Amendment 14

Private International Law (Implementation of Agreements) Bill [HL] - Virtual Committee – in the House of Lords at 5:45 pm on 13th May 2020.

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Lord Foulkes of Cumnock:

Moved by Lord Foulkes of Cumnock

14: Clause 2, page 3, line 39, leave out paragraphs (a) and (b)Member’s explanatory statementThis amendment and the next in the name of Lord Foulkes are to explore any issues regarding how this Bill might impact on the constitutional position of the Crown Dependencies and Overseas Territories in relation to the United Kingdom.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

My Lords, this brings me to another of my special interests, and one that I have been pursuing for some time. Amendments 14 and 15 concern the Isle of Man, the Channel Islands—namely Jersey, Guernsey, Alderney and Sark—and the dependent territories. I will not mention all of the dependent territories, because those such as the Falklands are not quite so relevant in this context, but they include Gibraltar, the Cayman Islands, Turks and Caicos, the British Virgin Islands and Bermuda. I mention those particularly and not by chance, because many are well known as tax havens and the offshore basis for companies whose principal trade and activities are elsewhere, and not on those islands.

My first question is this. In an earlier intervention, the Minister indicated that there has been consultation with the islands’ authorities, and that they had approved the provisions in the Bill. But with whom were these consultations? Were they with just the governor, or were they with the directly elected councils and parliaments of the various overseas territories and Crown dependencies? It is important that the elected representatives were involved in these discussions. Secondly, what response has there been? I understand from what the Minister said that the islands have all agreed, but was that agreement conditional in any way?

As I said in respect of the earlier amendment, the Bill deals among other things with global contract law. The very helpful background briefing that the Ministry of Justice has produced states that

“the Crown Dependencies may be authorised to conclude their own international agreements by a process of entrustment.”

It would be helpful if the Minister could explain this. The briefing goes on to say that

“the UK retains responsibility at international law for all of their international obligations.”

It is therefore the British Government who have responsibility for ensuring that all these territories maintain their international obligations. How is this done? What monitoring takes place? Who is responsible for it? The Government of the Turks and Caicos Islands have had to be suspended not once but twice. Interestingly, that was by a Conservative Government. I was the opposition spokesman on foreign affairs the first time that the constitution was suspended. The then Minister, Tim Eggar, came to me and asked whether the Opposition would agree. Of course, we did so because of some of the things that were going on in the islands. There has to be very careful monitoring of this.

I turn finally to the choice of court of arbitration. If there is a choice of court of arbitration, could some people—there are the tax dodgers, let us face it; we have seen a lot of it recently—choose the jurisdiction in which their matters were dealt with and the judgments made? I imagine that some of them would love to go to Jersey or to Cayman—just to name a couple arbitrarily.

Some matters here need careful scrutiny. I hope we will get a clear response and undertaking from the Minister that they are being kept under careful and constant review. I beg to move.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General 6:00 pm, 13th May 2020

My Lords, I have nothing to add to the points succinctly made by the noble Lord, Lord Foulkes.

Photo of Lord Adonis Lord Adonis Labour

I have nothing to add.

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

My Lords, I thank the noble Lord for what I understand are, again, probing amendments. As I perhaps explained, the Crown dependencies and overseas territories have a constitutional relationship with the United Kingdom whereby the United Kingdom is responsible for their foreign relations. This means that the Crown dependencies and overseas territories do not generally themselves join international agreements, including agreements in the area of private international law, which we are concerned with here. Instead, an agreement that applies in the United Kingdom can usually be extended to apply also in a Crown dependency or overseas territory. We work with those Crown dependencies and overseas territories to determine where and when they would wish to have a private international law agreement apply between them and other contracting parties. The scope of the United Kingdom’s ratification of that agreement is then extended to them. This means that multilateral agreements extended to the Crown dependencies and overseas territories apply only between those jurisdictions on the one hand and the other contracting parties on the other, but not between the Crown dependencies and overseas territories and the UK. To apply the agreement with the UK, there needs to be a separate mirroring arrangement, as it is sometimes termed. I referred to that in responding to earlier amendments.

The general power within Clause 2(3) allows the United Kingdom to maintain and develop a private international law framework with the Crown dependencies and overseas territories as well as with foreign partners. That is the intent here.

The noble Lord asked about consultation. There was consultation, not with the governors of the Crown dependencies and overseas territories, but with each attorney-general and their officials. My understanding is that they were entirely content with the way in which these provisions are extended to the benefit of the Crown dependencies and overseas territories.

The noble Lord raised the question of entrustment. It does not directly arise in this context, but entrustment is where the United Kingdom essentially consents to a Crown dependency, for example, entering into an agreement at the level of international law. That can sometimes happen where, for example, a Crown dependency wants a reciprocal agreement with a foreign partner.

The behaviour of the overseas territories is monitored by the Foreign and Commonwealth Office and there are instances in which, for the purposes of good governance, the United Kingdom will intervene in the affairs of an overseas territory. The noble Lord himself gave an example in respect of the Turks and Caicos Islands where that has been done.

As regards the choice of court or arbitration that the noble Lord referred to, in so far as I understand his point, I would respond that it is up to parties to a private contract to determine how their disputes, if any, will be resolved. For that purpose, the parties can choose a law or legal system to apply to their private contract and the jurisdiction in which their disputes will be resolved. That is an issue that arises only in the context of their private contract and in the context of what we are dealing with here, which is private international law. At the level of private international law, we are concerned with the way in which other jurisdictions respect that law, respect the choice of jurisdiction and, indeed, then respect the judgment of that jurisdiction when it comes to enforcement.

I hope that answers the points raised by the noble Lord. I thank him for the probing amendments, but I invite him to withdraw Amendment 14.

Photo of Baroness McIntosh of Hudnall Baroness McIntosh of Hudnall Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, I am not aware that any other noble Lords have expressed a wish to speak after the Minister, so I call the noble Lord, Lord Foulkes of Cumnock.

Photo of Lord Foulkes of Cumnock Lord Foulkes of Cumnock Labour

My Lords, I am really very grateful to the Minister for a helpful reply; he has dealt with each of the points that I raised very properly and helpfully. This is an issue that I feel strongly about generally and will need to pursue in another context in the light of that. I beg leave to withdraw my amendment.

Amendment 14 withdrawn.

Amendments 15 and 16 not moved.

Debate on whether Clause 2 should stand part of the Bill.

Photo of Baroness McIntosh of Hudnall Baroness McIntosh of Hudnall Deputy Chairman of Committees, Deputy Speaker (Lords)

I remind noble Lords that anyone wishing to speak after the Minister should email the clerk during the debate. It would be helpful if anyone intending to say “Not content” when the question is put made that clear during debate. It takes unanimity to amend the Bill in this Committee; this Committee cannot divide.

Photo of Lord Falconer of Thoroton Lord Falconer of Thoroton Shadow Spokesperson (Justice), Shadow Attorney General

My Lords, I believe that Clause 2 should not stand part of the Bill. We have discussed these matters at considerable length today. I simply make the point that it will be constitutionally unprecedented if we end up in a situation where the Government have complete power in relation to private international law agreements in the future, not only to implement the changes to domestic law that are required by secondary legislation but to make regulations that relate to those agreements or connect with them, which goes very much wider than the terms of the agreement itself.

We have discussed considerably today the justification for this unprecedented power and it has been demonstrated —mainly on the question about timely implementation—not to withstand any degree of examination. I feel strongly that the House should reject Clause 2; we cannot do it in this Committee but, when the time comes, we should vote to remove it from the Bill. I think it is a separate debate as to whether there should be a special power in relation to Lugano, but this provision gives unlimited power for an unlimited time to introduce the consequences of international agreements into our domestic law with no primary legislation.

One final point, which has been made by the Constitution Committee, is that the consequence of doing this by secondary legislation is that it can be challenged in the courts and set aside by the courts on the grounds of judicial review. So not only is it constitutionally inappropriate, not only will it damage the quality of our private international law, but it will lead to legal uncertainty. Actions will be brought in court but set aside. I will invite the House on Report not to allow this provision to stand part. There is unanimity in this Committee with the exception—the plucky exception—of the Minister in that respect.

Photo of Lord Pannick Lord Pannick Crossbench

My Lords, I agree with the observations of the noble and learned Lord, Lord Falconer of Thoroton. I gave my reasons earlier for thinking that Clause 2 should not stand part and I shall not repeat them. I shall add just one further point. There has been discussion this afternoon, particularly from the noble Lords, Lord Adonis and Lord Foulkes of Cumnock, about the disadvantages of Virtual Proceedings, disadvantages notwithstanding the exceptional efforts made by the clerks and the staff, for which we are all very grateful, to ensure that these Virtual Proceedings can take place. The additional disadvantage that I want to mention—additional to those who have already been identified—arises from the correct observation of the noble and learned Lord that the Minister stands alone on this subject; all other speakers have explained why Clause 2 is objectionable.

The point is that if we were on the Floor of the House, the Minister would not just hear and see those who are speaking; he would see and hear expressions of disapproval from all around the House, including from his own Benches; he would sense the degree of concern that there undoubtedly is about the constitutional implications of Clause 2. This debate has highlighted those concerns, but I hope the Minister will understand that there is a very widespread concern around the House, not just from those who have spoken today but from those who would be present in Committee were normal proceedings to apply. By their presence and their body language, other Members of the Committee would indicate their profound concern. I hope he will take all that into account before Report.

Photo of Baroness Taylor of Bolton Baroness Taylor of Bolton Chair, Constitution Committee, Chair, Constitution Committee

I am in a slightly different position from many noble Lords because I joined this Committee sitting simply because of the strong feeling on the Constitution Committee, which I chair, that Clause 2 should not be part of the Bill. I am not a lawyer, so I have listened to the last nearly four hours with great interest. I knew that this was a complex area; having listened to all that has been said I think it even more incredible that the Government are actually suggesting that issues of this kind should be decided simply on their say-so and by secondary legislation. I cannot comment on the details and complexities of Lugano or anything else, but I have heard qualified senior lawyers talking about this, and anyone who has heard that would be convinced that there should be proper parliamentary consideration of all these issues before the Government are allowed to take any direct action. It is simply wrong, I think, that these matters will be determined by secondary legislation.

The Constitution Committee was unanimous in its view: we do not divide on party lines anyway, but it was not a difficult discussion, because members of the committee thought it was blindingly obvious that Clause 2 should not be part of the Bill.

We did, of course, have another thought at the back of our minds. That is the fact that we have been increasingly concerned, over many years, by the way in which the Government have used—or maybe abused—secondary legislation. We have seen an increase in the powers taken through secondary legislation. It is a question of not just the number of SIs but their content. The noble Lord, Lord Pannick, referred earlier to some of the consequences that might arise from this situation in the creation of new criminal offences if Clause 2 remains. We have seen new criminal offences created by SIs produced by the Government. I know that the noble and learned Lord, Lord Judge, will speak later; I am sure that he will emphasise this very significantly.

Put simply, the Constitution Committee thinks it wrong that international agreements should be dealt with by the Government through secondary legislation. I certainly hope that either the Government will think again about this or that this clause can be taken out on Report. I share the concerns expressed by my noble and learned friend Lord Falconer, my noble friend Lord Adonis and others about the procedure whereby we cannot vote at this time and express our opinion properly. However, I urge the Government to consider absolutely all that has been said today and realise that it is not good for parliamentary democracy and accountability for Clause 2 to remain part of the Bill.

Photo of Lord Judge Lord Judge Chair, Sentencing (Pre-consolidation Amendments) Bill [HL] Special Public Bill Committee, Convenor of the Crossbench Peers 6:15 pm, 13th May 2020

During the rehearsal for this afternoon, I was asked to say my piece, and I used two words. I said, “Henry VIII”. Just in case it was not apparent to anybody who heard me say that,I was trying to convey, as I did on 17 March, when the rather claustrophobic shades of the pandemic were closing in on us, that the Bill unnecessarily invests excessive power in the Executive and does so by secondary—

Photo of Baroness McIntosh of Hudnall Baroness McIntosh of Hudnall Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, the Committee is having some problem in hearing the noble and learned Lord, Lord Judge, and I wonder whether his connection is stable.

Photo of Baroness McIntosh of Hudnall Baroness McIntosh of Hudnall Deputy Chairman of Committees, Deputy Speaker (Lords)

Perhaps start again, or perhaps go at least two sentences back.

Photo of Lord Judge Lord Judge Chair, Sentencing (Pre-consolidation Amendments) Bill [HL] Special Public Bill Committee, Convenor of the Crossbench Peers

I will try again. On Henry VIII, I was trying to convey that the Bill unnecessarily invests excessive powers—

Photo of Baroness McIntosh of Hudnall Baroness McIntosh of Hudnall Deputy Chairman of Committees, Deputy Speaker (Lords)

Lord Judge, I am afraid that there is a problem with your connection. I suggest that we move to the next speaker and hope to come back to the noble and learned Lord at the end of the list, by which I hope his connection will be better. If that is acceptable, I ask the broadcasters to please unmute the noble and learned Lord, Lord Goldsmith.

Photo of Lord Goldsmith Lord Goldsmith Chair, EU International Agreements Sub-Committee, Chair, EU International Agreements Sub-Committee

My Lords, I was looking forward to hearing the noble and learned Lord, Lord Judge, and saying that I agree entirely with what he said. I still imagine that I will agree with him, even if he has to come in a little later in the debate.

I start by declaring two interests. The first is as a practising lawyer whose practice includes international, commercial and public law cases, so some of the things discussed today affect the practice that I carry on. The second, and more important for present purposes, is that I am the recently appointed chairman of your Lordships’ EU Sub-Committee on International Agreements. It is in that capacity that I put my name forward to speak today.

My focus is on Clause 2. I have not spoken in any of the other debates that have taken place but, for all the reasons powerfully advanced by my noble and learned friend Lord Falconer of Thoroton, my noble friend Lady Taylor of Bolton and the noble Lord, Lord Pannick —and in the future, no doubt, by the noble and learned Lord, Lord Judge—I see this as a very unusual and constitutionally unprecedented thing. I could not improve on the speeches made already, including those of the noble and learned Lord, Lord Mance, in an earlier debate, and the noble Lord, Lord Anderson of Ipswich.

However, I want to deal with one aspect in my capacity as chairman of the EU International Agreements Sub-Committee. It has authorised me to write to my noble friend Lady Taylor expressing its agreement with the conclusion that the Constitution Committee had reached in its report and concurring with its opinion that the clause, if it goes through, would reduce parliamentary scrutiny of international agreements inappropriately.

It is not an answer, as my noble and learned friend Lord Falconer has rightly said, to say that this is dealing purely with technical things. I know from experience that, although they may be technical, they are matters of great moment and matters of great importance both to the people who are making agreements and to this country. It is common for lawyers to be asked to advise which law should be put into an agreement or which law should govern any disputes that have to be dealt with, and the Bill would affect that.

As I understand it, two principal answers have been given about why the Government say this is appropriate. One is that all agreements will have been subject to parliamentary scrutiny, and that is the bit on which I particularly want to focus. The problem with that is that, as the Constitution Committee said,

“current mechanisms available to Parliament to scrutinise treaties through CRAG are limited and flawed”.

That is particularly so because of the gaps in the CRaG coverage—some of them have been mentioned today, such as model law—and the timing of CRaG means that an agreement will have been concluded by the time, strictly speaking, that the CRaG processes come into effect.

I shall quote one paragraph, paragraph 19, from the Constitution Committee’s report on CRaG, Parliamentary Scrutiny of Treaties. Professor David Howarth from the University of Cambridge observed:

“From the Whitehall point of view, everything is perfect. The whole process is under the control of Ministers. Parliament does not really get a look-in until after signature and, even after signature, the CRAG processes are very difficult for anyone to operate, especially in the Commons where the Government controls the agenda.”

That is the problem with CRaG.

The committee which I am honoured to chair may be an important part of the response to that lack of scrutinising ability. We are only in the foothills of our work, and we do not yet know how well this will work. Quite a lot will depend on how the Government engage with us and with Parliament more generally. I hope that they will wholeheartedly engage not only once an agreement has been concluded but at earlier stages. I know there is some disappointment already that, for example, the amendments made by this House to the previous Trade Bill have not found a place in the current incarnation of the Trade Bill.

Some assurances have been given in the context of the conclusion of trade agreements. Dr Fox made some important statements about the consultation and engagement that will take place. In its paper Public Consultation on Trade Negotiations with the United States, the DIT repeated the assurances that it gave. For example, paragraph 39 of that report repeats commitments made in its earlier paper, including,

“confirmation that at the start of negotiations, the Government will publish its Outline Approach, which will include our negotiating

The second argument perhaps put forward is that the issue will be only yes or no and therefore the affirmative procedure, as proposed in the Bill, will be enough. I am not persuaded by that argument. It will often not be a question of yes or no. For example, there are treaties which contain options for the member states, such as powers to derogate from particular provisions. Under this binary approach to approval or engagement by Parliament, how will those treaties be considered? Or there may be methods of implementation which are available under the agreement. But more fundamental is the fact that if there is a power to amend that could strengthen the hand of the Government in negotiations, and there is some evidence that in some countries where scrutiny is not limited to yes or no, that is the case.

It seems inevitable that unless the Government drop this, as many noble Lords are urging them to do, this will come back on Report. If in doing so, the Government intend to rely upon the argument about the effect of parliamentary scrutiny under CRaG, they will need to give a very clear explanation of how they will engage with Parliament and the EU International Agreements Sub-Committee so that we can see the reality of what parliamentary scrutiny of the negotiation and conclusion of agreements will be. I look forward to those explanations being given, and in the meantime I support the amendment.

Photo of Baroness Jones of Moulsecoomb Baroness Jones of Moulsecoomb Green

My Lords, like the noble Baroness, Lady Taylor, and the noble Lord, Lord Foulkes, I am not a lawyer, but I care about democracy and I care very much that if the Government make promises, they should actually deliver on them. Clause 2 is a case of the Government reneging on promises made only last year. I voice my concern about Clause 2, which would allow Ministers to subjugate our national law to international agreements and the jurisdiction of foreign courts, with minimal parliamentary scrutiny from people such as noble Lords, who actually know what they are talking about.

Last year, the Government promised us that we would take back control of our laws and our courts; there was no caveat that we would then delegate our laws to international organisations with nothing more than a tick-box exercise by Parliament. The clause gives far too much power to international trade organisations and allows model laws to be imposed on us at the whim of a trade Minister.

I am also concerned that this measure would be better addressed in the Trade Bill, so that we could develop a comprehensive and coherent system of scrutiny for agreements relating to international trade. Otherwise, we end up with different scrutiny arrangements for trade agreements and the private international law agreements that might go alongside them. Will the Minister please explain how this clause fits with the Government’s promise of Parliament taking back control of our laws and courts? I look forward to Report and the vote that I am positive will happen.

Photo of Lord Thomas of Gresford Lord Thomas of Gresford Liberal Democrat Shadow Attorney General

Two questions arise when laws are made by secondary legislation: is there democratic legitimacy and has there been proper scrutiny? If private international law raised simply technical issues, that might be less important. But as has been said so often today, private international law raises a wide of range of matters; in particular, family law issues, where basic human rights are frequently involved.

On parliamentary scrutiny, the Minister referred to the ample opportunity for debate in the affirmative procedure. We all know about the affirmative procedure. It is a yes/no question, as the noble and learned Lord, Lord Goldsmith, pointed out a moment ago. The matters before the House cannot be amended and frequently, nothing happens as a result of any Motion that may be moved in opposition. If it is Her Majesty’s Opposition’s policy not to vote in favour of a fatal amendment, the whole process is completely nugatory. I have heard Labour Whips tell their members not to vote in the case of a fatal amendment simply for that reason alone. Their turn will come.

The affirmative procedure is not in any way proper parliamentary scrutiny. Scrutiny under the Constitutional Reform and Governance Act 2010 has proved to be a non-event. It has already been quoted, but I will do so again: the Constitution Committee referred to that procedure being “limited and flawed” and indeed never properly applied.

It could be said that you can have democratic legitimacy providing there is direct participation in the legislative process by means of consultation. It is very noticeable that in this Bill there is no provision for consultation. Schedule 6 is devoid of any mention of it. That gives an opportunity for those affected by legislation directly to influence its content. Consultation is not everything: it has its problems. There are issues, for example, about the quality of the consultation document. That document may not reach the hands of everybody who is affected. The choice of who gets the document will be with the Government. Organisations or individuals may not have the time or the skills to deal with it. Strong groups who are well organised may have a disproportionate influence in the consultation process. It is of course useless, unless the Government are prepared to take the views of the consultees into account.

Surely, if consultation is to give democratic legitimacy and afford a measure of scrutiny before legislation comes to Parliament, the Government should produce a report of that consultation, covering all the points that have been raised and giving reasons for agreeing or disagreeing with its findings. Parliament can then assure itself that full and proper consultation has taken place. We do not have that. The super-affirmative procedure set out by the noble and learned Lord, Lord Falconer, covers these points admirably, but I shall have more to say on the question of criminal offences at a later stage.

Photo of Lord Howarth of Newport Lord Howarth of Newport Labour 6:30 pm, 13th May 2020

My Lords, I agree that Clause 2 should not stand part of the Bill. Under our normal procedure for Committee in the Chamber, I would have been able to come in earlier when I saw how widely the debates on previous groups were ranging. However, with the rigidity of Virtual Proceedings, I was unable to do so.

I underscore the points made by all noble Lords, all of whom—except the Minister—have objected to Clause 2. This clause is constitutionally offensive on a variety of grounds. The issues that arise in private international law are many, varied and important. They may be complex and technical, but they are not obscure or trivial. In family disputes, questions of divorce, child custody and child maintenance can cause great anguish to all concerned. By definition, if a commercial dispute comes to court, it is of great importance to the parties involved.

What is Parliament for? Our responsibility is not simply to wave through significant new legislation, but to scrutinise it and satisfy ourselves on behalf of the people of our country that it is appropriate. That can be done only through the processes of primary legislation. It cannot be done through our procedures for regulations. Even my noble and learned friend Lord Falconer’s super-affirmative procedure would not be satisfactory. The Minister has suggested that these regulation-making procedures provide ample opportunity, but they do not because there is no scope for amendment and scrutiny is still relatively perfunctory compared to the lengthy process of primary legislation.

Hitherto, new private international law has been incorporated into our domestic law by way of primary legislation. The Minister disputed that, but he was unable to give us convincing examples of when that had not happened. What we are seeing is part of an objectionable behaviour pattern on the part of the Government. They seek to evade full parliamentary scrutiny and arrogate power to themselves to save themselves inconvenience.

The noble and learned Lord, Lord Judge, was about to discourse on the matter of Henry VIII powers—I hope he will. We see egregious Henry VIII powers in this Bill, including an open-ended power to implement any future international agreement, even if it overthrows existing primary legislation. We see the deployment of those innocent-sounding but weasel words "in connection with", "consequential" or "supplementary" legislation, which would enable this Government to smuggle in very significant legislative changes in an arbitrary fashion.

Clause 2(5)(a) and Schedule 6, concerning enforcement powers, would allow the creation of new criminal offences, the extension of existing ones or increases in the penalties applying to them. Again and again, your Lordships’ House has said that is not an acceptable practice on the part of the Government when legislating. We see in Clause 2(5)(b) the Government taking a cavalier approach to questions of data protection, which are extremely sensitive and important matters in this era of surveillance capitalism and in the context of measures being taken to protect us against a pandemic.

At Clause 2(5)(c) a power to alter the regime for legal aid without scrutiny is brought in. This too is a super-sensitive policy and legal area, as we know from the history of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, in consequence of which, I am sorry to say, the Government forfeited the trust of Parliament, the people and the legal profession.

The Government’s justifications for taking these open-ended, wide-ranging powers in Clause 2 are specious. They suggest that there may be an urgent need to legislate; we have had a significant discussion about the Lugano convention. The intervention by the noble and learned Lord, Lord Mance, made it very clear that, while there may be urgency for us as a country to resolve whether or not we wish to participate in the Lugano convention, that is certainly not something to be dealt with by statutory instrument. It will possibly need to be dealt with by fast-track legislation, though again we should always be wary of that. There is certainly no case for allowing it to go through under the terms of this law.

It is almost comic to see the Government plead that they will be eager to implement Hague conventions. Let me gently remind the Minister that successive Governments of this country took 63 years to legislate to implement in our domestic law the 1954 Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict. It did not get on to the statute book until 2017; despite endless pressure from Parliament, successive Governments refused to make time to legislate for it.

The Government make the case that, as there is little or no scope to amend international agreements, scrutiny by Parliament would be otiose. However, it is for Parliament to determine on principle whether or not to adopt important new legislation. If it decides that it is appropriate, it is again for Parliament to determine the manner in which that legislation is to be implemented in the specific circumstances of the United Kingdom—what we might refer to as the vernacular of implementation.

The Minister conceded that the Constitutional Reform and Governance Act 2010 would not permit scrutiny of model laws, but he went on to say that model laws are a very important area of law. Surely, therefore, we need something beyond the zero scrutiny that CRaG would permit. The point has just been made by the noble Lord who spoke previously that statutory instruments fail to provide the same legal certainty as primary legislation. Recourse can be had to the provisions of the Human Rights Act and it may always be possible that what is legislated by way of statutory instrument can subsequently be modified and superseded by the development of the common law.

The Minister sought to assuage the anxieties of some of us that the provisions in the Bill would ride somewhat roughshod over devolution and fail to respect the status and responsibilities of the devolved Administrations. He gave some satisfaction in what he said about Scotland, but I think no satisfaction to the noble Lord, Lord Thomas of Gresford, or myself about how the provisions affect Wales. Of course, in Wales there is no provision for co-decision by Ministers in the devolved territory as there is in Scotland and Northern Ireland.

Finally, the Minister, in pleading with us to be reassured, pointed out that, up until now and for a long period, the adoption of private international laws had been a matter for European Union competence. But we have just spent four years in a political convulsion to establish the right to make our own laws in our own Parliament, accountable to our own people, and for Parliament not to be obliged to rubber-stamp obscure deals made on our behalf by people who are not accountable. We have sought in all the agonising political disputes of the last four years to re-establish not executive absolutism but parliamentary governance. Having gone to all this trouble, we cannot accept the provisions of this legislation. Clause 2 should not stand part of the Bill.

Photo of Lord Hope of Craighead Lord Hope of Craighead Chair, High Speed Rail (West Midlands - Crewe) Bill Select Committee (Lords), Chair, High Speed Rail (West Midlands - Crewe) Bill Select Committee (Lords)

My Lords, this matter has been so fully covered by the speeches already made that I have little to add other than my full support for what has been said. I hope very much that we may be able to hear from the noble and learned Lord, Lord Judge, before the Minister speaks.

I do, however, wish to emphasise two points. First, I refer to what I said in support of Amendments 7 and 8 in the name of the noble Lord, Lord Foulkes of Cumnock. The lack of clarity about whether it is the Scottish Ministers or the Secretary of State who are to exercise the powers referred to in Clause 2(1) and Clause 2 (2) is surely an indication, among others, that this Bill is seeking to do too much. The umbrella phrase “any international agreement”—I stress the word “any”—indicates that it is intended to catch a wide variety of international transactions and model laws relating to private international law. At present, with the possible exception of Lugano, we have very little idea of what they might be. It seems likely, however, that they will not be many. The pressure on Parliament, if we were to proceed by way of public Bills and not statutory instruments, would be quite limited. It is therefore hard to see why we are having to go down this road at all.

Secondly, there is no sunset clause in the Bill. I could understand it, although I would not like it, if the Bill were designed to deal only with measures that needed to be enforced before the end of the implementation period or shortly afterwards. But without such a clause, the Bill is entirely open-ended; committing all international agreements and model laws to the statutory instruments procedure, as a permanent feature of our laws whatever they may be, seems to me to be a hostage to fortune.

Photo of Lord Adonis Lord Adonis Labour

It is very clear that the Committee is overwhelmingly against the Government on Clause 2, although we hope that the Minister will reflect further before Report. Assuming that the Government stick to Clause 2 on Report, it is clear that the House will want to debate it further and, probably, divide on it.

I turn to the procedural issues that are raised thereby. First, although we pay tribute to the officials and the remarkable technical team who have managed our proceedings—and done so, I would say, to the efficiency limits of the technology available—our reflection on the last few hours is that it has been patchy at best. We have not been able to hear in this debate from the noble and learned Lord, Lord Judge, one of our most distinguished Members, and I could barely hear the noble and learned Lord, Lord Morris, another of our distinguished colleagues, when he was speaking earlier. I do not think we would find it acceptable in any other circumstances to proceed to a vote or a decision of the House while key Members were being silenced and were unable to participate in the debate.

The noble Lord, Lord Pannick, referred earlier to the interchange between Members, which of course is necessarily reduced when we are online, but perhaps I may also draw attention to something that has become very clear in this debate. We need to separate the ability to vote online from the process of debate that leads to votes. Clearly, we cannot have a Report stage until it is possible to have a reliable system of voting online. I hope that our colleagues on the Procedure Committee—I think that my noble friend Lord Foulkes, who is here, is one, as well as the noble and learned Lord, Lord Judge—will bring to the attention of the committee an issue that has become very clear in this debate: the big divorce between the ability to participate online, which is extremely restricted, and the engagement of the House as a whole.

When we debate and make decisions in the Chamber, the House as a whole is engaged—not that every Member who votes is necessarily in the Chamber for a debate that leads to a vote, although normally quite a high proportion are—by virtue of the fact that every Member is in the House, at least while voting. They are aware of the issue and a large number of them are engaged with the subject of the debate. That is particularly important on the government side. On this occasion, only one Conservative Member besides the Minister has spoken, whereas in the Chamber quite a number would be present and able to listen to the arguments.

Therefore, if we proceed to an online vote with an exclusively online debate, we will be faced with a debate almost entirely divorced from the process of voting. Indeed, while I have been listening to the discussion, I am afraid I have allowed myself to be distracted and have looked at what is going on on Twitter. Successive online votes have taken place in the House of Commons this afternoon. One of my Labour colleagues—I shall not identify who it is—has been tweeting about how she has been able to give online interviews and indeed construct and send tweets while voting, so little engaged has she been in the subject of the votes.

Therefore, I hope that it is possible for our colleagues on the Procedure Committee to take back what I think will be the strong feeling in the Committee based on today’s proceedings that it is not good enough to have just an online process of voting. We need debates to take place in the Chamber on a hybrid basis, obviously allowing people to participate from outside too, but with real interaction and engagement in the Chamber leading up to the vote so that we have the best approximation possible to proper parliamentary debate and engagement before we divide.

Photo of Baroness McIntosh of Hudnall Baroness McIntosh of Hudnall Deputy Chairman of Committees, Deputy Speaker (Lords) 6:45 pm, 13th May 2020

My Lords, I am hoping to call the noble and learned Lord, Lord Morris of Aberavon, in a second, but, before doing so, I should say that after the noble and learned Lord I intend to call the noble and learned Lord, Lord Judge, whose contribution we were not able to hear earlier. I understand that his connection is now properly established. I call the noble and learned Lord, Lord Morris of Aberavon. Is he with us? I think we must assume that the noble and learned Lord, Lord Morris, will not be joining us at this time. Is the noble and learned Lord, Lord Judge, available?

Photo of Lord Judge Lord Judge Chair, Sentencing (Pre-consolidation Amendments) Bill [HL] Special Public Bill Committee, Convenor of the Crossbench Peers

Good. Do you mind if I ask whether you heard anything that I said when I started last time?

Photo of Baroness McIntosh of Hudnall Baroness McIntosh of Hudnall Deputy Chairman of Committees, Deputy Speaker (Lords)

In the interest of making sure that everybody hears everything that the noble and learned Lord has to say, perhaps I may suggest that he starts again from the top. I think that would be preferable to trying to start in the middle.

Photo of Lord Judge Lord Judge Chair, Sentencing (Pre-consolidation Amendments) Bill [HL] Special Public Bill Committee, Convenor of the Crossbench Peers

I thank the Deputy Chairman very much. I apologise to those who have already heard me say this but, when I was tested at the rehearsal to make sure that my machine was working and I was well plugged in, my only response was “Henry VIII”. It was a wonderfully short speech. Effectively, it said what I wanted to say. However, just in case anybody does not know what I meant, I was intending to convey my view of the Bill, as I did on 17 March at Second Reading, when the awful, claustrophobic shades of the pandemic were closing in on us. Having listened to the debate and read the report of the Constitution Committee, I summarised my view of the Bill by saying that it unnecessarily vests excessive power in the Executive by means of secondary, not primary, legislation. It is a very simple principle and it is wrong. At the time, I submitted to the House in what I hope was my characteristic way—understated—that it was not exactly regulation-light.

The result of reading the report and listening to today’s debate—I do not wish to add to the many wonderful contributions that have been made—is that I can be less circumspect this time: this Bill is now heavy. It is overweight with regulation.

Why can we not be realistic about what the affirmative process actually does? It is not a means of controlling the Government. When, in 2015, a go was had at trying to stop a Conservative Government using Labour Government legislation to achieve £4.5 billion-worth of change to fiscal issues, it was apparently regarded as a constitutional outrage. That is us. As far as the Commons is concerned, unless something has happened very recently, it is 1979 since it rejected an affirmative resolution. That suggests that if we are honest with ourselves, the affirmative resolution process, even the super-affirmative, is not nearly as good as every Government of any colour always says it is supposed to be.

The fact of the matter, although I cannot identify a particular Henry VIII clause here save and except the usual ones about amending and getting rid of primary legislation, is that, from his underworld, Henry VIII has hacked into departmental computers. Alternatively, he has been inserted—resurrected and put into departmental computers. We must be very careful about attaching so much weight to the use of secondary legislation that might affect individuals’, companies’ and organisations’ rights. That is really all I want to say at this stage. I will say something about the regulations relating to the creation of criminal offences, but I support the concerns that have been expressed all round. Thank you very much for helping me to get that through, Deputy Chairman.

Photo of Lord Marks of Henley-on-Thames Lord Marks of Henley-on-Thames Liberal Democrat Lords Spokesperson (Justice)

My Lords, for some years I had the privilege of serving on the Delegated Powers and Regulatory Reform Committee under the chairmanship of my noble friend Lady Thomas of Winchester. That committee has increasingly come to stand as a crucial protector of the role of Parliament, alongside the noble and learned Lord, Lord Judge, whom I was delighted we were able to hear. The committee has acted in attempting to limit the Executive improperly taking powers for government Ministers to change the law by delegated legislation in significant ways and ways for which delegated legislation has never in the past been deemed appropriate.

The committee usually expresses itself, or certainly has until recent years, in circumspect terms and the Government have traditionally accepted its recommendations. The committee has left it to the House to implement its recommendations if the Government do not agree to do so. The clarity and decisiveness of the recommendation in paragraph 15 of the committee’s report on this occasion is anything but circumspect. The conclusion speaks for itself:

“We are of the view that clause 2 represents an inappropriate delegation of power and we recommend that it should be removed from the face of the Bill.”

The committee is forcefully supported by the report of the Constitution Committee, chaired by the noble Baroness, Lady Taylor, from whom we have heard, and includes the noble Lord, Lord Pannick, from whom we have also heard. Paragraph 19 of that report contains the kernel of its conclusion:

“We are not persuaded by the arguments the Government has made in support of this power. If the balance between the executive and Parliament is to be altered in respect of international agreements, it should be in favour of greater parliamentary scrutiny and not more executive power.”

Another important point made by the Constitution Committee, mentioned by the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Howarth, is that delegated legislation is amenable to judicial review so that future regulations implementing international treaties could be the subject of challenge. It is entirely right that delegated legislation, which involves an exercise of executive power of itself, should be capable of being challenged as unlawful.

However, it would be a highly undesirable consequence of the Bill if, when enacted, the lawfulness of conventions entered into by the United Kingdom Government as a matter of our domestic law could not be guaranteed to our international convention partners until such challenges were determined.

I also agree with the point made by the Constitution Committee, my noble friend Lord Thomas of Gresford and the noble and learned Lord, Lord Goldsmith, that the CraG procedure is at present inadequate and ineffective as an instrument of parliamentary scrutiny.

In the light of all that, can the Minister say whether, given the Constitution Committee’s report published on 4 May, he is prepared to go away and reconsider his extremely negative response, dated 17 April, to the Delegated Powers Committee’s report? I ask, because if these important committees of your Lordships’ House are going to be routinely ignored by government, parliamentary democracy is entering treacherous territory, in which the conventional boundaries between executive power and parliamentary sovereignty are roughly and unceremoniously shifted by the failure of government to adhere to well-established, valuable and principled conventions.

The central point is this. As it stands, the Bill involves moving a whole area of legislation—that of implementing private international law treaties in domestic law—from Parliament to the Executive. That is a dangerous extension and an unwelcome trend—noted by the noble Baroness, Lady Taylor—in our constitutional arrangements from parliamentary democracy to government by an overmighty Executive. If it is private international law agreements this year, what might follow next year? This House has rightly sought to resist the trend, which is dangerous and must be stopped. As parliamentarians, and respecting the traditional role of this House as a guardian of the constitution, we have a responsibility to stop it.

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

My Lords, I thank noble Lords and noble and learned Lords for their contribution to this part of the debate. Since the commencement of this Committee, the matter of whether Clause 2 should stand part of the Bill has in a sense been the elephant in the virtual Chamber—or perhaps the virtual elephant in the Chamber. I therefore do not intend to rehearse or repeat the arguments that have been made repeatedly in Committee. However, I want to make it clear that the Government regard the powers in Clause 2 as essential to achieving their objective to build up the United Kingdom’s position in private international law, not only in the immediate future but in years to come.

Of course, there is one particularly pertinent example of our ambition; namely, our ambition to accede to the 2007 Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, and the desire—indeed, the need—to do that before the end of the transition period. It would be gravely unfortunate if a gap was to emerge between the end of the transition period, when we continue to look to the Brussels I and IIa regime, and the application of the 2007 Lugano Convention. We are concerned that that should be avoided.

Briefly, first, we consider that the proposal in Clause 2 is not only essential but proportionate. International law agreements are generally uncontroversial and technical in nature, and the detailed content of the private international law agreements to which the Bill will apply will already be determined at the international level; they are by their very nature clear and precise in their terms.

Secondly, I do not accept that the terms of Clause 2 are novel or unprecedented. As I sought to point out earlier, there are a number of precedents for the use of delegated powers to implement international agreements on private international law.

Thirdly, the Constitutional Reform and Governance Act 2010—the CRaG process—can be used to ensure scrutiny at the level of treaty-making law or international law. There is then the affirmative statutory procedure, where steps are taken to draw down that international law obligation into domestic law, with, I venture, sufficient scrutiny for a treaty which is not in itself amenable to amendment at the level of domestic law.

Although repeated reference was made to the employment of primary legislation to carry out this process, the noble Lord, Lord Howarth, made the telling point that successive Governments can take years to identify the time for primary legislation to bring into domestic law a treaty obligation that has been entered into. Sometimes, quite exceptionally, it can take more than 50 years. I accept that that is an exception, but it nevertheless illustrates why we seek to bring forward Clause 2 in its present form.

Listening to noble Lords, I detect an element of concern about the terms of Clause 2. It is something that I will consider before we reach Report, where a number of noble Lords have made it perfectly clear that they will want to revisit this issue and may want the opportunity to divide the House. However, at this stage, I invite noble Lords to allow Clause 2 to stand part of the Bill.

Photo of The Earl of Devon The Earl of Devon Crossbench 7:00 pm, 13th May 2020

I understood that I would get an opportunity to speak before the Minister rather than after him, as I have been on the list for the past few days, but I shall proceed none the less with what I was going to say. At the risk of flogging rather a dead horse at this stage, I wish to add that while I support the basic aims of the Bill, I do not support Clause 2.

Private international law and our membership of the Hague and other global jurisdiction and enforcement conventions are an essential part of our global standing and our ability to welcome and to home families from overseas. They are essential particularly to the professional and legal services markets in which we are world leaders. I note my interests in the register, and particularly my work as a dual-qualified, cross-border litigator, whose practice touches variously on this area.

I shall not speak at length because pretty much all the issues have been addressed in some detail. However, I thought that your Lordships might appreciate some stories from the front line. Unlike many of our eminent jurists in the Lords, I am currently active in this space and spent 10 years as a litigator in California, as a California-qualified litigator, in which capacity I advised often on jurisdiction clauses and dispute resolution provisions.

For the most part, the most popular forum for these was the courts of England and Wales, irrespective of the parties—typically, one of them was an American party, but we dealt with parties from all around the world. There were plenty of reasons for this, not least the English language, our time zones, our excellent legal services, our use of the common law and precedent, the independence of our judiciary, and the broad membership we have of cross-border conventions, such as those under consideration in the Bill.

Finally, and perhaps most important, is the rule of law—particularly the transparent, thorough and long-established legislative process by which our laws are passed. This is the reason that England and Wales is so often chosen as the preferred third-party forum for jurisdiction and dispute resolution clauses. That is directly threatened by Clause 2. Indeed, by seeking to short-circuit the long-standing practice of passing treaties by primary legislation, the Government are in danger of undermining one of the most important pillars that supports the UK’s pre-eminence in the provision of dispute resolution services in the global market.

I note that the US-UK trade negotiations started recently. Can the Minister give us any indication as to whether the subject of private international law has been raised within that forum? Is any pressure being brought to bear on the UK Government to align their cross-border enforcement and jurisdiction regime towards that of the US, which obviously takes a very particular line in these matters? We know, for example, that the current US Administration disfavour cross-border co-operation. I understand that in recent rounds of Hague conference negotiations, the US has become increasingly reluctant to engage. It is taking a back seat while burgeoning economies, such as China, are increasingly engaged.

Finally, before we reach Report on this crucial Bill, we must have either mastered virtual voting or returned to a normal practice. This is too important an issue to slip through at such a procedurally challenging time. I appreciate your Lordships’ indulgence.

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

As regards the UK-US negotiations, I say only that I am not in a position to comment on how far they have gone, or on whether they have engaged the issue of private international law at all.

Photo of Lord Adonis Lord Adonis Labour

Perhaps I may add to my earlier contribution to the Committee, since it looks as if we will vote on this issue on Report. We are all agreed that it is a hugely important constitutional issue.

The House of Commons, which has been conducting its first online votes this afternoon, has descended into complete chaos on its latest vote. I can report to the Committee that on what was, I think, the third vote it held—after its Members had had an opportunity to get to know the system—there were 22 Tory rebels, including the Chancellor of the Exchequer, Rishi Sunak, who accidentally voted the wrong way. The Deputy Speaker, Eleanor Laing, pointed out that some MPs are struggling with the new electronic voting system but, she added, there was no need to rerun the vote because there was a majority of 51 for the Government.

I will point out two things for the benefit of our colleagues on the Procedure Committee. First, there is no natural government majority in the House of Lords, so how are we to know whether people have voted the wrong way accidentally? The constitution of our country could be rewritten because people did not understand the system of voting. Secondly, although I have the highest regard for all our colleagues in the House, if Members of the House of Commons are struggling with the new electronic voting system, it is fair to say that some colleagues in our House may also struggle with that new system.

I see not just a flashing orange light but a flashing red light about moving to electronic voting at any early stage in our proceeding, and certainly on a matter as grave and serious as this. If this were to be our first vote and it descended into chaos, as in the House of Commons, nobody could say that we were not warned.

Photo of Lord Keen of Elie Lord Keen of Elie The Advocate-General for Scotland, Lords Spokesperson (Ministry of Justice)

My Lords, the noble Lord, Lord Adonis, has made a number of extremely telling and important points. We are clearly in a situation where we must ensure either that we have an entirely reliable voting system in the upper Chamber, or alternatively a clear and telling government majority. I suspect that it is more likely that we will seek to secure the former.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, I shall now put the question that Clause 2 stand part of the Bill; all microphones will be opened until I give the result. As many as are of that opinion shall say “Content”.

Noble Lords:

Content.

Noble Lords:

Not content.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, it takes unanimity to amend the Bill. If a single voice says “Content”, the clause stands part. The Contents have it.

Clause 2 agreed.

Clause 3 agreed.

Photo of Baroness Scott of Bybrook Baroness Scott of Bybrook Baroness in Waiting (HM Household) (Whip)

My Lords, this may be a convenient moment for the Virtual Committee to adjourn.

Photo of Baroness Finlay of Llandaff Baroness Finlay of Llandaff Deputy Chairman of Committees, Deputy Speaker (Lords)

My Lords, the Virtual Committee stands adjourned.

Virtual Proceeding suspended.