My Lords, taken together, the amendments relate broadly to either narrowing the scope of the Clause 2 power or increasing parliamentary scrutiny for use of that power, and I recognise the observations made by a number of noble Lords and noble and learned Lords that this is very much secondary to the opposition expressed to Clause 2 itself. I note the observation of the noble and learned Lord, Lord Falconer of Thoroton, that this is essentially a series of probing amendments.
Before I look at the various amendments, I note that the noble and learned Lord, Lord Falconer, and other noble Lords referred to the role of the Lord Chancellor’s Advisory Committee on Private International Law and the importance of consultation with it, with which I entirely concur. I am now co-chair of that committee, together with the noble and learned Lord, Lord Mance. Its recent meeting was extremely useful. We looked at some technical issues surrounding the application of the Hague conventions of 2005 and 2007 at the end of the transition period. We may hear a little more of that in due course.
Amendment 19 deals with the creation of a criminal offence in the implementation in domestic law of a relevant private international law agreement. The use of the Clause 2 power to create a criminal offence there is very constrained. It is true that private international law agreements do not generally require contracting parties to create criminal offences, and there are no such requirements in the private international agreements that the UK is currently considering joining and implementing under the powers in this Bill. However, it remains a very real possibility that we might negotiate or seek to join a new agreement where a power to create or extend existing criminal penalties will be needed to fully implement the international law obligation. Take an agreement on reciprocal recognition and enforcement of protection measures, for example. In England and Wales, protection measures such as non-
molestation orders or injunctions may be made by the courts under the Family Law Act 1996 or the Protection from Harassment Act 1997. Breaches of those orders are punishable by criminal penalties. Any future private international law agreement in this area on reciprocal recognition of such orders, if successfully negotiated, would particularly benefit those who are most vulnerable in our society and reliant on such protection measures, whether they remain within the United Kingdom or travel abroad, where they would wish to retain the protection of such orders.
If we entered into such an agreement, it would seem reasonable and appropriate to exercise the Clause 2 power so that, for example, we could extend criminal penalties for breach of a UK order to also apply to the breach of an order issued by a relevant foreign court. Breach of an order issued by a foreign court would in effect carry the same criminal penalty as that for breach of an equivalent UK order. But that criminal offence-making ability would of course be subject to the limitations within the Clause 2 power itself as currently drafted. Let me be clear: we could not create an offence under this power which would carry a term of imprisonment of more than two years, for example. That is an important safeguard on the exercise of the Clause 2 powers in this area.
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In the absence of being able to use the Clause 2 power in this area, we would need to rely on bespoke primary legislation to implement any private international law agreement whose domestic implementation required the creation of a criminal offence. That in turn could lead to significant delays that could impact particularly on a vulnerable person such as someone who required protection orders. In addition, the Bill contains other safeguards on the exercise of the Clause 2 power to create criminal offences in this very narrow context. It requires that any regulation relating to criminal offences will follow the affirmative procedure. That provides Parliament with the appropriate means of caution and oversight in dealing with these matters.
The Government feel that the proposed use of the super-affirmative procedure as set out in Amendment 20 for all regulations made by the Secretary of State under a Clause 2 power would be both disproportionate and impractical. The bar for the existing use of the super-affirmative scrutiny procedure in Parliament is quite high, and of course it needs to be. It should be required only where an exceptionally high degree of scrutiny is thought appropriate, which is clearly not the case for the implementation of these particular types of agreements in domestic law when in essence the only choice before Parliament is to accept or reject the implementation of an international treaty in its entirety.
To give a flavour of what is already covered by use of the super-affirmative scrutiny procedure, I have two examples. Section 85 of the Northern Ireland Act 1998 provides for super-affirmative scrutiny procedures for Orders in Council that deal with changes in reserved matters. Clearly, that is of key constitutional importance and one can understand why it applies there. Similarly, under the Human Rights Act 1998, there is provision for super-affirmative scrutiny of remedial orders dealing
with legislation that is considered incompatible with the European Convention on Human Rights and needs to be rectified. Again, one can understand why the super-affirmative procedure may be used there. But we should remind ourselves that the terms of private international law agreements are generally very prescriptive and precise, and there is little scope to deviate from the treaty provisions in domestic implementing legislation. In those circumstances, I commend the ordinary affirmative procedure to be a reasonable and indeed appropriate approach to the implementation of these agreements—agreements which at the level of international law will already have been the subject of parliamentary scrutiny under the CRaG procedure.
With great respect—and this reflects a point made by the noble Lord, Lord Marks—I must say that the super-affirmative procedure will arguably not lead to significant amendments to any implementing regulations themselves under the Clause 2 power, and indeed nor should it, because the treaties are set at the level of international law. In these circumstances, it would lead only to unnecessary delays in the implementation of these agreements in domestic law and serve no real useful purpose in that context.
Of course, we acknowledge the importance of engagement with practitioners, legal stakeholders and wider interested parties in considering when and if private international agreements should be entered into in the United Kingdom, and that is provided for by CRaG. Again, there is a need for consultation—wide consultation, potentially—over the procedural details of implementing these agreements in domestic law under the Clause 2 power. Of course the Government would welcome engagement on those issues with the international law committee, the Lord Chancellor’s advisory committee on private international law and the EU Select Committee. Indeed, we would wish to continue to engage inside and outside with these useful forums in dealing with this matter. However, to put into statute the type of consultation requirement which is suggested in respect of the Clause 2 power does not, I fear, lead to any practical result. The Lord Chancellor’s advisory committee on private international law does not have a statutory footing, so reference to the committee in statute is itself problematic. Its members provide their expertise on a voluntary basis, for which we are of course very grateful. The reference to the House of Lords EU Select Committee would also raise issues, at least of drafting, because after the end of the transition period that committee will either suffer a change of name or a change of constitution. In short, Amendment 20 and its overall approach to consultation is unnecessarily prescriptive in nature and therefore we would not support it.
Finally, Amendment 21 taken on its own would provide the Secretary of State for Justice with the ability to bring forward regulations under Clause 2, subject to the affirmative resolution procedure, even in circumstances not required by the provisions in paragraph (3)(2) of Schedule 6. As the Bill is currently drafted, the affirmative procedure applies only to regulations brought forward under the Clause 2 power in certain circumstances. They are when the regulations are implementing a new agreement or apply between the United Kingdom and a devolved Administration, a Crown dependency or
an overseas territory for the first time, where they amend primary legislation or, as I referred to earlier, where they involve the creation of a criminal offence. In other circumstances, the regulations would be subject to the negative procedure. That is appropriate because there may well be considerable numbers of very modest amendments on which it would not be appropriate or proportionate to require an affirmative debate. For example, in a situation where a bilateral agreement with another country referred to a specific court that would hear disputes, if after we had implemented the agreement for the first time that court changed its name or the country established a new court, it would seem disproportionate to use the affirmative power simply to update an out-of-date reference in the original implementing legislation to take account of such a change. In these circumstances, I would not consider that aspect of Amendment 20 to be appropriate.
I shall touch on a number of points raised by noble Lords. My noble and learned friend Lord Mackay of Clashfern pointed out that essentially, prior to the present time, the implementation of international law obligations in domestic law suffered far less scrutiny than we now propose. Since that became an EU competency in many areas, it is entered through Section 2 of the ECA. There are provisions in statute which allow the implementation of such international agreements by Order in Council, where there is essentially even less scrutiny than we propose in the Bill.
The noble Baroness, Lady Kennedy, asked a number of questions. She referred to the low level of scrutiny, but I do not accept that. If we are going to enter into an agreement at the level of international law, Parliament will scrutinise it under the CRaG process and when we draw it down into domestic law it will be subject to the affirmative procedure. It is not going wider than private international law obligations. The whole purpose of the Bill is to draw down the international law obligation into domestic law. I accept that all statutory instruments may be subject to quashing, which is why one approaches their introduction with considerable care and having regard to our ECHR obligations, so I do not see that as a difficulty.
The noble Lord, Lord Adonis, asked whether I am going to reconsider the position before Report. I have to say that the answer is no.
The noble and learned Lord, Lord Hope, asked about introducing criminal offences, but I hope I have explained that the scope within which we will be doing that is in order to implement reciprocal obligations with regard to such things as enforcement orders. The noble Baroness, Lady Jones of Moulescoomb, asked in what circumstances private international law creates a criminal offence. I hope I have explained that where there is a reciprocal obligation to recognise such things as enforcement orders, we would draw that down into domestic law. My noble and learned friend Lord Mackay of Clashfern made the point that essentially the international agreement is going to provide for that offence in one form or another, and we are drawing that down into our domestic law.
The noble Lord, Lord Hain, asked for a series of guarantees and confirmations, but it would not be appropriate for me to advance guarantees of the kind he was seeking at this time.
The noble Lord, Lord Holmes, made a number of points about the importance of English law and its huge export potential, with which I entirely concur. It is more than just English law; the choice of English jurisdiction is equally important in the context of us having reciprocal enforcement under the provisions of private international law. There will be clear scrutiny by Parliament, by way of CRaG, at the level of international law and by way of the affirmative SI procedure.
Overall, I suggest that these amendments are not appropriate. I recognise that they are probing amendments and that they are secondary to some expressions of opposition to Clause 2, but I respectfully invite the noble and learned Lord to withdraw Amendment 19 and not to press Amendments 20 and 21.