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

Lord Marks of Henley-on-Thames Excerpts

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

I therefore suggest that the Government should think again about the desirability of dealing with important, even if technical matters, in the manner proposed indefinitely by Clause 2. In the present context in particular, that means in respect of any measure going beyond Lugano.

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

My Lords, I have added my name to the objection to Clause 2 standing part of the Bill, to be moved by the noble and learned Lord, Lord Falconer, for all the reasons that he gave, supported by the noble Lord, Lord Pannick, and others. That will be addressed in more detail in group 6, later today.

As has been said, this amendment is a limited version of the removal of Clause 2, permitting the Lugano convention to be implemented. Indeed, the Lugano convention was cited at Second Reading by the Minister as a reason for taking this power to implement international conventions by regulation. He confirmed at Second Reading the Government’s intention to implement the Lugano convention.

In the Government’s response to the report of the Delegated Powers and Regulatory Reform Committee, the Minister claimed that the urgency of implementing Lugano is such that it could not be done in time for the end of the transition period. He is supported in that by the briefing of the Bar Council for this Committee stage, which wants to see the convention implemented as part of domestic law before the end of the transition period. Indeed, it mounts a powerful argument for that. However, I am not convinced.

For my part, I would prefer to see Clause 2 removed in its entirety, because there should be no reason why the Government cannot lay primary legislation before the House before implementing Lugano. Even given the difficulties of Virtual Proceedings and the hybrid Parliament, provided that we could vote, it could be done. That would be the correct way to do it, and it would allow for proper and informed debate on the Lugano convention, which, at the moment, we are to be denied.

At Second Reading, as he has today, the noble and learned Lord, Lord Mance, stressed the importance of the English choice of jurisdiction clauses in commercial contracts of many types to the status of London as a legal centre and to the status and recognition of English commercial law, which contributes not just to London lawyers but to London’s centrality to the global commercial system. The recognition and enforcement of English jurisdiction clauses is under threat as a result of our leaving the European Union and losing the protection of the 2012 Brussels recast regulation.

As the noble and learned Lord has pointed out, the problem—along with other problems with the Lugano convention, to which he has drawn attention, both at Second Reading and today—is that that convention does not replicate Brussels recast, in a number of ways. He has drawn attention to the “Italian torpedo”, whereby a choice of court clause can be overridden by subsequent litigation commenced in defiance of an English jurisdiction clause. He has also drawn attention to the advantage of the 2019 Hague Convention, coupled with the 2019 choice of court convention, to which we could sign up. The particular relevant advantage is that, under the 2019 convention, courts may refuse to recognise a judgment given in a contracting state if that judgment breaches a choice of court clause. If we sign up to Lugano as it stands then, even if we later signed up to the 2019 Hague Convention, as the noble and learned Lord, Lord Mance, pointed out, Lugano would trump that protection.

--- Later in debate ---

[Lord Marks of Henley-on-Thames]

My Lords, I was not suggesting—and neither, I believe, was the noble Baroness, Lady McIntosh—that we can stay in Brussels recast or rejoin it after the end of the transition period. I was merely regretting the loss of the benefits of Brussels recast and pointing out that Lugano, if we joined it after the transition period ended, would not offer us comparable benefits. Apart from conceding that point, the Minister has not addressed the points made—notably by the noble and learned Lord, Lord Mance—that joining Lugano may be undesirable, and that we are deprived of the opportunity of debating that in the context of primary legislation. That, I think, is a point that he needs to address.

[Lord Keen of Elie]

On that point, of course I accept that Lugano does not go as far as Brussels Ia and IIa—Brussels restated. We are all well aware of that. As regards the interplay between Lugano and the Hague Convention 2019, one has to bear in mind that Hague has not been signed or acceded to by the EU. We do not know if or when it may intend to do so. Indeed, it is noteworthy that it took the EU 10 years to sign and accede to the Hague Convention 2005. On the other hand, Lugano is there and available as a convention. A number of noble and learned Lords have acknowledged its importance in the context of private international law. Therefore, it is appropriate that we proceed with Lugano at this stage.

--- Later in debate ---

[Lord Adonis]

I have nothing to add to this discussion.

[Lord Marks of Henley-on-Thames]

My Lords, the question raised by my noble and learned friend Lord Wallace of Tankerness is about how legislation should be made regulating implementation between jurisdictions within the UK and between the UK and other relevant territories. It seems to me that Clause 2(2) and (3) and Schedule 6 infringe the principles of devolution, particularly in the lack of provision for consultation with Scotland and Northern Ireland, as he pointed out. They also infringe the autonomy of the other relevant territories. For those reasons it seems to me that, in addition to the general reasons about the width of Clause 2 and the points already made by the noble and learned Lord, Lord Falconer, we will support amendments such as these on Report.

[Lord Keen of Elie]

My Lords, as with the previous groups of amendments, the underlying theme is that Clause 2 should not stand part of the Bill, but we have to look at these amendments in the context that it does stand part. They would therefore limit the power conferred by that clause—that context is important.

When discussing Amendments 4 and 5, I pointed out that, in the context I have just described, they in turn would result in an unacceptable restriction of the power in Clause 2 and would mean that co-operation on private international law matters between different parts of the United Kingdom family would be significantly less well developed than it is between the United Kingdom and international partners. As a matter of policy, we see no way to justify such a position. Why, for example, should two parties in London and Edinburgh have less legal certainty about the way in which their dispute will be resolved than if the dispute was between parties based in London and Paris or New York? Of course, the point is then made that it is not a question of whether, but how. If you are able to have this regulatory-making power under Clause 2 with regard to foreign jurisdictions, why not intra-UK?

If, as suggested by the noble and learned Lord, Lord Wallace, the concern is the power being perceived as risking imposing a position on Scotland, Northern Ireland, the Crown dependencies or overseas territories without consultation or consent, I would seek to assuage those concerns. Such arrangements under the power would require the agreement of all the relevant Administrations—the United Kingdom Government and the Government of the relevant devolved Administration, Crown dependency or overseas territory. Indeed, such a measure would be considered only after the Government had consulted appropriately with relevant stakeholders, and the statutory instrument to give effect to such a “mirroring” provision—that is what it would be—would still be subject to the scrutiny of the affirmative procedure, as I noted before.

There are examples where such mirroring-type relationships already apply. We apply a modified version of the terms of the 1968 Brussels Convention, an instrument that was the forerunner to Brussels I and the recast Brussels IA regulation, between the United Kingdom and Gibraltar. That works perfectly well. Therefore, assuming Clause 2 stands part of the Bill, we do not see any reason why it should be amended in the way suggested.

I now turn to Amendment 18, which would in turn require fresh primary legislation if the UK wished to amend or revoke, at a later date, any declarations it chose to make when it first implemented a new international agreement. This would mean, for example, that if, in implementing the 2005 Hague Convention, the Government decided to replicate the current EU declaration in regard to certain insurance contracts being out of scope of the convention and then wished to review that decision later, primary legislation would be required to implement that change.

Our policy intention is to replicate the current EU declaration in relation to the exclusion of certain insurance contracts when we accede to the 2005 Hague Convention later this year, because this is how the convention rules currently apply here and, given the tight timeframe between now and the end of the transition period, it makes sense to maintain the status quo and then review in the longer term. Under the proposed amendment, if we wished to change our position following that review, we would have to wait for a primary legislative vehicle to give effect to that change. In our view, that would simply create undue delay on a matter which could be addressed through secondary legislation without losing any of the desired scrutiny. It is in these circumstances that I respectfully ask the noble and learned Lord not to press his amendments.

--- Later in debate ---

[The Deputy Chairman of Committees]

We were very glad to have your contribution.

[Lord Marks of Henley-on-Thames]

My Lords, for some years I had the privilege of serving on the Delegated Powers and Regulatory Reform Committee under the chairmanship of my noble friend Lady Thomas of Winchester. That committee has increasingly come to stand as a crucial protector of the role of Parliament, alongside the noble and learned Lord, Lord Judge, whom I was delighted we were able to hear. The committee has acted in attempting to limit the Executive improperly taking powers for government Ministers to change the law by delegated legislation in significant ways and ways for which delegated legislation has never in the past been deemed appropriate.

The committee usually expresses itself, or certainly has until recent years, in circumspect terms and the Government have traditionally accepted its recommendations. The committee has left it to the House to implement its recommendations if the Government do not agree to do so. The clarity and decisiveness of the recommendation in paragraph 15 of the committee’s report on this occasion is anything but circumspect. The conclusion speaks for itself:

“We are of the view that clause 2 represents an inappropriate delegation of power and we recommend that it should be removed from the face of the Bill.”


The committee is forcefully supported by the report of the Constitution Committee, chaired by the noble Baroness, Lady Taylor, from whom we have heard, and includes the noble Lord, Lord Pannick, from whom we have also heard. Paragraph 19 of that report contains the kernel of its conclusion:

“We are not persuaded by the arguments the Government has made in support of this power. If the balance between the executive and Parliament is to be altered in respect of international agreements, it should be in favour of greater parliamentary scrutiny and not more executive power.”


Another important point made by the Constitution Committee, mentioned by the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Howarth, is that delegated legislation is amenable to judicial review so that future regulations implementing international treaties could be the subject of challenge. It is entirely right that delegated legislation, which involves an exercise of executive power of itself, should be capable of being challenged as unlawful.

However, it would be a highly undesirable consequence of the Bill if, when enacted, the lawfulness of conventions entered into by the United Kingdom Government as a matter of our domestic law could not be guaranteed to our international convention partners until such challenges were determined.

I also agree with the point made by the Constitution Committee, my noble friend Lord Thomas of Gresford and the noble and learned Lord, Lord Goldsmith, that the CraG procedure is at present inadequate and ineffective as an instrument of parliamentary scrutiny.

In the light of all that, can the Minister say whether, given the Constitution Committee’s report published on 4 May, he is prepared to go away and reconsider his extremely negative response, dated 17 April, to the Delegated Powers Committee’s report? I ask, because if these important committees of your Lordships’ House are going to be routinely ignored by government, parliamentary democracy is entering treacherous territory, in which the conventional boundaries between executive power and parliamentary sovereignty are roughly and unceremoniously shifted by the failure of government to adhere to well-established, valuable and principled conventions.

The central point is this. As it stands, the Bill involves moving a whole area of legislation—that of implementing private international law treaties in domestic law—from Parliament to the Executive. That is a dangerous extension and an unwelcome trend—noted by the noble Baroness, Lady Taylor—in our constitutional arrangements from parliamentary democracy to government by an overmighty Executive. If it is private international law agreements this year, what might follow next year? This House has rightly sought to resist the trend, which is dangerous and must be stopped. As parliamentarians, and respecting the traditional role of this House as a guardian of the constitution, we have a responsibility to stop it.

[Lord Keen of Elie]

My Lords, I thank noble Lords and noble and learned Lords for their contribution to this part of the debate. Since the commencement of this Committee, the matter of whether Clause 2 should stand part of the Bill has in a sense been the elephant in the virtual Chamber—or perhaps the virtual elephant in the Chamber. I therefore do not intend to rehearse or repeat the arguments that have been made repeatedly in Committee. However, I want to make it clear that the Government regard the powers in Clause 2 as essential to achieving their objective to build up the United Kingdom’s position in private international law, not only in the immediate future but in years to come.

Of course, there is one particularly pertinent example of our ambition; namely, our ambition to accede to the 2007 Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, and the desire—indeed, the need—to do that before the end of the transition period. It would be gravely unfortunate if a gap was to emerge between the end of the transition period, when we continue to look to the Brussels I and IIa regime, and the application of the 2007 Lugano Convention. We are concerned that that should be avoided.

Briefly, first, we consider that the proposal in Clause 2 is not only essential but proportionate. International law agreements are generally uncontroversial and technical in nature, and the detailed content of the private international law agreements to which the Bill will apply will already be determined at the international level; they are by their very nature clear and precise in their terms.

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

Lord Marks of Henley-on-Thames Excerpts

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

[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)?

[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.

--- Later in debate ---

[Lord Blunkett (Lab)]

My Lords, at this point in Committee deliberations, I often find that we have had tedious repetition, some of it very necessary in terms of underlying principles. On this occasion, some extremely valuable contributions have brought in extraneous issues that I certainly had not thought of, including those raised by my noble friend Lord Hain.

I speak in support of the points raised by my noble and learned friend Lord Falconer. He and I shared the pleasure of working together when the Home Office had what are now the powers of the justice ministry. We were, of course, faced from time to time with the desire to engage with a plethora of delegated legislation which would ease our burden and make the business of government easier. The noble and learned Lord, Lord Garnier, is correct in identifying that Governments wish to do this and Oppositions seek to check it. That is a perfectly reasonable combination because Governments have the dynamic of seeking to deal with issues that they will return to in an easier form and Oppositions, quite rightly, have to challenge, as is the case this afternoon, the reasons for that and whether they are acceptable.

I take, for instance, my noble and learned friend Lord Thomas of Cwmgiedd’s third point about the framework of legislation now, in which we have become accustomed to dealing with underpinning issues. However, when principles relate to the extension of criminal offences and penalties, as my noble and learned friend pointed out at the beginning of this debate, we have to be extremely cautious.

The noble Lord, Lord Thomas of Gresford, in a very entertaining and important diversion, referred to our present situation not just in terms of the underpinning measures that allow people to travel great distances but not to stay overnight, which are perverse in terms of trying to get Parliament up and running, by the way. Measures have applied in history, sometimes by necessity, such as Regulation 18B in 1940, but with consequences that had to be dealt with at length, with the picking up of thousands of people, some of whom should never have been interned in the way they were. Caution is always valuable in these circumstances so that consequential and unforeseen actions are avoided wherever possible. An example is the laying of regulations under both Public Health Acts and the emergency powers that we passed through this House on 25 and 26 March this year, which will be laid in the Commons later this afternoon, in respect of unworkable laws attempting to quarantine people coming from countries with less infection than we have ourselves.

Caution is necessary to make good law, as the noble and learned Lord, Lord Garnier, said. It tries to look down the line at what the consequential outcomes might be. That is why I think this has been a very useful debate and I hope that the noble and learned Lord, Lord Keen, will reflect on this, given that, as the noble and learned Lord, Lord Garnier, said, substantial majority Governments can push through whatever they like but other people have to live with the consequences.

[Lord Marks of Henley-on-Thames]

My Lords, on these Benches we are firmly with the noble and learned Lord, Lord Falconer, in opposing Clause 2 of the Bill, in line with the virtually unanimous view of those who spoke on 13 May and for all the reasons stated on day one in Committee. We will support the noble and learned Lord in opposing Clause 2 on Report. Therefore, it is with some regret that I find myself disagreeing with the noble and learned Lord, Lord Mackay of Clashfern, in particular in respect of the creation of criminal offences. He seemed to be suggesting that such offences would derive from the provisions of the international treaties themselves, rather than the provisions of the delegated legislation and, for that reason, the power in the Bill should be accepted.

However, that is not inevitably so. Under the Bill as it stands, new criminal offences could be introduced by the regulations giving the force of domestic law to private international law conventions and the implementation of those conventions, not by the treaties themselves. I therefore agree with the noble and learned Lord, Lord Thomas of Cwmgiedd, on that issue and the possibility that he raised of new offences being introduced under the regulations.

These two amendments are, of course, alternatives to the removal of Clause 2, as the noble and learned Lord, Lord Falconer, pointed out. Both amendments would plainly be right if we came to the position, contrary to what we believe should happen, that we were stuck with Clause 2. Amendment 19 on criminal offences raises an important principle. I agree with and endorse everything said by my noble friend Lord Thomas of Gresford, as supported by the noble and learned Lords, Lord Thomas of Cwmgiedd and Lord Hope of Craighead, and the noble Lord, Lord Kennedy of Southwark. In this country we have always had a strong and principled objection to making new criminal offences or otherwise changing the criminal law by secondary legislation. The noble Baroness, Lady Jones of Moulsecoomb, expressed that principle forcefully and eloquently. It is an important principle, which I think we should be very firm about upholding.

Amendment 20 is on the super-affirmative procedure. Of course, it would be better than the affirmative procedure and clearly better than any negative procedure —which is not proposed. However, it is a poor alternative to requiring primary legislation to give international treaties the force of domestic law. Paragraph 31.14 of Erskine May says this about the super-affirmative procedure:

“The super-affirmative procedure provides both Houses with opportunities to comment on proposals for secondary legislation and to recommend amendments before orders for affirmative approval are brought forward in their final form. (It should be noted that the power to amend the proposed instrument remains with the Minister: the two Houses and their committees can only recommend changes, not make them.)”


That paragraph is accurate in respect of the super-affirmative procedure proposed by the noble and learned Lord’s Amendment 20. It follows that Parliament would have no right to amend, and that is why super-affirmative is still a poor alternative. It ultimately leaves legislative power with Ministers and not with Parliament.

It is also a fact that success in changing delegated legislation by the super-affirmative procedure comes very rarely—a point made by the noble and learned Lord, Lord Garnier. We perhaps ought to return to that matter in the future. We should perhaps try to formulate a procedure that goes some way to meet the criticism he made—a procedure that permits Parliament to approve an instrument conditionally on its being amended in a way acceptable to both Houses. That might solve some of the problems that we have with delegated legislation. But I agree that that is for another day. Our position is that we support these amendments if we are stuck with having to use them in place of striking out Clause 2.

[Lord Keen of Elie]

My Lords, taken together, the amendments relate broadly to either narrowing the scope of the Clause 2 power or increasing parliamentary scrutiny for use of that power, and I recognise the observations made by a number of noble Lords and noble and learned Lords that this is very much secondary to the opposition expressed to Clause 2 itself. I note the observation of the noble and learned Lord, Lord Falconer of Thoroton, that this is essentially a series of probing amendments.

Before I look at the various amendments, I note that the noble and learned Lord, Lord Falconer, and other noble Lords referred to the role of the Lord Chancellor’s Advisory Committee on Private International Law and the importance of consultation with it, with which I entirely concur. I am now co-chair of that committee, together with the noble and learned Lord, Lord Mance. Its recent meeting was extremely useful. We looked at some technical issues surrounding the application of the Hague conventions of 2005 and 2007 at the end of the transition period. We may hear a little more of that in due course.

Amendment 19 deals with the creation of a criminal offence in the implementation in domestic law of a relevant private international law agreement. The use of the Clause 2 power to create a criminal offence there is very constrained. It is true that private international law agreements do not generally require contracting parties to create criminal offences, and there are no such requirements in the private international agreements that the UK is currently considering joining and implementing under the powers in this Bill. However, it remains a very real possibility that we might negotiate or seek to join a new agreement where a power to create or extend existing criminal penalties will be needed to fully implement the international law obligation. Take an agreement on reciprocal recognition and enforcement of protection measures, for example. In England and Wales, protection measures such as non- molestation orders or injunctions may be made by the courts under the Family Law Act 1996 or the Protection from Harassment Act 1997. Breaches of those orders are punishable by criminal penalties. Any future private international law agreement in this area on reciprocal recognition of such orders, if successfully negotiated, would particularly benefit those who are most vulnerable in our society and reliant on such protection measures, whether they remain within the United Kingdom or travel abroad, where they would wish to retain the protection of such orders.

If we entered into such an agreement, it would seem reasonable and appropriate to exercise the Clause 2 power so that, for example, we could extend criminal penalties for breach of a UK order to also apply to the breach of an order issued by a relevant foreign court. Breach of an order issued by a foreign court would in effect carry the same criminal penalty as that for breach of an equivalent UK order. But that criminal offence-making ability would of course be subject to the limitations within the Clause 2 power itself as currently drafted. Let me be clear: we could not create an offence under this power which would carry a term of imprisonment of more than two years, for example. That is an important safeguard on the exercise of the Clause 2 powers in this area.

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

Lord Marks of Henley-on-Thames Excerpts

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

[Lord Wallace of Tankerness (LD) [V]]

My Lords, the amendment follows on from my contribution at Second Reading on 17 March. I tabled an identical amendment in Committee but withdrew it from the Marshalled List, having been invited to a further meeting with the Minister, the noble and learned Lord, Lord Keen of Elie. At the outset, I express my thanks and appreciation to him, his officials and his Bill team for their constructive—and, I hope, productive —engagement with me since before Second Reading.

Basically, the purpose of the amendment is something akin to jurisdictional catch-up. It seeks to give force of law in England, Wales and Northern Ireland to the provisions of Hague Convention 35 of 13 January 2000 on the International Protection of Adults. Section 85 of and Schedule 3 to the Adults with Incapacity (Scotland) Act 2000, which I had the privilege to sponsor in the earliest days of the Scottish Parliament, paved the way for ratification of the Hague Convention by the UK Government in respect of Scotland in November 2003.

The convention is intended to give support to vulnerable adults who, by reason of impairment or insufficiency of personal faculties, need legal protection, specifically when there are interests in different international jurisdictions. For example, the convention can determine: which court has jurisdiction in relation to protective measures; the law to be applied in particular circumstances; and the establishment of central authorities, which can locate vulnerable adults, give information on the status of vulnerable persons to other authorities and facilitate mutual recognition of relevant orders.

In supporting ratification, the briefing from the Law Society of England and Wales states:

“Due to not being party to the convention, England and Wales does not have a central authority to issue the relevant certificates of authority for powers of attorney to act outside the jurisdiction. This gives rise to unnecessary difficulties in relation to the protection of overseas property and welfare by attorneys and deputies who have been appointed to protect potentially vulnerable people.”


I believe that there is a compelling case for ratification in respect of all parts of the United Kingdom. In this way, those resident in Glamorgan, Gloucester or Belfast will be on comparable terms to citizens in Glasgow or Banff in relation to recognition and enforcement of relevant court orders in 2000 convention contracting states. One might say that it would be a good example of levelling up.

Indeed, the primary legislation to give effect to the convention provisions is already in place for England and Wales through Section 63 of and Schedule 3 to the Mental Capacity Act 2005 and, in the case of Northern Ireland, through Section 283 of and Schedule 9 to the Mental Capacity (Northern Ireland) Act 2016. It would be helpful if, in his reply, the Minister could give an indication not only of the Government’s intentions but of discussions with the Northern Ireland authorities. Given that the Assembly passed the 2016 legislation, I hope that progress toward ratification for Northern Ireland can also proceed.

The long-overdue ratification of this convention would be beneficial for vulnerable adults and those who support them in England, Wales and Northern Ireland. I commend the amendment to the House and I am hopeful that the case for ratification will commend itself to the Minister. I beg to move.

[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.

--- Later in debate ---

I join the opposition to Clause 2 and simply add that there are ancillary objections to it: its non-exhaustive definition of private international law, its inclusion of a reference to arbitral awards, which has not been satisfactorily explained, and its inclusion of a reference to penal provisions, to which we will come later. The fundamental objection remains to erosion of Parliament’s proper realm.

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

My Lords, I have added my name to this amendment, which I support wholeheartedly. I will be relatively brief because I set out my reasons at some length in Committee, and because the noble and learned Lord, Lord Falconer of Thoroton, and all other noble Lords and noble and learned Lords who have spoken have argued the case so persuasively.

To give private international law treaties the force of domestic law is not a trivial rubber-stamping exercise. It may involve significant and complex law in relation to treaty implementation and enforcement provisions. Those were points well made by the noble Lord, Lord Pannick, and the noble and learned Lord, Lord Mance. It is not just the breadth of the possible future treaties that might be affected by this clause but the sheer unpredictability of such treaties that we may consider in future. There is no way that that is defined or limited satisfactorily by the provisions of the Bill.

There is also a strong argument that this clause would open the way to the Executive further usurping the role of Parliament in an extension of what has been widely and rightly criticised as a thoroughly unwelcome trend for Parliament to have its role circumscribed by delegation of powers to the Executive. This type of argument is often dismissed as a “floodgates” or “thin end of the wedge” argument, because it is said to ignore the detail of the particular case under consideration. However, these arguments are real and, given the respect that we rightly pay to precedent in our constitutional discussions and in the context of our having an unwritten constitution, such arguments deserve to be taken seriously. If private international law treaties today, why not other international treaties tomorrow and a still less constrained role for the Executive further down the line?

No matter how often Ministers say that the availability of the affirmative resolution procedure or even the super-affirmative procedure gives Parliament a right to scrutinise and vote down delegated legislation, we all know the reality: that unamendable regulations are extremely difficult in practice to get changed, withdrawn or rejected as a result of parliamentary scrutiny. That is why removing this clause from the Bill is so important.

A particularly pernicious aspect of this clause is the power to create new criminal offences by regulation, even those carrying sentences of imprisonment. One can foresee that enforcement in particular of international treaty obligations may indeed involve criminal sanctions against non-compliant individuals. We may return to this with Amendment 10, if that turns out to be necessary. However, it would be far better for us to get rid of Clause 2 altogether—a change we may just succeed in holding when the Bill goes to the Commons.

I also remind the House of the important point, made in the Constitution Committee’s report, that regulations are amenable to judicial review and so could be challenged in the courts. Clause 2 would risk the unattractive position that, having entered into international obligations by treaty and Ministers having passed regulations to give them the force of domestic law and to enable compliance and enforcement, the courts would then be entitled to quash those regulations if they were challenged. That would be seriously unsatisfactory.

The Constitution Committee rested its argument on the valid ground of legal uncertainty. I add that such a position would undermine us internationally, further damaging our reputation for being good for our word and bringing our democratic legal processes into disrepute. This is an important point, but I wind up by saying that it is a subsidiary reason for removing Clause 2. The central point is the point of principle on which I suggest the House has a constitutional duty to vote this clause down.

--- Later in debate ---

[Lord Mance [V]]

My Lords, as my noble and learned friend Lord Keen has just said, these amendments were considered by the advisory committee that I chair. We welcome them. They are a wonderful simplification compared with the huge complexity of the previous Schedule 5, which introduced savings on savings on what was already, in Section 4 of the withdrawal Act, a saving. They also correct one important misconception or potential error that had crept into the drafting of some of the previous instruments by making it absolutely clear that, insofar as the Hague 2005 choice of court convention will be relevant—and it will not be very relevant if we join Lugano—it will be relevant in respect of all agreements since October 2015, when the UK was originally signed up to the convention as a member of the EU. That is a point on which the noble and learned Lord and I had personal communication after Second Reading.

I will mention just one further point. That protects, or would protect insofar as it applies, choice of court clauses made after October 2015 that fall within Hague 2005. That means probably only exclusive choice of court clauses. There are two categories that are therefore not potentially covered: first, non-exclusive, asymmetric choice of court clauses, which are very important on the London market and are frequently used in banking documentation; and, secondly, pre-2015 choice of court clauses. At the moment, they are protected under the Brussels regime—the Brussels regulation recast in 2012, of which we are going to lose the benefit.

I know that the Minister has this in mind, but I mention it openly: we should surely, domestically, introduce as much protection for those clauses as we now can. It may not be reciprocal, because we can legislate in this area only domestically unless we can persuade other states to agree with us. But domestically, we should protect clauses, particularly those favouring London, and we should avoid people who rely on such clauses having to go through the formality of seeking leave to serve out of the jurisdiction of the court. At the moment, under the Brussels regime, these clauses are protected, whether they are exclusive or non-exclusive, whenever they were made and we do not have to seek leave to serve out—so I urge the noble and learned Lord to pursue that message, as I know he has it in mind already.

[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.

--- Later in debate ---

I will end with an inquiry. The amendment has been described as academic and so it might seem at the moment, Clause 2 having been removed. May I inquire, more out of ignorance—I am sure others know the answer—if we do not press it to a Division today, what happens if Clause 2 is restored in the other place? Surely, we ought to consider at least ensuring that the amendment succeeds in eliminating the reference to penal offences.

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

My Lords, I addressed this issue in the group on the removal of Clause 2. I agree with everything that has been said so far in the debate on this amendment, which I support. Once again, we have unanimity. Although it might not be directly relevant in the light of the removal of Clause 2, I note the points made by the noble and learned Lord, Lord Mance, as to what will happen should Clause 2 be restored in the other place. I suspect that that would be curable here by passing a similar amendment, but I invite the Minister to consider that position as well.

[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.

--- Later in debate ---

[Lord Bhatia (Non-Afl) [V]]

My Lords, under Amendment 11

“the Secretary of State must consult … Scottish Ministers … Welsh Ministers, and … the Northern Ireland department.”

Can the Minister confirm that this has been done and that the three departments are fully satisfied?

My main concern is about family law. There are family litigations in progress in the courts. A light has been shone on what happens if one of the spouses is resident in the UK and the other is in another EU country and has a different nationality. The question of the children’s custody will have to be resolved. As the UK will be out of the EU by the end of 2020, there are bound to be pending cases that will have to be resolved. Ratifying the Hague conventions will also have to be done.

There are other problems when one spouse is British and the other is in the subcontinent with the children. In such cases the children suffer the most, as the questions of their upkeep and final custody remain unresolved. This will be a very complex issue, and solutions will have to be found with diplomacy and patience. It would be useful if the Minister could explain how the above issues of children’s maintenance, cost and custody will be dealt with.

[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.

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

Lord Marks of Henley-on-Thames Excerpts

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

[Lord Mann (Non-Afl) [V]]

My Lords, it is a little disconcerting to end up being thought by the noble and learned Lords, Lord Garnier and Lord Falconer, to be on the side of the angels, but I concur with the consensus that has emerged on the Bill. When we left the European Union, we did not leave in order to give the Executive more power. The argument that was put was that power would be transferred back to the British Parliament. There is a substantive difference between Parliament and the Executive in our democracy, and it would behove the Government in future to be significantly less reliant on so-called Henry VIII powers. That is not taking back control of democracy; it is ceding control to the Executive. That will come back and bite the Executive politically in the view of the general public at some stage in future. I am pleased that we have a consensus today.

Finally, I add to the question posed by the noble Lord, Lord Foulkes, to clarify what the situation will be in relation to Northern Cyprus.

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

I welcome these sensible amendments which tidy up the Bill, but I also welcome them for an important reason, which is that in removing Clause 2 this House made an important constitutional decision. I welcome the thrust of much of what the noble and learned Lord, Lord Garnier, said. However, I doubt that we need a thoroughgoing review of delegated legislation or the powers to delegate legislation. What we need is to respect more thoroughly the views of the Delegated Powers and Regulatory Reform Committee and the principles that it applies, which are well known and are often stated and applied by this House and were importantly so stated and applied during debates on the removal of Clause 2.

I regard it as a shame that the Minister opened this afternoon’s discussion with a reassertion of the position that he enunciated during earlier stages of the Bill— that Clause 2 was constitutionally proper and not inappropriate. This House decisively rejected that view. I hope that the Government will listen to what has been said today and, more importantly, will consider the arguments that were advanced during the earlier stages of the Bill, change their mind and decide not to reinstate Clause 2 and send it back to this House, taking advantage of their majority; and, rather than having a thoroughgoing review, will decide to exercise some self-control in future and not put before us Bills which contain delegated powers that most of us regard as entirely wrong and inappropriate.

[Lord Keen of Elie]

My Lords, as the noble and learned Lord, Lord Thomas of Cwmgiedd, and my noble friend Lord Holmes observed, it is important that we maintain the position of English law and the jurisdiction, particularly in London, with regard to commercial dispute resolution just as it is maintained under the New York convention with respect to arbitration. That is why we have made our application to the council of the Lugano convention to join that body, but it is step that can be taken only with the consent of the member states and the EU. We recognise that if our application is accepted it is a matter of urgency for us to draw down that treaty into domestic law, which in part explains the position that we have adopted with regard to Clause 2.

It is not often that I find myself in a position where I have to correct the noble Lord, Lord Foulkes of Cumnock. Indeed, I regard this as highly unusual, but I observe that where he said that the Government had decided not to proceed with Clause 2 that was not entirely accurate. It was decided for us, and there is a distinction to be drawn there. As regards the state of play with the Crown dependencies, the provision with respect to the Isle of Man fell with the amendments to the Bill in this House. As regards the Council of Europe, while in theory it may seek to promote some issues in respect of private international law, I do not understand that it has done so or that it imminently intends to do so, but I will make further inquiry and if necessary write to the noble Lord.

The noble Lord, Lord Thomas of Gresford, talked about a matter of principle with regard to the introduction of what would amount to a criminal offence of some limited penalty by way of secondary legislation or something other than primary legislation, a situation that has obtained for almost 50 years since the European Communities Act 1972.

The noble Lord, Lord McConnell of Glenscorrodale, raised prior consultation. I reiterate the points I made at an earlier stage with regard to that. Both the Government of Wales and the Government of Scotland granted an LCM to the Bill in its original form, so they appeared to be relatively content with its provisions.

I am not clear about the reference made by the noble Lord, Lord Mann, to Northern Cyprus in the context of the Bill, but I understand the complications that arise with regard there to private international law, and I would be content to speak to him later if there is a further point that he would like to elucidate, and I would be happy to consider it.

The Government are content to support this group of amendments as they relate to elements of the Bill which no longer function without the delegated power previously in Clause 2. However, as I have made clear, the Government’s position on the Clause 2 delegated power has not changed.

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

Lord Marks of Henley-on-Thames Excerpts

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

The noble and learned Lord has done so much for us; the key thing from this side of the House’s point of view is that our quality as a country in this area should continue. There is no politics in this; it is just about getting the right result. I hope that he will reflect and give some assurances that might make the position easier.

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

My Lords, I add my welcome of the noble and learned Lord, Lord Stewart of Dirleton, to his place in taking over this technical but difficult Bill, one that raises issues of principle.

I welcome the government amendments, which have the power to act as safeguards on the power reinserted into the Bill by the Commons amendments. I agree with the summary by the noble Lord, Lord Pannick, of the Government’s amendments as sensible and constructive. But I share the disappointment of the noble and learned Lord, Lord Falconer of Thoroton, that the Commons amendments reinstate the delegated power that this House so comprehensively rejected.

I also agree with the noble and learned Lord, Lord Stewart, that outlawing the power to create offences punishable by imprisonment is of particular importance. I welcome the fact that the principle of a sunset clause has been accepted, although, for all the reasons mentioned by the noble and learned Lord, Lord Falconer, it should be meaningful and not liable to be endlessly renewed. It is also important that the Government have introduced a requirement for consultation before regulations are made. On that, in particular, I am grateful to the noble and learned Lord for the time he and the Bill team have spent with me and others discussing the government amendments to the Commons amendments and considering suggested changes.

For my part, I support the amendment on the sunset clause in the name of the noble and learned Lord, Lord Falconer, for all the reasons he gave. I understand the Government’s concern to ensure that there is sufficient time to bring new private international law agreements into UK law, and I accept that there may possibly, on occasion, be a need for more than five years to achieve that. However, I simply cannot see the need for further extensions beyond 10 years. It is in the nature of these international agreements that they take a long time to be finalised. However, the point about the first five years is that there are a number of international agreements, notably the Lugano Convention 2007, to which the Government wish to accede, which may need to be brought into law in the reasonably short term, and there are others on the horizon that may need more than five years. The problem with allowing for extensions beyond 10 years—that is, more than one extension—is that such a long sunset period may involve permitting the Government to implement in the UK international agreements that are currently unforeseen and unforeseeable. It was partly to address that issue that this House took the view that primary legislation should be required before implementing such agreements in domestic law.

I appreciate that this issue is addressed, in part at least, by the requirement for consultation before regulations are made implementing further private international law agreements. That requirement is, indeed, a welcome safeguard. My amendment to government Amendment 4B is designed to ensure that such consultations are both objective and impartial and seen to be so. The shortcoming of the present proposal is that the choice of those to be consulted lies entirely, in England and Wales, with the Secretary of State and, in Scotland and Northern Ireland, with Scottish Ministers, the relevant Northern Ireland department or the Secretary of State acting with their consent. That means that the power to choose who is to be consulted lies entirely with the Executive.

Of course, we accept that many Ministers can be confidently relied on to exercise that power dispassionately, but that confidence cannot always be assumed, and it has not always been justified by Secretaries of State. The change in the role of the Lord Chancellor may also have had an impact. I understand the Government’s concern to ensure that there is flexibility in the choice of those to be consulted. It goes without saying that, for example, a convention concerned with family law matters may call for different experts to be consulted than would a convention concerned with commercial law or contractual matters. That is why my amendment does not seek to impose on the Secretary of State a list of those who must be consulted. It lies behind what the noble and learned Lord said about the Government’s reasons for not setting out such a list, but I and others are also concerned to ensure not only that the choice of those to be consulted is clearly objective, impartial and apolitical but that the organisation, management and follow-up of the consultations are thorough and meaningful.

Accordingly, I understood the noble and learned Lord to be offering, on behalf of the Government, assurances to the House in that connection. I invite him to confirm, first, that consultation on the implementation of a private international law agreement will generally be in public, and that the Government will announce their intention to consult and invite people to offer their views. Secondly, will he confirm that if the Government decide that such a consultation will not be in public they will publicly explain that decision and the reasons behind it? Thirdly, will he confirm that the Government will report on the outcome of such consultations, if not in a separate report, then, as he envisaged, in or in a document accompanying the Explanatory Memorandum that comes with any proposed regulations made under the powers in the Bill? Finally, I understood the Minister to be offering an undertaking, which I ask him to confirm, to ensure that the explanations in or accompanying such explanatory memoranda will be thorough and detailed, setting out whom the Government have consulted and a fair and balanced summary of the views expressed in any such consultation.

Such assurances and undertakings, if confirmed in the terms I have set out, would offer reassurance to those of us who are concerned that all such consultations will be the genuine safeguards we need them to be. I beg to move.

[The Deputy Speaker (The Earl of Kinnoull) (Non-Afl)]

The following Members in the Chamber have indicated that they wish to speak: the noble Lords, Lord Pannick and Lord Berkeley. I therefore call the noble Lord, Lord Pannick.