My Lords, I move my Amendment 1C as an amendment to Amendment 1A. It would leave out subsection (3D) of the Government’s proposed amendment. Leaving out the subsection would mean that the power to extend the sunset period could be exercised only once.
I start by welcoming the noble and learned Lord, Lord Stewart of Dirleton. Throughout the process of this Bill, he has been very engaged, incredibly helpful, very courteous and really engaged in the detail, and we are all incredibly grateful for that. I also compliment him on the presentation he has just made, which was persuasive and clear and addressed all the issues. So I really am glad to see him there and I completely support him—as indeed does the whole House—in relation to the bringing into UK domestic law and ratifying the three treaties referred to, and which remain referred to, in Clause 1 of the Bill.
I remain disappointed and believe it to be very much the wrong policy to give the Government the power to introduce private international law treaties by secondary legislation, as in the amendment introduced by the Commons to the Bill that was sent from the Lords. There was an almost universal view in this House when it was last here that that should not be dealt with by secondary legislation, because it would reduce the quality of private international law agreements that were given the force of law by legislation. The question of whether it was legitimate to do it by secondary legislation was considered after the consideration of evidence, both by the Constitution Committee of this House—and I am glad to see the noble Lord, Lord Pannick, here as a distinguished member of the Constitution Committee—and the Delegated Powers Committee of this House as well. Both considered, in detail, evidence put before by them by the Ministry of Justice and rejected the suggestion that secondary legislation was the appropriate way to deal with such treaties.
I did not find the reasons given by the noble and learned Lord convincing. But he, like his distinguished predecessor, the noble and learned Lord, Lord Keen of Elie, did not really engage on the issue of why to use secondary rather than primary legislation. He asserted that secondary legislation had been used in the past, and, like his predecessor, referred to the 1933 and 1920 Acts. What he was referring to was bringing into force the provisions on enforcement of judgments in those two Acts in relation to individual territories or countries. All that happens by that secondary legislation is that additional countries are added, whether they be Commonwealth countries for the 1920 Act, or non-Commonwealth countries for the 1933 Act. I would not have any objections whatever to something like that. But that is not the power taken in this Bill; it is the whole of the private international law agreement. It would not just be the addition of countries; it would be the whole Foreign Judgments (Reciprocal Enforcement) Act 1933 in the examples that have been given. That will lead to this country having a worse network of private international law agreements than it has had previously. That is bad for this country, because one of the things we are incredibly good at is private international law. That is what makes English law so attractive to commercial institutions. I am disappointed that no real additional arguments have been advanced.
I accept the political reality here; this House has almost universally asked the other place to think again, and the noble and learned Lord, Lord Stewart of Dirleton, is right to point out that it had the opportunity to think again and decided to go ahead. We have to accept that in a case such as this.
In relation to the sunset clause, these agreements take a long time to negotiate and introduce—with the possible exception of us adhering to Lugano, because that may have to be done in a hurry, so I can see that there is a case there. I am interested that the noble and learned Lord, Lord Stewart of Dirleton, has said that if one had Hague-Visby or Warsaw, that would not be covered by this Bill and would, therefore, have to be introduced by primary legislation. I am not sure, then, under what circumstances this is ever going to apply in substance, because the nature of these private international
agreements is that they will have provisions about jurisdiction and enforcement as well as about substantive law—Hague-Visby and the Warsaw convention.
2.15 pm
If there is anything about substantive law, such as what it would be in relation to the return of children—that comes under the Hague convention—as I understand what the noble and learned Lord is saying, although it does deal with jurisdiction and judgment issues, it also sets out a standard of law like Hague-Visby, and that would not be covered. I am grateful for that, because it means that, in significant private international law agreements, primary legislation will always be used. If that is right, although I can see the arguments in relation to Lugano, after the five years are up, the right predilection for the Government would be to say, “That is enough—let us go back to being the country that really looks at private international law agreements.” It would meet the Government’s requirement to deal with Lugano, and it would preserve our primary place in relation to the quality of the private international law agreements we make and the quality of the way we introduce them. Yes, you have to introduce what you have agreed, but there are many other things around them as well. I hope that the noble and learned Lord will be able to assure me that the starting point of the Government would be that one is enough and that there would need to be special reasons why there would be an extension for a second time.
I strongly support the amendment of the noble Lord, Lord Marks, which would place in the Bill an obligation to consult with each head of the three judiciaries of the United Kingdom, on the basis that if you put those consultees on the face of the Bill, they will ensure that the right people in the legal community are consulted. I am, at the moment, at a loss to understand how on earth that could be objectionable. I note that it is said that the Lord Chancellor’s advisory committee on private international law might change its nature. I can see that, but that could probably be dealt with by a power to change the title, to be given to the Minister under secondary legislation. However, I think it is extremely unlikely that the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland are going to have a significant name change within the next 100 years. If they did, no doubt every piece of legislation would be changed to reflect that. So why not?
The noble and learned Lord has done so much for us; the key thing from this side of the House’s point of view is that our quality as a country in this area should continue. There is no politics in this; it is just about getting the right result. I hope that he will reflect and give some assurances that might make the position easier.