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.