Private International Law (Implementation of Agreements) Bill [HL]

Lord Thomas of Cwmgiedd Excerpts

Committee stage & Committee: 2nd sitting (Hansard) & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 3rd June 2020 Lords Chamber

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I will speak briefly in support of the amendments put forward, in the event that such amendments become necessary. I will speak first to Amendment 19.

Private international law, by its very nature, is concerned generally with private individuals and private law. It seems to me, therefore, that if there are circumstances where the ordinary powers of the courts—for example, powers relating to injunctive or contempt proceedings—are insufficient, Parliament ought to have the opportunity of considering whether, in such circumstances, a criminal sanction should be imposed.

As to Amendment 20, it is fair to say that, from my own experience—save as is illustrated by what has happened on this Bill—the Ministry of Justice is fairly good at consulting widely. However, my experience of other ministries is, I regret to say, not as favourable. Therefore, I think it right that, in the event that these provisions become necessary, there be an express obligation, set out in some detail, in relation to consultation.

This has two purposes. First, it makes certain that each department has to think carefully as to whether there is a provision in the agreement it has made, and then set about a proper consultation. Secondly, it is always of value in international obligations to be able to say that the particular obligation concerned, in so far as it affects domestic law, has to be approved by Parliament. One notes that, quite often, this is a matter used by the United States with quite considerable effect. It seems to me that, at this stage, we do not have sufficient experience of knowing how effective CRaG will be.

We have to be very cautious these days in circumstances where framework legislation is now becoming so extensive. If we are to have much more framework legislation—and it looks as if we are going that way—we really have to look much more at our own procedures for considering regulations made under such framework legislation, which this is, in effect.

In the event that it is necessary to have an amendment of this kind, I therefore warmly support that put forward by my noble and learned friend Lord Falconer of Thoroton.

[Lord Adonis]

Virtually every speaker in the debate has supported what my noble and learned friend Lord Falconer said. The obvious question to the Advocate-General is this: will he reconsider this matter before Report?

Private International Law (Implementation of Agreements) Bill [HL]

Lord Thomas of Cwmgiedd Excerpts

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Wednesday 17th June 2020 Lords Chamber

[Lord Blunkett (Lab) [V]]

My Lords, I speak in support of my noble and learned friend. He will recall that in Committee, when we debated this matter briefly, the noble and learned Lord, Lord Garnier, laid down a challenge. He said that those who are in government are in favour of secondary legislation but, when they are in opposition, they are against it. I think that the case has been made this afternoon very clearly that this is an extension of the way in which Governments apply secondary legislation, and the Constitution Committee and Delegated Powers Committee have reinforced that very strongly.

As a politician—I am not a lawyer, although I am in the company of distinguished lawyers—I am reminded of the kinds of proposals that used to be brought before Labour Party conferences in the 1980s. A number of rather sensible measures—my noble and learned friend mentioned the 1996, 2005 and 2007 measures—are completely undermined by something highly controversial and unnecessary which is thrown in.

We are dealing with this matter in our virtual Parliament and seeking to find a way through. I hope that, as this amendment to delete this clause is pushed to a vote, the Government will think again and be prepared to attend to the major issues, rather than push through an extension of delegated power, including to complementary and associated measures and model laws, as has been described. We could then have wholehearted agreement.

[Lord Thomas of Cwmgiedd (CB) [V]]

I too support this amendment. In the light of what has been said by the noble Lords and noble and learned Lords who have already spoken, I can confine my remarks to a very few sentences.

Essentially, the constitutional position is one of long standing and should not be changed without justification. That justification has to be seen in the context of a significant move towards Bills becoming more of a framework and with more being done by secondary legislation. We should take a firm stand that that should happen only where necessary. No justification has been put forward for it being necessary. For example, most international conventions and model laws are negotiated at a glacial pace. There can rarely be any justification for the need for legislation to be implemented quickly.

I should add that of course there might have been an exception in the case of Lugano but, as the noble and learned Lord, Lord Falconer of Thoroton, has already explained, that could have been dealt with. Of course, it is a convention that many lawyers in the UK want and hope that we shall accede to in the interests of the UK economy and of the position of London, but the Minister has taken the view that the clause cannot be confined to that. In those circumstances, I fully support, and will support in a Division, the amendment put forward by the noble and learned Lord, Lord Falconer.

--- Later in debate ---

[Lord Hope of Craighead [V]]

My Lords, it is all too easy to think that a sentence of imprisonment for a term of not more than two years, which is what paragraph 1(1)(b) of Schedule 6 by implication permits, is a relatively light matter. It certainly is not. Any conviction for a criminal offence, whatever the sentence that results from it, can have the most serious consequences for the individual; for example, opportunities for travel, employment and obtaining insurance can all be affected. The issue, therefore, is one of principle. It should not be for Ministers to create criminal offences by statutory instrument.

[Lord Thomas of Cwmgiedd [V]]

I will be very brief, as this amendment really has no purpose in the light of the result of the Division.

I too agree that, as a matter of principle, it was wrong to seek to include this power in the Bill. Furthermore, it must be recalled that, in relation to most aspects of private international law and the reciprocal enforcement of orders of other courts, the courts have significant powers by way of committal for contempt or injunctions. It cannot be justified to create and impose criminal offences with sentences of imprisonment in the circumstances of this particular Bill.

[Lord Mance [V]]

I share the view of other noble Lords and noble and learned Lords. This is pre-eminently a matter for Parliament. It has been slipped into Schedule 6 as a qualification to Section 2 powers regarding private international law. I suggest that, if one had read Section 2 by itself, one would not normally have expected it to cover crime at all, and yet this comes in as if it is automatic that it would cover it. It clearly should not.

Private International Law (Implementation of Agreements) Bill [HL]

Lord Thomas of Cwmgiedd Excerpts

3rd reading & 3rd reading (Hansard) & 3rd reading (Hansard): House of Lords
Monday 29th June 2020 Lords Chamber

[Lord Thomas of Cwmgiedd (CB) [V]]

I too warmly support these necessary amendments. I do not wish to traverse the arguments that took place on Report or prior to that. I merely add a word about the Lugano convention. It is universally agreed among lawyers that although it may not be the best solution, it is probably the best available solution to the position that we are likely to find ourselves in at the end of the year. It is of the upmost importance to many in the United Kingdom economy, but in particular also to those who conduct legal business in London, that we adhere to the Lugano convention. I see no reason why the other parties to the convention will not agree. I therefore express my earnest hope that if that takes place there will be no delay whatever in bringing forward the necessary legislation to make it part of our law. Any delay in the matter of the reciprocal enforcement and recognition of judgments can do nothing but damage the position of the United Kingdom as a whole and in particular London as a dispute resolution centre.

[Lord Foulkes of Cumnock (Lab Co-op) [V]]

My Lords, I enjoyed the speech of the noble and learned Lord, Lord Garnier, especially when, having made a couple of political points, he asked us to cast political points aside. It is nice to see that he is in his usual jolly form.

I am very pleased that the Government have decided to remove Clause 2 and Schedule 6 from the Bill. I agree with my noble and learned friend Lord Falconer. We would not want to give the Government carte blanche on any agreement, especially at a time when the Civil Service is being taken over by political ideologues—friends of Mr Cummings. But, like the noble and learned Lord, Lord Garnier, having made a couple of political points, I have two specific questions for the Minister. First, on the state of play in discussions with the Crown Dependencies and Overseas Territories, have any memoranda of understanding been agreed, and what does he expect the final outcome to be?

Secondly, as a delegate from this Parliament to the Parliamentary Assembly of the Council of Europe I noted that paragraph 5 of the Explanatory Note states that

“Agreements containing PIL rules may also be negotiated through the Council of Europe.”


I am keen to know what agreements would come into that category. I would be grateful if the Minister could respond today, but if he cannot, I would appreciate his response in writing.