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Private International Law (Implementation of Agreements) Bill: Legislative Consent Motion

Executive Committee Business – in the Northern Ireland Assembly at 4:45 pm on 19th May 2020.

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Photo of Christopher Stalford Christopher Stalford DUP 4:45 pm, 19th May 2020

I ask Members to take their ease for a few moments while the Minister of Justice takes her place.

Photo of Naomi Long Naomi Long Alliance

I beg to move

That this Assembly endorses the principle of the extension of the provisions of the Private International Law (Implementation of Agreements) Bill to Northern Ireland.

The Private International Law —

Photo of Christopher Stalford Christopher Stalford DUP

Sorry, Minister, but I have to inform Members that the Business Committee has agreed that there should be no time limit on the debate. I now call the Minister.

Photo of Naomi Long Naomi Long Alliance

Thank you, Mr Principal Deputy Speaker. The Private International Law (Implementation of Agreements) Bill deals, as its name suggests, with the implementation of international agreements in the field of private international law. Private international law rules are applied by litigants in courts to cases involving a foreign element. Typically, the rules cover jurisdiction — for example, which country's court should hear a case, which country's law should apply to resolve it, and whether the decisions of a foreign court should be recognised and enforced. The rules apply to civil law cases, including commercial, insolvency and family law matters, and are a technical and highly specialised area of law. Without private international law rules, businesses, individuals and families in Northern Ireland engaged in cross-border legal disputes face more uncertain, expensive and longer proceedings.

Countries may enter into international agreements on private international law with other countries to ensure that the same rules are applied on a reciprocal basis. The Bill ensures that these international agreements can be implemented in our domestic law in a timely way. With only two substantive clauses, it is a short Bill, and the legislative consent motion is concerned with extending the whole Bill to Northern Ireland.

The Bill has two key functions. First, it implements in domestic law the three Hague conventions which currently apply in the UK, but the UK's participation in them is linked to its EU membership. The UK will be an independent party to these conventions in its own right at the end of the transition period, and the Bill is required to ensure that there is no gap in the domestic application of these conventions.

Secondly, the Bill creates a power to implement future private international law agreements through secondary legislation. Without this, primary legislation would be required for implementation of each new agreement. This power is also likely to be required before the end of the transition period.

The UK has a dualist legal system in which an international treaty ratified by the Government, although binding in international law, does not alter the laws of the state unless and until the treaty is incorporated into domestic law by legislation, such as through this Bill or the regulation powers under it.

On the regulation-making power, the Bill is drafted to respect the devolution position. A Northern Ireland Department may make provision for implementation in Northern Ireland, with UK Ministers only being able to do so with the consent of a Northern Ireland Department. Legislation in this technical area has, in the past, been taken forward on a UK-wide basis, and it may be convenient for it to be so in the future, so I consider this to be a sensible approach. The Assembly or parliamentary affirmative procedure will be triggered if the regulations are implementing a new international agreement for the first time in domestic law; or any arrangements within the UK or between the UK and an overseas territory or Crown dependency; to create, extend or increase the penalty for a criminal offence; or to amend primary legislation. Otherwise, negative resolution procedures will apply.

Having an Assembly Bill specifically for these purposes in place for the end of the transition period would be unrealistic in terms of time frame. This Bill will secure re-incorporation of the three Hague conventions in question across the UK at the same time. Otherwise, we would risk people in Northern Ireland not benefiting from those conventions. For example, without Hague 2007, which covers cross-border maintenance applications, we would risk causing financial hardship for the children of Northern Ireland-resident parents. Similarly, having the regulation-making powers for the end of the transition period ensures the implementation of future agreements in Northern Ireland in line with the rest of the UK. Otherwise, we would risk delaying the benefits of these new arrangements for litigants in Northern Ireland.

I therefore consider that it would be preferable for this Bill to extend to Northern Ireland, and Members will have seen that the Justice Committee's report on this legislative consent motion endorses that view. I appreciate that the Assembly's preference is to legislate on Northern Ireland matters wherever possible, and indeed that would be my own preference. However, in this instance, it seems sensible for the Bill to extend to Northern Ireland for the reasons that I have outlined, and therefore I ask that the Assembly support the terms of this legislative consent motion (LCM).

Photo of Paul Givan Paul Givan DUP

I am very pleased to speak on behalf of the Committee for Justice in this debate today. The Minister wrote to the Committee in February advising of this potential LCM for the Private International Law (Implementation of Agreements) Bill, which had been introduced at Westminster. The Minister advised that she was content in principle to support the extension of the provisions of the Bill to Northern Ireland, and that this would see the implementation in domestic law of the three Hague conventions that the Minister has outlined in respect of child protection in cross-border disputes, choice of court in cross-border contracts, and maintenance in relation to rules for recovery of child support and other forms of family maintenance.

The Committee took oral evidence from Department of Justice officials in March 2020. During that evidence session, concerns were raised about other provisions of the Bill relating to the regulation-making powers. Those provisions will allow future private international law agreements to be implemented in domestic law by secondary legislation made either at Westminster or by a Northern Ireland Department. Members questioned how decisions would be made and whether Westminster or the Assembly was the most appropriate place to legislate, what role this Assembly or its Committees would have if Westminster were legislating, and why legislation would not be made in this place if we had the power to do so.

Following the evidence session, the Committee agreed that it would be useful to determine the views of other relevant Committees in Scotland and Wales on these regulation-making provisions.

Unfortunately, a proposed LCM had not been considered in either jurisdiction at the time, although I understand that one may be being considered by the Justice Committee of the Scottish Parliament today.

In follow-up correspondence to the Committee after the oral evidence session, the Department stressed that the Secretary of State will legislate in Westminster only with the consent of a Northern Ireland Department. The Department advised that, where Justice is the Northern Ireland Department in question, the Minister will notify the Committee in advance on whether she intends to provide or withhold consent. The Department also emphasised that future regulations will not entail significant policy choices but will implement future international agreements in law and make the necessary supporting procedural changes.

When considering that further information, the Committee for Justice noted that the arrangements may also impact on the responsibilities of other Departments, such as Economy, Finance and Health. The Committee therefore wrote to the relevant Committees to draw their attention to the regulation-making powers, which may require those Departments giving consent to the Secretary of State for future regulations under the provisions. I understand that the Committee for Finance has engaged with the Department of Finance and has recently confirmed that it is content with the LCM before the House today.

On 23 April, the Committee considered the memorandum that had been laid by the Department of Justice on 20 April and agreed that it was content with the proposal to extend provisions to implement three Hague conventions in domestic law to Northern Ireland and to create the power to implement future private international law (PIL) agreements in domestic law via secondary legislation in the Private International Law Bill for Northern Ireland by way of a legislative consent motion.

When considering the report on the LCM at our meeting on 30 April, the Deputy Chair of the Committee, Linda Dillon, placed on record her continuing concerns regarding its regulation-making powers, indicating that she was not content with the explanation that the Department had given on the issue. She did, however, indicate that she would not object to the LCM's proceeding. I am sure that Linda will elaborate on that when she makes a contribution. I can confirm, as set out in the Committee report, that the Committee for Justice supports the Minister of Justice in seeking the Assembly's endorsement of the legislative consent motion.

I will now speak in a personal capacity. I want to use this item of business as an example of some areas of concern that I have about the business that the House is taking forward. In and of itself, I have no objection to this LCM. I have no difficulty with it coming forward for debate, and I support the ongoing work of the Justice Committee to deal with such issues that come before it. We will have another LCM coming forward on the Commonwealth Games in Birmingham, for example.

I know that all the Committees were asked to write to their Department to ask it to outline what is deemed to be essential COVID-19-related business and that Committees should be receiving only business that is deemed to fit within the criteria. We have continued to receive things that may well be deemed very important, and this is one such example. Whether it meets the test of being essential COVID-19-related business is something that I think could be subject to debate, however. My personal view is that I have no problem with the LCM. I am happy to take it. I am happy for the Committee to continue to receive that type of ongoing work, but it does relate to the broader issue of Members being allowed to submit only two questions for written answer a week; no questions for oral answer being taken in the House; and no private Members' motions being brought forward. Executive Departments, however, are allowed to continue to bring forward Executive-related issues. For example, the Minister for Infrastructure brought forward regulations on electric bikes. Again, I had no problem or difficulty with that. I support that business being conducted through the House, but there is an issue about Executive business and what Ministers regard as being essential.

Photo of Christopher Stalford Christopher Stalford DUP

I ask the Member to resume his seat briefly. I take on board very seriously what the Member raises, and I hope that he will always find in me someone who will defend the rights of Back-Bench Members to scrutinise and hold the Executive to account. I know that some of the issues that he has raised have been discussed at the Business Committee. His remarks are now in Hansard and are there for all time and for all to see. Can we try to get back to debating the LCM?

Photo of Paul Givan Paul Givan DUP

I will. Thank you, Mr Principal Deputy Speaker. I am not privy to the dealings of the Business Committee. It would be inappropriate for me to be so, but I do flag this up as an issue. The Committee is going to have meetings all of the month of June on the Domestic Abuse and Family Proceedings Bill, which is very important. We will be meeting every week and therefore need to be able to conduct our business. The current arrangements will provide difficulties for the Justice Committee in doing that.

I trust that that is being taken on board at the Business Committee. I hope that it is, because it will be important, going forward, that the Justice Committee is able to carry out important work. Members can table their own private Member's motions, and a lot of us received correspondence over the last weekend. I will resume my seat, Mr Principal Deputy Speaker.

Photo of Linda Dillon Linda Dillon Sinn Féin 5:00 pm, 19th May 2020

I am sure that you will be glad to hear that my comments will be very brief. I want to put on record, as the Chair outlined, that we highlighted some concerns about the fact that this simply comes back to the Minister and does not come to the Committee. Regardless of what the issue is or how small the matter is, the Committee has a very important role to play, not only in scrutinising and ensuring that it is content with what the Department is doing but so that the Minister has us as a sounding board and as an advisory board, because there is a wealth of experience in the Committee. I am not sure that I include myself in that just yet because I am fairly new to the Committee, but there is a wealth of experience there and people who have been on previous Justice Committees can give advice on certain matters. It is extremely important that the Committee has an opportunity to look at anything that comes forward, whether it is legislation, policy or guidelines, or whether it is technical. We have an important role to play. Having said that, as has been outlined, it is not an issue over which we should block this LCM, so we support the LCM today. I thank the Minister for coming to the House.

Photo of Dolores Kelly Dolores Kelly Social Democratic and Labour Party

I welcome the Minister's introduction; it was most enlightening on the principles behind the legislative consent motion for someone who does not serve on the Justice Committee.

There are some important points to make. It is right and proper that seamless protection and safeguards are written into legislation post-Brexit and during the transition period to ensure that important issues such as child protection are legislated for and to ensure that the highest level of safeguard and protection is in place internationally. I welcome that.

I note the Minister's comments on capacity in her Department and, indeed, the fact that this is Westminster legislation that, if I paraphrase, we are piggybacking on and that it is the exception rather than the rule. With that proviso, we are happy to support it as long as this is the exception rather than the rule.

Photo of Doug Beattie Doug Beattie UUP

I thank the Minister for bringing this forward today. It is a technical LCM but an important one. We are in free fall now until 31 December and we cannot just let these things roll on; we have to address them now. It is right to address them now.

I absolutely support this LCM, but I want to extrapolate a little bit, if I can. The 1996 Hague convention on child protection improves the protection of children in cross-border disputes and helps resolve issues around custody and contact with parents for children who live in different parts. We have our own problems in Northern Ireland, because breaches of court orders in relation to family proceedings are never really enforced. I have a constituent who has sole custody of his children but has not seen them for six years because the case is lost in the courts, with endless legal aid allowing it to go on in perpetuity. Indeed, in speaking about his review of civil and family law, Lord Gillen stated:

"although a judge will do whatever is necessary to keep a parent out of prison, breaches of court orders must be addressed. Parties must not be permitted to wilfully obstruct court orders without consequences."

I raise this issue in brevity, if I can, because there is a real concern that, as we go into this LCM, we have not put our own house in order in dealing with issues like that. We are not enforcing court orders in this jurisdiction, and that will only get more complicated when we start to look at cross-jurisdiction issues.

Photo of Christopher Stalford Christopher Stalford DUP

No other Member has indicated that they wish to speak, so I call the Minister to make a winding-up speech.

Photo of Naomi Long Naomi Long Alliance

Thank you to the Assembly for taking time to consider the motion and for the contributions that were made in the debate. I thank the Justice Committee for its report and the Executive Office Committee for its consideration of the issues at hand. I am pleased with the support that colleagues have shown in the recognition that, on this occasion, it is sensible that the Westminster Bill be extended here.

I will answer a number of issues that Members raised in the debate. First, with respect to the Chair, my understanding of these sittings of the Assembly is that we can bring forward matters that are COVID-related or are urgent. This has a degree of urgency, in that this private international law needs to be in place three months before we leave the European Union, and we need to move in lockstep with Westminster and the other devolved Administrations to ensure that that is possible. I do not control the timing of Brexit, but it will happen at the end of December unless the Government seek an extension, and therefore it is critical that we have these conventions written across into domestic legislation. Therefore, my colleagues in the Executive and I believed that this was of sufficient urgency that it needed to be brought forward to the Assembly and the Committee at this time.

Photo of Paul Givan Paul Givan DUP

I appreciate the Minister's giving way. I do not disagree with how she has characterised the urgency associated with this. One issue that I would put that private Members are not able to bring forward, for example, is to debate the abortion issue that Westminster will vote on in June. There is an urgency for this House to express a view before Westminster votes. That is an urgent issue to a lot of constituents. Does the Minister agree that the Assembly should debate that issue?

Photo of Naomi Long Naomi Long Alliance

It is not for me to take a position on the business of the House. That is a matter for the Whips, along with the Speaker to decide. I do not set the agenda for the Assembly; I simply play my part in discharging my duties under it. When it comes to the issue of termination of pregnancy, as you know, it has been decriminalised, so I no longer have role to play in that debate. You would need to take up any issues that you want to debate and their urgency with the Minister of Health.

With respect to the query that I received from Linda Dillon, the issue here is about having swift implementation, so, in terms of what has been proposed, it is in order that, where we are dealing with highly technical and beneficial laws, we are able to move and to have those benefits for our citizens without unnecessary delay. However, an affirmative procedure will be triggered in situations, for example, that will implement an agreement for the first time and that has not been discussed. That will ensure that there is adequate scrutiny from this legislature and that Members are given the opportunity to make a contribution, which I also agree is hugely important in guiding and informing the process.

I welcome the remarks from Dolores Kelly. She is, of course, correct that this is driven by Brexit, and I think that it is hugely important that we are able to do this today. It would be remiss of me not to say that what we are doing today will allow us to continue to operate private international law and to bring the Hague conventions into our law. I understand that, in Westminster, we will also be seeking to join, potentially, the Lugano convention. I think that that application has already been made. Again, that should improve things. We should be under no illusion: we will still be in a suboptimal position with respect to the agreements that we have at the end of this process. We have, if you like, covered most of the bases, but there will still be more complexity than would otherwise have been the case.

I move to the comments made by Mr Doug Beattie. This is very specific legislation that deals with cross-border issues. It is unfair to say that we have not made progress on dealing with issues around family justice. For a start, as the Member referred to, we have the Gillen reviews, and we now have an implementation plan and significant work is being undertaken in the Department in recognition of that particular challenge. Hopefully with the cooperation of the Committee, we will also be in a position to look at committal reform later this year; looking at speeding up justice more generally. We are taking a number of steps to ensure that we do not have continued abuse, particularly, I think, of the family court system, by those who wish to continue to exercise some kind of coercive control over former partners. That is captured in the Domestic Abuse and Family Proceedings Bill, which we debated at length in the House at Second Stage and will no doubt have an opportunity to debate again. In the context that we are in, therefore, I believe that it is appropriate that the Private International Law (Implementation of Agreements) Bill extends to Northern Ireland and I ask for the support of the House in passing the motion.

Question put and agreed to. Resolved:

That this Assembly endorses the principle of the extension of the provisions of the Private International Law (Implementation of Agreements) Bill to Northern Ireland.

Photo of Christopher Stalford Christopher Stalford DUP

Before I put the Question on the Adjournment, I want to remind Members that the next plenary sitting of the Assembly is on Tuesday 25 May. The Ad Hoc Committee on the COVID-19 Response will meet this Thursday to hear a statement from the Education Minister, Mr Peter Weir.

Adjourned at 5.10 pm.