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

Lord Hope of Craighead Excerpts

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

[Lord Hope of Craighead (CB)]

My Lords, I would like to say a few words in support of Amendment 19 and make a brief comment on Amendment 20.

Amendment 19 is an issue of principle, rather than detail. Most of what I want to say has already been said by the noble Lord, Lord Thomas of Gresford, and the noble and learned Lord, Lord Thomas of Cwmgiedd. The only point I add is this: when one is considering imposing a criminal sanction on an individual, you have to have regard to the effect of the sanction on the individual in question. For many people, to have a criminal conviction against them is a major disadvantage in future life, particularly for people seeking further employment who have to provide references to their criminal background, if any. It may also affect travel, particularly in countries which deny travel to people who have criminal convictions. Although it may be easy to say that a sentence of not more than two years is not much to trouble about, it is actually something to trouble a great deal about.

That is why the way in which these offences are created, and the extent to which the wording of the offence can be scrutinised, is so very important. It is not a light matter; it is a matter of great importance to the individual. For that reason, there is an issue of principle, which I think lies behind the noble and learned Lord’s amendment.

I hope that the noble and learned Lord, Lord Falconer, will forgive me for saying that the framing of Amendment 20 creates a rather strange situation for the devolved institutions, and the legislatures in particular. The way in which Clause 2 defines the “appropriate national authority” is simple, so far as England and Wales are concerned, because it is simply the Secretary of State. But when you come to Scotland and to Northern Ireland, there is a choice: in Scotland, it is either the Scottish Ministers or the Secretary of State for Scotland; and in the case of Northern Ireland, it is the Northern Ireland department or the Secretary of State for Northern Ireland.

I raised the point at our first sitting that there is some doubt as to what exactly the function is of each of these two people. Take Scotland as an example. In what situations is it appropriate for Scottish Ministers to act alone, and when is it right for the Secretary of State for Scotland to act alone? If one is contemplating the use of the super-affirmative procedure, that is available only to the Secretary of State, because anything done by Scottish Ministers can only be the subject of an instrument laid before the Scottish Parliament. The same is true for the Northern Ireland department: it cannot use the UK procedure because its instruments have to be laid before the Northern Ireland Assembly.

I make this point in case, by any chance, this amendment is to go further. I am not sure how far the noble and learned Lord wants to do that, but just in case he does, a bit more thought is required as to how exactly one is to relate this amendment to the position in the devolved Administrations. The way I left it at the first sitting was that I would much prefer that the Secretary of State for Scotland was not involved, and that the question of implementation—a devolved matter anyway—was left with Scottish Ministers. But one way or another, the situation will need to be clarified. The presence of this amendment gives me a chance to reiterate my point that there is a lack of clarity in the way that the Bill is framed, as far as the relevant authority is concerned.

[Lord Kennedy of Southwark (Lab Co-op)]

My Lords, Amendments 19, 20 and 21 are probing amendments tabled by my noble and learned friend Lord Falconer of Thoroton. I welcome the amendments, as we have a chance to debate these important issues again.

As a general rule, I do not like Governments taking Henry VIII powers. It is much better that primary legislation is made or changed, and that both Houses debate and decide on the issue, rather than procedures such as these, which are not a proper substitute, whether they use the affirmative or super-affirmative procedure.

That brings me on to Amendment 19, moved by my noble and learned friend. This is a particularly important amendment as, without it, criminal offences could be extended or amended, and the penalties for offences could be changed. That is unacceptable. I hope all noble Lords will agree that it is a matter for Parliament to decide, and that there is no justification for doing otherwise. I would therefore like to hear from the noble and learned Lord, Lord Keen of Elie, the justification for not accepting the intent of this amendment, if that is the Government’s position this afternoon.

The noble Lord, Lord Thomas of Gresford, made the point that this is no way to make new law and new offences. I very much agree with that. There should be no cases of new offences having penalties agreed without the consent of Parliament, where that would normally be the case. But these powers could be used to circumvent that.

My noble friend Lady Kennedy of Cradley made the point that we have seen very few of these types of agreements in the last 60 years, and that the powers and procedures proposed here do not seem justified in that case. My noble friend also made reference to reports that statutory instruments in this area risk being struck down by the courts. It would be good if the noble and learned Lord, Lord Keen of Elie, could address that point when he responds to this debate shortly.