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

Debate between Lord Mackay of Clashfern and Baroness Kennedy of Cradley

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

[Lord Mackay of Clashfern]

My Lords, the Act referred to in the Bill is dated 1982, which shows that we are concerned with the time when I was Lord Advocate and before devolution. I remember it lucidly. It fell to the Lord Advocate to deal, inter alia, with the Scottish position and what the detail involved. I strongly oppose the group of amendments in the name of the noble and learned Lord, Lord Falconer of Thoroton. My understanding of the principle that rules in this area is that when the United Kingdom undertakes an international obligation, that does not become part of the law of the United Kingdom until it becomes part of the domestic law of the United Kingdom and, since devolution, that may apply differently in devolved jurisdictions. A suggestion has been made that the principle goes further and requires that the result can be achieved only by primary legislation doing so directly, without the intervention of subordinate legislation. I do not agree with that. I can see no logical requirement to restrict the power of Parliament in that way.

My noble and learned friend the Minister has already given examples. Since we joined the EU, this has been achieved by a statutory instrument naming the treaty involved, without any further detail. The year 1982 yields another striking example. Section 60 of the Civil Aviation Act 1982 confers power by Order in Council to make provision for carrying out the Chicago convention. If the principle were as claimed, surely the Act could not confer this power. I regard the provisions of the Bill as entirely adequate. Once we undertake an international obligation, it seems right to implement it in our law as soon as possible. The ordinary affirmative procedure seems entirely adequate, particularly since the other place now has power in relation to international obligations.

The noble Lord preceding me, an expert in many of these matters, particularly in the criminal law, requires that the criminal law should not be specified except very clearly and very occasionally in statutory instruments. In my respectful submission to your Lordships, this is a space in which the international agreement must have in it the criminal offence in question, because it is only a reflection of what is in the international obligation that will become part of the law under Clause 2. This seems to me to adequately secure the definition of the offence in question. I will add only that I would like to see the Lord Chancellor’s advisory committee consulted as much as possible: it is a very well informed, very good source of solid advice. I also add that if the Government’s ambitions are fulfilled for many international agreements in the future, it would be a great pity to saddle the procedure to implement them into our law with unnecessary delays.

[Baroness Kennedy of Cradley (Lab)]

My Lords, I shall restrict my comments and questions to parliamentary scrutiny. Private international law agreements are so important for businesses and individuals when they cross borders that to accept new international conventions into domestic law using broad delegated powers seems a step too far. The Government have failed to make a convincing case for why they need such extensive delegated powers here. What are the barriers that led the Government to propose such a low level of parliamentary scrutiny of new agreements?

Of course, this House is not against the Government getting their business through, but there needs to be appropriate scrutiny, challenge and revision. That is, after all, why we are all here. Amendment 20 offers a set of safeguards absent from the Government’s proposals and therefore has my support, as does Amendment 19. It cannot be acceptable to create and impose new criminal offences without consultation and some level of parliamentary scrutiny, the reasons having been eloquently set out by the noble Lord, Lord Thomas of Gresford, and my noble and learned friend Lord Falconer. In responding to these amendments, will the Minister give insight and clarity as to why the Government believe they need such sweeping powers? Do the Government accept the conclusions of the House of Lords Constitution Committee? If not, why not? Do they really believe that private international law agreements are produced at such a rate that proper consultation and scrutiny can be set aside?

As the Constitution Committee noted:

“The UK has become a party to only 13 Hague Conventions over the course of nearly 60 years”


so the need for delegated powers to prevent a delay does not seem a very strong argument. Why is it necessary for these delegated powers to extend to matters wider than private international law? How do the Government envisage dealing with a future international convention that needs supplementing for a domestic situation? Where will the parliamentary scrutiny be in such cases?

Finally, is it the case, as has been argued by some, that statutory instruments in this area may be quashed under the Human Rights Act 1998, leading to unnecessary legal uncertainty?

In conclusion, I welcome and support the amendments tabled by my noble and learned friend. These are issues that need further consideration by the Government, and I hope that the noble and learned Lord will agree to look at them again.