I beg to move, That the Bill be now read a Second time.
Private international law might sound rather dry and technical—[Laughter.] I get ready assent from the hon. and learned Member for Edinburgh South West (Joanna Cherry)—but at its heart sit the lives of real people and the challenges they face when legal disputes arise in relation to cross-border matters. I am talking about people such as the parents who need to make arrangements in the best interests of their children when a relationship breaks down and one spouse moves abroad, or the small business left out of pocket by a supplier based in another country needing to seek redress in the courts.
Reciprocal private international law rules provide a framework to allow businesses in the United Kingdom, families and individuals to resolve these difficult and challenging situations. They help to avoid confusion for all parties by preventing multiple court cases taking place in different countries on the same subject and potentially reaching different conclusions. Such reciprocal rules also allow for the decisions of UK courts to be recognised and enforced across borders. All this helps to reduce cost and anxiety for the parties involved. It is vital, therefore, that in the future the UK can not only continue to co-operate on private international law matters with existing partners, but implement new agreements into our domestic law that are fit for the 21st century, and this Bill underpins our ambition to deliver real and tangible benefits for our country and our citizens both now and in the years to come.
I would also like to reassure right hon. and hon. Members that whilst private international law can support and underpin cross-border trade, the Bill is not about the implementation of free trade agreements. The terms on which trade between two countries take place are clearly outside the scope of the Bill.
During our membership of the EU, we helped to build, develop and refine an advanced framework of rules on private international law. On 31 January 2020 we marked the first time in more than 20 years that full competence in this area of law returned to the UK. It is important that we acknowledge this new reality and take appropriate steps, and those include ensuring that our statute book is fit for purpose. The Bill achieves this by reimplementing in domestic law three key private international law agreements in which we currently take part so that in future we do not need to rely on retained EU law as the main legal basis for our continued participation.
These three agreements are Hague conventions, adopted under the auspices of the Hague conference on private international law. The UK currently operates them due to our previous membership of the EU, but we will become an independent contracting party to them in our own right at the end of the transition period. Our continued membership of these agreements is widely supported by interested parties in the legal and finance sectors, and indeed by Members in this House and the other place. Clause 1 ensures that these important conventions can continue to operate effectively in the future by stating that they
“shall have the force of law in the United Kingdom”
from the end of the transition period, instead of relying upon retained EU law for their implementation domestically beyond then. This will make their implementation clearer and more straightforward for practitioners, litigants and, indeed, our international partners.
These three conventions cover distinct areas of private international law in the fields of commercial and family law. The 2005 Hague convention increases legal certainty in disputes that relate to cross-border commercial contracts, which include an exclusive choice of court clause. It does this by ensuring that there is no dispute over where a case should be heard and enables any resulting judgment to be recognised and enforced across borders.
These types of choice of court clause are common in high-value commercial contracts, but in family law we are also reimplementing two conventions that cover sensitive and important issues for individuals and families who become engaged in cross-border disputes when a relationship unfortunately breaks down. The 1996 Hague convention improves the protection of children in cross-border disputes and helps families to resolve issues such as residence of and contact with children whose parents live in different countries. Finally, the 2007 Hague convention provides for the recovery of child support and other forms of family maintenance across borders.
The Government made a number of minor and technical amendments in the other place, which received widespread support, to provide a clearer and simpler approach to the implementation of the transitional provisions relating to the 2005 and 2007 conventions. However, the reimplementation of the Hague conventions is only a measure for the status quo. We need to ensure that we are ready for the opportunities that will arise in the future.
I firmly believe that we must now seize that opportunity of regaining full competence in this area by building on our long and proud history in private international law and cementing our role in international forums, such as the Hague Conference, the Council of Europe, the United Nations Commission on International Trade Law and the International Institute for the Unification of Private Law. We have long been a world leader in this field, and we should aspire to remain so. While being justifiably proud of our achievements in this space thus far, to really harness our potential we need a legislative vehicle to be able to implement any new agreements successfully negotiated with our international partners.
This is an extremely good, positive vision. Can my right hon. and learned Friend give one or two examples of the kind of reforms or improvements that he would be looking to make when we exercise our influence?
I am grateful to my right hon. Friend, who will share my strong belief in the success of the legal services sector both in England and Wales, and in Scotland, as well as in the Northern Ireland jurisdiction, and the importance of maximising the advantage that we have not just in our outstanding rule of law reputation, but our reputation as an international forum for the resolution of disputes. I can think in particular of issues related to arbitration and mediation, where important international conventions are being developed, where the United Kingdom not only needs to be part of it, but to be at the heart of it when it comes to improving not just the prospects for legal services, but the opportunities for the businesses and the citizens we serve.
My right hon. and learned Friend mentioned the Council of Europe. I want to stick on that, because it works on the basis of signing international treaties to get things done. At the moment, they take forever to get through, and the UK is one of the worst signers of them. Is this going to help to speed up the process?
I share my hon. Friend’s enthusiasm and sense of impatience about the pace of change in fora such as the Council of Europe. I just need to caution him on this basis. When it comes to the use of the powers that we anticipate under this Bill, we are talking about a narrowly defined type of agreement—practical, detailed but important changes that will lead to the sort of improvements that I referred to in responding to my right hon. Friend the Member for Wokingham (John Redwood). I am sure that as he hears not just my contribution but the one made in winding up by the Under-Secretary of State for Justice, my hon. Friend the Member for Cheltenham (Alex Chalk), he will be even clearer about the particular role that this Bill will play in the incorporation of international law.
That is very important, because concerns were raised in the other place that somehow this was a Trojan horse or an invitation to open the floodgates, to allow for the incorporation of major swathes of international treaty law into domestic legislation with minimal scrutiny. Nothing could be further from the case.
Will my right hon. and learned Friend give way?
I give way to my hon. Friend the Chair of the Justice Committee.
I know that we will move on to the question of what is not in the Bill and what might be later, but before the Lord Chancellor leaves the issue of improving our access to international legal agreements, he has not yet mentioned our application to accede to the Lugano convention, which many regard as critical, it being markedly superior in a number of respects to those listed on the face of the Bill. There is a concern that the Commission is currently recommending against Britain joining the convention, even though the European Free Trade Association members of that convention support it. What is the position on that? Will he assure us that the Government regard this as one of the highest priorities in our ongoing negotiations? It should not be allowed to be hijacked and held as a hostage to fortune in other negotiations.
I can assure my hon. Friend that not only do the Government place a very high premium upon the importance of accession to Lugano, but I personally have vested my own time in direct discussions with counterparts at the Commission and other member states of the EU. In fact, in Zagreb, at the final Justice and Home Affairs Council, I took the opportunity to discuss this at length with several other member states and, indeed, the then newly appointed Commissioner for Justice, and we had a very productive discussion.
My view and that of Her Majesty’s Government is very straightforward: the application for Lugano is a discrete matter. It is separate from the negotiations that are ongoing with regard to a future free trade agreement, and it should be treated as a separate matter. The time for ideology has gone. This is a time for us all to remember that the interests of the citizens that member states serve are paramount, and the interests of ensuring that civil judgments are enforced as swiftly as possible are clear. I call upon all interested parties to put those priorities first, and then hopefully we will see a swifter conclusion to the negotiations, but I welcome the warm support we have had from EFTA countries both prior and subsequent to our application.
I thank my right hon. and learned Friend for giving way on this Lugano point. I agree with everything he says: it should be treated as a discrete treaty, separate from us leaving the EU, and it is very important for our future trade. But if that is the case, why does he not mention Lugano on the face of the Bill? By doing so, he could perhaps limit the scope of the wide statutory instrument powers—the so-called Henry VIII powers—that I think he will talk about bringing back. He would then have the specific Bill that would make the other place a bit happier.
I am always grateful to my hon. Friend, who served with distinction as a Justice Minister, for his long interest in these matters as a member of the profession. I did indeed consider whether this Bill should be a Lugano-specific Bill, but I took the view—and I will explain it in more detail in the body of my remarks—that, because of the narrow ambit of what we are seeking to achieve here, there was a necessary flexibility in allowing the United Kingdom Parliament, by affirmative resolution and therefore by debate on the Floor of the House, to determine whether particular future treaties could be incorporated into domestic law.
I do not regard these as Henry VIII powers. I accept the point that there is a distinction to be drawn in relation to the bringing forward of primary legislation, but as a matter of strict interpretation these are not powers that would allow us unilaterally to amend primary legislation, which, of course, is what a Henry VIII power is. These are powers that will allow us to use secondary legislation, but with the necessary parliamentary scrutiny before the incorporation in domestic law of these treaties. Let’s face it, while we were members of the EU, in large measure, because of the competence of the EU in this area, many of these arrangements and agreements took direct effect in our domestic law without any debate whatever. In my view, this actually represents a qualitative improvement and creates a consistency with that flexibility to allow us to make the sort of advances—I know he shares my view on those—which I referred to in my remarks to my right hon. Friend the Member for Wokingham. I am very grateful not just to him, but to all Members in the other place who gave the Bill detailed and careful consideration. However, we believe that it is constitutionally appropriate and proportionate to deploy delegated powers to implement the type of international agreement envisaged in the Bill.
This delegated power, in my strong view, is narrow, well defined and proportionate. Indeed, private international law itself is still a very narrowly defined area of law. It is familiar in scope and content to courts, legal advisers and experts in the field. The type of international agreement which can be implemented under the delegated power relates primarily to jurisdiction: rules that determine where a dispute is heard, rules that determine which country’s law applies, and rules on the recognition and enforcement of legal decisions or judgments in cross-border cases. No agreement could be implemented that was not related to these specific sorts of issues, which arise in relation to the resolution of cross-border disputes.
On that point, we recognise that the Delegated Powers and Regulatory Reform Committee’s report on the Bill recommended the removal of the proposed delegated power, but it is our view that that is, respectfully, a misinterpretation of the breadth of the powers sought and the types of international agreements it can cover. Many of the examples given in its report that had previously been implemented by primary legislation are not actually private international law agreements in themselves. Although those agreements contain specific private international law provisions, they are wider in their overall scope and could not have been implemented using the proposed delegated power to be reintroduced into the Bill.
It was also said in the other place that the use of delegated powers to implement private international law agreements would be constitutionally unprecedented. With the greatest respect, I wholly disagree. There are delegated powers to implement new bilateral agreements on recognition and enforcement of civil judgments via Orders in Council under the Administration of Justice Act 1920, the Foreign Judgments (Reciprocal Enforcement) Act 1933, the Maintenance Orders (Facilities for Enforcement) Act 1920 and the Maintenance Orders (Reciprocal Enforcement) Act 1972. Indeed, the powers under the 1933 Act were used as recently as 2003 by the Labour Government to update a bilateral agreement with Israel relating to the recognition and enforcement of judgments, and extending that agreement to cover judgments of the Israeli magistrates courts. However, while it is important to look back at the precedents that exist, it is vital that we look forward, too. The powers contained in those Acts only allow us to implement bilateral agreements in this area. Frankly, the world has moved on significantly since the ’20s and ’30s, because most private international law agreements are now made on a multilateral basis. We need to ensure that the necessary powers exist to implement such agreements in a timely manner.
Parliamentary scrutiny procedures have moved on as well, and our proposals recognise this by requiring statutory instruments made under the delegated power to implement new agreements to be subject to the affirmative resolution procedure, which provides much more scrutiny than the Order in Council process. Any decision for our country to join a particular agreement in this area of law would also still be subject to successful completion of parliamentary scrutiny procedures under the provisions of the Constitutional Reform and Governance Act 2010—CRAG—which many of us got to know intimately in the context of last year’s machinations on Brexit.
The delegated power in the Bill would not alter the well-established approaches to parliamentary scrutiny of treaties and the process of approving ratification under CRAG. Instead, it would simply be a mechanism to draw down the resulting treaty obligations into domestic law in readiness for the ratification of the treaty. The Government recognise that Parliament has begun to strengthen the scrutiny procedures under CRAG, including, importantly, the establishment of the International Agreements Sub-Committee in April of this year under the chairmanship of Lord Goldsmith. We look forward to working with the Committee, including on the scrutiny of the private international law agreements.
Does my right hon. and learned Friend appreciate that that is the exact same Committee that has constantly been attacking CRAG as totally inadequate and unfit for purpose?
Indeed it has made some very trenchant comments about CRAG, and that is precisely why it is important that that Committee does its work on improving and enhancing the procedure. I welcome its work and we will actively engage and ensure that that is so.
The most pressing need for the delegated power is to implement what we hope to see—namely, the Lugano convention, which we have already discussed. As I have said, we still do not know the outcome of our application. It is being considered by the contracting parties to the convention, including the EU. It currently underpins our private international law relationship with Switzerland, Norway and Iceland, but could also be used to underpin our relationship with the EU after the end of the transition period. It would provide valuable certainty on cross-border recognition and the enforcement of civil and commercial judgments, as well as clarity on which country’s courts may hear a dispute.
I welcome my right hon. and learned Friend’s commitment to joining Lugano. It is important for all the reasons he has set out. There was compelling evidence given to the Justice Committee over a number of years about the importance of this. Also, is it not important that we join so that we can then, as one of the convention parties, seek to influence the development of the convention—for example, to avoid a race to the bottom in jurisdictional terms in dealing with the threat, as it is sometimes called, of the Italian torpedo? We cannot deal with the Italian torpedo until we are in Lugano to sort it out, so is that not all the more reason to reflect on putting this on the face of the Bill? Perhaps nothing would be lost by doing that.
I am grateful to my hon. Friend. The Italian torpedo is not a reference to the successful naval action by the Royal Navy against the forces of fascist Italy in the second world war. This is a particular device taken by parties who issue proceedings in a jurisdiction that they know will not accept control over the particular proceedings. It is, in other words, a massive delaying tactic that can cause real obstruction to the course of justice and to the resolution of important disputes, and that is why he is right to say that Lugano would be very much a beginning when it comes to the development and refinement of that type of important co-operation.
My hon. Friend the Member for Huntingdon (Mr Djanogly) asked why we do not mention Lugano. Well, there is an obvious argument that I should have addressed, which is that, as we have not yet been able to join it, it would perhaps be premature for us to refer to it directly on the face of the Bill, as opposed to the Hague conventions, which we have joined. Regrettably, there will not be time to bring forward further primary legislation before the end of the year, should our application be approved within the next few months. Therefore, for that sad but practical reason, it would be right not to pass anticipatory legislation but rather to await the outcome of the negotiation and then to allow the use of the delegated power.
The power could also be used to implement other agreements. I have talked about mediation, and in particular the 2019 Singapore convention on mediation and 2019 Hague judgments convention. We have not yet taken a formal decision on either of those, but of course I am happy to talk more about those conventions with hon. Members during the passage of this Bill and, indeed, in the future as we decide on our final approach to these instruments.
If I catch your eye, Mr Deputy Speaker, I will speak a little more about the Singapore mediation convention, because I think everyone approves of it. All it does is bring mediation settlements under UK law in the same way that arbitration settlements are included within the New York convention. I hope that my right hon. and learned Friend’s offer to speak to people who are involved with this includes me, because I would be very happy to discuss it further.
I am grateful to my hon. Friend and he is right to mention the New York convention. Indeed, it develops the point I made to my right hon. Friend the Member for Wokingham about our ambition on the recognition of arbitral decisions and mediation resolutions, too.
The reintroduced delegated power would allow us to strengthen our internal UK and our wider UK family relationships, including those with the Crown dependencies and the overseas territories, by allowing us to apply and to implement the terms of an international agreement between the different jurisdictions of the UK or, indeed, to apply and implement an arrangement or a memorandum of understanding based on the terms of an agreement between a self-governing territory or a dependency and the United Kingdom. Of course, this would be done only with the agreement of the relevant devolved Administration or self-governing territory or dependency, because the Government recognise that private international law, including the implementation of agreements, is indeed fully devolved to Scotland and Northern Ireland, and this will continue to be reflected in any reintroduced delegated power in the Bill.
In summary, this Bill will allow our country to capitalise on regaining full competence to enter into international agreements on private international law in our own right after our withdrawal from the EU. It simplifies the implementation of three important Hague conventions in domestic law, to which the UK will be an independent party from the end of the transition period. The reintroduction of the former delegated power will also allow us quickly to implement any new agreements we strike with our international partners, thereby remaining at the forefront of promoting global co-operation and, indeed, best practice in this area. Finally, it will also allow our citizens to harness the benefits of these agreements in a timely manner, including to assist in the resolution of cross-border disputes. I commend the Bill to the House.
Labour welcomes the principle of the Bill to maintain and enhance our legal co-operation across jurisdictions and to provide certainty and fairness for those involved in cross-border litigation. In a post-Brexit world, this is essential in attempting to maintain a prosperous economy, protecting our legal system, and providing for families and individual claimants engaged in cross-border disputes. International agreements provide clear and reciprocal mechanisms for dealing with international disputes. In doing so, they are crucial in protecting our country’s proud reputation as the world centre for resolving complex disputes, while offering us a competitive advantage in finance, business and trade.
However, this Bill, and the Chancellor talked about this, will also affect human stories. A wide range of family law issues can lead to cross-border disputes, including when one partner takes a child abroad and there is a disagreement about parenting arrangements—I have had such cases in my own surgeries—as well as when making arrangements for divorce in similar circumstances and, of course, issues relating to abduction and adoption. To keep our citizens safe, we must ensure we have robust international agreements so that justice can be done. Clause 1, which gives effect to international treaties in domestic law through primary legislation, is therefore both necessary and welcome. It is hoped that the provisions affecting the rules on jurisdiction and the recognition and enforcement of judgments overseas will play a crucial role in building a strong economy and provide some certainty for families in often desperately difficult circumstances.
Although we welcome the principle of the Bill as it currently stands, it must be noted that this is largely due to the successful efforts in the other place of my noble and learned Friend Lord Falconer and others to remove clause 2 of the Bill—[Laughter.] I am glad the Lord Chancellor finds that amusing. I will touch on that in due course, but, first, let us come to the specific points of the Bill on which we agree.
Clause 1 gives effect to key international conventions in our domestic law, which is welcomed on the Opposition Benches. The Lord Chancellor spoke of these issues. The 1996 Hague convention on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children is critical to improve the protection of children in cross-border disputes. The 2005 Hague convention on choice of court agreements aims to ensure the efficacy of exclusive choice of court agreements between parties to international commercial transactions. We support this incorporation into domestic law, as such clauses are commonly provided for in high-value commercial disputes.
The 2007 Hague convention on the international recovery of child support and other forms of family maintenance provides for the international recovery of child support and spousal maintenance. It is abundantly clear that this is a positive move, which will help to ensure that parents pay their fair share when providing for their children. We welcome these provisions and hope most certainly that we can offer that certainty in other areas of cross-jurisdictional disputes—I have just managed to tie my tongue in knots.
Labour will not, however, support any attempt by the Government to reintroduce clause 2, which would allow for the future agreements to be implemented via secondary legislation only. As we heard in the other place, this provision would be of profound constitutional significance. Labour is concerned that the reintroduction of clause 2 would represent an extension of the power of the Executive into uncharted territory, amending the convention that international legal agreements that change our domestic law can only be given force by an Act of Parliament.
I am listening with great interest to the hon. Gentleman’s speech. Would he care to comment on the involvement of the noble Lord Falconer as a Minister in the passage of the Mental Capacity Act 2005, which did precisely what the hon. Gentleman complains of with regard to the incorporation of important international agreements on mental capacity? I would be very interested in his view.
The Lord Chancellor has an advantage over me; he has expertise in this particular area. I accept that we may have dealt with things quite differently in the past, but it is important that we recognise that this is a matter of international law.
I was rather surprised to hear the Lord Chancellor effectively rubbish the concerns of those in the other place, particularly given their comprehensive arguments. The House of Lords Constitution Committee said that this change would represent a
“significant new power that would change the way this type of international agreement is implemented in UK law and how Parliament scrutinises them.”
The House of Lords Constitution Committee and the Delegated Powers and Regulatory Reform Committee both considered whether the secondary legislating power should be granted, and both were very clear that it should not. The Constitution Committee stated:
“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.”
As his lordship, Lord Mance—the chair of the Lord Chancellor’s Advisory Committee on Private International Law and perhaps the pre-eminent expert in this area of law—told the other place:
“Opinion is almost universally against Clause 2. The two committees that have reported have categorically condemned it.”—[Official Report, House of Lords, 17 June 2020; Vol. 803, c. 2228.]
Lord Pannick, another pre-eminent constitutional lawyer, argued in the debate that there is
“no justification for allowing the law of this country to be changed by statutory instrument in this context without full parliamentary debate. That is because important policy decisions might arise in this context both on whether to implement an international agreement in domestic law and on the manner in which such an agreement is to be implemented.”—[Official Report, House of Lords, 17 June 2020; Vol. 803, c. 2224.]
The Delegated Powers and Regulatory Reform Committee also offered a stern warning about the unprecedented nature of the constitutional change, saying:
“For the first time there will exist a general power to implement international agreements on private international law by statutory instrument, thereby obviating the need for an Act of Parliament. This will be so regardless of the nature or importance of the agreement.”
In its briefing, the Bar Council was also highly critical of this new constitutional grab, stating:
“The Bar Council is…somewhat concerned that the power in section 2”—
that is, clause 2—
“to proceed by delegated legislation is very broad. For instance, it enables the appropriate national authority…to make regulations ‘for the purpose of, or in connection with, implementing any international agreement’”.
The power could extend to matters in our criminal law, such as increasing or, indeed, reducing the penalties for criminal offences.
To give effect to international treaties in domestic law is not a rubber-stamping exercise. The effect, implementation and enforcement of such provisions requires robust parliamentary debate; we must protect the parliamentary scrutiny of such important legal provisions at all costs. The Government have attempted to make arguments as to why the new constitutional measure would be necessary, but all have failed to convince. Their first argument was that the new provision would allow the Government to implement each new international agreement without unnecessary delay, yet there is no evidence to suggest that fast-track legislation is required. In the past, the implementation of international agreements has often taken years, and there is nothing to suggest that implementing them by primary legislation would cause any difficulties beyond the Government’s having to put legislation through normal parliamentary scrutiny.
The Government raised the 2007 Lugano convention, which deals with the jurisdiction and enforcement of judgments between members of the European Union. The Government’s argument appears to be that there may be only a short period during which to legislate to give effect to the Lugano provision at the end of the transition period. Of course, that is not an argument for developing the new executive power more generally. The Government have not considered providing for clause 2 only in relation to Lugano, which might be more amenable—why not? That question has already been posed this afternoon. The Lord Chancellor said that is the main reason that the Government want to have the delegated powers; if that is so, why does he not just put that on the face of the Bill and recognise the issues that have been raised in the other place?
The Government claimed that the Constitutional Reform and Governance Act 2010 allows for sufficient parliamentary scrutiny. Once more, that argument does not carry much weight. As a result of clause 2, the Government would be able to give force to model law without being subject to the scrutiny mechanism under the 2010 Act. That Act does not allow for the amendment of treaties or the consideration of measures to implement treaties. It is a red herring and the argument has unravelled when subjected to expert scrutiny.
This is an issue of constitutional propriety for a Government with a reputation for constitutional vandalism. The Conservative peer Lord Garnier stated:
“Unquestionably, the provisions in Clause 2, which gave the Executive the extensive future law-making powers originally in the Bill, have been shown to be constitutionally awkward and unwelcome, by the Constitution Committee, the Delegated Powers Committee and contributors to these debates. When the Bill goes to the other place, I trust that the Government will not use their large majority there to restore the Bill to its original form.”—[Official Report, House of Lords, 29 June 2020; Vol. 804, c. 483.]
Unfortunately, we on the Labour Benches fear that that is the very intention of the Government, who on so many occasions have shown themselves to be keen to avoid parliamentary scrutiny.
As Members of Parliament, we have a duty to tread with real care when reforming our constitution, especially when the Executive is empowered and the power of Parliament is undermined. There is no evidence before us as to why the reintroduction of clause 2 would be necessary or right; with that in mind, Labour will support the Bill as it currently stands but wholeheartedly oppose any attempts to reintroduce clause 2 as the Bill progresses through its remaining stages.
I welcome the approach to the Bill that the Lord Chancellor has adopted and I support the Bill. I support it without hesitation, because it is necessary, but also with a measure of sadness, because I wish it were not necessary. It is a consequence of a decision that was taken that some of us continue to regret and is perhaps an example of the price that is paid in respect of an issue that some thought was technical and dry but that in fact affected people’s everyday lives and the prosperity of the business community of this country but was perhaps not given enough attention in the course of the debates that preceded our decision to leave the EU. Perhaps that caused us not to value enough the system of connections and regulation that we were party to.
The reality is that we are doing our level best—the Lord Chancellor and the Under-Secretary of State for Justice, my hon. Friend the hon. Member for Cheltenham (Alex Chalk) are doing precisely that—to put in place the best possible scheme that we can have and that is available to us when, at the end of the year, we leave the most comprehensive set of private international law agreements that exist. We just have to accept that that is the reality, but let us not kid ourselves that we will get any improvement: we will end up with something that is less good than we had and that we are leaving behind—ironically, when the Brussels IIa recast, particularly in its relation to the strengthening of the provisions in relation to jurisdiction-of-choice clauses, is something that Britain has succeeded in having changed and improved specifically to advance and protect the interests of the British-jurisdiction and English-law clauses that greatly advantage the City of London and our broader national financial services sector. I put that on the record as a matter of context and to get it off my chest, but it needs to be said, because it ought to influence the way and the speed with which we now move on this.
I welcome the fact that the Government have picked up, on this and the preceding measures, a number of the Justice Committee’s recommendations on how we might best deal with the situation that we find ourselves in. For example, bringing the Rome regulations on family and other matters, which did not require reciprocity, into domestic law, and implementing the Hague convention, as set out on the face of the Bill, are desirable. The ambition to join Lugano is, for reasons that we have already debated, very important. The Hague conventions are worthwhile but are not as good as what we had before, so moving to Lugano, which would be an improvement, would be a step forward.
I hope, too, that we swiftly deal with the other two conventions referred to in the helpful letter that the Under-Secretary of State for Justice, my hon. Friend the Member for Cheltenham, sent to all Members of Parliament: the 2019 Singapore convention and the future Hague convention agreements. There has been some debate in the other place, particularly from Lord Mance, about which order they shall come in. On balance, I am persuaded by the evidence that we have heard over the years and the arguments made by the Law Society of England and Wales—I think the Law Society of Scotland finds itself in the same place—that the more important thing is not to have any gap in the recognition and enforcement of judgments and recognition of international public clauses. That is why the Law Society favours pressing ahead with entry to Lugano as soon as we can, rather than waiting for what may develop with the Hague arrangements. The Government are right not to delay in that regard; we must press ahead.
That is, of course, the means by which we should deal with the Italian torpedo. I mention it not because this is like when we were doing trials in long, boring fraud cases, and there was sometimes a bit of a side bet to make an unlikely comment in one’s closing speech to the jury. The truth is, as we all know, that the Italian torpedo—the delaying tactic of seeking to thwart an exclusive jurisdiction clause, very often operating in favour of the UK, by commencing unmeritorious and almost abusive proceedings in another jurisdiction, which would then hold up the process—has caused a problem in commercial matters and real hardship in many family law cases. Getting the family law issues right is particularly important. The Government’s objective of ensuring that, for example, the partner of a finished relationship is able to enforce her maintenance payments from the other partner, who may be in one of the EU or other contracting states, is critical for ordinary individuals—not just businesses. Having in place a means of protecting the English and Scots law jurisdiction clauses, which are very important for financial services contracts, is critical too.
It is perhaps not the time to go into this in detail, but when we get to Committee, may I ask Ministers to reflect on the matter of asymmetrical jurisdiction, which was raised by Lord Mance, who has massive experience in this field? I tend to agree with him on that, whereas I am not persuaded about the sequencing of Lugano and Hague. He referred to it in some detail in his speech in the Lords. I will not repeat what he said, as he is much more experienced than me, the Lord Chancellor and the Under-Secretary of State, who did not have the fortune—literally or otherwise—to practise in that field. Lord Mance’s wise words are important, because this issue relates to derivative swaps and other financial instruments, which, for reasons that he set out well, are of particular importance to the UK financial services sector. As things stand at the moment, the provisions in the Bill do not sufficiently address that.
That is a technical but important matter for our business interests that we ought perhaps to reflect on as the Bill makes progress in Committee.
The other thing I want to say at this stage is that while I know the Lord Chancellor wishes to be ambitious in scope, I am not saying that this is necessarily a Henry VIII power or that all wide-ranging powers to amend by delegation are always wrong. Lord Garnier, who has been referred to as a mutual friend of all those on this side of the House and elsewhere, put it rather well when he said—I paraphrase him—that essentially all parties when in opposition oppose clauses of this type, but all parties when in government make use of them. He said that he had done so himself, and I did so myself when I was a Minister. Those on the Treasury Bench have done so at various times, so it is not a question of haloes in that regard—
But on this occasion, Lord Garnier was actually in support of the Opposition’s position.
He was indeed, and if the hon. Gentleman allows me to develop it, I will suggest a nuanced way around this. It is not to say that we should not have delegated powers, but that we should perhaps look again at the way in which they are cast. I do not think it would necessarily be needed to bring back clause 2, as it was before it was removed by the other House—and I understand Lord Chancellor’s point about not bringing in pre-emptive legislation—but there was some merit and a genuine concern to assist in the point made by my hon. Friend the Member for Huntingdon (Mr Djanogly) about putting the power on the face of the Bill with a provision to exercise it at such time as the application was approved. That might remove the sting from it.
I know that the Under-Secretary has examples of instances when delegated legislation is used to create criminal offences. Those of us who have much more experience in that field, as the Lord Chancellor and others have, know it happens. It is not an objection in principle, but it might be possible to redraw the provisions more tightly to make sure that that is not unduly widened. Perhaps there are things that can be done to speed up the process without bringing ourselves into what might be quite a significant conflict given the size of the majority by which clause 2 was rejected in the other place; I think it was 320 to 233, so it was not a marginal matter. I hope, therefore, if we are to ensure the swift passage of the Bill, which is the one thing that we absolutely must have for the sake of avoiding a lacuna on 31 December this year, perhaps some imagination can be given to how that potential difficulty with the other place might be overcome.
I hope that we will be able to proceed with the Bill swiftly. We do not perhaps always give sufficient value and attention to these matters. The status of our civil law and the status of private international law are not talked about enough—
I wonder whether my hon. Friend will address my query to all the expert lawyers in the House about what Britain could now do by way of leadership to improve a big area like family law through these mechanisms. Does he have any ideas for Ministers?
The first one is one that we have been talking about, which is early joining of Lugano, and being active in the international law field. I think we can do that and, in particular, one area in family law has been a concern, which was expressed by the Family Law Bar Association in evidence to the Select Committee some time ago. It is that the current arrangements in The Hague convention can tend—as the evidence of Philip Marshall, QC, the then chairman, suggested—to militate against mediation in family law cases. Active participation in that could be a very constructive way forward.
I am keen that we get on with this. As I know, and my hon. Friend the Member for Henley (John Howell) will talk about this more, Britain has a world-leading sector in mediation and arbitration, and that is something that we should also develop. In terms of commercial cases, it is of great value to the country, but it is also of real human value when it can be applied in mediation cases. Despite my regret about the necessity for the Bill, it is well put forward by the Lord Chancellor and I take on board his points. I hope that we will be able to resolve any outstanding issues between this House and the other place as to the best way forward to get the practical objectives that we all share across the House on the statute book as soon as possible.
It is a pleasure to follow the Chair of the Justice Committee. I found much with which to agree in what he said and I share his regret that the Bill is necessary.
I start, however, by recognising that the Bill is necessary as a result of the United Kingdom’s withdrawal from the European Union, and I wish to make it clear that the Scottish National party supports the swift implementation of the 1996, 2005 and 2007 Hague conventions, because that will allow vital family law co-operation measures to continue after the transition period. My party is all for close and co-operative judicial relationships and we hope that, despite some worrying signs to the contrary, the United Kingdom will work with the European Union to ensure such relationships during and beyond the transition period.
However, my party’s support for the Bill does not change the fact that the Scottish National party, along with the majority of people living in Scotland, deeply regrets the withdrawal of the United Kingdom from the European Union on 31 January 2020. That happened without the consent of the people of Scotland and against the explicit wishes of our Parliament. In the EU referendum, which seems an awfully long time ago now, Scotland voted by a significant majority to remain in the European Union, and majority support for EU membership remains constant in opinion polls in Scotland. Indeed, at every electoral opportunity since the 2016 referendum, voters in Scotland have given my party and the other pro-EU parties a resounding majority. I know these facts may be unpalatable to some on the Government Benches but they are facts, and ignoring these facts—ignoring the repeatedly expressed democratic wishes of people in Scotland—has consequences. These consequences are plain to be seen in the fact that, even in the absence of a campaign, support for Scottish independence has reached 55% in the opinion polls during the current crisis. Brexit is widely recognised as a significant factor in the rise of that support, which is now at unprecedented levels.
The Government and those on their Back Benches would do well to listen to wise voices, such as that of the right hon. Member for Sutton Coldfield (Mr Mitchell), who last night told “Newsnight” that
“Brexit has made the case for the Union more difficult to push in Scotland”
and that it would be
“very difficult to resist”
a second independence referendum.
Order. I understand the point that the hon. and learned Lady is making, but is there any chance that she could now get to the Bill in front of us?
I was about to do so, Mr Deputy Speaker, but I think it is important for the record that we restate the view, and make it crystal clear—as my constituents, and those who elected my fellow SNP Members, would wish us to do—that we are agreeing to the Bill only because we see it as inevitable to protect constituents and businesses in Scotland; but that we do not agree to the fact of Brexit, and that that has consequences, which I am sure are relevant to all discussions in this Parliament going forward—at least from the point of view of Scottish Members of Parliament.
Returning to the specific terms of the Bill, we accept the need to make preparations for the circumstances that will arise as a result of the end of the transition period. As others have said, although international private law is rather dry—as a student, I regarded it with dread—nevertheless it is really important to our constituents, and particularly important in the field of family law, but also really important for commerce and business.
As an aside, I was pleased to see that during the Bill’s passage through the Lords, the UK Government registered their intent to ratify and implement the 2000 Hague convention on the international protection of adults. That has already been done in Scotland, but I am pleased to see that it will now happen in England and Wales, and that there will be an appropriate consultation with the Northern Ireland Executive.
Although the Bill’s introduction has been triggered by the UK leaving the EU, there are aspects of it that go beyond Brexit. I think the Bill—certainly clause 2—was very much about the future strategy for international relations in the area of private international law, about which the Lord Chancellor spoke. I very much hope that for so long as Scotland remains part of the United Kingdom and, indeed, afterwards, when it becomes an independent nation, the strategy of the Government will be based on a commitment to international co-operation on private international law, including multinational agreements, and not just limited to the European Union. As others have said, these agreements are important because they allow and support the legal services sector in the United Kingdom, including in the separate jurisdiction of Scotland, to participate in private international law developments internationally. The commitment to international co-operation on international private law is in line with my party’s policy. We would like to see more international co-operation, not less, and that is certainly the strategy that an independent Scotland will pursue in the years to come.
I welcome the fact that this Bill was drafted to recognise that Scotland is a separate legal jurisdiction and to make provision accordingly. The Lord Chancellor knows that, in another area, I have had occasion to write to him recently to remind him of the fact that the Scottish system of civil justice is indeed completely independent from that of England. That is not just because of devolution, which, of course, is a fairly modern event. It is important to understand that the civil justice system under the Scotland Act 1998 is the preserve of the Scottish Parliament, but that separateness is also guaranteed by the Treaty of Union—in particular by article 19 of the Treaty of Union.
Although I am afraid, as the Lord Chancellor knows, that in the field of judicial review there may be a threat of an excursion into Scottish territory, I am very pleased to see that, in this Bill, that is not the case. None the less, it is worth reminding ourselves that it has often been said that some parts of the Treaty of Union, such as the preservation of Scotland’s Church and also Scotland’s legal system, are so fundamental that this Parliament does not have the power to legislate in contravention of them. I am aware that that point has never been definitively tested in a court of law, but were there to be an excursion into Scots law in the field of judicial review, that might be the opportunity to test that question, and I think the outcome of any such litigation could have interesting knock-on effects. However, as I say, it is not a bridge that we need to cross in relation to this Bill. I see the Lord Chancellor shaking his head with something approaching belief and I am sure that he will be aware that any interference in Scotland’s independent legal system would be met with some resistance, not just from adherence to the cause of Scottish independence, but from the Scottish legal profession. The two things are not always the same thing, although they are increasingly becoming the same thing.
I do not mean to jest here because I am grateful to the Government for having drafted this Bill in a way that recognises that, under section 126(4)(a) of the Scotland Act, private international law is part of Scots private law and that includes matters such as choice of law that this Bill covers, choice of jurisdiction, recognition of judgments and enforcement of decisions. There is also the convention under section 28(8) of the Scotland Act—the Sewel convention—that this Parliament would normally legislate with regard to matters that are within the legislative competence of the Scottish Parliament without the consent of the Scottish Parliament. I know that that has been breached on a number of occasions recently, but thankfully not in a relation to this Bill. Under the original clause 2 of this Bill, Scottish Ministers were given certain powers in relation to delegated legislation because, whereas negotiating and joining international agreements on private international law is reserved, implementing them in domestic law is devolved. As the Lord Chancellor will be aware, the Scottish Government have considered carefully the provisions of the Bill as originally laid insofar as they legislated for Scotland and legislative consent was sought from the Scottish Parliament and granted on 17 June. That was very much because the view was taken that, because the provisions of the Bill cover Scotland as a separate jurisdiction, Scotland would be placed in a prejudicial position if allowance was not made, and that would adversely impact on Scottish citizens and businesses. I think it is fair to say that my colleagues in the Scottish Government wanted to provide reassurance to those affected by cross-border family support and custody mechanisms, as other Members have adverted to.
Finally, I come to the removal of clause 2 in the other place. I appreciate that if clause 2 is not reinserted into the Bill, it will mean that for each private international law agreement the UK enters into in future, primary legislation will be required to implement it domestically. A lack of clause 2 would not mean that the UK did not have the ability to enter into these agreements, but it would mean that they would have to be brought before this House and implemented into law by way of primary legislation. I note that the Lord Chancellor intends to reinstate clause 2, but I say to him, having read the debate in the Lords, that legitimate concerns about parliamentary scrutiny, or the lack thereof, in relation to delegated legislation were raised.
Let me pick up on what other hon. Members have said. If it is the case, as it appears to me, that the Government’s clear policy is to rejoin the Lugano convention—obviously, we would need to do that quickly—I suggest to the Lord Chancellor, and I am indebted to the Law Society of Scotland for this suggestion, that one way around this would be to reintroduce clause 2 on the basis that it focuses only on the implementation of the Lugano convention. I believe that was suggested by the hon. Member for Huntingdon (Mr Djanogly). If the Government are insistent on bringing it back on a general basis, might I suggest attaching a sunset clause to it, perhaps for a year or so?
More broadly, the Government need to establish a clear and comprehensive approach to ratifying treatments, one that includes an appropriate role for this Parliament in providing scrutiny, because when the transition period ends, the UK will negotiate and sign treaties on a much larger scale than when we were members of the EU. Although the negotiating and signing of treaties is a function of government, exercised through prerogative powers, the increasing complexity of modern treaty obligations and the way they affect individual rights creates a need to ensure that they are adequately scrutinised here. As others have mentioned, it is particularly important that that happens when criminal offences are being created, or indeed amended or extended, because that has particular implications for individual rights. Let me finish by saying that if the Government do not find a way to enhance parliamentary scrutiny of these matters, the promise that leaving the EU meant taking back control will be made a mockery of.
The Bill, as presented from the other place, is not in the least objectionable. As has been pointed out, the European Union (Withdrawal) Act 2018 automatically inserts directly effective treaty rights into domestic law after the end of the transition period. However, clause 1 takes a number of treaties that we all consider to be valuable and directly puts them into our own laws as though they were non-EU-signatory treaties. I agree that not only is that more transparent, but it makes a clear statement on our new post-Brexit position to the international community. So far, so good. The problem comes when we then get to discuss what Government powers should be in relation to the private international law issues that we do not currently know anything about.
Looking at this Bill, the dilemma I have, when including the Government’s stated intention to reinsert clause 2, is that we have an Administration keen to take back control when it comes to the EU, but there seems to be less of an issue with passing laws that facilitate the Executive handing out control and sovereignty to non-EU foreign powers with minimal parliamentary scrutiny. Building on one point made by my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), let me say that one confusing thing I find when looking through the Bill is working out which aspects of private international law we benefit from now through our former membership of the EU that we would wish ideally to retain. That is relevant because we still do much of our business with EU countries. We still have the most UK-owned foreign homes in France and Spain, and I would hazard a guess that UK citizens marry and have children with more European Union citizens than other foreigners.
The treaties set out in clause 1 are very limited—the protection of children, the exclusive choice of court agreements and family maintenance. They do not deal with insolvency, business law and many other key issues dealt with under European law. Could the Minister point me to some document that shows what is covered with the EU now and will be rolled over into our law, or to what extent those items feature in current EU deal negotiations? That would be helpful.
As the Lord Chancellor said, the issue with this Bill is not what is in it now, but rather what has been taken out by the other place—namely, the former clause 2 delegated powers provision. I note that no attempt was made in the other place to upset the royal prerogative and demand that PIL treaties are approved by Parliament before signature, although the weakness of the CRAG pre-ratification review process was well covered as being limited and flawed.
On looking at the debates on this Bill in the Lords, the key difference between the Government and almost everyone else who spoke was the Government’s contention that these proposed Henry VIII powers—that is what I think they are—were not a constitutional breach, as they had already been used for other laws. We heard the Lord Chancellor repeat that today. Lord Keen referred to the Mental Capacity Act 2005, which came up in an earlier intervention, but it was pointed out that that Act was the primary legislation that gave effect to an international convention, and as such, it was not the best example that the Minister might give.
It seems to me that we need to consider the Government’s suggestion that PIL is a narrow enough genre to merit its own delegated powers. That is a hard case to make, and it has not yet been made by the Government. To answer the point validly made by my right hon. Friend the Member for Wokingham (John Redwood), the processes, for instance, to enforce private contracts, international financial bonds or insolvency procedures are difficult to lump into the same basket as, say, child protection or mental health, which is what the proposal in clause 2 does.
The Government have repeatedly said that clause 2 is necessary to move ahead with the Lugano treaty, yet their wording referred to “any international agreement”, which could stretch to much more than the Lugano treaty. Furthermore, the proposed powers last without a sunset clause, so they could presumably be used in the future for not only the implementation of now unknown treaties but any changes to those unknown treaties, no matter how significant.
Other issues arise. I am concerned, for instance, about the extension of Executive power to use statutory instruments to change domestic law to give effect to model laws. I am concerned at such powers being used to make new criminal offences by order. A more general observation would be on the timing of the process. In recent weeks, Ministers have been arguing for Bills to be heard in an afternoon because of the covid emergency. International treaties, however, work on the slowest and most planned of timescales, so to say that these issues are time-constrained is not realistic. Likewise, to accuse these PIL subject areas of being only technical is unrelated to how very important they tend to be to the lives of people who actually need them. Furthermore, given how the world becomes an ever smaller place, I foresee these cross-border jurisdictional issues becoming more, not less, relevant and important, particularly with our being out of the European Union.
For all those reasons, my instinct suggests that the Government should accept the position presented to them by the Lords and simply move on. At the least, we could tie the powers to named foreseeable treaties in the Bill such as Lugano. However, if the Government are dead set on their current course, I suggest that they need to improve their offer to Parliament, and four areas comes to mind. First, they should limit the order-making powers to a period of, say, two years after each relevant treaty has been signed. Secondly, a Joint Committee should be formed to review the orders. Thirdly, a Government report should be issued to Parliament setting out the proposal, and fourthly, the report should be issued a minimum period of, say, 21 sitting days before the relevant SI Committee sits.
As things stand, the Government’s proposed reinsertion of clause 2 must represent one of the largest potential power grabs ever seen by the Executive in this Parliament. The Government should think again.
I first declare an interest as an associate of the Chartered Institute of Arbitrators.
I welcome this Bill and the proposals to change it during its next stages. As I said during an intervention, I want to mention one thing in particular—the Singapore mediation convention. This is a treaty that we have been waiting to sign since it was first talked about in 2018. It is absolutely unconscionable that it has not been signed, ratified and brought into UK law in a much shorter period. This goes to the heart of the question asked by my right hon. Friend the Member for Wokingham (John Redwood)—what do we need to do to keep ourselves ahead of the game in this? I went to Singapore and talked to the mediation community there. We are being left out. The centre of mediation is here in London. It is being left out because there is no means of making sure that the mediated conclusion to a dispute can be brought into law in another country. In fact, the process that one has to go through is a fairly arbitrary one where, after the mediation, one has to get new proponents as arbitrators, which increases the cost enormously, to have a formal arbitration that can be caught under the New York convention. That is an utterly absurd way to go about this.
We all know that mediation has become an important part of modern business, especially as the courts are busy. When I was doing my Industry and Parliament Trust fellowship in law and sitting with judges, I was very pleased that many of them advised the people who were pleading before them that they should go away and consider mediation beforehand. Getting a mediation settlement agreed and applicable across countries seems to be a very narrow and technical thing to do. It does not affect anyone in an adverse way, and it has been welcomed by almost everybody I have spoken to.
I hope that the Minister will be able to confirm that this Bill will allow us to steam ahead in getting the Singapore mediation convention ratified and brought into UK law so that, for the future, we can maintain our position in the UK as the centre of mediation in the world.
It is a pleasure to make some brief comments in this debate. The Lord Chancellor is no longer here, but I thank him for setting the scene so well for us all to follow. As we are all aware, the Library has made things clear in the notes on the Bill. I want to start with the words of the Bar Council:
“Private international law is at once both a highly technical field and one that is extremely important in regulating the lives of individuals and businesses when they cross borders. Never has there been a greater need to consult specialists in this field and to ensure rigorous scrutiny to produce a cogent and coherent strategy in this field. Time is short to ensure that United Kingdom private international law is left in a clear and satisfactory state upon exit day.”
That sets the scene for where we are and the importance of what we are trying to achieve.
The Bill as introduced into the House of Commons contains only one substantive clause that would give domestic effect to three international agreements covering aspects of private international law—the Hague conventions of 1996, 2005 and 2007. These provide a framework for determining jurisdiction and enforcement in international disputes covering child custody and maintenance, and civil and commercial matters. The United Kingdom currently participates in these arrangements as a result of our former membership of the EU, as well as the EU-wide measures covering co-operation on cross-border legal issues.
My interest in these matters comes purely from my constituency work load. Over the years, as a Member of Parliament since 2010 and as a Member of the Northern Ireland Assembly prior to that, constituents have come to me with such issues, and most of those were to do with the custody of children or divorce, but sometimes there were insolvency or commercial matters. However, the real issue was family law, so I am encouraged by what the Lord Chancellor said in relation to that, because there is a necessity to provide certainty and protection to children and families in what is often the very fractious and difficult environment of family disputes. Some cases and disputes that I have been involved in over the years as an elected representative—not as a legal matter; I am not legally qualified and I am always conscious of saying that—can be made additionally complicated by the cross-border element.
I have also been involved in issues when there have been accidents in other jurisdictions, where there were claims to be made and where accountability was part of that process, and that again comes under international law. On one or two occasions, someone has bought a product in another country and wants the right of recourse because it was defective. The hon. Member for Huntingdon (Mr Djanogly) referred to one of the greater issues in the last few years—the purchase of houses and villas. I suppose my introduction to this was on behalf of constituents who then had difficulties with the purchase of those properties, and with land disputes. These are key issues for some of my constituents. There were not just problems with the law—sometimes the problems were with the interpretation of the law and, ultimately, with the language difficulties that arose.
We have found, in most cases, that the successful Brexit vote has determined that we must have arrangements in place that will include the continuation of our ability to govern cross-border legal disputes. I believe that that is essential—as the Lord Chancellor said earlier—for Northern Ireland and our border with the EU member, the Republic of Ireland. We want, need and desire a good working relationship with the Republic of Ireland and, if possible, with the EU. Many international companies operate in Northern Ireland, such as Bombardier in my constituency, to which my hon. Friend the Member for Belfast East (Gavin Robinson) referred in a question to the Prime Minister today, as well as insurance firms. These are among many others in Northern Ireland who need confidence and the assurance that, in the post-transition period, they will continue to be offered the same protections that EU firms enjoy. It is very important for firms in my constituency to have that same protection and to know that that will happen because of the Bill we have before us.
In a briefing for the peers, the Bar Council welcomed clause 1 of the Bill, suggesting that although it might not be necessary, it would be helpful in making things clearer in primary legislation. I am pleased to see that this has been retained. The Lord Chancellor also stated that for the Scottish Parliament, which the hon. and learned Member for Edinburgh South West (Joanna Cherry) spoke about, and the Northern Ireland Assembly, matters will be devolved. Will the Minister say in his conclusion—it would be good to have this on record—whether there will be occasions when Westminster, or the House of Commons, will and can overrule what may happen at the Northern Ireland Assembly or the Scottish Parliament? I just want to have that on record, if possible.
The Bar Council also referred to the fact that it might be necessary to consult specialists in the field. The specialists that we have in the Northern Ireland Assembly and Northern Ireland will guide us and give advice, so it is always good to know whether there are occasions when we may find ourselves, not in conflict with the House of Commons in any way but with a difference of opinion legally.
In conclusion, I would also like the Minister, in summing up, to underline that the consultation process with those who work daily with the remit of this legal principle has cast the net wide—I am sure it probably has, but I ask him please to confirm it. Will he also confirm that he understands the necessary protections needed to ensure that on the day that our chains to Europe are finally broken—boy, do I look forward to that day—we have the continuity of domestic protection with effect to the three international agreements governing aspects of private international law, The Hague conventions of 1996, 2005 and 2007?
I promise that I will try to keep my comments as brief as possible. It is a bit of an intimidating experience to follow such distinguished lawyers, particularly as I was only sitting my legal practice course finals some two years ago, so to be here debating with the Lord Chancellor on private international law is an interesting one.
A really important point was raised at the start of the debate, which was about making the Bill applicable to real life. To reiterate that point, which was articulated particularly well, I must say, by the hon. and learned Member for Edinburgh South West (Joanna Cherry), this affects real people’s lives. This is about how businesses operate and how some of the most vulnerable children and young people in our society are protected. I think about the exporters in my region of the west midlands who account for a quarter of a million jobs. The export value of the goods sent out from the black country was something like £3.81 billion in 2018-19. The Bill is really important, because it relates to people’s livelihoods. It is absolutely vital that we get it right.
On the protections for young people who need financial support from absent parents, I have 3,000 lone parents in my constituency who rely on support for their children. Looking at my caseload, I would say that many of them do not get that support. We spend time having to fight very complex battles to receive very complex levels of support, so we must relate this to the situation on the ground. I think of businesses in my constituency, such as KTC Edibles in Wednesbury, which rely on these provisions to do their day-to-day business. It is as simple as that: they rely on private international law to ensure they can trade and can keep their employees in a job.
Turning more widely to the provisions in the Bill, I want to touch on the clause 2 that was removed by the other place. We have heard articulate arguments about that today. In my preparation for this debate, I read the comments in the other place. To an extent, I have sympathy with what was said on the possibility of utilising the delegated powers as some sort of Executive power grab. What I would say—I think this was articulated by my right hon. and learned Friend the Lord Chancellor—is that the preceding system was one of direct effect, so in a way it took those powers away from this place in the first place. Having said that, however, equally we cannot just remove the role of this place entirely. We cannot allow that to happen. I am somewhat reassured that, through the affirmative procedure, there is a degree of scrutiny. I appreciate that for some Members it is not the desired level of scrutiny, but I have been very impressed by my hon. Friend the Minister’s openness in taking forward suggestions on how it could perhaps be improved on.
Apart from diluting the number of lawyers here for my hon. Friend’s comfort—
We all need clients!
I am the client of the House today.
The hon. and learned Member for Edinburgh South West (Joanna Cherry) made the very important point that these prospective pieces of legislation, only under secondary legislation, could actually create criminal offences and therefore impinge directly on the rights of our citizens. They could, when I think about it, even put the rights of those citizens under foreign laws, as has happened with the European arrest warrant and other such measures. Does my hon. Friend think that that specific test of whether it creates a criminal offence that might impinge on our citizens might require rather more than simply secondary affirmative legislation?
I thank my right hon. Friend for his intervention. He raises a really important point very eloquently, which I would need to explore. I do not want to give him a definitive answer right now, because I would need to explore it further. If I were to do that I would want to formulate my opinion based on the fullest research, but he makes a really important point that is certainly one to take forward and one that I have listened to with great interest in this debate, which has sort of formed my opinion.
Moving forward with this, and conscious of the fact that I want to keep my remarks as brief as possible, I would say that my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) made an important point, which was supported by my right hon. Friend the Member for Wokingham (John Redwood): we have got to ensure that, as we move forward now, this country is at the forefront of improving private international law. We cannot just pass this legislation and think, “Right, okay, there we go. We are an observer, or we are just partaking.” We have to be a leader on this, because when that campaign was happening four years ago and people made that decision, whatever people’s views on that, one premise of the campaign was that we would once again be a leader in the world. To do that, we have to ensure that we take a proactive and positive approach.
I am heartened to see that there has been respect for the devolved Administrations, particularly for Scots law. We need to respect the unique legal structures and legal framework in Scotland. I am pleased to see that in the Bill.
To round up my comments, I would say that this is a Bill that, on the face of it, has broad support from all sides. There are some interesting debates still to be had as it proceeds on its passage and I am heartened by the way those on the Treasury Bench have been open to discussions and to listening. We might think this measure is technical and convoluted—the joy of legal debates among lawyers in the Tea Room—but it is people’s lives. This is every day. This is about keeping people in jobs. This is about ensuring that the most vulnerable in our society remain protected. I commend the Bill to the House.
With the leave of the House, I will sum up on behalf of the Opposition.
When I was preparing my closing remarks, I thought I was following the hon. Member for Darlington (Peter Gibson) and I was going to remind him that he has the privilege to represent what was my home town for a large part of my life. He also has the privilege of following in the footsteps of great MPs such as Ted Fletcher, who was himself an internationalist and would have been interested in today’s proceedings. He was a person who believed very much in action rather than words, and he put his life in the line of fire when he fought in the trenches in Spain against the fascists in the civil war. I am pleased to have this opportunity to pay tribute to Ted, the first MP I was honoured to knock doors for. He inspired me and I would never have been here if it had not been for him.
As I said in my opening speech, Labour recognises the importance of private international law, particularly in a post-Brexit setting. Without the framework that private international law provides, UK businesses, families and individuals would face greater difficulty in seeking to resolve conflicts arising from cross-border disputes. As we get closer to the new year and the great and growing uncertainty posed by Brexit, the need for a clear and fair framework to settle cross-border disputes becomes ever more urgent. Without this framework, businesses and individuals would face great uncertainty. That is why Labour fully supports clause 1, which gives effect in domestic law to three important international agreements to improve the protection of children involved in cross-border disputes, regulate court arrangements relating to high-value international transactions, and allow for the recovery of child support and spousal maintenance.
Not only will each of those three agreements make a significant and positive change to domestic law; they will be incorporated in domestic law in the proper way, by primary legislation debated before the House. That is why we support them. This is the exact opposite of what the original clause 2 sought to do, and it is regrettable that the Government seek to bring it back in Committee. The Lord Chancellor would be wise to take the counsel of the hon. Member for Huntingdon (Mr Djanogly) and the Chair of the Select Committee, the hon. Member for Bromley and Chislehurst (Sir Robert Neill). They have outlined specific issues, and if the Government were to concentrate on those areas, they might find themselves with a little more support for their proposals. Also, the Government should do that because it would recognise the concerns of those in the other place. I hope that when the Minister winds up in a few minutes he addresses that good advice given by Members on his own side, because we know that clause 2 represents a very concerning extension of Executive power in any other circumstances, allowing the Government to bypass parliamentary scrutiny and implement private international law agreements by the back door by utilising statutory instruments. That would represent a dangerous break with past parliamentary practice, which so far requires all public international law treaties to be implemented by Act of Parliament. Instead, it would represent a permanent shift of power from Parliament to the Executive, with little reasoning provided for why such a shift is needed. Sadly, it appears that this shift is very much the approach of this Government and it must be challenged. That is why the Bill was amended in the other place. As we have heard, distinguished lawyers and constitutional experts across the political divide voted against the inclusion of this clause because it so offends the constitutional principle of parliamentary sovereignty that requires proper scrutiny of international agreements before they have effect in domestic law.
When the Government were asked to explain the need for the powers contained in clause 2 they provided three basic arguments. I spoke of them in my opening speech, so suffice it to say now that not one of those arguments held under expert scrutiny in the other place.
It is not only those of us on the Labour Benches who have been far from convinced by the case put forward by the Government for the need for clause 2. As we have heard, when the Constitution Committee considered whether this legislative power should be granted, it made it clear it should not. The Committee went on to say:
“It is inappropriate for a whole category of international agreements to be made purely by delegated legislation”.
It went on to say that that is not only because it reduces parliamentary scrutiny but because
“Such an approach risks undermining legal certainty.”
Why would the Government seek to reintroduce clause 2 at a later stage in the Bill’s passage if each of the arguments for its inclusion have been shown to be false? The Government currently have a perfectly reasonable and necessary Bill, which I imagine would receive wide cross-party support; we have seen examples of that this afternoon.
In conclusion, as we leave what is arguably the world’s most comprehensive network of private international law agreements in the new year, it is vital that we have a framework in place that fills that void. Labour recognises that, and it is our collective responsibility to defend parliamentary scrutiny, irrespective of procedural ease or expediency. For that reason, we will support this Bill in its current form but will reject any attempts to reintroduce clause 2 or any other clause that allows for the implementation of international agreements in domestic law by secondary legislation.
I want to begin by expressing my gratitude to all Members who have contributed to the debate, with speeches of conspicuous clarity of thought. It is clear that across the House there is proper concern about the balance that exists between the powers of the Executive and the powers of the legislature. I will return to that, because it is absolutely right that those important points are engaged with fully. But first let me make some brief introductory remarks, setting the stage for why this matters and why, indeed, the Government are taking the approach we are.
As others have indicated, the Bill might at first glance appear somewhat dry and academic, but, as my hon. Friend the Member for West Bromwich West (Shaun Bailey) noted, it is of great practical importance for the lives and livelihoods of individuals and businesses in all our constituencies. It is also important—this point should not be lost—for the international rules-based order, which we can and must consolidate and strengthen in the months and years ahead. My hon. Friend the Member for Henley (John Howell) made the excellent point about the urgency of a mediation agreement, but in summary this Bill provides a legal framework for resolving cross-border disputes, and that framework provides legal certainty about jurisdiction, recognition and enforcement for both businesses and individuals whose legal affairs cross borders.
As has been noted, it benefits individuals where, for example, the relationship with the former partner has broken down but both parties need to resolve the child contact arrangements where one parent lives overseas. Such cases have arisen in my constituency surgery in Cheltenham. They are very painful cases, and are more painful still without these rules in place. It benefits businesses, too, for example where suppliers are abroad and the parties want to know that the agreement to litigate any dispute in a particular country will be honoured and upheld internationally, and it matters that when our jurisdiction is chosen by the parties in a commercial agreement other courts and states will recognise and enforce that jurisdiction. That is really what matters.
How does this Bill achieve that? In essence, in two ways: first, it carries over international treaties that we were parties to by dint of our membership of the EU; and secondly—this is the point that has attracted the most attention in this debate—it creates a mechanism for us to participate in future agreements and, in doing so, to strengthen the international rules-based order for the benefit of all our citizens. I just want to underscore that point. There is a countervailing public interest in our being able to do that in a timely and efficient way, because the longer that we delay in implementing these arrangements, the longer the delay in strengthening the international rules-based order.
It is important to be clear what the Bill is not about. The Lord Chancellor did that before me, but it is right that I underscore it. It is not about trade agreements. Private international law agreements remain distinct from free trade agreements both in content and scope. As hon. Members well understand, FTAs are agreed between countries, and they remove or reduce tariffs and other restrictions on most goods traded between them to allow easier market access. FTAs rarely, if ever, contain specific private international law provisions.
Promoting international recognition of jurisdiction and enforcement is important because the UK is the chosen court centre for so much of the world’s litigation: 40% of all global corporate arbitrations used English law in 2018, 75% of cases in the UK commercial court in the same year were international in nature and English law is the leading choice of law for commercial contracts. That is underpinned by the excellence and integrity of our judiciary and the calibre of our legal practitioners. It is right to pay tribute to them, and I am pleased to have the opportunity to do so.
As a result, our successful legal sector contributed £26.8 billion to the economy in 2017 and employs over 300,000 people. To sustain that, we in the United Kingdom must be ready to contribute more than ever to the international rules-based order. For the UK to remain a progressive force in the field of private international law, we must be able both to negotiate and then to implement into British domestic law modern agreements with our international partners once the UK has decided to become bound by them.
The hon. Member for Strangford (Jim Shannon) made the point—he will forgive me for paraphrasing—“Look, will the British Government impose things on Northern Ireland?” The answer to that is no. Just as we recognise, of course, the distinct and distinguished legal arrangements that exist in Scotland, so it is in Northern Ireland, and no doubt that is what lay behind the legislative consent motions. While it would be the British Government who negotiate the agreement, the decision on whether to bring it into force is a devolved matter for the Ministers in Scotland and, indeed, in Northern Ireland, respectively.
Let me turn to what the Government are proposing to do in respect of clause 2 as was, before the other place removed it. The reintroduction of the delegated power to implement private international law agreements into domestic law via secondary legislation is necessary, proportionate and constitutionally appropriate. My hon. Friend the Member for Huntingdon (Mr Djanogly), in a characteristically eloquent speech, referred to this at one stage as, I think, the largest potential power grab for some time. I think that was his point, but I respectfully suggest that that needs to be placed in some wider context.
Let me first underscore the point that was touched on by my hon. Friend the Member for West Bromwich West, but also by the Lord Chancellor. Lest we forget, the arrangements that prevailed when we were in the European Union operated a bit as follows: the European Union, on behalf of all the member states, would go out to negotiate these agreements, and having reached an agreement with another country, it would fall to the UK Government in effect to implement it. How would that take place? It would take place either under the doctrine of direct effect, which lawyers in this Chamber will remember stems from the case of Van Gend en Loos, which essentially means—[Interruption.] The right hon. Member for Walsall South (Valerie Vaz) perhaps remembers; I am not sure.
The case of Van Gend en Loos means that, so long as such an agreement satisfies certain appropriate criteria, it would take effect in this country with no parliamentary intervention at all. In other words, hon. and right hon. Members would be entirely ousted from the process of its taking effect in the United Kingdom. However, even if it did take effect by way of direct effect, the effect of section 2(2) of the European Communities Act 1972 means that it would be Ministers using the negative resolution procedure who brought it into effect in this country.
Of course that is accurate, but as I said earlier, the whole point of Brexit was to take back control. If that is really what Brexit was about, why are the Government reintroducing clause 2 without any of the compromises that I and others have suggested? The whole project of leaving the EU was about taking back control—so we are told—yet the Government are taking that control, rather than giving it to the House or indeed the people.
When we talk about taking back control, it is important to note that in future it will not be the EU but the British Government negotiating private international law agreements. I am simply pointing out that when the EU negotiated the arrangements and Parliament had no role at all, it did not seem to attract any concern in this place, yet when it is the British Government negotiating them on behalf of the UK, it seems to create difficulties.
I will come to the hon. and learned Member’s second point in a moment, but first I will let my hon. Friend come in on this point.
The difference is that in the EU the Parliament has a vote and a potential veto on international trade agreements. My hon. Friend is arguing in effect that we move back to the position before we were in the EU. I think the point the hon. and learned Lady is making, which I would back up is, that we do not want to go back to what we had before we were in the EU; we want to move forward and have a system that is relevant to today’s democracy.
I take that point completely. I will answer it by touching first on what the situation was before we entered the EU and then on how it ought to evolve in a way that I hope meets my hon. Friend’s concerns. He is right—others have touched on this—that arrangements were in place prior to our entering the EU, albeit on a bilateral basis, for us to enter into these sorts of agreements. Two have been touched on because they have been used quite recently: the Foreign Judgments (Reciprocal Enforcement) Act 1933 and the Maintenance Orders (Reciprocal Enforcement) Act 1972.
It is worth taking a moment to consider them. How is the first Act used in practice? In 2003, it was used for us to enter into a PIL agreement with Israel that had a significant impact: namely British courts would have to give effect to what magistrates courts in Israel said. Yet how was that brought into force in the UK? Was it brought into force through an Act of Parliament? No. Was it was brought into force through the affirmative resolution procedure? No. It was brought into force through an Order in Council. It states:
“Her Majesty, in exercise of powers conferred on Her by section 1(4) of the Foreign Judgments (Reciprocal Enforcement) Act 1933, is pleased, by and with the advice of Her Privy Council, to order”—
and then she gave effect to this private international law Bill. My point is simply that this procedure, which was used in 2003, is far inferior to what we are introducing in clause 2. We are doing away with any idea of an Order in Council, which we accept would be too old fashioned. The appropriate way to apply scrutiny in this House is through the CRAG procedure and the affirmative resolution procedure.
The second Act was used in respect of a US agreement in 2007 as a result of which an Order in Council had the effect that an order on maintenance would have to be given effect in the UK. How was that PIL agreement given effect in the UK? It was not through an Act of Parliament but again through an Order in Council, and again we are going beyond that in this Bill.
In dealing with this matter, I want to make one final and very important point. Not content with simply using Orders in Council to introduce PIL agreements in the past, in fact the House has legislated in recent memory to include more scope to introduce PIL agreements by way of delegated legislation. First, the House passed the Insolvency Act 2000, which created a power to introduce regulations in 2006. Secondly—this is the final point that I will make on this issue, but it does seem relevant—the House passed the Mental Capacity Act 2005. That Act created powers to make further provision as to private international law. Paragraph 32(1) of schedule 3 states:
“Regulations may make provision—(a) giving further effect to the Convention”—
that is the convention on the international protection on adults—
“or (b) otherwise about the private international law of England and Wales in relation to the protection of adults.”
In other words, it was being created in 2005.
I appreciate that, but it did not provide a statutory instrument for looking at international financial bonds, insolvency law or other jurisdictional issues; it was focused on that specific area. The point that has been made by many hon. Members this afternoon is that this is too broad.
I accept my hon. Friend’s point, but the way it has been framed thus far is, “Look, this is constitutionally unprecedented.” It is not constitutionally unprecedented, and that ought to be borne in mind.
The distinguished Chair of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), made the proper point about criminal laws, and I recognise that that is something that we should look at carefully. It would be going too far to suggest that delegated legislation is not used to introduce criminal laws. An extremely distinguished paper was produced by academics at the University of Glasgow which went so far as to say that the overwhelming majority of criminal offences are created by delegated legislation, particularly where they are highly specific, technical, environmental offences and so on, so it is not without precedent at all, but I recognise that the point requires consideration.
In short, the Bill will future-proof our legislative requirements in this area for the years to come, while at the same time ensuring that UK businesses, individuals and families can continue to benefit from an efficient and effective framework to help resolve cross-border disputes. It will also ensure that our domestic laws can keep up to date with the latest developments in private international law in international forums, and that the UK can implement any agreements it intends to join in a timely manner while maintaining appropriate parliamentary oversight. I commend this Bill to the House.
Question put and agreed to.
Bill accordingly read a Second time.
PRIVATE INTERNATIONAL LAW (IMPLEMENTATION OF AGREEMENTS) BILL [LORDS]
Motion made, and Question put forthwith (Standing Order No. 83A(7)),
That the following provisions shall apply to the Private International Law (Implementation of Agreements) Bill [Lords]:
1. The Bill shall be committed to a Committee of the whole House.
Proceedings in Committee, on Consideration and up to and including Third Reading
2. Proceedings in Committee of the whole House, any proceedings on Consideration and any proceedings in legislative grand committee shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which proceedings in Committee of the whole House are commenced.
3. Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day.
4. Standing Order No. 83B (Programming committees) shall not apply to proceedings in Committee of the whole House, to any proceedings on Consideration or to other proceedings up to and including Third Reading.
5. Any other proceedings on the Bill may be programmed.—(Leo Doherty.)
Question agreed to.
We will now suspend the sitting for three minutes; those who are leaving the Chamber should do so carefully.