Private International Law (Implementation of Agreements) Bill [Lords] — House of Commons, 2020-09-02
Topic: Mixed Topics
Alexander John Gervase Chalk (Conservative, Centre-right): I want to begin by expressing my gratitude to all Members who have contributed to the debate, with speeches of conspicuous clarity of thought. It is clear that across the House there is proper concern about the balance that exists between the powers of the Executive and the powers of the legislature. I will return to that, because it is absolutely right that those important points are engaged with fully. But first let me make some brief introductory remarks, setting the stage for why this matters and why, indeed, the Government are taking the approach we are As others have indicated, the Bill might at first glance appear somewhat dry and academic, but, as my hon. Friend the Member for West Bromwich West (Shaun Bailey) noted, it is of great practical importance for the lives and livelihoods of individuals and businesses in all our constituencies. It is also important—this point should not be lost—for the international rules-based order, which we can and must consolidate and strengthen in the months and years ahead. My hon. Friend the Member for Henley (John Howell) made the excellent point about the urgency of a mediation agreement, but in summary this Bill provides a legal framework for resolving cross-border disputes, and that framework provides legal certainty about jurisdiction, recognition and enforcement for both businesses and individuals whose legal affairs cross borders. As has been noted, it benefits individuals where, for example, the relationship with the former partner has broken down but both parties need to resolve the child contact arrangements where one parent lives overseas. Such cases have arisen in my constituency surgery in Cheltenham. They are very painful cases, and are more painful still without these rules in place. It benefits businesses, too, for example where suppliers are abroad and the parties want to know that the agreement to litigate any dispute in a particular country will be honoured and upheld internationally, and it matters that when our jurisdiction is chosen by the parties in a commercial agreement other courts and states will recognise and enforce that jurisdiction. That is really what matters How does this Bill achieve that? In essence, in two ways: first, it carries over international treaties that we were parties to by dint of our membership of the EU; and secondly—this is the point that has attracted the most attention in this debate—it creates a mechanism for us to participate in future agreements and, in doing so, to strengthen the international rules-based order for the benefit of all our citizens. I just want to underscore that point. There is a countervailing public interest in our being able to do that in a timely and efficient way, because the longer that we delay in implementing these arrangements, the longer the delay in strengthening the international rules-based order It is important to be clear what the Bill is not about. The Lord Chancellor did that before me, but it is right that I underscore it. It is not about trade agreements. Private international law agreements remain distinct from free trade agreements both in content and scope. As hon. Members well understand, FTAs are agreed between countries, and they remove or reduce tariffs and other restrictions on most goods traded between them to allow easier market access. FTAs rarely, if ever, contain specific private international law provisions Promoting international recognition of jurisdiction and enforcement is important because the UK is the chosen court centre for so much of the world’s litigation: 40% of all global corporate arbitrations used English law in 2018, 75% of cases in the UK commercial court in the same year were international in nature and English law is the leading choice of law for commercial contracts. That is underpinned by the excellence and integrity of our judiciary and the calibre of our legal practitioners. It is right to pay tribute to them, and I am pleased to have the opportunity to do so As a result, our successful legal sector contributed £26.8 billion to the economy in 2017 and employs over 300,000 people. To sustain that, we in the United Kingdom must be ready to contribute more than ever to the international rules-based order. For the UK to remain a progressive force in the field of private international law, we must be able both to negotiate and then to implement into British domestic law modern agreements with our international partners once the UK has decided to become bound by them The hon. Member for Strangford (Jim Shannon) made the point—he will forgive me for paraphrasing—"Look, will the British Government impose things on Northern Ireland?" The answer to that is no. Just as we recognise, of course, the distinct and distinguished legal arrangements that exist in Scotland, so it is in Northern Ireland, and no doubt that is what lay behind the legislative consent motions. While it would be the British Government who negotiate the agreement, the decision on whether to bring it into force is a devolved matter for the Ministers in Scotland and, indeed, in Northern Ireland, respectively Let me turn to what the Government are proposing to do in respect of clause 2 as was, before the other place removed it. The reintroduction of the delegated power to implement private international law agreements into domestic law via secondary legislation is necessary, proportionate and constitutionally appropriate. My hon. Friend the Member for Huntingdon (Mr Djanogly), in a characteristically eloquent speech, referred to this at one stage as, I think, the largest potential power grab for some time. I think that was his point, but I respectfully suggest that that needs to be placed in some wider context Let me first underscore the point that was touched on by my hon. Friend the Member for West Bromwich West, but also by the Lord Chancellor. Lest we forget, the arrangements that prevailed when we were in the European Union operated a bit as follows: the European Union, on behalf of all the member states, would go out to negotiate these agreements, and having reached an agreement with another country, it would fall to the UK Government in effect to implement it. How would that take place? It would take place either under the doctrine of direct effect, which lawyers in this Chamber will remember stems from the case of Van Gend en Loos, which essentially means—[Interruption.] The right hon. Member for Walsall South (Valerie Vaz) perhaps remembers; I am not sure The case of Van Gend en Loos means that, so long as such an agreement satisfies certain appropriate criteria, it would take effect in this country with no parliamentary intervention at all. In other words, hon. and right hon. Members would be entirely ousted from the process of its taking effect in the United Kingdom. However, even if it did take effect by way of direct effect, the effect of section 2(2) of the European Communities Act 1972 means that it would be Ministers using the negative resolution procedure who brought it into effect in this country.