6 October 2020
Private International Law (Implementation of Agreements) Bill

Jonathan Djanogly moves amendments to the Bill that would ensure a level of pre-ratification Parliamentary scrutiny of Private International Law treaties in the UK similar to the level of scrutiny by treaty partners.

Jonathan Djanogly MP speaking in the House of Commons

Mr Djanogly

The main outstanding issue with the Bill concerns parliamentary scrutiny—that is, of the UK’s accession to a private international law treaty itself and then concerning orders made pursuant to that treaty. To those Members who may have been mesmerised by the complexity of the amendments today, I should say that this was not helped by the Government tabling their amendments only late last week, which required an element of guesswork for everyone else. Having said that, this belies a high level of consistency in the approach taken with tabled amendments by those who remain concerned at the Government’s position, as I shall explain.

Following Second Reading, the Government have unfortunately decided to re-table, almost unamended, the order-making powers as new clause 5, which was so decisively rejected in the other place. Despite multiple meetings with Ministers—where, I have to say, they have only been polite and listening—I am not much the wiser about the Government’s reasons for what can only be seen as a significant proposed extension of the power of the Executive.

The Government’s hinted amendment to remove criminal sanctions of more than two years’ sentencing from the order-making powers would be a good start but would not be nearly enough. I have therefore tabled amendment 2 and others, in my and others’ names. Those amendments need to be put into the context of the Bill as a whole. That is because the Bill only deals with the UK’s entering specific existing PIL treaties. It does not look at how we approve, or scrutinise entering, other future PIL treaties in the first place. Then it goes on to give the broad order-making powers for any unnamed future PIL treaties. I would suggest that, by focusing on future order-making powers, rather than the initial treaties themselves, it is effectively putting the cart before the horse.

2.45 pm

Let us look at the initial treaty scrutiny in more detail. What is clear—and it is between both Houses—is that there is not a demand for approval by Parliament prior to signing of PIL treaties, in the same way, for instance, as exists, and is being argued for in the Trade Bill, for free trade agreements, so it is surely even more important that we have in place a modern, efficient and fair system for scrutinising PIL treaties before their ratification. The current system for doing so is via the Constitutional Reform and Governance Act 2010—CRaG—but no fewer than three Lords Committee reports over the past two years have described that legislation, based as it is on the 1924 Ponsonby convention, as outdated, inadequate, flawed and in urgent need of reform. In practice, a ​system designed a century ago to debate relatively simple trade deals was hidden behind the scrutiny and legislator approval afforded by our membership of the EU. Post Brexit, we now need a modern system that equates to those being used by our negotiating partners.

Different Departments of State are giving varying support for reform of CRaG, but none seems to wish to take ownership of it. It would be really good to have the Minister say today that the CRaG legislation does need reform and that his Department will take responsibility for that reform process. The issue is important, and intrinsic to our attitude to order-making powers in the Bill; because if, as those Lords Committees have been suggesting, there were to be a specific treaty Committee, and such a Committee could insist on a debate in Government time within a set period, with specific guidelines on access to information, the scrutiny of amendments, mandates, devolved Administration consultation and calls for evidence, then attitudes to order-making under these treaties would surely be somewhat more understanding.

When pointing out our lack of scrutiny compared with other countries, Ministers have said that although, yes, they admit it is true for the United States, Japan and the European Union, it is not true for Commonwealth countries such as Australia. I took that somewhat at face value, but a month ago there was a report by Emily Jones and Anna Sands of Oxford University, and they looked at the Australian equivalent system. In some ways, technically, it is similar to that of the UK; the power to enter treaties is a prerogative power. However, in practice, in the Australian system, once a treaty has been signed it is laid before Parliament for at least 15 joint sitting days before a binding treaty action is taken—20 days for major treaties—and the Government provides a national interest analysis to inform the Committee scrutiny work. There is also a very well established Joint Standing Committee system, which was set up as far back as 1996. The point being that, yes, I have heard Ministers say that we have the same system as in Australia, and technically we could say that; but in practice, they have a very much further developed scrutiny process than we have, and actually in both Australia and Canada, there are significant demands to move to a more United States-type system.

With that in mind, and as a first step, I tabled, in new clause 1 and as a stand-alone provision in new clause 6, a requirement that a Minister should lay a report before Parliament before the UK ratifies a PIL agreement with another country. I do not suggest that as an alternative to general reform of the CRaG Act, or as a move to the superior Australian system, but I move it as a reminder that the Justice Department should be adopting better practice, whatever happens with CRaG.

As things stand, however, these order-making powers attach to any PIL treaty made at any time in the future. That is much too broad. For instance, it treats laws on signing international business contracts or international financial bond issues as bundled together with the laws dealing with international divorces or child contact, which is surely wrong. That is the purpose behind amendment 2 and subsection (13) of new clause 1. A similar approach is adopted in Opposition amendments (a) and (b) to Government new clause 5. On the one hand, clause 1 is extended to include other treaties that we want to join; I have inserted Lugano, but there may be others. On the other hand, the new clause 5 order-making ​powers are restricted only to those treaties mentioned in clause 1, and not all PIL treaties now or at any time in the future, as provided in Government new clause 5.

Given the Government’s possible rejection of amendments 1 and 2, I think it important that, as a fall-back alternative, those Government new clause 5 order-making powers should be subject to a sunset provision. Although I do not agree with the arguments that these broad powers are needed in every case to sort things out in the aftermath of Brexit, at least with the sunset provision we would have a prospective return to normality. That is why there is a two-year sunset provision to the order-making powers in my new clause 1 and as a stand-alone in my new clause 8. Just as an improved scrutiny process is needed for initially entering these PIL treaties, it is also important when it comes to the orders made in respect of those PIL treaties. To be frank, I am currently not satisfied that Ministers have these important processes in place.

I have mentioned the CRaG Act, but also important is how Committees of the House are given a strong and ordered scrutiny role for future PIL treaties. I note that the Justice Committee, chaired by my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), was not even mentioned on Second Reading when the Minister spoke about consulting with Committees in the other place. My hon. Friend may well wish to address that in his comments later, but to me it was a somewhat stark reminder of how our scrutiny processes here are far from what they should be.

In an attempt to help the scrutiny process, new clauses 1 and 7 contain a further proposal that orders to implement a relevant international agreement can be laid only if a report is issued at least 10 Commons sitting days before laying such regulations—less than they have in Australia, I note. Such a report would give details of, and the reasons for, the agreement.

The official Opposition and the Scottish National party have taken a slightly different approach by proposing super-affirmative procedures, which seem to me to be also a reasonable way to improve scrutiny and which deserve the Minister’s consideration. As I said initially, the various parties’ amendments today are remarkably similar despite their quantity. I hope that that has not gone unnoticed by the Government.

In conclusion, we are talking about private international treaties that normally take many years to gestate. They are important for cross-border commerce and social issues, but are very rarely party political. There is rarely, if ever, anything fast moving about their formation—that is something of an understatement, I think—and there should be plenty of time for proper scrutiny of both their adoption and orders made in relation to them.

Whatever happens here today, the Bill needs to go back to the other place. I hope that that will provide a breathing space for Ministers to take stock of the issues at hand and agree a compromise position that should, frankly, have been reached by now.


At the conclusion of the debate

Mr Djanogly

The debate has been interesting and gone some way towards creating a more common understanding of the important issues at stake, the balance between efficient process and appropriate parliamentary scrutiny, and why, as I have argued, we ​need a more modern process of scrutiny for PIL treaties as much as for the ministerial orders that are derived from them.

4.15 pm

We have had many great contributions today. My hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) explained why these treaties, particularly Lugano, are so important to a wide variety of people, and are not just techie stuff for lawyers. He also explained very well why we need proper scrutiny provisions, and raised the important point that we need to use the best expertise that we have available when we are determining these orders.

A variety of points were made. In fact, the same points were made by my hon. Friends the Members for Henley (John Howell), for Derbyshire Dales (Miss Dines), for Broadland (Jerome Mayhew) and for Bishop Auckland (Dehenna Davison). I think they all used the same phrase—that we need agility, flexibility and speed in the way that we approach these orders.

I do not necessarily see the amendment that I tabled today affecting any of those in a negative way. Indeed, I made the point that our opposite treaty partners generally have more stringent scrutiny provisions than we do, and they are not complaining about the lack of time. I was sorry, in that regard, that it was the Government’s approach to want to bring back new clause 5 rather than amend it—I will come back to that—but I did take on board the point made by my hon. Friend the Member for Henley and others, on the importance of London as an international legal centre and the importance of these treaties for commerce.

My hon. Friend the Member for Bishop Auckland noted the tangible impact for her constituents and their concerns about clogging up; I believe I have addressed those. My hon. Friend the Member for Aylesbury (Rob Butler) said that there was a precedent for what the Government propose, and the Minister made the same point. I do not deny that, but I would say that what was used, and what was acceptable, in the 1930s—or in the 1970s, the other example given—is not necessarily best practice now, and indeed is definitely not the current practice of Japan, the US or the EU. They all have much more developed processes than we have. Even the other Commonwealth countries, which, as I said, have our constitutional position, in practice have much more developed scrutiny measures than we have.

The hon. Member for Midlothian (Owen Thompson) explained very well that the approach being taken around the House has been pretty much the same in terms of what we want to see going back to the Lords. We have heard the Minister, and unfortunately it is a case of clause 2—or new clause 5—back with no amendments. I still do not understand the Government’s approach. It would have been good if this debate had happened at the final stages in the other place. Instead there was a polarised approach there. Throughout, the other place threw the order-making clause out altogether, leaving us to pick up the pieces. Sadly, we have failed to do so today, and now the Bill goes back to the other place in a situation where we should be agreeing this stuff, frankly. In this context, amendment 2 to include the Lugano treaty is good to have, but that is not the key issue at stake here, and as such I do not intend to request a Division on amendment 2 today. The Opposition are ​now saying again that they want the Government’s amendment to be thrown out rather than amended; I cannot support that approach either.

I end with a plea to the Minister. I hope that, as we take the Bill back to the other place, we can move away from this polarised position and come to a deal that enables us all to move forward. I beg to ask leave to withdraw the amendment.