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.
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In fact, our current approach to the implementation of the Lugano Convention, which the Government intend to reimplement promptly should our application to rejoin as an independent contracting party be successful, includes a criminal offence in Northern Ireland. This applies where a person obliged to pay maintenance under an incoming maintenance decision, subject to recognition and enforcement in Northern Ireland, fails to update a Northern Ireland court with changes to their address. In my view, this is a good example of the “limited” type of criminal offence with which we are concerned and highlights the value of retaining the ability to create offences punishable by, for example, fines. Although I understand the concerns that some may have about even this type of criminal offence being created by secondary legislation, there are in practice a large number of offences created by secondary legislation and retaining this aspect of the power, albeit in a more restricted form, is not out of step with other legislation.
The effect of the amendment, therefore, would be to require any provisions in a private international law agreement that entail the creation of criminal offences carrying a custodial sentence to be implemented by primary legislation. This will provide Parliament with significant additional scrutiny of this important matter. I hope that this addresses a major source of concern about the power.
Secondly, Amendments 1A and 1B, and 4C, 4D and 4E, add a five-year sunset period—extendable on a recurring basis by affirmative statutory instrument—to the regulation-making power. This is not an amendment that the Government would ideally have wanted to make to the Bill. We still consider the delegated power to be a proportionate approach that would afford the flexibility to implement future private international law agreements promptly in the years to come. The Government have already been clear about how they intend to use the power over the next few years. This amendment would ensure that if a future Government, of any colour, wanted to extend the five-year period, they would need to provide similar clarity. This approach of providing an extendable sunset period has been taken in other legislation, such as the Trade Bill. It is also, in my view, proportionate for the implementation of agreements of this nature—technical agreements,
agreed at international law level, being drawn down into domestic law. This additional role for Parliament provides significant additional scrutiny and will influence how Governments use the power.
The reviewable sunset period means that the Government can still make necessary changes to the UK’s framework of PIL agreements over the next few years and maintain their ability to respond flexibly to any uncertainty following the end of the transition period. However, it would also provide the Government with an opportunity to review the use of this power in the future without the current time pressures and to take a reasoned decision on whether it should be terminated. If the Government believe at that stage that the power should be extended, they will need to make their case to Parliament and have the regulations approved in both Houses. I also remind colleagues that a statutory instrument to extend the power would still be subject to an obligation to consult—something I will come on to talk about in more detail shortly. I believe that this approach strikes the right balance between flexibility and scrutiny and offers an effective solution to many of the concerns raised. To my mind, it represents a workable compromise between the position of the Government, as set out, and the principal concerns that the House had aired.
The third amendment, Amendment 4B, puts an obligation on the Secretary of State to consult before using the implementing power or extending it for a further five-year period. My ministerial colleagues have made it clear at various stages of the Bill’s passage that they greatly value the views of experts in this area. The current Lord Chancellor reconvened the advisory committee on private international law, chaired by the noble and learned Lord, Lord Mance, and I know that both the Lord Chancellor and Minister Chalk have engaged regularly with other members of the legal sector through the Ministry of Justice’s International Law Committee. Consultation is our usual practice, and indeed the Ministry of Justice has already consulted the advisory committee on draft regulations that it may make under the power to implement the Lugano Convention 2007, should our application to rejoin be successful. However, having reflected on the views expressed to me since I took on responsibility for the Bill, I have concluded that putting on the face of the legislation an obligation to carry out such consultation, before making regulations under the delegated power, is a proportionate and appropriate step.
This obligation to consult is drafted in a general way so as not to refer specifically to any groups or bodies. This is because, while the advisory committee, for example, contains a significant wealth of expertise in the field of private international law, it is not a statutory body. Therefore, to refer specifically to it in legislation would not be appropriate. Equally, referring to specific parliamentary committees is not without risk, as interested committees may change or be renamed as time passes. Parliament would already have an opportunity to scrutinise draft affirmative statutory instruments to be made under the power and, even without naming them in the legislation, the Government would always consider most seriously any representations made by parliamentary committees. The same applies
to other named consultees that some may suggest adding to the Bill. The Government will be under a duty to make sure that the consultation carried out is appropriate.
I also remind the House that a statutory obligation to consult carries with it a requirement to take due account of the representations received. I can give an undertaking that the Government will meet that requirement. We will provide a thorough and detailed explanation of the consultation that has taken place, setting out not only those with whom we have consulted, but a fair and balanced summary of the views expressed. That will be set out in the Explanatory Memorandum that must accompany any statutory instrument laid before this House. This will give parliamentarians and any relevant parliamentary committee an opportunity to scrutinise the consultation that has taken place and the way the Government have taken account of the views that have been expressed.
I am satisfied that this approach strikes the right balance between ensuring that the Government take account of the views of the relevant experts while allowing for a flexible approach to engage with the most appropriate interested parties in each specific case. I hope that your Lordships will agree that it demonstrates that the Government are sincere in their intent to engage Parliament and other stakeholders in the process. In my view, when taken as a whole, these three amendments represent a significant amount of extra scrutiny for Parliament. I hope that the House will consider them a compromise sensitive to the aims of both sides. I beg to move.