Private International Law (Implementation of Agreements) Bill [Lords] — House of Commons, 2020-09-02
Topic: International Affairs
Alexander Cunningham (Labour, Centre-left): 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.