My Lords, I begin by thanking noble Lords for their thoughtful and erudite contributions. I thank them also for their courteous and warm words of welcome to me at the Dispatch Box. I echo the words of the noble and learned Lord, Lord Falconer of Thoroton, in a phrase that I think will resonate with the entire House and with which none of us would disagree: our imperative is the preservation of this country’s good name and its standing in private international law matters.
The matters raised in the course of our discussions overlapped to some extent but I will, if I may, do my best to treat the contributions to the debate in the order in which they were made. First, I shall address the comments of the noble and learned Lord, Lord Falconer of Thoroton, in relation to Amendment 1C, which omits some text from my Amendment 1A, the effect of which would be to allow the sunset period—which my amendment allows to be extended for five years by affirmative statutory instrument—to be extended only once.
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The Government have been clear about how we wish to use this power over the next few years. As your Lordships have heard, this includes Lugano or alternatives with Norway, Iceland and Switzerland, should our application be unsuccessful, as well, potentially, as the Singapore convention on mediation and the 2019 Hague judgments project, following consultation. If the Government ask Parliament to extend the power in five years, we will need to make our case again and have regulations approved in both Houses. To make a persuasive case, the Government will provide similar clarity on how we intend to use the power over the next five years and for every five-year period thereafter, should we pursue further extensions. Clearly, I cannot provide that detail now but, by the time such an extension is requested, it will be available and Parliament will be able to consider how the power has previously been used.
Essentially, this reviewable sunset requires the Government to consult on, and obtain parliamentary approval for, our strategy in this area of law every five years. I submit that this gives Parliament more oversight of government policy in private international law than it has ever had before. The need to come back to Parliament at five-year intervals with a plan for how the power will be used will act as a powerful regulator.
I mention the words of the noble and learned Lord, Lord Mance, on the ability of our procedures to properly scrutinise statutory instruments brought before this House and the other place. I respectfully submit that the Bill is not an occasion for a referendum on those powers generally, irrespective of the views that Members of this House have of their efficacy.
I do not know what the situation will be like in nine years. If this power is deemed to have been necessary only in the years following our departure from the European Union, the Government could decide not to extend the power any further or Parliament could refuse to approve such an extension. By then, this power may be widely accepted as proportionate and appropriate. If that is the case, requiring Parliament to pass new primary legislation to extend an existing uncontroversial power seems highly undesirable, especially if the delay while parliamentary time is found for primary legislation leaves, for example, a family who would benefit from a new agreement about child maintenance or custody across borders in a worse position than they would be in if the Government could move quickly to implement such an agreement by secondary legislation.
My view is that the power represents a balanced and proportionate approach to implementing these uncontroversial and technical agreements. The sunset
amendment in my name represents a significant concession by the Government to take account of the concerns of this House, while still retaining some aspect of the flexible approach that we originally sought, so that we balance constitutional concerns with the needs of those who depend on these agreements. I urge the noble and learned Lord to consider withdrawing his amendment.
I turn to the views of the noble Lord, Lord Marks, who tabled Amendment 4F, which adds a requirement for the Secretary of State to consult specified persons. This overlaps with matters raised by the noble Lord, Lord Pannick. It specifies that the Secretary of State should consult the Lord Chief Justice, the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland ahead of using the main delegated powers in the Bill. I recognise that the intent behind this is to ensure that the consultation process is robust, and that is clearly important. We consider that the Government would greatly value the opinions of these persons on these matters, but we believe it unnecessary to stipulate in the Bill that they should be consulted. I am concerned, because there are a number of reasons why this may not work in practice.
It is worth making the point that there may be specific subject areas within private international law, such as disputes around child abduction, in which not only the legal profession would have a stake. I fully appreciate this—I see the noble and learned Lord across the Table nodding. To echo the point of the noble Lord, Lord Pannick, it may be difficult to conceive of a situation in which the views of those specified senior judges would not be considered important, so that they were not consulted. But it may be more appropriate for the Lord Chancellor to take the views of third-sector organisations. The original drafting of the amendment allows for flexibility when this is the case.
While private international law is not ordinarily a subject on which the Government undertake a full public consultation, such as was mooted, there could be situations in future where that would be proportionate. There may also be situations when the power is used to bring forward a minor technical statutory instrument to update the terms of an agreement. My colleague Minister Chalk, in his speech in the other place, referred to an Order in Council that the previous Labour Government had made in 2003, simply updating the names of courts captured by an agreement between the United Kingdom and Israel. If such an instrument were brought forth under this power, we would anticipate the level of consultation on it being proportionate, compared to situations when we are implementing a new agreement. It would not require the views of the senior judges specified by the noble Lord, Lord Pannick, and other noble Lords. It remains important that the Lord Chancellor can retain the flexibility to consider whom it is appropriate to consult on a case-by-case basis.
In addition, this amendment would require us to consult the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland in every case. As the delegated power is currently drafted to respect the devolution position and allow for the devolved Administrations to bring forward their own implementing legislation should they wish to, it may be that, in some circumstances, this Parliament and the
Secretary of State are concerned only with implementation for England and Wales. In those circumstances, I am not sure that consultation with the judiciary of Scotland and Northern Ireland would be appropriate. In the exercise of their devolved competence, I am not sure that the Scottish Parliament or the Northern Ireland Assembly ought to be bound to consult the judiciary of England and Wales—enlightening and important as such consultation may be.
Further, since the start of this process, the Government have been clear that this power would be used to implement the Lugano Convention. The importance of this has come up several times during debates on the Bill. There is widespread agreement that it needs to be implemented promptly if the United Kingdom’s application is to be successful. To that end, we have already discussed the matter at length with the Ministry of Justice’s international law committee and have shared a draft of the proposed implementing regulations with, and received views on them from, the Lord Chancellor’s advisory committee on private international law, which includes representatives from both Scotland and Northern Ireland, and sitting and former members of the judiciary. This has provided useful feedback. A requirement to go back to these judges would cause unnecessary delay, increasing the gap when the Lugano Convention is not in force—a situation that we all want to avoid. What would happen if, for instance, a consultee suggested by the Lord Chief Justice failed to respond? It is not beyond the realms of conjecture for that to be the case with third-sector organisations or specific learned individuals. Any of that could result in delay.
While I acknowledge that the intent behind the noble Lord’s amendment is to ensure that any consultation is robust, and is therefore entirely reasonable, for the reasons I have outlined, I am concerned about how it would work in practice. I consider it to be unnecessary if the objective is simply to ensure that the Government consult in an effective manner, and I therefore respectfully ask him to withdraw his amendment.
I thank the noble Lord, Lord Berkeley, for his comments and for meeting to discuss these issues with me and my ministerial colleague Minister Chalk last week. I endorse the noble Lord’s views on the importance of the rail industry and of the Luxembourg protocol. I suggest that the analogy he drew of disappearing railway carriages was an example of him speaking figuratively. The application of the protocol is narrower than that. The Government consider this to be an important issue and are thinking about how best to implement the protocol in the United Kingdom. As we discussed last week, we consider that the power in this Bill is too narrow to fully implement the protocol, although the provisions in applicable law would be within its scope. I acknowledge once again his excellent work in championing this important issue and assure him that the Government are fully seized of his views and of the importance of the matter he has raised. It would provide, as it is intended, things to assist the smooth and seamless flow of trade across borders.
The noble Lord, Lord Pannick, raised a number of issues, and if I overlap in the comments I am making, I apologise to the House. I confirm that the obligation to consult will require us to take account of all the
views expressed, including where people might express a view that primary legislation is appropriate to deal with a particular issue. The Government’s approach throughout on the delegated power has sought to be pragmatic and not dogmatic. We want to be proportionate in our implementation of PIL agreements but, where consultees make strong arguments about the appropriateness of primary legislation for a particular agreement, we would listen and consider them in the proper manner.
I shall go back to a matter raised by the noble Lord that I may have already touched on, which is the identity of consultees. As he does—I think it is universal across the Chambers—I envisage that the views of the senior judiciary would be sought on these matters. We have already shared the draft of a statutory instrument to implement Lugano with the Lord Chancellor’s advisory committee on private international law and have discussed the issue at length with the international law committee at the Ministry of Justice, both of which contain representatives of the judiciary. The matter of whether concerns were raised at that stage by those representatives is perhaps neither here nor there, but the consultations took place and in neither case were concerns raised about the use of secondary legislation for the matter. As I think I said earlier, I can envisage a situation where there may be very technical procedural updates to a convention that do not require a senior judicial view on their implementation, such as updating the name of a foreign court that is referred to in an existing agreement. However, where a statutory instrument under the power implements a new agreement or makes material changes to an existing one, I agree that the views of the senior judiciary would be sought. To put the noble Lord’s point shortly: why not then simply stipulate in gremio of the Bill that the judiciary should be consulted? I reiterate my point that that might add extra bureaucratic weight to the burdens of its office and would not promote the flexibility in this exercise which the Government seek to accomplish.
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The noble Lord, Lord Pannick, also asked about the terms of a report that would be issued at the conclusion of the consultation process. This matter was raised by other noble Lords as well. While it is not the Government’s intention to publish a separate report summarising the consultation responses, we intend to provide Parliament with a detailed explanation of the persons with whom we have consulted and a fair and balanced summary of the views they have expressed within the Explanatory Memorandum that accompanies any statutory instrument made under the power. Of course, were that summary of those views to misrepresent them to any extent, that could immediately be brought to the attention of this House and the other place. That is the right approach. It will give Parliament the opportunity properly to consider the exercise which the Government have undertaken and to scrutinise and hold to account where appropriate. Those remarks also echo the views of the noble Lord, Lord Thomas of Gresford, in his point relating to the effectiveness of the consultation procedure. I respectfully disagree with the proposal that this would permit the Government to make a mockery of the sunset clause. As I have
stated, the procedures that I have outlined provide Parliament as a whole with a greater opportunity to scrutinise such measures than has been afforded for many a year.
In spite of my initial remarks, I appreciate that I have taken speakers out of order. I turn finally to the views of the noble and learned Lord, Lord Mance, and the valuable tour of the private international law horizon that he gave, which were most welcome. On the matter of the period of five years, the approach that the Government seek to take and urge on the House will take into account the fact that, notwithstanding that tour of the horizon of private international law, we cannot know precisely what lies ahead. The five-year periods permit the Government to see measures as they arise, to see the approach of conventions as they arise and to act accordingly in relation to formulating what the country’s policy ought to be. In those circumstances, we take the view that the five-year sunset period with the renewable extension permitted would give the Government the opportunity to give full and careful consideration to private international law agreements which they may decide would be beneficial for the United Kingdom to join. It would also provide ample time to fulfil our obligation in statute to consult relevant stakeholders.
The Ministry of Justice is in the process of formulating a 10-year strategy for private international law. The five-year renewable sunset would align more closely with our long-term strategy and enable the Government to be more agile in negotiations with our partners around the world. That sunset clause which the Government need to bring back to Parliament every five years would, as I have said, act as a good regulator to ensure that they are achieving their aims of re-establishing an effective framework of private international law agreements in the years to come. It is important that the Government can do this without the current pressures, but it is right that Parliament also has the opportunity to hold the Government to account, should they fall short.
Before I conclude, I remind the House that we need to agree a version of the Bill so that Clause 1 can be enforced before the end of the transition period. This clause provides a clear and simple approach to the implementation of three vital Hague conventions which affect the lives of people in the United Kingdom. Because of this, the Government’s priority is to avoid an extended back and forth between here and the other place. That does not mean, however, that we are trying to avoid the valuable scrutiny that the ping-pong process can offer.
I am grateful once again to your Lordships for your time and consideration of the Government’s proposals. The approach we have taken in these amendments reflects this. We have engaged with a number of your Lordships ahead of the Bill returning to this Chamber. We have sought to listen and have tabled the suite of amendments that has been considered today. We submit that this is not a paltry offer of the bare minimum which would address on any level at all the principal concerns your Lordships have raised. The amendments are a genuine attempt to reach a meaningful compromise in the areas that have raised most concern. I am grateful to the noble and learned Lord, Lord Falconer
of Thoroton, and to others for their acknowledgement of the importance of removing matter relating to the criminalisation of offences punishable by periods of imprisonment.
The amendments seek to address the particular concerns around appropriate scrutiny, while protecting the Government’s core policy objective. We could send this Bill back to the Commons, only to have it come back to us once more to make final tweaks to these amendments, but I urge your Lordships to see the bigger picture. This package of amendments is balanced and proportionate. We must consider not just the constitutional issues but the impact these agreements have on families and businesses. We need to pass this Bill, and time is moving on. This is an opportunity for us to send the Bill back to the other place with a clear signal that this House has balanced pragmatism with principle and found an effective compromise that it should support. I beg to move.