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

Lord McNicol of West Kilbride Excerpts

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

[The Deputy Chairman of Committees (Lord McNicol of West Kilbride) (Lab)]

My Lords, the Virtual Committee will now resume. We come to the group beginning with Amendment 3. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. It would be helpful if anyone intending to say “Not content” when the Question is put made that clear in the debate. It takes unanimity to amend the Bill in this Committee, which cannot divide.

Amendment 3

Moved by

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[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.

[The Deputy Chairman of Committees]

One speaker has indicated that they wish to come in on the amendment.

[Lord Wallace of Tankerness]

My Lords, I note what the Minister said about fears that something might be imposed on Scotland or Northern Ireland, but as I read it, Scotland or Northern Ireland could actually impose something on England. He then went on to say that there would of course be discussion, negotiation and consultation. If that is the case, why does it not say so on the face of the Bill? Would he be minded to give further thought to these provisions and how they are drafted to secure some degree of consultation, which does not, I would argue, detract in any way from the devolution settlement?

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Amendments 4 to 6 not moved.

[The Deputy Chairman of Committees]

We now come to the group beginning with Amendment 7. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. It would be helpful if anyone intending to say “Not content” when the question is put made that clear in the debate. It takes unanimity to amend the Bill in this Committee, which cannot divide.

Amendment 7

Moved by

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[Lord Foulkes of Cumnock]

My Lords—

[The Deputy Chairman of Committees]

As no further speakers have indicated that they wish to intervene on this amendment, I call Lord Foulkes.

[Lord Foulkes of Cumnock]

I apologise for jumping in a little prematurely.

This has been a very useful debate and the Minister has answered a number of my questions. It is awfully useful that he is taking away the third point raised by the noble and learned Lord, Lord Hope, about Ministers of the Crown. But the debate has highlighted that there is a difference of opinion between the noble and learned Lords, Lord Wallace and Lord Hope, on the one side, and the noble and learned Lord, Lord Keen, on the other. Now, it is not unusual to find different opinions among two or three lawyers, but it highlights that there may be a problem around whether this is to be dealt with by the Secretary of State, after consultation with and the permission of Scottish Ministers, or directly by Scottish Ministers. I hope that is something that can be looked at further.

Nevertheless, in the light of the explanations given, I beg leave to withdraw my amendment.

Amendments 4 to 13 not moved.

[The Deputy Chairman of Committees]

We now come to the group beginning with Amendment 14. I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. It would be helpful if anyone intending to say “Not content” when the Question is put makes that clear in the debate. It takes unanimity to amend the Bill in this Committee. This Committee cannot be divided.

Amendment 14

Moved by