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

Lord Mackay of Clashfern Excerpts

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

[Lord Adonis (Lab)]

I have an obvious question relating to what the noble and learned Lord said. Why does he think that the Isle of Man wants this power but other Crown dependencies do not?

[Lord Mackay of Clashfern (Con)]

My Lords, I have always understood that the Isle of Man is different and that special provision therefore needs to be made for it, particularly at its request. Long ago, when I was Lord Advocate, I was called to defend an action of the UK Government, which had imposed restrictions on fishing in the waters surrounding the Isle of Man that were different from the common fisheries policy. I was constrained to argue that the Isle of Man was not subject to the common fisheries policy, since it was different from the United Kingdom. I regret to say that the Isle of Man was not sufficiently different for me to succeed.

I support the amendment as something that is utterly important for the Isle of Man and perfectly in order.

[Lord Mann (Non-Afl)]

My Lords, in Clause 2(7), “relevant territory” is defined as

“the Isle of Man … any of the Channel Islands … a British overseas territory.”

On what basis should there be a differentiation for the Isle of Man as opposed to the others—as the noble Lord, Lord Adonis, rightly asked—particularly regarding the two Crown dependencies of Guernsey and Jersey? Would it not be sensible from a UK stance to have consistency, particularly between the Crown dependencies and on our approach to defining “relevant territory”, as covered by Clause 2(7)?

--- Later in debate ---

[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.

[Lord Mackay of Clashfern]

My Lords, the Act referred to in the Bill is dated 1982, which shows that we are concerned with the time when I was Lord Advocate and before devolution. I remember it lucidly. It fell to the Lord Advocate to deal, inter alia, with the Scottish position and what the detail involved. I strongly oppose the group of amendments in the name of the noble and learned Lord, Lord Falconer of Thoroton. My understanding of the principle that rules in this area is that when the United Kingdom undertakes an international obligation, that does not become part of the law of the United Kingdom until it becomes part of the domestic law of the United Kingdom and, since devolution, that may apply differently in devolved jurisdictions. A suggestion has been made that the principle goes further and requires that the result can be achieved only by primary legislation doing so directly, without the intervention of subordinate legislation. I do not agree with that. I can see no logical requirement to restrict the power of Parliament in that way.

My noble and learned friend the Minister has already given examples. Since we joined the EU, this has been achieved by a statutory instrument naming the treaty involved, without any further detail. The year 1982 yields another striking example. Section 60 of the Civil Aviation Act 1982 confers power by Order in Council to make provision for carrying out the Chicago convention. If the principle were as claimed, surely the Act could not confer this power. I regard the provisions of the Bill as entirely adequate. Once we undertake an international obligation, it seems right to implement it in our law as soon as possible. The ordinary affirmative procedure seems entirely adequate, particularly since the other place now has power in relation to international obligations.

The noble Lord preceding me, an expert in many of these matters, particularly in the criminal law, requires that the criminal law should not be specified except very clearly and very occasionally in statutory instruments. In my respectful submission to your Lordships, this is a space in which the international agreement must have in it the criminal offence in question, because it is only a reflection of what is in the international obligation that will become part of the law under Clause 2. This seems to me to adequately secure the definition of the offence in question. I will add only that I would like to see the Lord Chancellor’s advisory committee consulted as much as possible: it is a very well informed, very good source of solid advice. I also add that if the Government’s ambitions are fulfilled for many international agreements in the future, it would be a great pity to saddle the procedure to implement them into our law with unnecessary delays.

[Baroness Kennedy of Cradley (Lab)]

My Lords, I shall restrict my comments and questions to parliamentary scrutiny. Private international law agreements are so important for businesses and individuals when they cross borders that to accept new international conventions into domestic law using broad delegated powers seems a step too far. The Government have failed to make a convincing case for why they need such extensive delegated powers here. What are the barriers that led the Government to propose such a low level of parliamentary scrutiny of new agreements?

Of course, this House is not against the Government getting their business through, but there needs to be appropriate scrutiny, challenge and revision. That is, after all, why we are all here. Amendment 20 offers a set of safeguards absent from the Government’s proposals and therefore has my support, as does Amendment 19. It cannot be acceptable to create and impose new criminal offences without consultation and some level of parliamentary scrutiny, the reasons having been eloquently set out by the noble Lord, Lord Thomas of Gresford, and my noble and learned friend Lord Falconer. In responding to these amendments, will the Minister give insight and clarity as to why the Government believe they need such sweeping powers? Do the Government accept the conclusions of the House of Lords Constitution Committee? If not, why not? Do they really believe that private international law agreements are produced at such a rate that proper consultation and scrutiny can be set aside?

As the Constitution Committee noted:

“The UK has become a party to only 13 Hague Conventions over the course of nearly 60 years”


so the need for delegated powers to prevent a delay does not seem a very strong argument. Why is it necessary for these delegated powers to extend to matters wider than private international law? How do the Government envisage dealing with a future international convention that needs supplementing for a domestic situation? Where will the parliamentary scrutiny be in such cases?

Finally, is it the case, as has been argued by some, that statutory instruments in this area may be quashed under the Human Rights Act 1998, leading to unnecessary legal uncertainty?

In conclusion, I welcome and support the amendments tabled by my noble and learned friend. These are issues that need further consideration by the Government, and I hope that the noble and learned Lord will agree to look at them again.