Private International Law (Implementation of Agreements) Bill [Lords]

After Clause 1

Implementation of other agreements on private international law

I beg to move, That this House agrees with Lords amendments 1A and 1B.

With this it will be convenient to consider the Government motion to agree to Lords amendments 4A to 4E.

Private international law, sometimes known as conflict of laws, comprises rules applied by courts and parties involved in legal disputes for dealing with cases raising cross-border issues. The rules generally apply in the context of civil law, including specialist areas such as commercial, insolvency and family law. PIL typically includes rules to establish whether a court has jurisdiction to hear a claim that has cross-border elements, which country’s law applies to such a claim, and whether a judgment of a foreign court should be recognised and enforced. However, it can also encompass rules on co-operation between courts and other public authorities in different countries involved in dealing with cross-border issues, such as service of documents, taking of evidence abroad or even establishing efficient procedures to assist with the resolution of cross-border disputes.

These agreements are important. They are the sort of thing that a member of the public, or a business trading across borders may not know they need until a difficulty or a disagreement arises. Without these agreements, cross-border legal disputes can become expensive and difficult to resolve. With them, the path to resolution is clearer and smoother.

I am grateful to the Minister for giving way so early in his speech. As he will know, I have to chair the Justice Committee in a few moments, but may I thank him for stressing the importance of this not just for the big financial institutions and businesses of this country, but for individuals? Will he confirm that, in accepting the amendments, we have managed to achieve an improvement to the Bill through the very constructive approach for which he in particular has been responsible? Will he also confirm that, as well as the Bill, it is the Government’s firm intention to seek to join the Lugano convention on the enforcement of judgments and other international co-operation at the earliest possible date, so that we do not have any gap after the end of the implementation period, and to move on to the other international conventions—Hague and others?

I thank the Chairman of the Justice Committee for his remarks, and for the contribution he has made throughout the passage of the Bill. I am quite confident that we are in a better place because we have looked at it constructively. That is, in large part, because of the contributions he has made, together with others. Yes, this is about individuals as well as businesses, and yes, we want to use this as the vehicle to get into Lugano, which will be good for the rule of law, good for individuals, good for certainty and good for businesses.

I was making the point that these agreements mean the path to resolution is clearer and smoother. Just by way of a couple of examples, these agreements can help a family when relationships break down and one spouse moves abroad, and they can help to sort out arrangements for custody, access and maintenance in the best interests of the children. These agreements can provide a framework for a small business to seek redress when left out of pocket by a supplier based in another country.

The Minister is explaining the scope of the Bill and I am trying to understand it. We all represent constituents, and I have a couple of constituents’ cases, including one where there is a dispute over a property in Cyprus and another where a constituent was involved in an assault in Italy. They both relate to issues that are not cross-border, but relate specifically to incidents or disputes in those countries. Are that kind of cases covered by the Bill, or does the Bill look at issues only where there are cross-border affairs that need to be resolved?

I am grateful to the hon. Gentleman for asking that question. The Bill is more likely to affect the former example, rather than the latter. On the specific issue of a criminal offence, that is likely to fall outwith the Bill. There is, of course, a regime for cross-border co-operation in that regard, but that normally sits outside private international law agreements, which tend to be about family issues—whether maintenance and enforcement are involved, and which agreements are going to be upheld by which courts—and commercial agreements, for example, between a widget manufacturer in the hon. Gentleman’s constituency and a supplier in another part of the world. This relates to agreements that are already in existence which we want to roll over, but also creates the framework for us to agree and implement future agreements.

The Bill contains two substantive clauses. The first ensures the continued implementation of three Hague conventions on various aspects of private international law that are currently implemented—at least until the end of the transition period—under the European Union (Withdrawal Agreement) Act 2020. The second concerns the implementation of further PIL agreements—the point that I was just making—by secondary legislation. This clause was removed from the Bill in the Lords on Report, but was returned by this House in Committee back in October. Although clause 1 is not subject to the amendments in front of us today, the need to have these provisions in force by 31 December creates an imperative to resolve the outstanding issues without delay.

Let me update the House on the Bill’s return to the House of Lords, where the Government made a series of amendments to aspects of the delegated powers in the light of the observations that had been made there. Those amendments were accepted by the other place last Thursday, and I am seeking that this place also agrees to this amended version of the power to ensure that the Bill can be enforced by the end of the transition period. Before I turn to the detail of the changes, let me say that these amendments were made after careful and respectful reflection on the views expressed across the House during the Bill’s passage through this place, and following extensive consultation with peers who had previously challenged the approach taken to delegated powers in the Bill. We recognised that there were peers who had significant experience and expertise in this area, and it was right to take their views carefully into account.

The amendments focus on aspects of the power that have attracted most attention—and, in some quarters, concern—in previous debates. We were pleased to acknowledge the observations of the noble and learned Lord Pannick, who described our amendments as significant and “constructive”.

These fall into three categories, the first of which is in respect of criminal offences. Lords amendment 4A limits the power so that it cannot be used to create criminal offences punishable by prison sentence. Although private international law agreements generally do not require contracting parties to create criminal offences, there are exceptions. Typically, where there are criminal offences, they are limited in scope. A good example is the current implementation of the Lugano convention in Northern Ireland, which was referred to a few moments ago by the Chair of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill). This includes an offence that applies when a person who is obliged to pay maintenance under a maintenance decision of a relevant foreign court subject to recognition and enforcement in Northern Ireland fails to update a Northern Ireland court with changes to their address.

This offence is included in the implementation, so the approach to enforcement is consistent whether the maintenance decision was made by a court in Northern Ireland or a relevant foreign court. The Lords amendment would still allow this offence and others like it to be implemented under the delegated power. However, it would require more serious criminal offences—specifically those punishable by imprisonment—to be implemented via primary legislation and the additional scrutiny that that entails. That is the proper thing to do. If we as the state require people to be imprisoned and have their freedoms taken away from them, it is important that Parliament considers that with the utmost care, although I should make it clear that the UK has no plans to join an agreement that would require the creation of an offence punishable by imprisonment.

For the sake of completeness, it is important to note that introducing criminal offences by secondary legislation is not of itself unusual. Research by the University of Glasgow recently found that the majority of all new criminal offences are created by secondary legislation, although it is right to say that the authors of that paper did deprecate that. That is the first point, about criminal offences.

The second set of amendments—Lords amendments 1A, 1B, 4C, 4D and 4E—add a five-year sunset period to the regulation-making power that is extendable on a recurring basis by affirmative statutory instrument. Essentially, this reviewable sunset requires the Government to consult on and get parliamentary approval for their private international law strategy every five years. The need to come back to Parliament every five years—if the Government still consider this a necessary power—does not just provide Parliament with additional scrutiny; the mere existence of the review process will influence how Governments approach using the power and encourage them properly to consider whether the power has met its original policy intent.

As things stand, is it the Minister’s intention that there will be only one five-year period—that in five years’ time the Government will drop it? Or is his current intention that it will be extended if other things come up?