Private International Law (Implementation of Agreements) Bill [HL] Debate
Full Debate: Read Full DebateLord Stewart of Dirleton
Main Page: Lord Stewart of Dirleton (Conservative - Life peer)Department Debates - View all Lord Stewart of Dirleton's debates with the Scotland Office
(3 years, 11 months ago)
Lords ChamberThat this House do agree with the Commons in their Amendment 1, and do propose Amendments 1A and 1B as amendments thereto—
My Lords, I will speak to Commons Amendments 1 to 5 and Amendments 1A, 1B and 4A to 4E, which are in my name.
Private international law is a technical area of law, but it is important to people and businesses that become involved in legal disputes with a cross-border aspect. A family may need to enforce a maintenance decision when one parent moves abroad, or a small business that has been left out of pocket by a foreign supplier may need to seek redress. Agreements on private international law create reciprocal rules to enable UK businesses, families and individuals to resolve these difficult and challenging situations. They prevent multiple court cases taking place in different countries and allow for the decisions of UK courts to be recognised and enforced across borders. All of this helps to reduce costs and anxiety for the parties involved.
The House will recall that this Bill contains two substantive clauses. The first implements three key Hague conventions which currently apply as a consequence of our former membership of the European Union, allowing us to continue to co-operate on important aspects of private international law with existing partners. The second establishes a delegated power to implement further agreements on private international law now that we have regained full competence in this area from the European Union. This stood part of the Bill on its Lords introduction but was removed on Report. Commons Amendments 1, 2, 4 and 5 simply return this clause, and related provisions, to the Bill.
There is also Commons Amendment 3, which I hope will be uncontroversial and will not address in detail. It adds a permissive extent clause to the Bill allowing the implementing power to be extended to the Isle of Man; this is at the request of the Isle of Man Government. This is the standard approach to extending UK legislation to the overseas territories or Crown dependencies and in this case does not directly affect the United Kingdom. My noble and learned friend Lord Keen spoke in detail on this amendment back in May but was unable to move the amendment at the time.
The agreements implemented under Clause 1 are widely supported by interested parties in the legal and finance sectors, and indeed by Members in this House and the other place. The 1996 Hague Convention aims to improve the protection of children in cross-border disputes. It deals with issues such as residence of and contact with children whose parents live in different countries. The 2005 Hague Convention on Choice of Court Agreements aims to ensure the effectiveness of exclusive choice of court agreements between parties to international commercial transactions. The 2007 Hague Convention provides rules for the international recovery of child support and spousal maintenance. The Government have already taken the necessary international steps to ensure our continued membership of these agreements following the end of the transition period.
It is vital that the UK’s membership of these agreements continues seamlessly from the end of the transition period. This means that Clause 1 needs to be in force within a few weeks. Although the implementation of the Hague conventions contained in Clause 1 is agreed and not subject to further amendments, the timing aspect creates an imperative for us to agree a way forward on the delegated power promptly.
Before I address the amendments, I will clarify the types of agreements that can be implemented under the delegated power. The power only covers the implementation of international agreements on a very narrowly defined area of law: agreements which are typically uncontroversial and have received widespread support in Parliament in the past. The Bill only allows implementation of private international law agreements which it defines in subsection (7) of the relevant clause. Principally, such agreements cover rules on jurisdiction to hear disputes which raise cross-border issues; which country’s law should apply to such cases; recognition and enforcement of foreign judgments; and co-operation between judicial and other authorities in different countries on these matters. It will not be possible for matters outside the areas covered by the definition of “private international law” in the clause to be implemented using the power.
I know that, in the past, debate on this Bill has touched on topics such as the Hague-Visby Rules, or the 1961 Warsaw Convention on the carriage of goods by air. Let me be clear: these conventions—bar possibly one or two provisions—are out of scope of the power, and if the UK joined these conventions today they would still need to be implemented by primary legislation. This Bill is only concerned with implementing provisions on private international law, not any international agreements on private law matters generally.
Bearing that point in mind, I turn to the amendments. This House has already discussed the delegated power at length and made its views known. However, the clause comes back from the other place with a majority of 149, so, despite the reservations many of your Lordships have and have expressed, I believe we need to accept that such a clause has a place in the Bill and think about how to make it more acceptable to this House. The amended clause will still allow private international law agreements to be implemented promptly. This is important because, following the end of the transition period, there is a need to update the United Kingdom’s private international law framework. The Government have already made clear their intention to join the Lugano Convention. This power minimises any gap in its application if we are able to rejoin that convention and allows us to respond flexibly if we are not.
Implementation of these narrow and technical private international law agreements is largely about drawing down into domestic law detailed rules that have already been agreed at an international level. There is very limited ability for Ministers to deviate from these once the UK agrees to become bound by the relevant agreement. The rules in the agreement will not be amendable, and implementation will often largely be a yes or no question, coupled with making provisions largely of a procedural or technical nature, making the affirmative statutory instrument procedure appropriate. There are well-established precedents for implementing agreements which meet our definition of private international law by secondary legislation. It is not just that much of our current private international law framework was implemented under the powers of the European Communities Act. Even before that, there were many examples of agreements of this type being implemented through secondary legislation. The most notable of these is the Foreign Judgments (Reciprocal Enforcement) Act 1933.
Without this power, each new private international law agreement or update to an existing agreement would require primary legislation. Given the need to update our private international law framework and the current busy parliamentary agenda, such a requirement would be disproportionate and damaging. The intellectual arguments about the extent to which the implementation of international agreements by secondary legislation is constitutionally appropriate are important, but the other House recognised that those arguments are not the beginning and end of this debate. We must remember that these agreements can have a real impact on the lives of the general public, and delays in implementing them and reaping their benefits could negatively impact UK businesses and families. It is my view that the power provides a proportionate solution to an important problem, while retaining a far greater role for Parliament in the scrutiny process than it has had for many years.
All that said, I recognise the many and varied concerns that have previously been raised about this power. Opinions are sincerely held and there is merit to many of the points which have been made. I have sought to familiarise myself with the views your Lordships expressed in the Chamber during earlier debates, and I have listened closely to concerns expressed by noble Lords in engagement with myself and ministerial colleagues in recent weeks. The amendments in my name are a good-faith attempt to find a way forward. Indeed, the noble Lord, Lord Pannick, described the suite of amendments that I have put before this House as “substantial and constructive”. They attempt to strike a balance, sensitive to the aims of the Government and the concerns of your Lordships’ House.
First, Amendment 4A removes from the power the ability to create criminal offences which are punishable by imprisonment. In my analysis of the debates on this Bill, it is clear that this aspect of the power has been the most widely criticised. I certainly see that this is a sensitive issue, and it is right that the Government act cautiously. Although private international law agreements do not generally require contracting parties to create criminal offences, there are exceptions. Some conventions include non-discrimination clauses that require states to apply the same enforcement methods for foreign judgments as are available in domestic cases.
My Lords, it is indeed a privilege to follow the magisterial and extensive exposition of the noble and learned Lord, Lord Mance, whose depth of experience and knowledge I defer to. He referred to the Bill as an intruder, which was an interesting description.
The Second Reading took place on 17 March, just at the beginning of lockdown. The noble and learned Lord, Lord Keen of Elie, outlined the wide scope of the issues raised by the Bill. He said:
“Without private international law agreements, UK businesses, individuals and families would struggle to resolve the challenges they face when dealing with cross-border legal disputes.”—[Official Report, 17/3/20; col. 1439.]
The Minister echoed that opening today but I was surprised when he suggested that the area of law was narrow. As we have heard from the noble Lord, Lord Berkeley, it may encompass disappearing railway carriages in Italy, which has an Agatha Christie ring about it.
The new clause inserted by the other place reflects that width. The Westminster Government or a devolved Government may, by regulation, implement any international agreement so far as it relates to private international law. Further, the appropriate national authority may, by regulation, apply any agreement between the different jurisdictions within the United Kingdom or give effect to any arrangements between the UK Government and the British Overseas Territories, the Isle of Man or the Channel Islands. The emphasis throughout is on any future agreement of whatever nature that involves private international law anywhere in the world or internally within the United Kingdom.
It would appear that the Government have listened to the many voices suggesting that these clauses are excessively wide. Consequently, in response, the Minister today introduced the outline of a sunset clause, limited in the first instance to five years. He said that the urgent need is “ to update the framework” lost by our leaving the EU. The principle that there should be a temporal limit to the exercise of these wide powers in the uncertainties of the present time is clearly a good one. Unfortunately, the Government have decided that, like the British Empire, the sun shall never set upon these provisions. That is the effect of granting power to extend the operative period, not just for a further period of five years but, under proposed new subsection (3D), to renew the power to extend the period indefinitely. It just keeps rolling along. That makes a mockery of a sunset clause; consequently, I am delighted to support the amendment in the name of the noble and learned Lord, Lord Falconer.
As I said at earlier stages of the Bill, our hugely unsatisfactory procedures for passing secondary legislation by resolution, whether affirmative or negative, may be tempered in the interests of democracy by consultation with interested parties. Amendment 4 pays lip service to that concept but, in effect, gives power to the Minister to choose whomsoever he thinks appropriate to consult. The wording is loose, such that although there is a duty to consult if the Minister thinks subjectively that there is nobody appropriate—as the noble Lord, Lord Pannick, said—he does not have to exercise that choice; or, as the noble and learned Lord, Lord Mance, said a moment ago, he could walk out into the street and consult someone.
The purpose of the amendment in the name of my noble friend Lord Marks of Henley-on-Thames is to bring some objectivity to the exercise. The Minister may be surprised to know that the shelf life of a Minister in this and the previous Government tends to be no more than two years, and that Secretaries of State come and go through the various offices of state without necessarily knowing anything at all about their work. As WS Gilbert put it over 100 years ago, the way to advancement may well be to polish up the brasses on the big front door of No. 10.
Consequently, it is only sensible to have the guiding hand of the head of the judiciary in the various jurisdictions. No doubt the Sir Humphreys of this world can suggest that the Secretary of State rounds up the usual suspects, but that is no substitute for the Lord Chief Justice and his peers, who have a lifetime of experience of the legal world and the whole of the judiciary to draw on for advice as to who the suspects should be. As the noble Lord, Lord Pannick, said, it is inconceivable that they should not be consulted in any event.
I support the amendment in the name of my noble friend Lord Marks and, in particular, his call for a full and transparent report on the fruits of the consultation.
My Lords, I begin by thanking noble Lords for their thoughtful and erudite contributions. I thank them also for their courteous and warm words of welcome to me at the Dispatch Box. I echo the words of the noble and learned Lord, Lord Falconer of Thoroton, in a phrase that I think will resonate with the entire House and with which none of us would disagree: our imperative is the preservation of this country’s good name and its standing in private international law matters.
The matters raised in the course of our discussions overlapped to some extent but I will, if I may, do my best to treat the contributions to the debate in the order in which they were made. First, I shall address the comments of the noble and learned Lord, Lord Falconer of Thoroton, in relation to Amendment 1C, which omits some text from my Amendment 1A, the effect of which would be to allow the sunset period—which my amendment allows to be extended for five years by affirmative statutory instrument—to be extended only once.
That this House do agree with the Commons in their Amendments 2 and 3.
That this House do agree with the Commons in their Amendment 4, and do propose Amendments 4A, 4B, 4C, 4D and 4E as amendments thereto—
That this House do agree with the Commons in their Amendment 5.