My Lords, this is the main amendment on Report. It seeks to leave out Clause 2, which gives the appropriate Minister, whether in the devolved Administrations or in central government, the power subsequently to introduce changes to domestic law, including changes incidental to international treaties made with foreign countries, on the basis that domestic law should be changed because that has been agreed with a foreign country. In addition, it allows the Executive to introduce by secondary legislation changes to domestic law to give effect to model laws, for example in relation to insolvency. We oppose that extension of executive power. We believe that it represents a very substantial break with past practice, which requires treaties dealing with private international law to be introduced and change our domestic law by primary legislation, and we will press this issue to a Division.
I will set out briefly the way that we put our case in relation to this. Clause 1 gives effect, as part of the domestic law of this country, to three international agreements. The first is the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children. This convention aims to improve the protection of children in cross-border disputes. It is a thoroughly good thing; it makes significant changes, or gives effect to significant powers, in the UK family courts.
The second is the 2005 Hague Convention on Choice of Court Agreements, which aims to ensure the effectiveness of exclusive choice of court agreements between parties to international commercial transactions. These clauses are common, particularly in high-value commercial contracts. Again, this is a good convention; it makes changes to UK domestic law and we support its incorporation.
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The third is the 2007 Hague Convention on the International Recovery of Child Support and other Forms of Family Maintenance, which provides for rules for the international recovery of child support and spousal maintenance. Again, it is a good thing and makes significant changes to domestic law. We support the incorporation into our law of these three conventions; it is being done in the normal way, namely by primary legislation.
Clause 2 is intended to apply to all subsequent private international law agreements, whether identified at the moment or not. It is a new clause and a new constitutional power; this has not been done before. From time to time— with, if I may say so, considerable feebleness—the noble and learned Lord the Advocate-General sought to suggest that it was not a change in the law and referred to the 1933 and 1920 Acts on the administration of justice. Those Acts allowed new countries, whether in the Commonwealth or outside it, to be joined to a convention for the enforcement of foreign judgments which had been introduced by primary legislation. He did not make his case at all. If and in so far as the Minister had other material, he could have placed it before the Constitution Committee. It rejected his argument, saying:
“This is a significant new power that would change the way this type of international agreement is implemented in UK law and how Parliament scrutinises them. It therefore needs careful consideration.”
He has laid no material before the Chamber to suggest that this is not a new means of making domestic law consistent with international agreements. This House should proceed on the basis that it is a new way of doing it.
The Constitution Committee and the Delegated Powers Committee have considered whether this secondary legislating power should be granted, and both are very clear that it should not. The Constitution Committee said:
“We are not persuaded by the arguments the Government has made in support of this power. If the balance between the executive and Parliament is to be altered in respect of international agreements, it should be in favour of greater parliamentary scrutiny and not more executive power.”
The Constitution Committee goes on in paragraph 25 of its report:
“The clause 2 powers are a matter of significant constitutional concern. It is inappropriate for a whole category of international agreements to be made purely by delegated legislation. Such an approach risks undermining legal certainty.”
In saying that, that committee had in mind that if they are introduced by secondary legislation, even though they may have a significant effect on domestic law, those changes to domestic law are nevertheless subject to being set aside by judicial review.
The Constitution Committee also rejected the idea that the Constitutional Reform and Governance Act—CRAG, as it called—provided for sufficient debate. It described that power as flawed and inadequate and pointed out that it did not, in any event, apply to model laws. The Delegated Powers and Regulatory Reform Committee reached the same conclusion, saying that
“clause 2 represents an inappropriate delegation of power and we recommend that it should be removed from the face of the Bill”.
In our respectful submission, we should not allow Clause 2 and it should be removed. The only argument the Minister advanced was in relation not to the overall power but to the Lugano convention. I had a conversation with him recently in which I asked whether he would be restricting the power to Lugano. If he had said that he was going to restrict the Clause 2 power to Lugano and otherwise ditch it, the House should have considered that. However, he made it absolutely clear to me that he wanted the full power. In those circumstances, we had no option but to table an amendment deleting Clause 2 altogether. It is constitutionally inappropriate and unnecessary, and it leads to legal uncertainty. It has nothing whatever to recommend it. I beg to move Amendment 2.