My Lords, I support the observations so powerfully made by the noble and learned Lord, Lord Falconer of Thoroton. I too am concerned about the width of Clause 2. My concern arises from the discussions and conclusions of your Lordships’ Constitution Committee, of which I am a member, serving under the distinguished chairmanship of the noble Baroness, Lady Taylor of Bolton.
As the noble and learned Lord, Lord Falconer, said, the committee concluded that Clause 2 raises matters of considerable constitutional concern. The concern is that, with the exception of EU law—from which we are in the process of extracting ourselves—it is a fundamental principle of our constitution that international agreements can change the content of our domestic law only if and when they are given force by an Act of Parliament. The Constitution Committee saw no justification for the change that Clause 2 would introduce—that is, to confer on Ministers a power to achieve such a result by statutory instrument.
We recognise that many of the international agreements to which Clause 2 would apply are technical in nature and that their text cannot be changed after negotiations have concluded; nevertheless, we think there is no justification for allowing our law to be changed by statutory instrument without the need for full parliamentary debate. Clause 2 will allow not just for the implementation of the text of the international agreement but for “consequential, supplementary, incidental” provisions. It will allow Ministers to create new criminal offences by statutory instrument. These are matters requiring detailed scrutiny of a Bill through the various stages of the parliamentary process, during which amendments can be debated and, if necessary, divided on. Members of the Constitution Committee are concerned to maintain ministerial accountability to Parliament. This is not emergency legislation; it is a proposal for a permanent shift in power to the Executive.
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The question raised by these amendments is whether there is a case for making an exception in relation to the Lugano Convention. The noble and learned Lord,
Lord Falconer, indicated that his preference is for removing Clause 2 altogether, but there may be a case for Lugano as an exception. Lugano provides a large measure of certainty on which countries’ courts may hear a civil or commercial cross-border dispute and ensures that the resulting judgment can be recognised and enforced across borders. It is far from perfect, as the noble and learned Lord, Lord Mance, indicated during a powerful speech at Second Reading. However, it provides a large measure of certainty—though not complete certainty because, happily for lawyers, disputes arise. I declare an interest as a practising barrister. Last July, I argued a case in the Court of Appeal for four days on the meaning of two of the Lugano Convention provisions.
The United Kingdom cannot accede to Lugano at the end of the transition period without the agreement of the EU and the other signatory states: Denmark, Iceland, Norway and Switzerland. My understanding is that, in the Bill, we cannot implement Lugano into domestic law for the period after the transition period. A delegated power may be needed in this case because there may be an urgent requirement to address the matter for commercial certainty. It seems that a delegated power to implement Lugano is much less objectionable than the current content of Clause 2 because Lugano has been part of our law for more than 10 years and serves a valuable function.
Finally, if the Minister wishes to proceed with Clause 2 in its current form—notwithstanding the objections that he has heard and will hear during the debate—I hope and expect that the noble and learned Lord, Lord Falconer, would want to test the opinion of the House on Report. I therefore ask the Minister for an assurance that there is no question of a Report stage on this Bill that includes Clause 2, at least in its current form, until arrangements can be made to ensure a vote by remote access for all Peers.