departing from that general principle. I hope, as I know do the other members of your Lordships’ Constitution Committee, that Ministers will take account of these important principles. If they do not and they bring forward similar clauses in other Bills, we will report on them accordingly to the House.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, clearly, given that Clause 2 is no longer part of the Bill, this amendment would have no effect. However, I understand why the noble and learned Lord moved it—to allow further discussion of the issue. We believe that the inclusion of the provision to which the amendment relates would have been important in allowing the implementation of private international law agreements that necessitate the creation of a criminal offence, particularly in the family law area. I mentioned that in Committee.

In response to the observations of the noble and learned Lord, Lord Mance, I am not aware of any current examples where we have provided for criminal penalties when implementing a private international law agreement. However, that does not mean that it would not be the appropriate step to take in future agreements, for example, on mutual recognition and enforcement of protection measures, where the equivalent domestic orders were enforceable by criminal penalties such as orders under the Family Law Act 1996, or, indeed, injunctions under the Protection from Harassment Act 1997. One is looking to the equivalents of such orders made by a foreign court when it comes to enforcement in the United Kingdom.

I continue to suggest that the safeguards on the power that I outlined in Committee, including use of the affirmative procedure as a matter of course, would be effective and appropriate in this regard. However, since the Clause 2 delegated power is no longer part of the Bill, I invite the noble and learned Lord to withdraw his amendment. In the event that Clause 2 comes back to this House, it appears that there might be scope for him to revisit this issue.

[Lord Falconer of Thoroton]

The only example that the noble and learned Lord has given of the need for a criminal offence is in relation to family law—for example, making it a criminal offence not to comply with an order made by a foreign court. I think that is a very sensible power to have. What the level of criminality should be, and whether we should recognise those sorts of offences, is plainly a matter on which Parliament should properly take a view in primary legislation. I was extremely struck by the fact that he gave no examples in answer to the question of the noble and learned Lord, Lord Mance.

I am absolutely bewildered as to why the Government are doing this. The amendment does not stop them doing what they want to do in relation to private international law; all it requires is that Parliament gets a say and can amend things, as we have just done in relation to the implementation of the three treaties that we are dealing with today. What is wrong with that? It does not cause problems. It means that you get much higher-quality implementation, as we discovered this afternoon through the amendments being debated.

Is it a knee-jerk reaction on the part of the Government that they want to keep Parliament out of things as much as possible? The Minister gives fatuous justification for this by saying that it is “necessary” and “essential” for the UK to remain in its pre-eminent position. This is obvious tosh, as we have been in a pre-eminent position without this existing power before.

I am not going to press this amendment because, as the noble and learned Lord impliedly accepts, Schedule 6 will drop out at Third Reading, which means that there will be nothing to amend. I am very surprised that he is being a dog in the manger about that—of course that schedule has to come out once Clause 2 has come out. I would be interested to hear whether he accepts that; if he does not accept it, I will think that he is behaving slightly childishly.

I am not sure whether our rules allow the noble and learned Lord to come back at this stage. I see noble Lords indicating that they do, so could he confirm that he will agree that Schedule 6 will come out before the Bill goes to the other place?

[Lord Keen of Elie]

My Lords, it appears to me that Schedule 6 is quite distinct to Clause 2 as a part of the Bill, but, clearly, it is entirely dependent upon the existence of Clause 2. Beyond that, I do not really comprehend what the noble and learned Lord is talking about.

[Lord Falconer of Thoroton]

I will explain the question. Does the noble and learned Lord agree that, now that Clause 2 has been deleted, Schedule 6 should also be deleted?

[The Deputy Speaker]

Does the Minister wish to respond?

[Lord Keen of Elie]

It may well be that it should be deleted, but it is for the noble and learned Lord to move his amendment if he wishes it to be deleted.

[Lord Falconer of Thoroton]

As the noble and learned Lord knows, I do not have such an amendment down. Obviously, what I was saying was that I would put down an amendment at Third Reading. Does he agree that that would be agreed to by the Government?

[The Deputy Speaker]

It helps if I can make the announcement so that people can capture this on camera. Does the Minister wish to respond?

--- Later in debate ---

[Lord Falconer of Thoroton]

That is disappointing.

In any event, I think the view of the House is unanimous. This is an inappropriate provision. I will not press my amendment. I take it that the Minister accepts that Schedule 6 is totally dependent on Clause 2. In those circumstances, I will put down an amendment at Third Reading to get rid of Schedule 6. I beg leave to withdraw my amendment.

Amendment 10 withdrawn.

--- Later in debate ---

[Lord Marks of Henley-on-Thames [V]]

My Lords, I have nothing to add to what was said by my noble friend Lord Thomas of Gresford on this amendment, which we support.

[Lord Falconer of Thoroton]

I support the principle of this amendment. It is all of a piece with the way this legislation has been conducted. My noble friend Lord Hain described the attitude of the Minister when this was raised with him in Committee as “high-handed” and “cavalier”. Prior to that, as my noble friend said, there had not been proper consultation with the devolved Welsh Administration. The noble Baroness, Lady Ritchie, indicated that the Northern Ireland Assembly did not feel it had been consulted. The noble and learned Lord, Lord Hope of Craighead, said earlier that the devolution aspect of this had not been thought through. As became apparent during the earlier stages of this Bill, the Lord Chancellor’s Advisory Committee on Private International Law was not consulted at all before the Bill was laid before Parliament.

This is not the right way to legislate. I very much hope that the Minister will reflect on the failures properly to deal with this Bill and the inadequacies in it as a result, in particular Clause 2 and the need significantly to amend Clause 1. Both Clause 1, which has broad support throughout the House, and the need for its amendment indicated how misjudged Clause 2 is. If the Minister has any respect for this House, he will properly respond to the points raised on this amendment.

[Lord Keen of Elie]

My Lords, I thank the noble Lord, Lord Hain, for meeting with me after Second Reading, when we discussed what he termed the copper-bottomed guarantee that he had sought in that debate. I explained to him the difficulty I had with that demand, given that it conflated the position of the Welsh Government with that of the Northern Ireland and Scottish Governments in circumstances where there was a quite separate and distinct divorce settlement with regard to the latter two, in contrast with the position in Wales. I understood him to appreciate that—indeed he even mentioned amending his amendment. I indicated that I did not think that necessary, because of course we are dealing here with a point of principle, and an important one.

Before I turn to the detail of the amendments, I stress to noble Lords that Ministry of Justice officials are in regular conversation with their counterparts in the devolved Administrations, not only about the matters contained within the Bill but whenever private international law issues arise that touch on areas of their devolved competence more generally. We are very conscious of our responsibilities under the devolution settlements, and our approach in this area is always to seek to engage early and often when any questions arise. It is my view that such an approach of early engagement is the best way to make consultation genuinely meaningful.

The noble and learned Lord, Lord Falconer of Thoroton, referred to an earlier observation by the noble and learned Lord, Lord Hope, with regard to his concern over the devolved aspects of the Bill. I have to say that I am perplexed by the observations of the noble and learned Lord, Lord Hope, and perhaps I should have responded earlier. There are two distinct ways in which these matters can be dealt with in the devolved context of Scotland. One is by the Scottish Ministers and the other is by the Secretary of State with the consent of the Scottish Ministers. The latter avenue is of course there because there are circumstances in which the Scottish Government will say to the UK Government, “We are quite content that you should implement these provisions throughout the United Kingdom without us having to replicate your efforts”. I hope that that assists in clarifying that point.

The Government have fully honoured the devolution settlements in this area as we approached the drafting of the Bill, including, I may add, the Clause 2 power itself and how it can be exercised in particular in relation to Northern Ireland and Scotland. It is important to point out at the outset that the devolution settlement is different in distinct parts of the United Kingdom, as I said before, and that difference is reflected in the Bill.

Amendment 11 affects Scotland and Northern Ireland, where private international law is a devolved matter, differently to Wales, where these matters are almost entirely reserved. For Scotland and Northern Ireland, there are already two designated “appropriate national authorities”, as I just mentioned, which may exercise the Clause 2 power for those jurisdictions: either the Scottish Ministers or a Northern Ireland department, or alternatively, the Secretary of State acting with the consent of those Ministers or the Northern Ireland department. Either way, the ultimate decision on use of the Clause 2 power in Scotland and Northern Ireland rests with the devolved Administrations, and that is reflected in the Bill.

In principle, I have no objection to consulting before the Secretary of State can make regulations which apply in Scotland and Northern Ireland. Indeed, it is something that would happen, because he can make those regulations only with the consent of the Scottish Government or of the Northern Ireland department. I refer also to Clause 2(7)(b)(i) and (c)(i), which provide that the Secretary of State already needs the consent of the Scottish Ministers or a Northern Ireland department to legislate for those parts of the United Kingdom. I do not see how one would gain such consent without consultation. It goes without saying that if you are to secure consent, you must consult and engage.

The Scottish Government and Northern Ireland Administration have been fully engaged in the drafting of the Bill, including the Clause 2 power, and there is strong support from both devolved Administrations on the Clause 2 power as currently drafted. That is reflected in the fact that a legislative consent Motion has already been granted by the Northern Ireland Assembly, and another has been laid before the Scottish Parliament, with both the Scottish Government and the Scottish Parliament’s Justice Committee recommending that consent be granted. There we have a clear picture of what is happening in the devolved Administrations with regard to the Bill, and in particular Clause 2, and their welcome of these developments. They are the product of consultation and of consent.

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

Lord Falconer of Thoroton Excerpts

3rd reading & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords
Monday 29th June 2020 Lords Chamber

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

My Lords, I am grateful to the House for Members’ engagement on the Bill throughout its passage. The amendments in this group are all consequential on the removal of the delegated power contained in the former Clause 2 of the Bill. I am moving Amendment 1, and support Amendments 2 and 3, as the provisions to which they relate do not function without the delegated power.

Before I turn to the detail of the amendments, I wish to make clear from the outset that we believe that the delegated power contained in the former Clause 2 of the Bill was a necessary, proportionate and constitutionally appropriate measure, for the timely implementation in domestic law of future private international law agreements which the Government had decided that the UK should join. Subject to a successful application, this could have included the Lugano Convention 2007.

Any decision for the United Kingdom to join a treaty or agreement in this area of law would still have been subject to successful completion of parliamentary scrutiny procedures under the provisions of the Constitutional Reform and Governance Act 2010. The former delegated power in the Bill did not alter the well-established approaches to parliamentary scrutiny of treaties and wider ratification processes under CRaG. Instead, it was simply a mechanism to draw down the treaty obligations into domestic law in readiness for ratifying the treaty.

I will now speak to Amendment 1, in my name, which seeks to remove from the Bill subsections (2) and (3) of Clause 2, formerly Clause 3, which establishes the Crown application of the Bill. These provisions were consequential on what was, originally, Clause 2, containing the delegated power. They provided that regulations made in the exercise of the delegated power in former Clause 2 could bind the Crown, subject to exceptions which reflect those contained in Section 51 of the Civil Jurisdiction and Judgments Act 1982, as referred to in subsection (1).

The Government are bringing forward this amendment to remove these subsections from the Bill, as these two interlinked provisions were originally intended to apply to regulations made under the delegated power and therefore serve no function following its removal. As I have indicated, this is purely to ensure that the Bill is workable for its introduction into the other place, given the outcome of our deliberations in this House.

I have also put my name to Amendment 2, in the name of the noble and learned Lord, Lord Falconer of Thoroton. The amendment seeks to remove Schedule 6 from the Bill. It details how the delegated power could be exercised in practice, including the parliamentary procedures to be followed for making regulations. I accept that the House has made its view clear, and without the delegated power in the former Clause 2, Schedule 6 serves no useful purpose. In these circumstances, purely to enable the tidying up of the Bill, we support the amendment to remove Schedule 6 from the Bill at this point.

Amendment 3, also in the name of the noble and learned Lord, Lord Falconer, seeks to amend the Long Title of the Bill. Again, this is a consequence of the removal of the delegated power. Given that the new title more accurately reflects the content of the Bill as amended by the House, namely the implementation of the 1996, 2005 and 2007 Hague Conventions under Clause 1, in these circumstances the Government are content to support the amendment.

I beg to move.

[Lord Falconer of Thoroton (Lab)]

I am obliged to the noble and learned Lord. There is no dispute between us; all three amendments should be approved, to reflect the changes resulting from removing the wider power. The Minister repeated his argument for why that power should be there. We have had this argument three times now. It was rejected when he put it to the Delegated Powers Committee, rejected when it was put to the Constitution Committee, and massively rejected when it was put before your Lordships’ House, so there is no point repeating it again.

The Minister said that we should be dealing with subsequent conventions by secondary legislation. We have made amendments in this Bill to the three conventions that we are bringing in today. We could not have done so if his Clause 2 powers had been there. I hope that he will bring back what was the view of everybody in the Chamber, apart from him—namely that the Clause 2 power should not be there.

[Lord Garnier (Con) [V]]

My Lords, as is often the case with legislation bringing treaties into domestic law, the meat of this Bill is to be found in the schedules rather than the clauses. Unfortunately, there was some gristle in Clause 2 that made it less palatable. That said, there has been a universal desire to see the three conventions in question come into our post-EU domestic law, and, subject to the already-announced recognition of the points made on Report on 17 June by the noble and learned Lord, Lord Wallace of Tankerness, in relation to the Hague Convention 2000, the real substance of this Bill has been agreed. I congratulate my noble and learned friend the Advocate-General, who has been carrying the Bill more or less on his own.

However, I also commiserate with him on coping with the gristle. He has not looked, still less asked, for sympathy from any of us. I dare say that he might have hoped for more voluble support from this side of the House, but as the experienced advocate that he is, he has not revealed his disappointment, even when the noble and learned lord, Lord Mance, disobligingly compared him to Monty Python’s armless and legless Black Knight.

Unquestionably, the provisions in Clause 2, which gave the Executive the extensive future law-making powers originally in the Bill, have been shown to be constitutionally awkward and unwelcome, by the Constitution Committee, the Delegated Powers Committee and contributors to these debates. When the Bill goes to the other place, I trust that the Government will not use their large majority there to restore the Bill to its original form.

Having said that, I would not want the noble and learned Lord, Lord Falconer of Thoroton—who is just as much a politician as he ever was in government 15 years ago—or the Labour Party, to claim that the amended Bill shows them in an altogether angelic light. In these proceedings they have no halo to burnish. As they know only too well, and as was graciously accepted by the noble Lord, Lord Blunkett, in Committee, there were times when the noble and learned Lord, Lord Falconer, and his colleagues in government enthusiastically gave the Executive extensive Henry VIII powers—powers he now decries. The same could be said of my Liberal Democrat partners in the coalition Government and, I readily confess, of me.

However, let us in a Bill of this type and content, cast political point-scoring aside and do two things. First, we should send this Bill to the other place with our strong advice that those Henry VIII powers that were once in the Bill should stay out of it so that the three conventions can be brought back into our national law as soon as can be sensibly arranged. Secondly, we should invite a Joint Committee of both Houses thoroughly to investigate and review the use of Henry VIII powers and make recommendations on their future use. The Clause 2 powers were by no means the most egregious example of them, but I am not alone in thinking that Ministers should not make or amend the criminal law or the substantive law more generally by secondary legislation. That should be confined to administrative and simple regulatory matters.

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Moved by

[Lord Falconer of Thoroton]

2: Schedule 6, leave out Schedule 6

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Moved by

[Lord Falconer of Thoroton]

3: In the Title, line 1, leave out from “2007” to end of line 3

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

Lord Falconer of Thoroton Excerpts

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Thursday 19th November 2020 Lords Chamber

Moved by

[Lord Falconer of Thoroton]

1C: Leave out subsection (3D).

[Lord Falconer of Thoroton (Lab)]

My Lords, I move my Amendment 1C as an amendment to Amendment 1A. It would leave out subsection (3D) of the Government’s proposed amendment. Leaving out the subsection would mean that the power to extend the sunset period could be exercised only once.

I start by welcoming the noble and learned Lord, Lord Stewart of Dirleton. Throughout the process of this Bill, he has been very engaged, incredibly helpful, very courteous and really engaged in the detail, and we are all incredibly grateful for that. I also compliment him on the presentation he has just made, which was persuasive and clear and addressed all the issues. So I really am glad to see him there and I completely support him—as indeed does the whole House—in relation to the bringing into UK domestic law and ratifying the three treaties referred to, and which remain referred to, in Clause 1 of the Bill.

I remain disappointed and believe it to be very much the wrong policy to give the Government the power to introduce private international law treaties by secondary legislation, as in the amendment introduced by the Commons to the Bill that was sent from the Lords. There was an almost universal view in this House when it was last here that that should not be dealt with by secondary legislation, because it would reduce the quality of private international law agreements that were given the force of law by legislation. The question of whether it was legitimate to do it by secondary legislation was considered after the consideration of evidence, both by the Constitution Committee of this House—and I am glad to see the noble Lord, Lord Pannick, here as a distinguished member of the Constitution Committee—and the Delegated Powers Committee of this House as well. Both considered, in detail, evidence put before by them by the Ministry of Justice and rejected the suggestion that secondary legislation was the appropriate way to deal with such treaties.

I did not find the reasons given by the noble and learned Lord convincing. But he, like his distinguished predecessor, the noble and learned Lord, Lord Keen of Elie, did not really engage on the issue of why to use secondary rather than primary legislation. He asserted that secondary legislation had been used in the past, and, like his predecessor, referred to the 1933 and 1920 Acts. What he was referring to was bringing into force the provisions on enforcement of judgments in those two Acts in relation to individual territories or countries. All that happens by that secondary legislation is that additional countries are added, whether they be Commonwealth countries for the 1920 Act, or non-Commonwealth countries for the 1933 Act. I would not have any objections whatever to something like that. But that is not the power taken in this Bill; it is the whole of the private international law agreement. It would not just be the addition of countries; it would be the whole Foreign Judgments (Reciprocal Enforcement) Act 1933 in the examples that have been given. That will lead to this country having a worse network of private international law agreements than it has had previously. That is bad for this country, because one of the things we are incredibly good at is private international law. That is what makes English law so attractive to commercial institutions. I am disappointed that no real additional arguments have been advanced.

I accept the political reality here; this House has almost universally asked the other place to think again, and the noble and learned Lord, Lord Stewart of Dirleton, is right to point out that it had the opportunity to think again and decided to go ahead. We have to accept that in a case such as this.

In relation to the sunset clause, these agreements take a long time to negotiate and introduce—with the possible exception of us adhering to Lugano, because that may have to be done in a hurry, so I can see that there is a case there. I am interested that the noble and learned Lord, Lord Stewart of Dirleton, has said that if one had Hague-Visby or Warsaw, that would not be covered by this Bill and would, therefore, have to be introduced by primary legislation. I am not sure, then, under what circumstances this is ever going to apply in substance, because the nature of these private international agreements is that they will have provisions about jurisdiction and enforcement as well as about substantive law—Hague-Visby and the Warsaw convention.

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The amendments seek to address the particular concerns around appropriate scrutiny, while protecting the Government’s core policy objective. We could send this Bill back to the Commons, only to have it come back to us once more to make final tweaks to these amendments, but I urge your Lordships to see the bigger picture. This package of amendments is balanced and proportionate. We must consider not just the constitutional issues but the impact these agreements have on families and businesses. We need to pass this Bill, and time is moving on. This is an opportunity for us to send the Bill back to the other place with a clear signal that this House has balanced pragmatism with principle and found an effective compromise that it should support. I beg to move.

[Lord Falconer of Thoroton (Lab)]

May I express the gratitude of the whole House for the care with which the noble and learned Lord, Lord Stewart of Dirleton, dealt with every single issue that was raised? That I disagree with some of the answers is not the same as saying that he did not deal with them. For a Bill like this, it was an absolute model of going through every issue and putting the Government’s argument; I am incredibly grateful for that. There is nobody more disdainful than me when questions are not answered but, my goodness, the noble and learned Lord did a very good job and the whole House is grateful for that.

I will focus on my amendment, which concerns not being able to extend and extend the provision. My reading of what the noble and learned Lord said is that the sunset clause was intended in part to deal with the objections raised by this House. As he knows, the reason for those objections is that we do not consider secondary legislation appropriate. He replied, in effect, that there are good reasons for it—Lugano, primarily. As I read it, he is saying that unless there are good reasons, the sun will set on this Bill. If that is the right approach and what he is indeed saying, my view is that the Lugano provisions that currently apply—we may be only four or five weeks away from wanting them to come into force—mean that it is very unlikely that future circumstances will arise that would justify using secondary legislation. I hope that is what he means.

The noble and learned Lord has acknowledged the reasons why this House did not want the secondary power. In those circumstances, mindful of the need to get the three conventions in Clause 1 on to the statute book 1, I will not be moving my amendment—but only on the basis that I earnestly expect that the Government will not need one, let alone two extensions to the sunset clause. I beg leave to withdraw the amendment standing in my name.

Amendment 1C withdrawn.