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

Lord Holmes of Richmond Excerpts

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

[Lord Holmes of Richmond (Non-Afl) [V]]

My Lords, I want first to say how privileged I am to be sandwiched in the list between two noble and learned Lord Thomases, emanating as I do from the junior branch of the legal profession. I ask my noble and learned friend the Minister, as I did in Committee, to affirm, in the light of the impending Brexit deal or no deal, his full support for the power of English law internationally and, indeed, for the jurisdiction of the courts of England and Wales. We have a unique gem here, which can not only speak to our international role but, as he knows, can be of such benefit to so many private international deals; this can only be built upon. I urge him to take every opportunity to push the positivity around English law and the jurisdiction of the courts of England and Wales.

Secondly, I ask the Minister, in the most delicate and humble way: if Brexit was all about repatriating powers to Parliament, how does the current Clause 2 sit with that aim?

[Lord Thomas of Gresford (LD) [V]]

The Government’s position appears to be that the incorporation into domestic law of the terms of a treaty, or of an international agreement involving private international law, should not require any detailed scrutiny by Parliament. The Government’s reasoning is that the time for stakeholders to make representations is before the international agreement is made. Once the rules have been agreed, they say, a Minister has little or no discretion to exercise in framing the requisite statutory instrument. It is all over and there is no need for any shouting.

This would be all very well if we could have the slightest confidence that the negotiations of that agreement were transparent; but we have seen in the Brexit negotiations a complete lack of transparency. Many times, pleas were made to Ministers to outline our negotiating position. “Oh, we couldn’t do that,” the Minister would reply, “because that would undermine our bargaining position.”

The noble and learned Lord, Lord Keen, in his response of 17 April to the report of the Delegated Powers Committee, said:

“As the UK develops its wider trading policy with the EU and rest of the world, agreements on private international law will be key to supporting cross-border commerce by providing businesses, investors and consumers with greater confidence that disputes across borders can be resolved in a clear and efficient way.”


This surely underlines the importance of the issues that we are discussing today. The question of jurisdiction and the enforcement of judgments is crucial. Just because the word “private” is attached in the title to “international law”, it should not be thought that we are concerned merely with family disputes and the enforcement of access to children or maintenance orders in different jurisdictions. Important as those issues undoubtedly are, the significance of these provisions goes very much to the heart of rebuilding our economy and regaining our leading trading position in the world, not least in the provision of financial and legal services. For example, in the current negotiations concerning our leaving the European Union, with or without a trade deal, one stumbling block appears to be the jurisdiction of the European Court of Justice. For 40 years, we have accepted its jurisdiction and an analysis of its judgments demonstrates the overwhelming success of British lawyers before that court. We have lost very few contested cases and settled others very satisfactorily on agreed terms.

Jurisdiction is important. I cannot see why the Prime Minister thinks that the European Union is likely in these current negotiations to accept the British rejection of the European Court of Justice as a tribunal for resolving disputes, but that it will accept our Supreme Court as the ultimate arbiter. Such an approach seems to me to be in cloud-cuckoo-land.

Where there are critical issues such as jurisdiction to be resolved, obviously it is wholly inadequate to tell business and other stakeholders that they may make their case only before the details of a treaty or agreement emerge into the light of day. As for Parliament, do we have the slightest idea of the detailed negotiating position in these current talks? What possible contribution can parliamentarians make to the rules of our future trade with Europe, which may emerge by the end of October or by Christmas Day?

Government negotiators should have to bear in mind that any agreement or treaty they may enter into will require full analysis and debate in Parliament before being given the full endorsement of incorporation into domestic law. I was disappointed, as was the noble Lord, Lord Blunkett, by the gloomy comments of the noble and learned Lord, Lord Garnier, in Committee. In effect, he said that we all agree in principle to parliamentary accountability, but in government, the reality is that the only consideration is time—getting the business over and done with. It was interesting that the noble and learned Lord, Lord Keen, in his letter to the Committee, used the expression “in a timely manner” no fewer than five times, and with something of a Homeric ring. Come to think of it, the Prime Minister might pin on his wall in No. 10 the Greek motto of the Roman emperor Augustus: “speude bradeos”, or “hasten slowly”.

Suetonius wrote of Augustus:

“Nihil autem minus perfecto duci quam festinationem temeritatemque convenire arbitrabatur”,


meaning, “He thought nothing less becoming in a well-trained leader than haste and rashness.” Well, Augustus was a pretty successful politician. He really did rule the whole of the known world.