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

Lord Thomas of Gresford Excerpts

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

[Lord Falconer of Thoroton]

This is, in effect, a probing group of amendments, repeating many of the arguments that we discussed on day one in Committee, and the amendments do two things. Amendment 19 would delete the power of the regulation-making authority to create, amend or extend a criminal offence. Amendments 20 and 21 say that the regulation-making power should be subject to the super-affirmative resolution procedure in the UK Parliament; and, in particular, that before any such instrument was made final a consultation would have to be undertaken with the Lord Chancellor’s advisory committee on private international law and the European Union Select Committee of the House of Lords.

I make it clear, as I did on the previous occasion, that I am not in favour of this order-making power at all. I refer to Amendment 19 simply to indicate the width of this power, which includes the making or changing of criminal offences. In relation to the super-affirmative procedure, again, I am against it. There should not be that power at all. It gives me an opportunity, though, to make the point that the Lord Chancellor’s advisory committee on private international law has been an important source of advice over a long period to the Lord Chancellor and the Ministry of Justice on private international law agreements. It was not referred to at all in the suite of maybe a dozen statutory instruments introduced under the withdrawal Act, in the wake of us changing our private international law arrangements with the European Union. That led to a great loss in the preparation of those statutory instruments. I very much hope that the Minister will give an under- taking that in any subsequent changes in private international law, the Government will consult unquestionably the Lord Chancellor’s advisory committee and, as much as possible, the European Union Select Committee of this House. I beg to move.

[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.