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Private International Law (Implementation of Agreements) Bill


2nd September 2020

Jonathan Djanogly speaks in a debate on the Bill which deals with the implementation of international agreements on private international law separately from the Withdrawal Agreement. He urges the Government to accept the Bill as amended by the House of Lords, raising concerns about the Government’s proposals to extend delegated powers.

Mr Jonathan Djanogly (Huntingdon) (Con)

The Bill, as presented from the other place, is not in the least objectionable. As has been pointed out, the European Union (Withdrawal) Act 2018 automatically inserts directly effective treaty rights into domestic law after the end of the transition period. However, clause 1 takes a number of treaties that we all consider to be valuable and directly puts them into our own laws as though they were non-EU-signatory treaties. I agree that not only is that more transparent, but it makes a clear statement on our new post-Brexit position to the international ​community. So far, so good. The problem comes when we then get to discuss what Government powers should be in relation to the private international law issues that we do not currently know anything about.

Looking at this Bill, the dilemma I have, when including the Government’s stated intention to reinsert clause 2, is that we have an Administration keen to take back control when it comes to the EU, but there seems to be less of an issue with passing laws that facilitate the Executive handing out control and sovereignty to non-EU foreign powers with minimal parliamentary scrutiny. Building on one point made by my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), let me say that one confusing thing I find when looking through the Bill is working out which aspects of private international law we benefit from now through our former membership of the EU that we would wish ideally to retain. That is relevant because we still do much of our business with EU countries. We still have the most UK-owned foreign homes in France and Spain, and I would hazard a guess that UK citizens marry and have children with more European Union citizens than other foreigners.

The treaties set out in clause 1 are very limited—the protection of children, the exclusive choice of court agreements and family maintenance. They do not deal with insolvency, business law and many other key issues dealt with under European law. Could the Minister point me to some document that shows what is covered with the EU now and will be rolled over into our law, or to what extent those items feature in current EU deal negotiations? That would be helpful.

As the Lord Chancellor said, the issue with this Bill is not what is in it now, but rather what has been taken out by the other place—namely, the former clause 2 delegated powers provision. I note that no attempt was made in the other place to upset the royal prerogative and demand that PIL treaties are approved by Parliament before signature, although the weakness of the CRAG pre-ratification review process was well covered as being limited and flawed.

On looking at the debates on this Bill in the Lords, the key difference between the Government and almost everyone else who spoke was the Government’s contention that these proposed Henry VIII powers—that is what I think they are—were not a constitutional breach, as they had already been used for other laws. We heard the Lord Chancellor repeat that today. Lord Keen referred to the Mental Capacity Act 2005, which came up in an earlier intervention, but it was pointed out that that Act was the primary legislation that gave effect to an international convention, and as such, it was not the best example that the Minister might give.

It seems to me that we need to consider the Government’s suggestion that PIL is a narrow enough genre to merit its own delegated powers. That is a hard case to make, and it has not yet been made by the Government. To answer the point validly made by my right hon. Friend the Member for Wokingham (John Redwood), the processes, for instance, to enforce private contracts, international financial bonds or insolvency procedures are difficult to lump into the same basket as, say, child protection or mental health, which is what the proposal in clause 2 does.

The Government have repeatedly said that clause 2 is necessary to move ahead with the Lugano treaty, yet their wording referred to “any international agreement”, ​which could stretch to much more than the Lugano treaty. Furthermore, the proposed powers last without a sunset clause, so they could presumably be used in the future for not only the implementation of now unknown treaties but any changes to those unknown treaties, no matter how significant.

Other issues arise. I am concerned, for instance, about the extension of Executive power to use statutory instruments to change domestic law to give effect to model laws. I am concerned at such powers being used to make new criminal offences by order. A more general observation would be on the timing of the process. In recent weeks, Ministers have been arguing for Bills to be heard in an afternoon because of the covid emergency. International treaties, however, work on the slowest and most planned of timescales, so to say that these issues are time-constrained is not realistic. Likewise, to accuse these PIL subject areas of being only technical is unrelated to how very important they tend to be to the lives of people who actually need them. Furthermore, given how the world becomes an ever smaller place, I foresee these cross-border jurisdictional issues becoming more, not less, relevant and important, particularly with our being out of the European Union.

For all those reasons, my instinct suggests that the Government should accept the position presented to them by the Lords and simply move on. At the least, we could tie the powers to named foreseeable treaties in the Bill such as Lugano. However, if the Government are dead set on their current course, I suggest that they need to improve their offer to Parliament, and four areas comes to mind. First, they should limit the order-making powers to a period of, say, two years after each relevant treaty has been signed. Secondly, a Joint Committee should be formed to review the orders. Thirdly, a Government report should be issued to Parliament setting out the proposal, and fourthly, the report should be issued a minimum period of, say, 21 sitting days before the relevant SI Committee sits.

As things stand, the Government’s proposed reinsertion of clause 2 must represent one of the largest potential power grabs ever seen by the Executive in this Parliament. The Government should think again.

Hansard

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