I am grateful to the hon. Gentleman for asking that question. The Bill is more likely to affect the former example, rather than the latter. On the specific issue of a criminal offence, that is likely to fall outwith the Bill. There is, of course, a regime for cross-border co-operation in that regard, but that normally sits outside private international law agreements, which tend to be about family issues—whether you have maintenance and enforcement, and which agreements are going to be upheld by which courts—and commercial agreements, for example, between a widget manufacturer in the hon. Gentleman’s constituency and a supplier in another part of the world. This relates to agreements that are already in existence which we want to roll over, but also creates the framework for us to agree and implement future agreements.
The Bill contains two substantive clauses. The first ensures the continued implementation of three Hague conventions on various aspects of private international law that are currently implemented—at least until the end of the transition period—under the European Union (Withdrawal Agreement) Act 2020. The second concerns the implementation of further PIL agreements—the point that I was just making—by secondary legislation. This clause was removed from the Bill in the Lords on Report, but was returned by this House in Committee back in October. Although clause 1 is not subject to the amendments in front of us today, the need to have these provisions in force by 31 December creates an imperative to resolve the outstanding issues without delay.
2.30 pm
Let me update the House on the Bill’s return to the House of Lords, where the Government made a series of amendments to aspects of the delegated powers in the light of the observations that had been made there. Those amendments were accepted by the other place last Thursday, and I am seeking that this place also agrees to this amended version of the power to ensure that the
Bill can be enforced by the end of the transition period. Before I turn to the detail of the changes, let me say that these amendments were made after careful and respectful reflection on the views expressed across the House during the Bill’s passage through this House, and following extensive consultation with peers who had previously challenged the approach taken to delegated powers in the Bill. We recognised that there were peers who had significant experience and expertise in this area, and it was right to take their views carefully into account.
These amendments focus on aspects of the power that have attracted most attention—and, in some quarters, concern—in previous debates. We were pleased to acknowledge the observations of the noble and learned Lord Pannick, who described the Government’s amendments as significant and “constructive”.
I turn to the Lords amendments, which fall into three categories, the first of which is in respect of criminal offences. Lords amendment 4A limits the power so that it cannot be used to create criminal offences punishable by prison sentence. Although private international law agreements generally do not require contracting parties to create criminal offences, there are exceptions. Typically, where there are criminal offences, they are limited in scope. A good example is the current implementation of the Lugano convention in Northern Ireland, which was referred to just a few moments ago by the Chair of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill). This includes an offence that applies where a person who is obliged to pay maintenance under a maintenance decision of a relevant foreign court subject to recognition and enforcement in Northern Ireland fails to update a Northern Ireland court with changes to their address.
This offence is included in the implementation, so the approach to enforcement is consistent whether the maintenance decision was made by a court in Northern Ireland or a relevant foreign court. The Lords amendment would still allow this offence and others like it to be implemented under the delegated power. However, it would require more serious criminal offences—specifically those punishable by imprisonment—to be implemented via primary legislation and the additional scrutiny that that entails. That is the proper thing to do. If we as the state require people to be imprisoned and have their freedoms taken away from them, it is important that Parliament considers that with the utmost care, although I should be clear that the UK has no plans to join an agreement that would require the creation of an offence punishable by imprisonment.
For the sake of completeness, it is important to note that introducing criminal offences by secondary legislation is not of itself unusual. Research by the University of Glasgow recently found that the majority of all new criminal offences are created by secondary legislation, although it is right to say that the authors of that paper did deprecate that. That is the first point, about criminal offences.
The second set of amendments—amendments 1A, 1B, 4C, 4D and 4E—add a five-year sunset period to the regulation-making power that is extendable on a recurring basis by affirmative statutory instrument. Essentially, this reviewable sunset requires the Government to consult on and get parliamentary approval for their private international law strategy every five years. The need to come back to Parliament every five years—if
the Government still consider this a necessary power—does not just provide Parliament with additional scrutiny; the mere existence of the review process will influence how Governments approach using the power and encourage them properly to consider whether the power has met its original policy intent.