Consideration of Lords message
After Clause 1
Implementation of other agreements on private international law
I beg to move, That this House agrees with Lords amendments 1A and 1B.
Private international law, sometimes known as conflict of laws, comprises rules applied by courts and parties involved in legal disputes for dealing with cases raising cross-border issues. The rules generally apply in the context of civil law, including specialist areas such as commercial, insolvency and family law. PIL typically includes rules to establish whether a court has jurisdiction to hear a claim that has cross-border elements, which country’s law applies to such a claim, and whether a judgment of a foreign court should be recognised and enforced. However, it can also encompass rules on co-operation between courts and other public authorities in different countries involved in dealing with cross-border issues, such as service of documents, taking of evidence abroad or even establishing efficient procedures to assist with the resolution of cross-border disputes.
These agreements are important. They are the sort of thing that a member of the public, or a business trading across borders may not know they need until a difficulty or a disagreement arises. Without these agreements, cross-border legal disputes can become expensive and difficult to resolve. With them, the path to resolution is clearer and smoother.
I am grateful to the Minister for giving way so early in his speech. As he will know, I have to chair the Justice Committee in a few moments, but may I thank him for stressing the importance of this not just for the big financial institutions and businesses of this country, but for individuals? Will he confirm that, in accepting the amendments, we have managed to achieve an improvement to the Bill through the very constructive approach for which he in particular has been responsible? Will he also confirm that, as well as the Bill, it is the Government’s firm intention to seek to join the Lugano convention on the enforcement of judgments and other international co-operation at the earliest possible date, so that we do not have any gap after the end of the implementation period, and to move on to the other international conventions—Hague and others?
I thank the Chairman of the Justice Committee for his remarks, and for the contribution he has made throughout the passage of the Bill. I am quite confident that we are in a better place because we have looked at it constructively. That is, in large part, because of the contributions he has made, together with others. Yes, this is about individuals as well as businesses, and yes, we want to use this as the vehicle to get into Lugano, which will be good for the rule of law, good for individuals, good for certainty and good for businesses.
I was making the point that these agreements mean the path to resolution is clearer and smoother. Just by way of a couple of examples, these agreements can help a family when relationships break down and one spouse moves abroad, and they can help to sort out arrangements for custody, access and maintenance in the best interests of the children. These agreements can provide a framework for a small business to seek redress when left out of pocket by a supplier based in another country.
The Minister is explaining the scope of the Bill and I am trying to understand it. We all represent constituents, and I have a couple of constituents’ cases, including one where there is a dispute over a property in Cyprus and another where a constituent was involved in an assault in Italy. They both relate to issues that are not cross-border, but relate specifically to incidents or disputes in those countries. Are that kind of cases covered by the Bill, or does the Bill look at issues only where there are cross-border affairs that need to be resolved?
I am grateful to the hon. Gentleman for asking that question. The Bill is more likely to affect the former example, rather than the latter. On the specific issue of a criminal offence, that is likely to fall outwith the Bill. There is, of course, a regime for cross-border co-operation in that regard, but that normally sits outside private international law agreements, which tend to be about family issues—whether maintenance and enforcement are involved, and which agreements are going to be upheld by which courts—and commercial agreements, for example, between a widget manufacturer in the hon. Gentleman’s constituency and a supplier in another part of the world. This relates to agreements that are already in existence which we want to roll over, but also creates the framework for us to agree and implement future agreements.
The Bill contains two substantive clauses. The first ensures the continued implementation of three Hague conventions on various aspects of private international law that are currently implemented—at least until the end of the transition period—under the European Union (Withdrawal Agreement) Act 2020. The second concerns the implementation of further PIL agreements—the point that I was just making—by secondary legislation. This clause was removed from the Bill in the Lords on Report, but was returned by this House in Committee back in October. Although clause 1 is not subject to the amendments in front of us today, the need to have these provisions in force by 31 December creates an imperative to resolve the outstanding issues without delay.
Let me update the House on the Bill’s return to the House of Lords, where the Government made a series of amendments to aspects of the delegated powers in the light of the observations that had been made there. Those amendments were accepted by the other place last Thursday, and I am seeking that this place also agrees to this amended version of the power to ensure that the Bill can be enforced by the end of the transition period. Before I turn to the detail of the changes, let me say that these amendments were made after careful and respectful reflection on the views expressed across the House during the Bill’s passage through this place, and following extensive consultation with peers who had previously challenged the approach taken to delegated powers in the Bill. We recognised that there were peers who had significant experience and expertise in this area, and it was right to take their views carefully into account.
The amendments focus on aspects of the power that have attracted most attention—and, in some quarters, concern—in previous debates. We were pleased to acknowledge the observations of the noble and learned Lord Pannick, who described our amendments as significant and “constructive”.
These fall into three categories, the first of which is in respect of criminal offences. Lords amendment 4A limits the power so that it cannot be used to create criminal offences punishable by prison sentence. Although private international law agreements generally do not require contracting parties to create criminal offences, there are exceptions. Typically, where there are criminal offences, they are limited in scope. A good example is the current implementation of the Lugano convention in Northern Ireland, which was referred to a few moments ago by the Chair of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill). This includes an offence that applies when a person who is obliged to pay maintenance under a maintenance decision of a relevant foreign court subject to recognition and enforcement in Northern Ireland fails to update a Northern Ireland court with changes to their address.
This offence is included in the implementation, so the approach to enforcement is consistent whether the maintenance decision was made by a court in Northern Ireland or a relevant foreign court. The Lords amendment would still allow this offence and others like it to be implemented under the delegated power. However, it would require more serious criminal offences—specifically those punishable by imprisonment—to be implemented via primary legislation and the additional scrutiny that that entails. That is the proper thing to do. If we as the state require people to be imprisoned and have their freedoms taken away from them, it is important that Parliament considers that with the utmost care, although I should make it clear that the UK has no plans to join an agreement that would require the creation of an offence punishable by imprisonment.
For the sake of completeness, it is important to note that introducing criminal offences by secondary legislation is not of itself unusual. Research by the University of Glasgow recently found that the majority of all new criminal offences are created by secondary legislation, although it is right to say that the authors of that paper did deprecate that. That is the first point, about criminal offences.
The second set of amendments—Lords amendments 1A, 1B, 4C, 4D and 4E—add a five-year sunset period to the regulation-making power that is extendable on a recurring basis by affirmative statutory instrument. Essentially, this reviewable sunset requires the Government to consult on and get parliamentary approval for their private international law strategy every five years. The need to come back to Parliament every five years—if the Government still consider this a necessary power—does not just provide Parliament with additional scrutiny; the mere existence of the review process will influence how Governments approach using the power and encourage them properly to consider whether the power has met its original policy intent.
The legislation is clear that it can be extended more than once, but the real point is that parliamentarians will want to be satisfied that that process is not entirely a rubber-stamping exercise and that, first, Governments of any stripe will be actively required to turn their attention to whether it is the proper thing to do—and they will be, because of the consultation requirements in the statute—and, secondly, that Parliament will be sufficiently notified of the Government’s intention to do so that it is well placed to marshal whatever opposition it thinks is appropriate.
All that feeds into the next points that I wish to make, but before I do so I should say that the Government have been clear about how they want to use the power over the next few years, and that includes in respect of implementing the Lugano convention—or, indeed, alternatives with Norway, Iceland and Switzerland, should our application be declined—as well as, subject to consultation, the Singapore convention on mediation and the 2019 Hague judgments project. I pause to mention that the Singapore convention has no more doughty champion in this place than my hon. Friend the Member for Henley (John Howell).
If the Government ask Parliament to extend the power in five years’ time, they will need to make their case again and have the relevant regulations approved in both Houses. In any view, the sunset amendment represents a significant concession by the Government. It takes account of the concerns that have been powerfully expressed, while still retaining a proper measure of the flexibility and agility that we seek—manifestly in the national interest, we contend—to support the UK’s long-term private international law strategy which, I pause to note, strengthens the international rules-based order.
Finally, on the third of the three points to which I referred, Lords amendment 4B adds a requirement for the Government to consult prior to making any regulations under the Bill, whether those regulations concern the implementation of a private international law agreement or propose to extend the sunset period—the point I just addressed with my hon. Friend the Member for Huntingdon (Mr Djanogly). The amendment puts on the face of the Bill the commitments that we have already made from the Dispatch Box on engagement with Parliament and other stakeholders. Although there will be times when a wide-ranging and broad consultation is appropriate—for instance, when the UK is seeking to join a new private international law agreement—there will be other times when the power is used to make minor technical and procedural updates to agreements, such as updating the name of a foreign court referred to in an existing agreement.
The requirement to consult applies across the piece but allows for a proportionate approach to different issues. Different instruments will require different approaches and, no doubt, different consultees, and the consultees who might be most appropriate to offer a view on an instrument about family law will not necessarily be the same as those who might add most value in respect of an instrument that deals with commercial disputes. As with any statutory obligation to consult, there is a requirement to take proper account of the representations received, and I can give an undertaking that the Government will meet that requirement. In the explanatory memorandum that must accompany any statutory instrument laid before this House, we will provide—I hope this will give some comfort to my hon. Friend the Member for Huntingdon—a thorough and detailed explanation of the consultation that has taken place, setting out not only those whom we have consulted but a fair and balanced summary of the views expressed.
In conclusion, I restate the point about the importance of resolving this issue today. Clause 1 needs to be in force before the end of the transition period. It is plainly in the interests of this country to avoid an extended back and forth, and the Bill represents a pragmatic approach that respects the misgivings that have been expressed while ensuring that Governments retain the agility and flexibility that they need to enter into vital international agreements. I urge right hon. and hon. Members to accept this compromise as an appropriate and balanced approach.
Thank you very much, Madam Deputy Speaker; from one Alex to another.
When I stood at the Dispatch Box some weeks ago for the Bill’s Second Reading, I made Labour’s position very clear: we absolutely understand and appreciate the need for the Bill. The Minister was rightly wholehearted in his endorsement of the Bill and provided us with some excellent examples of how it will work and what it will mean. He even mentioned that it will apply to widgets. Perhaps when he does his summing up, he can tell me what a widget is.
In a post-Brexit world, it is essential that individuals, families and businesses have access to fair and clear legal mechanisms for dealing with international disputes. This has never been contentious and, from the very beginning, Labour made its support for clause 1 of the Bill clearly known. Labour welcomes the principle of the Bill because it maintains and perhaps enhances our legal co-operation across jurisdictions, and provides certainty and fairness for those involved in cross-border litigation. In a post-Brexit world, this is essential to maintaining 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’s centre for resolving complex disputes while offering us a competitive advantage in finance, business and trade.
This is also a Bill that will affect human beings and human stories. A wide range of family law issues can lead to cross-border disputes—for example, when one partner takes a child abroad and there is a disagreement about parenting arrangements, when making arrangements for divorce in similar circumstances, and on issues of abduction and adoption. Over the years, many of us have seen examples of that in our constituencies, when a child has been removed from this country against the will of another parent, and yet we have struggled, even with the existing laws, to resolve those sorts of disputes. Of course, this is also about keeping our citizens safe. We must ensure that we have robust international agreements so that justice can be done.
On Second Reading and in Committee, we were content to give our full support to clause 1, which gives effect to international treaties in domestic law through primary legislation, because we recognised that it is both necessary and welcome. It is hoped that these provisions, which affect 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 trying circumstances.
Labour welcomes the principle of the Bill, but we remain of the opinion that there was no need for clause 2. Attempts by those in the other place to persuade the Government to ditch the unnecessary and, some would say, dangerous provisions covered by clause 2 were successful. Sadly, their decision was not appreciated by the Government and, despite the pleas and arguments put forward by their lordships, the Government felt compelled to reinstate the clause when it came back to the Commons. The House will be aware that despite the clear and sensible arguments of the Opposition and others, ultimately the Government are the Government and use their majority to prosecute their will, and, to no surprise, succeeded in reinstating clause 2.
My hon. Friend is right that the Government have the right to push through their agenda even in the face of well-meant advice from either the Opposition or their lordships’ House. I wonder whether there are any other independent expressions of concern, perhaps from the legal system, that also concur with the view that perhaps clause 2, as it was, was not the best way forward.
Yes, there are many organisations, including the Bar Council, and I will develop that point later in my speech. It is important to recognise that this is not a case of the people sitting at the other end of the corridor making things up on the hoof. They were doing it on the basis of expertise and the opinions of others.
It was not the end of the matter after the Commons sent the Bill back to their lordships. Their lordships were intent on their ambition and refused to let the matter drop. Happily, that situation has been improved somewhat in recent days. I will return to the message from their lordships quite soon. Before I do that, I am happy to reiterate our support for the Bill’s provisions in clause 1, which give effect to key international conventions in our domestic law. That is very welcome on these Benches.
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 improving the protection of children in cross-border disputes. I have mentioned some of the difficult cases that some of us have learned of in the past.
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, which is another important element covered in the Bill. 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. Again, that is very welcome, and it illustrates how we make law in this country, in this place, that applies directly to the lives of families and, of course, of children. 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.
Labour wholeheartedly welcomes the implementation of these agreements, not only because of the legal certainty that they provide but because of the way that they are being implemented, by primary legislation debated on the Floor of this House. They are good provisions, and we all hope that more certainty can be offered in other areas of cross-jurisdictional disputes.
As I said on Second Reading, it was a different matter when it came to clause 2. We felt that we could not support any attempts by the Government to reintroduce clause 2, which would allow for the future agreements to be implemented through secondary legislation only. As we heard in the other place, this provision would be of profound constitutional significance. Labour was concerned, and we remain concerned, that the reintroduction of clause 2 in its entirety 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 be given force only by an Act of Parliament.
I remind Ministers that the House of Lords Constitution Committee said that the 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. Indeed, 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.”
On Second Reading, I quoted 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. He told the other place:
“Opinion is almost universally against Clause 2.”—[Official Report, House of Lords, 17 June 2020; Vol. 803, c. 228.]
The two Committees that have reported have categorically condemned it. I also quoted Lord Pannick, another pre-eminent constitutional lawyer. He argued 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 offered a stern warning about the unprecedented nature of this constitutional change. It said:
“For the first time there will exist a power to implement international general 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.”
The Minister has discussed that with us this afternoon, and made clear the Government’s concessions in this area.
My hon. Friend is outlining one of the concerns that I raised earlier, which is about wider concerns raised by experienced legal sources. There may be—and I might ask the Minister to comment on this later—inconsistencies between agreements between the UK and one country and agreements with another country that are achieved through secondary legislation. If the agreement with that particular country is different, citizens will be treated differently depending on the terms of a particular statutory instrument.
My hon. Friend is correct. That could lead to considerable confusion in the system. What happens if a family member is moved from country to country? They will be subject to different jurisdictions and different laws, and it will be all the more complicated and difficult for resolutions to be made.
There appeared to be intense opposition to what the Government were trying to do, and it was not just from the other place; it was coming from all over the place. The Bar Council, in its helpful briefing, was highly critical of this new constitutional grab. It was somewhat concerned that the power in clause 2 to proceed by delegated legislation was very broad, and that, for instance, it enabled the appropriate national authority to make regulations for the purpose of or in connection with implementing any international agreement. To give effect to international treaties in domestic law is not a rubber-stamping exercise. The effect, implementation and enforcement of such provisions require robust debate, and we must protect the parliamentary scrutiny of such important legal provisions at all costs.
The Government attempted to raise arguments for why that new constitutional measure would be necessary, but all of them have failed to convince. The first argument was that the provision would allow the Government to implement each new international agreement without unnecessary delay, but there is no evidence to suggest that fast-track legislation is required. The implementation of international agreements in the past has often taken years, and there is nothing to suggest that implementing them through primary legislation would cause any difficulties without having to subject legislation to 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 in which to legislate to give effect to the Lugano provision at the end of the transition period. That is not an argument for developing that new Executive power more generally. The Government have not provided for clause 2 in relation to Lugano but, as the Chairman of the Select Committee, the hon. Member for Bromley and Chislehurst (Sir Robert Neill), said, there appears to be some movement on that, and I look forward to clarification from the Minister.
The Government also claimed that the Constitutional Reform and Governance Act 2010 allowed for sufficient parliamentary scrutiny. Once again, that argument does not carry much weight. As a result of clause 2 as originally drafted, the Government would be able to give force to model law without being subject to the scrutiny mechanism under the 2010 Act, which does not allow for the amendment of treaties or consideration of measures to implement them. That is a red herring, and the argument unravelled when subjected to expert scrutiny.
Even some of the Government’s own Members were rightly worried. It is worth putting on the record again a statement by the Conservative peer, Lord Garnier:
“Unquestionably, the provisions in Clause 2, which give the Executive the extensive future law-making powers originally in the Bill, have been shown to be constitutionally awkward and unwelcome”.—[Official Report, House of Lords, 29 June 2020; Vol. 804, c. 483.]
I think that the Minister has begun to address those issues.
Sadly, when the Lords asked the Government to drop clause 2, the Government used their majority. A Conservative peer asked that them not to do so, but that is what they chose to do, so clause 2 was reinstated. As I have said, their lordships were not about to roll over, and they were determined that the Government should not get away with a smash-and-grab raid on our constitution and the way we do business in this country. It is no good our trumpeting a return of control of our own affairs—control for our Parliament to make decisions on the issues that affect our country and citizens—only for Parliament to surrender that control to an overbearing Executive who appear to be seeking short cuts to creating legislation and regulations. That is not what the British people handed the Government a majority to do. I do not think they would tolerate the sidelining of MPs they elected to serve them. More importantly, we want to ensure that laws in this land are not just fit for purpose, but have been subjected to the widest possible scrutiny. Opposition Members have always been opposed to the power in clause 2 to implement future international agreements by secondary legislation, but we recognise that change to that clause can be made.
As I mentioned, both the House of Lords Constitution Committee and the Delegated Powers and Regulatory Reform Committee considered whether the power in clause 2 was appropriate, and both made clear that it was not. None the less, Labour welcomes amendments 1A and 1B, tabled in the other place, which act as a safeguard to clause 2, as reintroduced here. It was good to hear the Minister speak with some affection for those in the other place, and their expertise and skills. Although Labour Members remain disappointed that clause 2 has been reintroduced, the Government have heeded some of the Opposition’s concern by agreeing to the five-year sunset provision.
Let me turn to Lords amendments 4A and 4B. Labour welcomes the amendment to remove the power in the Bill to create criminal offences that are punishable by imprisonment. For obvious reasons, this is a sensitive issue, and it is only right that the Government act with caution in this area. Labour also supports the amendment to place an obligation on the Secretary of State to consult before using the implementing power contained in clause 2 or before extending it for a further five-year period. Ideally, we would like to have seen further detail on who the Government are obliged to consult, but this is none the less better than nothing. That said, the Minister might like to address that issue in his summing up.
Before I conclude, I wish to pose a few questions to the Minister, where by he could go some way to alleviating the remaining concerns many of us, in and outside this place, have about the amended clause 2. Will he give assurances to the House that any consultations on the implementation of a PIL agreement will be held in public rather than in private? Will he confirm that any consultations on the implementations of a PIL agreement will be announced in good time to allow experts to offer their views? Will he give assurances that the Government will produce a report on the outcome of such consultations and ensure that it is widely available to Members of this House? To sum up, although the Opposition would ideally have liked to see clause 2 taken out completely, or greater restrictions placed on its power, it is clear that the Government have listened to the concerns of the House and have taken some action to address them. We will therefore support these amendments this afternoon.
Obviously, I rise to support the general principles of the Bill. The Scottish National party, in giving support to this legislation, takes the view that it is not where we wish to be, but in the circumstances of where we find ourselves, it is the best that can be done. It has to be put in the context, both legal and political, of where we find ourselves. In the legal context, many others have mentioned, correctly, that private international law is not even noted a great deal within the wider sphere of law, and is rather a specialist niche. I say that as someone who was a lawyer and practised for 20 years, who was a Justice Secretary for seven and a half years, and who was the Convenor of the Subordinate Legislation Committee when the Scottish Parliament was first established. Private international law does occasionally result in people’s eyes glazing over, but it is fundamentally important. Significantly, subordinate legislation is equally of great importance and far too frequently missed. Both require to be addressed, because as the Minister and the hon. Member for Stockton North (Alex Cunningham) have mentioned, they are fundamental. This is fundamental to business contracts, as we seek to promote business in a globalised world. It is fundamental to ensuring that litigation can take place if accidents occur abroad, and in a world in which we travel more that is understandable. In family matters, it is fundamental because children are taken, and deeply distressing custody battles are waged over abducted children not only across the border between Scotland and England, but around the world. It is also important for the enforcement of aspects such as aliment, as we call it in Scotland, or alimony, as it is referred to down here. All those things depend on the ability to settle on a jurisdiction—a jurisdiction of choice, or sometimes one that is required—in which rights can be enforced.
Lugano and Hague have been mentioned by the Minister and the hon. Member for Stockton North. They are not simply a holiday resort or a historic city—they are fundamental international agreements that affect the lives of many in this country, if not all, even if it is only rarely or sparingly. They were mentioned in a previous debate by the Chair of the Justice Committee, the hon. Member for Bromley and Chislehurst (Sir Robert Neill), who is not here because he is chairing the Committee. This is a matter that I know about from private practice, having had partners who were involved in child abduction cases that were deeply complex, never mind the issues in dealing with matters across the border between Scotland and England. They are finite. It is on that basis that, when I started out as a young law student and a young lawyer, private international law was, to some extent, the domain of advocates and barristers, as they are called down here, rather than solicitors.
However, as the world has become more complex and shrunk in many ways, and as we have globalised, this is something that all lawyers have been required to take cognisance of, because more and more clients have cases that have happened elsewhere or have implications in other jurisdictions, not simply within the four nations of Great Britain and Northern Ireland. It needs to be sorted out, and it is on that basis that the Scottish Government have agreed to the memorandum and indeed support it, which is the same position taken by the Law Society of Scotland. We welcome the Lords amendments and the changes that the Government have taken on board. We think that they could have gone further, but we accept the context, and it is their right, with the majority that they have.
That leads us to the political context. This is coming about as a consequence of Brexit. As we come to the end of transition, we face an approaching deadline. Agreements are required, otherwise rights that we have had for years, and sometimes generations, will be lost. There is a maxim—perhaps only my own: legislate in haste and repent at leisure. I worry that, notwithstanding the excellent skills of parliamentary draftsmen, they are drafting this at late notice and trying to bring it all together, to deal with aspects such as Lugano and Hague and matters in which we still do not know whether we will be able to participate because the EU has not yet consented. Those are all fundamental to our rights. They are equally extremely difficult for anybody who is drafting legislation. I know the number of iterations required in legal drafting, so I hope that we will not see numerous rewrites having to take place, not through the fault of those carrying out the instructions but because of the situation they found themselves in—we do not know what we are dealing with, and we are trying to scramble something together with just days to go.
The hon. Gentleman is touching on a point that I have expressed concern about. If these legal agreements are done on a bilateral basis with different countries, we may find that we have agreements with some countries and not others, and that therefore constituents of ours with a case in one country will get better access to justice than those with cases in countries where such agreements have not been concluded.
Absolutely. It is well known—and I have experienced it myself—that when children have been taken to, for example, some north African nations, it can be extremely problematic, if not impossible, for parents seeking their return. Although they had the right to that child, their ability to enforce it was often not recognised. If that is to be the situation we find ourselves in with countries with which we have had greater movement in recent years and greater involvement in terms of trade, the complexities will be extremely difficult indeed.
In the political context, this is the reality. It is not the delusion that we have been given about the sunny uplands of Brexit, or in the defence review about aircraft carriers steaming towards warmer climes, dispensing all sorts of social dividend. I always thought that the people who should be doing the soft diplomacy should be the British Council, as opposed to military forces. I recognise and welcome any work that they can do in that sphere, but it is not what they are trained to do, nor is it their normal function.
This is not the sunny uplands of Brexit. It is the harsh reality of what we face on rights that we have had for more than a generation, on the security of an understanding that lawyers have had about what they could do and where they could go, and the arrangements that have built up. I myself in legal practice had relationships with lawyers in London and Northern Ireland, or wherever else—it was passed around. If all that breaks down, the difficulty for individuals is damaging.
All the emphasis in the public eye has been, perhaps, on the dangers and difficulties we face with access to Europol—there are huge difficulties there—and the difficulties that we may face in terms of sharing information about criminals. We all know that more individuals in this country appear before a tribunal than before a court. We all know, in this Chamber, that more people will be affected by the civil aspects in private international law than will be affected by the far too many, but still far fewer, aspects of criminal offending by those who come here and would require those provisions.
This is the harsh reality of Brexit. We are signing up for something that is acceptable but not as good as what we had. It carries numerous risks. It leaves the danger of deficiencies—sometimes through error, perhaps, but sometimes through a failure to negotiate—that will leave each and every citizen of this country in a worse place. This is not what we were promised. We vote for these measures, but we do so with a heavy heart. It is the harsh reality of Brexit coming home. I hope that many families do not suffer as a consequence.
The ongoing disputes over the Bill have related not to the content of private international law treaties, but rather to parliamentary scrutiny of orders made pursuant to PIL treaties and scrutiny of the PIL treaties themselves. As far as the order-making powers are concerned, we have ended up today with a welcome compromise, eked out in the other place following a significant defeat and general kickback from basically everyone for the initial proposals for a Henry VIII clause.
To that end, there were counterproposals to limit the scope for orders to specific treaties, for reports to be laid before auditors and to a stated timetable, and for a super-affirmative procedure. Although none of those proposals has been accepted, others have been. I welcome the concessions offered today by the Minister, who I have to say has now listened, in terms of the exclusion of some level of criminal offences punishable by prison, the introduction of a five-year sunset clause, albeit a renewable one, and a prior duty to consult on orders, although only with such persons as the Secretary of State thinks appropriate. That is, frankly, as far as we are going to get on this, and I shall support what is offered. However, I wish to make two related wider points.
First, while the Government suggest that the PIL treaties are non-contentious, the sweeping scope and initially non-restricted life of order powers clearly represent a significant increase in the power of the Executive. It is also an attack on the constitutional principle that international agreements should only change domestic law if they are instituted by Act of Parliament. Here we need context, because if one looks at the range of current Government Bills, one sees time and again power being removed from this place to the Executive. That was recently described by one journalist as this Government’s Maoist tendency.
It may be that recent staff changes at Number 10 are going to reverse that tendency. The Government should keep it in mind that the Executive will not always be a Conservative one, and messing with our finely tuned unwritten constitution may not be to the Conservatives’ advantage in the long run.
My final point concerns what has been persistently avoided in the Bill, which is the urgent need to reform the Constitutional Reform and Governance Act 2010 provisions for scrutinising proposed international treaties. Frankly, I have not been able to understand Ministers’ feet dragging on this issue. As things stand, it looks like CRaG reforms are more likely to come in piecemeal via the Trade Bill and the Agriculture Bill. In my view, that sectoral hotch-potch should be managed by the Justice team, to cover all international treaties. I suggest that Ministers apply their many talents to that task.
Let me first declare an interest as an associate of the Chartered Institute of Arbitrators.
I thought for a moment that I was going to welcome the agreement that there clearly is between my hon. Friend the Member for Huntingdon (Mr Djanogly) and me, but, given his later comments, I am not sure any more—I need to think about them. However, I think we are on the same sort of page at the moment.
I, too, welcome the Lords amendments, and which which are a very good compromise between this House and the other place. I also welcome what the Minister has said. In taking away the criminality, having a sunset clause and bringing in a consultation, they have done a tremendous amount to bridge the gap that there previously was during our discussions on this Bill. Essentially, however, the Bill remains the same in what it can do, and I am glad that it does.
I made the point on Report about why that was important. I am not going to repeat the entire speech that I made then—I probably could not get away with that—but I stressed the need for agility and flexibility, and I put that in the context of the Singapore mediation convention. There is a great necessity to get that convention into working order and on the statute book. The reason for that is twofold. First, it fundamentally does no harm whatsoever—in fact, it does a tremendous amount of good for the small businesses that are choosing mediation as a means of settling their disputes. Secondly, it ends the farce we have at the moment with the system whereby if one has a mediation, one then has to agree an arbitration, however short that may be, in order to take advantage of the New York convention. That is a nonsense that we do not want to continue. We must implement the Singapore mediation convention, which allows the results of a mediation to be recognised in the countries that have signed up to this.
The Minister was kind enough to say that I am a great champion of the Singapore convention, and he is quite right, because I have seen that it does a tremendous amount of good for this country. It is also because, as the hon. Member for Stockton North (Alex Cunningham) said, a tremendous amount of alternative dispute resolution takes place in this country. We are world leaders in this regard, but we will not remain so for very long unless we sign up to the Singapore mediation convention and get stuck into what the rest of the world is getting involved in. All I can do is recommend to the Minister that he gets on with introducing the statutory instrument to get the convention up and running in this country. As I said on Third Reading, I am very happy to serve on the SI Committee that introduces the Singapore mediation convention, and to see a great dream come true.
Let me begin, a little sooner than I had planned, by saying that I am absolutely delighted that this Bill is now going to be supported across the House. It is worth reflecting on the journey that we have made, because, as the hon. Member for Stockton North (Alex Cunningham) rightly said, concerns were raised, first on Second Reading but also in the other place, but the Labour and Lib Dem amendments were withdrawn in the other place and the Bill will now receive cross-party support. In getting to this point, their lordships recognised, in the words of Lord Pannick, that “substantial and constructive” amendments had been made by the Government. We did so because we recognise that the issues we are addressing here, when it comes to the constitutional balance in our country, are ones that merit proper and careful consideration. But the imperative for this was in fact laid bare in the points made by the hon. Member for City of Chester (Christian Matheson), who is no longer in his place—[Interruption.] He is back, as if by magic. He asked whether there would be different treatment for British citizens in different parts of the world. That is precisely what the Bill is all about. It is about trying to reduce those differences. If we had no private international law agreements, that is exactly the situation we would increasingly find ourselves in. Because we are now better able to implement them, we are better able to provide that certainty and clarity which are in the interests of our constituents and their businesses, whether they manufacture widgets or any other products.
The Bill recognises that we will now be able to have the seamless re-implementation in British domestic law of the three Hague conventions named in clause 1 —Hague 1996, 2005 and 2007—and it will also allow for the timely implementation of the 2007 Lugano convention. I respectfully say to the hon. Member for East Lothian (Kenny MacAskill) of the SNP, who is no longer in his place, that the whole point is that we want to go beyond Lugano and this provides us with the ability to do so. It will not do so as a rubber-stamping exercise —not a bit of it. There is proper parliamentary scrutiny, first through the CRaG procedure and, secondly, through the affirmative statutory instrument procedure.
The hon. Member for Stockton North asked about consultations. Consultations will, as required by the statute, take place before there is any attempt to extend the power or to implement any agreement. They will be tailored and proportionate, but there will be complete transparency about what has taken place. A thorough and detailed explanation will be provided to Parliament on who we have consulted, and a fair and balanced summary of the views expressed within the explanatory memorandum that accompanies any statutory instrument made under the power.
That is the right thing to do. That is what is set out in the statute and we have now got to a place where I can say, I commend the Bill to the House.
Question put and agreed to.
Remaining Lords amendments agreed to.