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

Robert Neill Excerpts

Committee stage & 3rd reading & 3rd reading: House of Commons & Committee stage: House of Commons & Committee: 1st sitting & Committee: 1st sitting: House of Commons & Report stage: House of Commons
Tuesday 6th October 2020 Commons Chamber

Whatever happens here today, the Bill needs to go back to the other place. I hope that that will provide a breathing space for Ministers to take stock of the issues at hand and agree a compromise position that should, frankly, have been reached by now.

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

I rise in support of the amendments in my name and that of my hon. Friend the Member for Huntingdon (Mr Djanogly). I agree with and adopt the arguments that he has made—in particular, in relation to scrutiny and the inadequacy of the current arrangements under the CRaG Act. That is not satisfactory, and we are going to have to address it sooner or later. As a consequence of leaving the European Union, we will be signing a great number of international treaties and other important international obligations, too—free trade agreements of many kinds. We do have to put in place a fit-for-purpose system, and relying on the Ponsonby convention really is not sustainable at the current time.

I had the pleasure, funnily enough, of knowing the third Lord Ponsonby of Shulbrede—now no longer with us—who was very active in London government, and it was his grandfather who was responsible for this. That is itself indicative of the passage of time. It was in 1924, at the time of the Zinoviev letter, when this convention was put in place, so we really do have to have something—with every respect to the memory of the Lords Ponsonby—that is more fit for purpose for the modern time, particularly because this deals with very important issues and because international treaties have themselves become much more complex and very frequently now have implications for domestic law, as well as international treaty law obligations. Therefore, a new system, as set out of my hon. Friend, for scrutinising these issues is something we have to do at some point.

The one issue that does need to be dealt with quickly—my hon. Friend is right about how long such treaties take—is that we should sign up to the Lugano convention as a matter of absolute urgency. It is one of the unfortunate consequences of our departing from the European Union that we will leave one of the most sophisticated and effective means of civil justice co-operation that exists. That was not probably something very much debated during the referendum, and it is perhaps collateral damage in that sense of the broader decision that was taken, which I have to respect, but it is an important potential loss for British legal services and British business.

That can be made good if we swiftly joined Lugano, and a number of other international conventions, including the various Hague conventions, that go with it. That is why our amendment would in fact place joining Lugano in the Bill, although I will not read out new schedule 1 in detail. There is a real concern among businesses, as well as among lawyers, of a lacuna. At the moment, any British company or individual contracting with someone in the EU or the European Free Trade Association for that matter would, by virtue of our membership of the EU, be part of the Brussels I and Brussels II recast conventions and also of the Rome conventions in relation to domestic family law. Those enable contracts to be recognised and enforced, and judgments of the courts on those contracts to be recognised and enforced automatically in any of the member states. We have that advantage at the moment by virtue of our membership of the EU, carried over in the transition period, but that will go.

Obviously, for any contract to be worth its weight, it has to be enforceable—there is no point in having it otherwise—and that runs across every type of business. There is the significant and highly lucrative development of derivatives and other financial instruments, in which the City of London remains a world leader, and they have to be enforceable should they ever be called upon, as do contracts for manufacturers or the supply of agricultural produce. Contracts for any type of good or service that have an international dimension have to be effectively enforceable, and the same applies for the rights of individuals.

For example, for the British tourist or business person abroad who is injured in a road accident where the defendant—the driver at fault—is resident in one of the continental states, at the moment they can pursue their action in Bromley county court if need be or in the High Court to get a judgment and then have it enforced in France, Germany or elsewhere. Without getting into Lugano, there will be a gap in that person’s ability to seek justice and redress. It would be unconscionable if we should get ourselves into that state of affairs.

There is also the position of the single parent if the father, perhaps, of a child has moved to one of the EU jurisdictions. At the moment, the mother can enforce the judgment of the British family courts for maintenance payments, access arrangements and so on. They can be enforced in the place where the father is domiciled, and she can get her money. Again, it would be unconscionable if we were to have a gap. I know that that is not what the Minister wants, and I know that the Government are striving earnestly to achieve this, but at the moment we do not have it. If I get the chance, I may say more about that on Third Reading, but that is why we think giving statutory provision for Lugano in the Bill demonstrates its importance.

As the negotiations go forward, it is obviously important that we get a deal on free trade in relation to goods and tariffs, but absolutely as important is that we get a deal on judicial co-operation—whether criminal and police co-operation, but also civil co-operation. I hope that our negotiators will be saying, “If we get a deal with the EU, part of that must include the Commission dropping its current objections to the UK joining Lugano.” I hope that that is a negotiating gambit at the moment. The EFTA members are happy for us to join. The EU members at the moment, on the advice of the Commission, are not. This may not be easy, because France and Germany, in particular, have a history of being highly protective towards their jurisdictions in matters of legal services, so it is not something that is to be a footnote for Mr Frost’s agenda—the full Frost agenda, if I can put it that way. It should be central. That is why we think it is sufficiently important to flag it up on the face of the Bill. The Minister knows that, and I think it needs to be stated and put out there, right across Government.

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[Alex Chalk]

But the point is that when we were in the European Union and the European Union had competence to enter into PIL agreements, those would be brought into effect in the United Kingdom via the doctrine of direct effect. What role did this Parliament have? None. We are seeking to introduce much more by way of parliamentary scrutiny—the points, respectfully, that the right hon. Gentleman did not advert to. First, there is the CRaG procedure, and secondly there is the affirmative procedure.

I am at pains to mention that because I talked just a few moments ago about the Israeli agreement and the United States agreement. How did those come into force? Not through the affirmative procedure, not even through the negative procedure, but through an Order in Council. In other words, normal hon. Members—mere mortals like most of the people in the Chamber—had no say at all; just Privy Counsellors. We therefore respectfully say that it does not lie in the mouth of the Opposition to raise these concerns.

My hon. Friend the Member for Bishop Auckland (Dehenna Davison) made the point powerfully that this precedent, which the Opposition understood when they were in government, recognises that there is an opportunity cost. If we start filling up the parliamentary timetable with such legislation, which everyone accepts is not controversial, there is less time and less space for schools, hospitals and transport, etc.

On the point about criminal offences, which was made powerfully by the Chairman of the Select Committee, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), this is an area where it is important to move cautiously. We will continue to reflect on the range of views expressed. I agree with him that an awful lot of offences are created by statutory instruments, but we need to take care, none the less.

[Sir Robert Neill]

I am grateful for the Minister’s observations in relation to criminal offences, and I will take him at his word as far as that is concerned. I know that he will want to take away, perhaps, how we deal with that proportionately.

The Minister refers to the value of the affirmative procedure, as is proposed. That, of course, is used when the PIL treaty first comes into force in our domestic law, but often these treaties or agreements can be modified as they go along. Can he help me with the concerns raised by the Bar Council and the Law Society about how the proposed scrutiny regime would deal with, for example, declarations that are attached to international agreements when we bring them into force? Such declarations can sometimes modify or limit their scope. Secondly, how will we deal with model laws, which are now often used in international trade negotiations?

[Alex Chalk]

If I may respectfully say so, that is an excellent point. That is one of the reasons why we seek to frame things this way, because one of the points my hon. Friend made most powerfully is that there are shortcomings in the Lugano convention. He talked about the Italian torpedo, but there are others, some of which Lord Mance referred to in the other place, for example.

How are we to be expected, in an agile and proportionate way, to address those changes, supposing they are negotiated, if we effectively have to have a new Act of Parliament each time? With respect, that would be wildly disproportionate. It would clog up this place unnecessarily, because there may be very good opportunities to improve those agreements and get them on to the statute book.

Let me deal with this business about Lugano, in amendments 1 to 4, 8 and 9, new clauses 1 and 2, new schedule 1, new schedule 3, new clause 5 and amendments (a) to (g). First, it is premature to put Lugano into the Bill while our application is outstanding, even if amendment 2 specifically includes reference to this being contingent on the UK’s accession. It is also inadequate—this is the point I was adverting to—as additional provisions will be required, mostly of a procedural or consequential nature, to properly implement to Lugano convention into domestic law.

For example, the civil procedure rules might need to be changed. What if Lugano is improved, as I indicated? What, also, if our application is unsuccessful? We may then need to move quickly. With whom will we want to move quickly? As my hon. Friend well knows, Norway, Iceland and Switzerland have published statements of support for our Lugano application, and that may be a route we would want to go down.

The most important point is that we have, and indeed should have, ambitions beyond Lugano. We must stay at the forefront of developments, whether the Singapore convention on mediation, as my hon. Friend the Member for Henley (John Howell) powerfully referred to, or the Hague convention on recognition and enforcement of foreign judgments in civil or commercial matters, also known as Hague ’19.

I advert to the fact that the Bill properly complies with the devolution settlement. We take that extremely seriously. As the hon. Member for Midlothian (Owen Thompson) indicated, both the Scottish Parliament and the Northern Ireland Assembly have passed legislative consent motions for the Bill, and the Welsh Government have agreed that an LCM is not required as PIL is almost entirely reserved. There is a small exclusion for Cafcass Cymru, but that is really it.

The right hon. Member for Tottenham spoke about the super-affirmative procedure, and I accept this amendment was submitted in the spirit of trying to be helpful. I entirely acknowledge that. These proposals are contained within paragraph 4 of new schedule 3, tabled by the Opposition, and there is a similar proposal in new schedule 2, although the SNP new schedule would introduce a super-affirmative scrutiny power only for Lugano. I respectfully make the point, and I appreciate that this is to the hon. and learned Member for Edinburgh South West (Joanna Cherry), but why would we need a super-affirmative scrutiny power for Lugano, which we have been operating for years? That is not very obvious to me.

The bar for the super-affirmative scrutiny procedure has always been high. Let us look at the context. Section 85 of the Northern Ireland Act 1998 provides for a super-affirmative procedure for regulations that deal with changes to reserved matters as set out in that Act. The Human Rights Act 1998 provides for such a procedure for remedial orders that deal with legislation that has been found to be incompatible—declarations of incompatibility. Under the Public Bodies Act 2011, a super-affirmative procedure is needed for orders that abolish, merge or change the constitutional funding arrangements. I dealt with those quickly, but the point is that super-affirmative procedure is reserved for matters of key constitutional importance. We must not forget that in the case we are discussing, we have the additional CRaG brake.

If we drill into the detail of super-affirmative procedure, it creates additional stages, but I query whether it results in improvements to the proposed regulations. Instead, it simply delays. It would also create a potential discrepancy between England and Wales and the devolved jurisdictions. One could easily imagine a situation whereby two litigants lived five miles either side of the border and the cases were dealt with differently, to the disadvantage of a litigant in England, because the Scottish Parliament had got on with it and simply brought an agreement into force. That would be unsatisfactory. I do not suggest that that is what the right hon. Member for Tottenham intends, but I fear it could be a consequence.

New clauses 1, 6 and 7 deal with laying the report. New clause 6 would require a report to be laid in Parliament before the UK ratifies an agreement. New clause 7 would require the Government to lay a report in Parliament for 10 House of Commons sitting days before a draft statutory instrument was laid. I accept the need for clear and detailed explanations, but it is not immediately obvious that new clause 7 would add anything to the current process. All SIs are already accompanied by an explanatory memorandum. I dug one out to prepare for the debate. It deals with the Civil Jurisdiction and Judgments Act 1982. It runs to 18 pages and is very detailed and helpful. Other than requiring the information 10 days earlier, I cannot see that new clause 7 would make a difference. We should not forget that an SI is typically laid several weeks before the House gets to debate it. None the less, I accept the point that my hon. Friend the Member for Bromley and Chislehurst made about the need to reach out to distinguished practitioners and jurists. It is right that we should do that, and I am keen for that happen.

I am very grateful for the consideration of the Bill in Committee. I share the desire to ensure that PIL agreements that we wish to join and domestically implement are appropriately scrutinised. All Governments must balance the need for scrutiny with the need to move in a timely manner to ensure that British citizens can enjoy the benefits of PIL agreements as soon as it is properly possible to provide for them. Those benefits are significant, and if the House gets the balance wrong, our citizens will be denied them by an unnecessarily labyrinthine process.

The proposed procedures provide for scrutiny of a delegated power using an affirmative SI together with the CRaG procedure to implement the agreements. That is a balanced and proportionate approach.

[Sir Robert Neill]

Before the Minister sits down—

[Alex Chalk]

Just in the nick of time.

[Sir Robert Neill]

Perhaps the Minister can help my hon. Friend the Member for Huntingdon (Mr Djanogly) and me. I understand what the Minister is saying, and none of us wishes to create a labyrinthine process. Does he accept that it may be necessary to learn from experience with CRaG as we go forward? Are the Government closing their mind to the idea that we could seek refinements and improvements to the CRaG process as we operate it? The answer might help us.

[Alex Chalk]

I thank my hon. Friend for raising that point. There is no doubt that the CRaG process is evolving and maturing. Proper points have been made about the need to consider it and how it should evolve over time. I certainly do not want to shut my eyes or my ears to my hon. Friend’s proposals.

The Bill takes a balanced and proportionate approach. I therefore invite hon. Members to support the Government amendments and reject the remainder.

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[Sir Robert Neill]

We have had a constructive set of debates on the Bill, and I pay tribute to all Members for the approach that has been adopted. I pay particular tribute to the skill and elan with which the Minister has steered the Bill through the House: he is a credit to our mutual profession. He is certainly no Henry VIII—and I say that in a good way—but of course he and I are both proud members of the Honourable Society of the Middle Temple. The nearest Tudor connection I can find is that the first Middle Templar to be Lord Chancellor was Lord, previously Sir, Richard Rich, for those who follow “A Man for All Seasons”. I am not sure whether that is a good sign, but I do not think that the Minister is a Richard in terms of personal integrity, since he was certainly one of the most successful Lord Chancellors but also one of the most corrupt. We have moved forward a great deal, and I suspect that the legacy still entertains us in Middle Temple with the wine cellar.

The Minister has done a great job on the Bill, and I hope he will reflect on some of the comments made, none of which were aimed to obstruct or make life difficult for the Government, because we all share the objective. I welcome the tone adopted throughout by the shadow Secretary of State, the right hon. Member for Tottenham (Mr Lammy), and those on the SNP Front Bench. It is important for the country’s sake that we get this right.

It has been rightly observed that this is not just about dry technical law. When I went to the London School of Economics in the ’70s, it had an international law module, which most of us avoided. It had just introduced a European law module, and somebody said, “There’ll never be much work around that,” which shows how things can be got wrong. As we exit a period of 40 or more years during which EU law has been an increasingly important part of our domestic and international legal systems, it is all the more important that we have a proper means of getting private international law agreements on a sound footing. I think we all share the Government’s objective in that.

I suspect that this may not be the last we hear of the Bill, either in the other place or here. I hope we will find a constructive way forward that meets some of the concerns raised in the other place about how scrutiny is dealt with. I welcome the Minister’s longer-term commitment to look at those issues. I hope he will take away the criminal sanctions aspect in particular, and the need to look at how CRaG operates.

May I give the Minister a further reading list, so to speak? As well as the Mental Capacity Act 2005 and the other things for a wet Friday, perhaps he could look at the Law Society and Bar Council briefings on how we deal with the two issues that I flagged briefly in Committee in relation to our having a proportionate and effective means of scrutinising the declarations that are frequently attached to international legal agreements. International agreements are often adopted by country with a declaration that modifies or limits the extent of its application to varying degrees. The Bill provides for the affirmative procedure for the initial adherence to the treaties, but it might not, as far as we can see at the moment, cover how we would properly scrutinise the declarations, which could have a significant impact.

An example of that, if the Minister wants it, is that we are committed to seeking to join in our own right the Hague choice of court convention 2005, which is an important document. When we joined it as part of the EU, the EU opted to exclude insurance contracts from that agreement. The provisions that we made following the withdrawal agreement and the memorandum on delegated powers that accompanies this Bill suggest that we will continue to exclude insurance contracts from it.

We need to think about why that is and how we will deal with scrutiny of changes to that, because the potential effect of that is to deprive court judgments based on excluded contracts of the right to be enforced by the 2005 convention when we hopefully sign up to it. That would leave a considerable gap in a very important sector of the British economy. Insurance and reinsurance markets are of real significance to the financial world, and we need to have a means of adjusting the position if that is required and taking on board those concerns. That is precisely the area where it is suggested that we should be talking to the experts in not only private international law but the insurance sector. I have already declared my interests in relation to these matters, but it is important that we take that as an example.

A similar issue arises in relation to how we will deal with model laws. Model laws are not international conventions that impose rights and duties between contracting states, but they are what are sometimes termed agreed soft law provisions, which are often modified substantially before they are given effect in domestic law. They are important, none the less, and they are a growing area of activity, so I hope the Minister can think about the mechanism that we have to ensure that they are properly scrutinised, as well as being brought in timeously. I flag those up as examples of what we need to do. It is certainly important that we do not just stop at joining Lugano. Whether it is on the face of the Bill or not, I know that the Minister and the Government are committed to joining it, and that is an important first step, but as we all know, there are other conventions that it is most important we seek to join, some of which have already been mentioned. I hope that we will push on swiftly, for example, to implement and ratify the 1997, 2005 and 2007 Hague conventions, because between them they would provide a suite of the vital civil and family law co-operation measures that we want to see continue after the transition period.

Of course, we also hope that the Government will ratify and implement in England and Wales the 2000 Hague convention on the international protection of adults. It has already been brought into force in Scotland but not in England and Wales, and it seems bizarre that a vulnerable adult could be treated differently if they were in Gloucester as opposed to Glasgow. That implementation would, for example, enable us to deal with important issues relating to vulnerable adults such as people who are subject to powers of attorney or who are under the jurisdiction of the Court of Protection and who might have overseas assets or overseas properties. Not having continuity of legal recognition of the judgments and contracts that are entered into could make it difficult to deal with those persons’ affairs.

These are techie issues, but they affect real lives, so the technical is not insignificant or without a human dimension. I hope that, as we go forward on a constructive basis, we can ensure that, having decided to leave the EU and branch out into broader areas of economic activity, the Government will make a concerted effort, as both the Law Society and the Bar Council have called for, to take a lead in selling, maintaining and building on the UK’s position as a jurisdiction of choice. Tens of thousands of jobs depend on it, as does billions of pounds-worth of economic activity, and it is in our fundamental national, strategic, economic interest to do this. With this Bill on the statute book, I hope that that is the most important thing the Government take forward as a matter of high policy in our negotiations to, hopefully, exit the EU with a deal, and in future free trade agreements.

So far, it has been tough to get free trade agreements to deal with services, and legal services in particular, but we have a potentially strong asset in our legal system and in the integrity and standing of our judiciary, which we should never pillory. No politician should ever knock lawyers for the sake of it, because ultimately, respect for the integrity of the system is fundamental. I know that the Minister and the Lord Chancellor share that view, and I hope that the Bill will give us an opportunity to build strongly on that.