Private International Law (Implementation of Agreements) Bill [Lords] — House of Commons, 2020-09-02
Topic: International Affairs
Joanna Catherine Cherry (Scottish National Party, Centre-left): 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.