Future proofing

Charlie Falconer on ensuring proper legislative scrutiny of the impact of international law agreements on UK domestic law

The Private International Law Bill will have its Report stage in the Lords tomorrow. Dry as dust on one view. But a huge constitutional point is buried in the detail. The government wants to allow the executive to make changes to domestic law that result from international agreements by secondary legislation – no doubt to circumvent the enemies of their plans in Parliament. Always in the past these changes have been introduced by primary legislation except for EU changes. And that is right. The executive should not be able to make massive changes to domestic law by agreeing them with a foreign country

Labour supports Clause 1 of the Bill, which would introduce the content of three private international law treaties into UK domestic law. One of these treaties deals with the abduction of children from one country to another; another with the enforcement of child support and family maintenance orders; and the third with commercial agreements where a choice of court is specified in the agreement.

Each treaty changes UK law in a beneficial way, for example providing better protection for our children; and promoting English Law as a law choice for international business. We have no objection to this happening via primary legislation.

Clause 2 of the Bill, however, enables ministers to implement the effects of any future international law agreements by statutory instrument alone.

Should any government want to make significant changes to domestic law, it should only be able to do so by primary legislation. This has been a matter of practice where international law agreements affect and change our domestic law. The big exception was in relation to the effects of changes in the regulatory framework of the EU, but that was well understood to be a whole new form of relationship – and now, of course, coming to an end. 

The government has yet to justify the inclusion of the clause, but it would be wrong as a matter of constitutional propriety to allow such little parliamentary accountability in respect of potentially very significant changes in UK law. Not only with respect to changes relating to future agreement but also regarding wider regulations.

Two key Lords committees – on the Constitution and Delegated Powers – strongly and unequivocally advise that Clause 2 should be dropped.

The Constitution Committee expressed concern that it is ‘a striking example’ of a trend for government to increasingly use Henry VIII powers that are: “broad, indefinite, and would weaken the role of Parliament at a time when international law has taken on acute national salience." The Delegated Powers Committee concluded that the clause: "represents an inappropriate delegation of power and we recommend that it should be removed from the face of the bill."

There will unquestionably be more private international law agreements in our post-Brexit landscape. Reflecting on this, the Constitution Committee noted that there was nothing to suggest precluding the use of fast-tracked primary legislation, and concluded: “It is therefore difficult to give weight to the government’s argument that reputational damage will result from not having the power.”

Labour agree and we are seeking to delete this unprecedented clause. If the government of the day joins an international convention that has effects on our domestic law, that should be approved only by Acts of Parliament. We must ensure proper legislative scrutiny in both Houses and uphold our democratic principles and rights.

Lord Charlie Falconer of Thoroton is Shadow Attorney General and a Labour Peer. He tweets @LordCFalconer 

Published 16th June 2020

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