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Tue 24th November 2020
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Thu 19th November 2020
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Tue 6th October 2020
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Wed 2nd September 2020
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Mon 29th June 2020
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Wed 17th June 2020
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Tue 17th March 2020
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Royal Assent

(Royal Assent (Hansard))
(Royal Assent: Royal Assent (Hansard))
(Royal Assent (Hansard))
(Royal Assent: Royal Assent (Hansard))
Monday 14th December 2020

(3 months, 4 weeks ago)

Lords Chamber

Read Hansard Text Bill Main Page

The following Acts were given Royal Assent:

Private International Law (Implementation of Agreements) Act 2020,

Parliamentary Constituencies Act 2020.

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

(Ping Pong)
(Ping Pong: House of Commons)
Tuesday 24th November 2020

(4 months, 2 weeks ago)

Commons Chamber

Read Hansard Text Bill Main Page
Ministry of Justice

Consideration of Lords message

After Clause 1

Implementation of other agreements on private international law

Alex Chalk Portrait The Parliamentary Under-Secretary of State for Justice (Alex Chalk)
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24 Nov 2020, 2:24 p.m.

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

Rosie Winterton Portrait Madam Deputy Speaker (Dame Rosie Winterton)
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24 Nov 2020, 2:24 p.m.

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

Alex Chalk Portrait Alex Chalk
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24 Nov 2020, 2:25 p.m.

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.

Robert Neill Portrait Sir Robert Neill (Bromley and Chislehurst) (Con)
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24 Nov 2020, 2:26 p.m.

I am very grateful to the Minister for giving way so early on 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 post the end of the implementation period, and to move on to the other international conventions—Hague and others?

Alex Chalk Portrait Alex Chalk
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24 Nov 2020, 2:27 p.m.

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 where 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.

Christian Matheson Portrait Christian Matheson (City of Chester) (Lab)
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24 Nov 2020, 2:28 p.m.

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, for example 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 those kinds 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?

Alex Chalk Portrait Alex Chalk
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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 you have maintenance and enforcement, 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 House, 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.

These 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 the Government’s amendments as significant and “constructive”.

I turn to the Lords amendments, which 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 just 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 where 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 be 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—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.

Jonathan Djanogly Portrait Mr Jonathan Djanogly (Huntingdon) (Con)
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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?

Alex Chalk Portrait Alex Chalk
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24 Nov 2020, 12:06 a.m.

The legislation is clear that it can be extended more than once, but the real point is that parliamentarians will want to be satisfied that that process is not entirely a rubber-stamping exercise and that, first, Governments of any stripe will be actively required to turn their attention to whether it is the proper thing to do—and they will be, because of the consultation requirements in the statute—and secondly, that Parliament will be sufficiently notified of the Government’s intention to do so that it is well placed to marshal whatever opposition it thinks is appropriate.

All of that feeds into the next points that I wish to make, but before I do so I should say that the Government have been clear about how they want to use the power over the next few years, and that includes in respect of implementing the Lugano convention—or, indeed, alternatives with Norway, Iceland and Switzerland, should our application be declined—as well as, subject to consultation, the Singapore convention on mediation and the 2019 Hague judgments project. I pause to mention that the Singapore convention has no more doughty champion in this place than my hon. Friend the Member for Henley (John Howell).

If the Government ask Parliament to extend the power in five years’ time, they will need to make their case again and have the relevant regulations approved in both Houses. In any view, the sunset amendment represents a significant concession by the Government. It takes account of the concerns that have been powerfully expressed, while still retaining a proper measure of the flexibility and agility that we seek—manifestly in the national interest, we contend—to support the UK’s long-term private international law strategy which, I pause to note, strengthens the international rules-based order.

Finally, on the third of the three points to which I referred, Lords amendment 4B adds a requirement for the Government to consult prior to making any regulations under the Bill, whether those regulations concern the implementation of a private international law agreement or propose to extend the sunset period—the point I just addressed with my hon. Friend the Member for Huntingdon (Mr Djanogly). The amendment puts on the face of the Bill the commitments that we have already made from the Dispatch Box on engagement with Parliament and other stakeholders. Although there will be times when a wide-ranging and broad consultation is appropriate—for instance, when the UK is seeking to join a new private international law agreement—there will be other times when the power is used to make minor technical and procedural updates to agreements, such as to update the name of a foreign court referred to in an existing agreement.

The requirement to consult applies across the piece but allows for a proportionate approach to different issues. Different instruments will require different approaches and, no doubt, different consultees, and the consultees who might be most appropriate to offer a view on an instrument about family law will not necessarily be the same as those who might add most value in respect of an instrument that deals with commercial disputes. As with any statutory obligation to consult, there is a requirement to take proper account of the representations received, and I can give an undertaking that the Government will meet that requirement. In the explanatory memorandum that must accompany any statutory instrument laid before this House, we will provide—I hope this will provide some comfort to my hon. Friend the Member for Huntingdon—a thorough and detailed explanation of the consultation that has taken place, setting out not only those whom we have consulted but a fair and balanced summary of the views expressed.

In conclusion, I restate the point about the importance of resolving this issue today. Clause 1 needs to be in force before the end of the transition period. It is plainly in the interests of this country to avoid an extended back and forth, and the Bill represents a pragmatic approach that respects the misgivings that have been expressed while ensuring that Governments retain the agility and flexibility that they need to enter into vital international agreements. I urge right hon. and hon. Members to accept this compromise as an appropriate and balanced approach.

Rosie Winterton Portrait Madam Deputy Speaker (Dame Rosie Winterton)
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I call the shadow Minister, Alex Cunningham.

Alex Cunningham Portrait Alex Cunningham (Stockton North) (Lab)
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24 Nov 2020, 12:08 a.m.

Thank you very much, Madam Deputy Speaker—from one Alex to another.

When I stood at the Dispatch Box some weeks ago for the Bill’s Second Reading, I made Labour’s position very clear: we absolutely understand and appreciate the need for the Bill. The Minister was rightly wholehearted in his endorsement of the Bill and provided us with some excellent examples of how it will work and what it will mean. He even mentioned that it will apply to widgets. Perhaps when he does his summing up, he can tell me what a widget is.

In a post-Brexit world, it is essential that individuals, families and businesses have access to fair and clear legal mechanisms for dealing with international disputes. This has never been contentious and, from the very beginning, Labour made its support for clause 1 of the Bill clearly known. Labour welcomes the principle of the Bill because it maintains and perhaps enhances our legal co-operation across jurisdictions and provides certainty and fairness for those involved in cross-border litigation. In a post-Brexit world, this is essential to maintaining a prosperous economy, protecting our legal system and providing for families and individual claimants engaged in cross-border disputes. International agreements provide clear and reciprocal mechanisms for dealing with international disputes. In doing so, they are crucial in protecting our country’s proud reputation as the world’s centre for resolving complex disputes while offering us a competitive advantage in finance, business and trade.

This is also a Bill that will affect human beings and human stories. A wide range of family law issues can lead to cross-border disputes—for example, when one partner takes a child abroad and there is a disagreement about parenting arrangements, when making arrangements for divorce in similar circumstances, and on issues of abduction and adoption. Over the years, many of us have seen examples of that in our constituencies, when a child has been removed from this country against the will of another parent, and yet we have struggled, even with the existing laws, to resolve those sorts of disputes. Of course, this is also about keeping our citizens safe. We must ensure that we have robust international agreements so that justice can be done.

On Second Reading and in Committee, we were content to give our full support to clause 1, which gives effect to international treaties in domestic law through primary legislation, because we recognised that it is both necessary and welcome. It is hoped that these provisions, which affect the rules on jurisdiction and the recognition and enforcement of judgments overseas, will play a crucial role in building a strong economy and provide some certainty for families in often desperately trying circumstances.

Labour welcomes the principle of the Bill, but we remain of the opinion that there was no need for clause 2. Attempts by those in the other place to persuade the Government to ditch the unnecessary and, some would say, dangerous provisions covered by clause 2 were successful. Sadly, their decision was not appreciated by the Government and, despite the pleas and arguments put forward by their lordships, the Government felt compelled to reinstate the clause when it came back to the Commons. The House will be aware that despite the clear and sensible arguments of the Opposition and others, ultimately the Government are the Government and use their majority to prosecute their will, and, with no surprise, succeeded in reinstating clause 2.

Christian Matheson Portrait Christian Matheson
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My hon. Friend is right that the Government have the right to push through their agenda even in the face of well-meant advice either from the Opposition or the lordships’ House. I wonder whether there are any other independent expressions of concern, perhaps from the legal system, that also concur with the view that perhaps clause 2, as it was, was not the best way forward.

Alex Cunningham Portrait Alex Cunningham
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24 Nov 2020, 12:03 a.m.

Yes, there are many organisations, including the Bar Council, and I will develop that point later in my speech. It is important to recognise that this is not a case of the people sitting down the other end of the corridor making things up on the hoof. They were doing it on the basis of expertise and the opinions of others.

It was not the end of the matter after the Commons sent the Bill back to their lordships. Their lordships were intent on their ambition and refused to let the matter drop. Happily, that situation has been improved somewhat in recent days. I will return to the message from their lordships quite soon. Before I do that, I am happy to reiterate our support for the Bill’s provisions in clause 1, which give effect to key international conventions in our domestic law. That is very welcome on these Benches.

The 1996 Hague convention on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children is critical to improve the protection of children in cross-border disputes, and I have mentioned some of the difficult cases that some of us have learned of in the past.

The 2005 Hague convention on choice of court agreements aims to ensure the efficacy of exclusive choice of court agreements between parties to international commercial transactions, which is another important element covered in the Bill. We support this incorporation into domestic law as such clauses are commonly provided for in high-value commercial disputes. The 2007 Hague convention on the international recovery of child support and other forms of family maintenance provides for the international recovery of child support and spousal maintenance. Again, that is very welcome and just illustrates how we make law in this country, in this place, that applies directly to the lives of families and, of course, of children. It is abundantly clear that this is a positive move, which will help to ensure that parents pay their fair share when providing for their children.

Labour wholeheartedly welcomes the implementation of these agreements not only because of the legal certainty that they provide, but because of the way that they are being implemented by primary legislation debated on the Floor of this House. They are good provisions, and we all hope that more certainty can be offered in other areas of cross-jurisdictional disputes.

As I said on Second Reading, it was a different matter when it came to clause 2. We felt that we could not support any attempts by the Government to reintroduce clause 2, which would allow for the future agreements to be implemented through secondary legislation only. As we heard in the other place, this provision would be of profound constitutional significance. Labour was concerned, and we remain concerned, that the reintroduction of clause 2 in its entirety would represent an extension of the power of the Executive into uncharted territory, amending the convention that international legal agreements that change our domestic law can be given force only by an Act of Parliament.

I remind Ministers that the House of Lords Constitution Committee said that the change would represent

“a significant new power that would change the way this type of international agreement is implemented in UK law and how Parliament scrutinises them.”

The House of Lords Constitution Committee and the Delegated Powers and Regulatory Reform Committee both considered whether the secondary legislating power should be granted and both were very clear that it should not. Indeed, the Constitution Committee stated:

“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.”

On Second Reading, I quoted Lord Mance, the chair of the Lord Chancellor’s Advisory Committee on Private International Law and perhaps the pre-eminent expert in this area of law. He told the other place:

“Opinion is almost universally against Clause 2.”—[Official Report, House of Lords, 17 June 2020; Vol. 803, c. 228.]

The two Committees that have reported have categorically condemned it. I also quoted Lord Pannick, another pre-eminent constitutional lawyer. He argued that there is

“no justification for allowing the law of this country to be changed by statutory instrument in this context without full parliamentary debate. That is because important policy decisions might arise in this context both on whether to implement an international agreement in domestic law and on the manner in which such an agreement is to be implemented.”—[Official Report, House of Lords, 17 June 2020; Vol. 803, c. 2224.]

The Delegated Powers and Regulatory Reform Committee also offered a stern warning about the unprecedented nature of this constitutional change. It said:

“For the first time there will exist a power to implement international general agreements on private international law by statutory instrument, thereby obviating the need for an Act of Parliament. This will be so regardless of the nature or importance of the agreement.”

The Minister has discussed that with us this afternoon, and made clear the Government’s concessions in this area.

Christian Matheson Portrait Christian Matheson
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My hon. Friend is outlining one of the concerns that I raised earlier, which is about wider concerns raised by experienced legal sources. There may be—and I might ask the Minister to comment on this later—inconsistencies between agreements between the UK and one country and agreements with another country that are achieved through secondary legislation. If the agreement with that particular country is different, citizens will be treated differently depending on the terms of a particular statutory instrument.

Alex Cunningham Portrait Alex Cunningham
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24 Nov 2020, midnight

My hon. Friend is correct. That could lead to considerable confusion in the system. What happens if a family member is moved from country to country? They will be subject to different jurisdictions and different laws, and it would be all the more complicated and difficult for resolutions to be made.

There appeared to be intense opposition to what the Government were trying to do, and it was not just from the other place; it was coming from all over the place. The Bar Council, in its helpful briefing, was highly critical of this new constitutional grab. It was somewhat concerned that the power in clause 2 to proceed by delegated legislation was very broad, and that, for instance, it enabled the appropriate national authority to make regulations for the purpose of or in connection with implementing any international agreement. To give effect to international treaties in domestic law is not a rubber-stamping exercise. The effect, implementation and enforcement of such provisions require robust debate, and we must protect the parliamentary scrutiny of such important legal provisions at all costs.

The Government attempted to raise arguments as to why that new constitutional measure would be necessary, but all of them have failed to convince. The first argument was that the new provision would allow the Government to implement each new international agreement without unnecessary delay, but there is no evidence to suggest that fast-track legislation is required. The implementation of international agreements in the past has often taken years, and there is nothing to suggest that implementing them through primary legislation would cause any difficulties without having to subject legislation to normal parliamentary scrutiny.

The Government raised the 2007 Lugano convention, which deals with the jurisdiction and enforcement of judgments between members of the European Union. The Government’s arguments appear to be that there may be only a short period in which to legislate to give effect to the Lugano provision at the end of the transition period. That is not an argument for developing that new Executive power more generally. The Government have not provided for clause 2 in relation to Lugano but, as the Chairman of the Select Committee, the hon. Member for Bromley and Chislehurst (Sir Robert Neill), said, there appears to be some movement on that, and I look forward to clarification from the Minister.

The Government also claimed that the Constitutional Reform and Governance Act 2010 allowed for sufficient parliamentary scrutiny. Once again, that argument does not carry much weight. As a result of clause 2 as originally drafted, the Government would be able to give force to model law without being subject to the scrutiny mechanism under the 2010 Act, which does not allow for the amendment of treaties or consideration of measures to implement them. That is a red herring, and the argument unravelled when subjected to expert scrutiny.

Even some of the Government’s own Members were rightly worried. It is worth putting on the record again a statement by the Conservative peer, Lord Garnier:

“Unquestionably, the provisions in Clause 2, which give the Executive the extensive future law-making powers originally in the Bill, have been shown to be constitutionally awkward and unwelcome”.—[Official Report, House of Lords, 29 June 2020; Vol. 804, c. 483.]

I think that the Minister has begun to address those issues.

Sadly, the Lords asked the Government to drop clause 2. The Government used their majority. A Conservative peer asked that them not to do so, but that is what they chose to do, so clause 2 was reinstated. As I have said, their lordships were not about to roll over, and they were determined that the Government should not get away with a smash-and-grab raid on our constitution and the way in which we do business in this country. It is no good at all our trumpeting a return of control of our own affairs—control for our Parliament to make decisions on the issues that affect our country and citizens—only for Parliament to surrender that control to an overbearing Executive who appear to be seeking shortcuts to creating legislation and regulations. That is not what the British people handed the Government a majority to do. I do not think they would tolerate the sidelining of MPs they elected to serve them. More importantly, we want to ensure that laws in this land are not just fit for purpose, but have been subjected to the widest possible scrutiny. Opposition Members have always been opposed to the power in clause 2 to implement future international agreements by secondary legislation, but we recognise that change to that clause can be made.

As I mentioned, both the House of Lords Constitution Committee and the Delegated Powers and Regulatory Reform Committee considered whether the power in clause 2 was appropriate, and both made it clear that it was not. None the less, Labour welcomes amendments 1A and 1B, tabled in the other place, which act as a safeguard to clause 2, as reintroduced here. It was good to hear the Minister speak with some affection for those in the other place, and their expertise and skills. Although Labour Members remain disappointed that clause 2 has been reintroduced, the Government have heeded some of the Opposition’s concern by agreeing to the five-year sunset clause to clause 2.

Let me turn to amendments 4A and 4B. Labour also welcomes the amendment to remove the power from the Bill to create criminal offences that are punishable by imprisonment. For obvious reasons, this is a sensitive issue and it is only right that the Government act with caution in this area. Finally, Labour supports the amendment to place an obligation on the Secretary of State to consult before using the implementing power contained in clause 2 or before extending it for a further five-year period. Ideally, we would like to have seen further detail on who the Government are obliged to consult, but this is none the less better than nothing. That said, the Minister might like to address that issue in his summing up.

Before I conclude, I wish to pose a few questions to the Minister, where he could go some way to alleviating the remaining concerns many of us, in and out of this place, have about the amended clause 2. Will he give assurances to the House that any consultations on the implementation of a PIL agreement will be held in public rather than in private? Will he confirm that any consultations on the implementations of a PIL agreement will be announced in good time to allow experts to offer their views? Will he give assurances that the Government will produce a report on the outcome of such consultations and ensure that it is widely available to Members of this House? To sum up, although the Opposition would ideally have liked to see clause 2 taken out completely, or for greater restrictions to have been placed on its power, it is clear that the Government have listened to the concerns of the House and have taken some action to address them. We will therefore support these amendments this afternoon.

Kenny MacAskill Portrait Kenny MacAskill (East Lothian) (SNP)
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Obviously, I rise to support the general principles of the Bill. The Scottish National party, in giving support to this legislation, takes the view that it is not where we wish to be, but in the circumstances of where we find ourselves, it is the best that can be done. It has to be put in the context, both legal and political, of where we find ourselves. In the legal context, many others have mentioned, correctly, that private international law is not even noted a great deal within the wider sphere of law and is rather a specialist niche. I say that as someone who was a lawyer and practised for 20 years, who was a Justice Secretary for seven and a half years and who was the Convenor of the Subordinate Legislation Committee when the Scottish Parliament was first established. Private international law does occasionally result in people’s eyes glazing over, but it is fundamentally important. Significantly, subordinate legislation is equally of great importance and far too frequently missed. Both require to be addressed, because as the Minister and the hon. Member for Stockton North (Alex Cunningham) have mentioned, they are fundamental. This is fundamental to business contracts, as we seek to promote business in a globalised world. It is fundamental to ensuring that litigation can take place if accidents occur abroad, and in the world in which we travel more that is understandable. In family matters, it is fundamental because children are taken, and deeply distressing custody battles are waged over abducted children not only across the border between Scotland and England but around the world. It is also important for the enforcement of aspects such as aliment, as we call it in Scotland, or alimony, as it is referred to down here. All those things depend on the ability to settle on a jurisdiction—a jurisdiction of choice, or sometimes one that is required—in which rights can be enforced.

Lugano and Hague have been mentioned by the Minister and the hon. Member for Stockton North. They are not simply a holiday resort or a historic city—they are fundamental international agreements that affect the lives of many in this country, if not all, even if it is only rarely or sparingly. They were mentioned in a previous debate by the Chair of the Justice Committee, the hon. Member for Bromley and Chislehurst (Sir Robert Neill), who is not here because he is chairing the Committee. It is a matter that I know from private practice, having had partners who are involved in child abduction cases that are deeply complex, never mind the issues in dealing with matters across the border between Scotland and England. They are finite. It is on that basis that, when I started out as a young law student and a young lawyer, private international law was, to some extent, the domain of advocates and barristers, as they are called down here, rather than all those dealing with law as solicitors or lawyers.

However, as the world has become more complex and shrunk in many ways, and as we have globalised, it is something that all lawyers have been required to take cognisance of, because more and more clients have cases that have happened elsewhere or have implications in other jurisdictions, not simply within the four nations of Great Britain and Northern Ireland. It needs to be sorted out, and it is on that basis that the Scottish Government have agreed to the memorandum and indeed support it , which is the same position taken by the Law Society of Scotland. We welcome the Lords amendments and the changes that the Government have taken on board. We think that they could have gone further, but we accept the context, and it is their right, with the majority that they have.

That leads us to the political context. This is coming about as a consequence of Brexit. As we come to the end of transition, we face an approaching deadline. Agreements are required, otherwise rights that we have had for years, and sometimes generations, will be lost. There is a maxim—perhaps only my own: legislate in haste and repent at leisure. I worry that, notwithstanding the excellent skills of parliamentary draftsmen, they are drafting this at late notice and trying to bring it all together, to deal with aspects such as Lugano and Hague and matters in which we still do not know whether we will be able to participate because the EU has not yet consented. Those are all fundamental to our rights. They are equally extremely difficult for anybody who is drafting legislation. I know the number of iterations required in legal drafting, so I hope that we will not see numerous rewrites having to take place, not through the fault of those carrying out the instructions but because of the situation they found themselves in—we do not know what we are dealing with, and we are trying to scramble something together with just days to go.

Christian Matheson Portrait Christian Matheson
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The hon. Gentleman is touching on a point that I have expressed concern about. If these legal agreements are done on a bilateral basis with different countries, we might find that we have agreements with some countries and not others, and therefore constituents of ours with a case in one country will get better access to justice than those with cases in countries where such agreements have not been concluded.

Kenny MacAskill Portrait Kenny MacAskill
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24 Nov 2020, 12:05 a.m.

Absolutely. It is well known—and I have experienced it myself—that where children have been taken to, for example, some north African nations, it can be extremely problematic, if not impossible, for parents seeking their return. Although they had the right to that child, their ability to enforce it was often not recognised. If that is to be the situation we find ourselves in with countries with which we have had greater movement in recent years and greater involvement in terms of trade, the complexities will be extremely difficult indeed.

In the political context, this is the reality. It is not the delusion that we have been given about the sunny uplands of Brexit, or in the defence review about aircraft carriers steaming towards warmer climes, dispensing all sorts of social dividend. I always thought that the people who should be doing the soft diplomacy should be the British Council, as opposed to military forces. I recognise and welcome any work that they can do in that sphere, but it is not what they are trained to do, nor is it their trained function.

This is not the sunny uplands of Brexit. It is the harsh reality of what we face on rights that we have had for more than a generation, on the security of an understanding that lawyers have had about what they could do and where they could go, and the arrangements that have built up. I myself in legal practice had relationships with lawyers in London and Northern Ireland, or wherever else—it was passed around. If all that breaks down, the difficulty for individuals is damaging.

All the emphasis in the public eye has been, perhaps, on the dangers and difficulties we face with access to Europol—there are huge difficulties there—and the difficulties that we may face in terms of sharing information about criminals. We all know that more individuals in this country appear before a tribunal than before a court. We all know, in this Chamber, that more people will be affected by the civil aspects in private international law than will be affected by the far too many, but still far fewer, aspects of criminal offending by those who come here and would require those provisions.

This is the harsh reality of Brexit. We are signing up for something that is acceptable but not as good as what we had. It carries numerous risks. It leaves the danger of deficiencies—sometimes through error, perhaps, but sometimes through a failure to negotiate—that will leave each and every citizen of this country in a worse place. This is not what we were promised. We vote for these measures, but we do so with a heavy heart. It is the harsh reality of Brexit coming home. I hope that many families do not suffer as a consequence.

Jonathan Djanogly Portrait Mr Djanogly
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24 Nov 2020, 12:05 a.m.

The ongoing disputes over the Bill have not related to the content of private international law treaties, but rather to parliamentary scrutiny of orders made pursuant to PIL treaties and scrutiny of the PIL treaties themselves. As far as the order-making powers are concerned, we have ended up today with a welcome compromise, eked out in the other place following a significant defeat and general kickback from basically everyone for the initial proposals for a Henry VIII clause.

To that end, there were counterproposals to limit the scope for orders to specific treaties, for reports to be laid before auditors and to a stated timetable and for a super-affirmative procedure. Although none of those proposals has been accepted, others have been. I welcome the concessions offered today by the Minister, who I have to say has now listened, in terms of the exclusion of some level of criminal offences punishable by prison, the introduction of a five-year sunset clause, albeit a renewable one, and a prior duty to consult on orders, although only with such persons as the Secretary of State thinks appropriate. That is, frankly, as far as we are going to get on this and I shall support what is offered. However, I wish to make two related wider points.

First, while Government suggest that the PIL treaties are non-contentious, the sweeping scope and initially non-restricted life of order powers clearly represent a significant increase in the power of the Executive. It is also an attack on the constitutional principle that international agreements should only change domestic law if they are instituted by Act of Parliament. Here we need context, because if one looks at the range of current Government Bills, one sees time and again power being removed from this place to the Executive. That was recently described by one journalist as this Government’s Maoist tendency.

It may be that recent staff changes at Number 10 are going to reverse that tendency. The Government should keep in mind that the Executive will not always be a Conservative one, and messing with our finely tuned unwritten constitution may not be to the Conservatives’ advantage in the long run.

My final point concerns what has been persistently avoided in the Bill, which is the urgent need to reform the Constitutional Reform and Governance Act 2010 provisions for scrutinising proposed international treaties. Frankly, I have not been able to understand Ministers’ feet dragging on this issue. As things stand, it looks like CRaG reforms are more likely to come in piecemeal via the Trade Bill and the Agriculture Bill. In my view, that sectoral hotch-potch should be managed by the Justice team, to cover all international treaties. I suggest that Ministers apply their many talents to that task.

John Howell Portrait John Howell (Henley) (Con)
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24 Nov 2020, 3:09 p.m.

Let me first declare an interest as an associate of the Chartered Institute of Arbitrators.

I thought for a moment that I was going to welcome the agreement that there clearly is between my hon. Friend the Member for Huntingdon (Mr Djanogly) and me, but, given his last comments, I am not sure any more—I need to think about them. However, I think we are on the same sort of page at the moment.

I, too, welcome these Lords amendments and point out that they are a very good compromise between this House and the other place. I also welcome what the Minister has said in bringing them forward. In taking away the criminality, having a sunset clause and bringing in a consultation, they have done a tremendous amount to bridge the gap that there previously was during our discussions on this Bill. But in fundamental essence, the Bill remains the same in what it can do, and I am glad that it does.

I made the point on Report as to why that was important. I am not going to repeat the entire speech that I made then—I probably could not get away with that—but I stressed the need for agility and flexibility, and I put that in the context of the Singapore mediation convention. There is a great necessity to get the Singapore mediation convention into working order and on the statute book. The reason for that is twofold.

First, it fundamentally does no harm whatsoever—in fact, it does a tremendous amount of good for the small businesses that are choosing mediation as a means of settling their disputes. Secondly, it ends the farce we have at the moment with the system that is in place whereby if one has a mediation, one then has to agree an arbitration, however short that may be, in order to take advantage of the New York convention. That is a nonsense that we do not want to continue with. We must implement the Singapore mediation convention, which allows the results of a mediation to be recognised in the countries that have signed up to this.

The Minister was kind enough to say that I am a great champion of the Singapore mediation convention, and he is quite right, because I have seen that it does a tremendous amount of good for this country. It is also because, as the hon. Member for Stockton North (Alex Cunningham) said, a tremendous amount of alternative dispute resolution takes place in this country. We are world leaders in this, but we will not remain so for very long unless we sign up to the Singapore mediation convention and get stuck into what the rest of the world is getting involved in. All I can do is recommend to the Minister that he gets on with introducing the statutory instrument to get the Singapore mediation convention up and running in this country. To repeat what I said on Third Reading, I am very happy to serve on the SI Committee that introduces the Singapore mediation convention and to see a great dream come true.

Alex Chalk Portrait Alex Chalk
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24 Nov 2020, 3:14 p.m.

Let me begin, a little sooner than I had planned, by saying that I am absolutely delighted that this Bill is now going to be supported across the House. It is worth reflecting on the journey that we have made, because, as the hon. Member for Stockton North (Alex Cunningham) rightly said, concerns were raised, first on Second Reading but also in the other place, but we have now got to the point where the Labour and Lib Dem amendments were withdrawn in the other place and this Bill will now receive cross-party support. In getting to this point, their lordships recognised, in the words of Lord Pannick, that “substantial and constructive” amendments had been made by the Government. We did so because we recognise that the issues we are addressing here, when it comes to the constitutional balance in our country, are ones that merit proper and careful consideration. But the imperative for this was in fact laid bare in the points made by the hon. Member for City of Chester (Christian Matheson), who is no longer in his place—[Interruption.] He is back, as if by magic. He asked whether there would be different treatment for British citizens in different parts of the world. That is precisely what the Bill is all about. It is to try to reduce those differences. If we had no private international law agreements, that is exactly the situation we would increasingly find ourselves in. Because we are now better able to implement them, we are better able to provide that certainty and clarity which are in the interests of our constituents and their businesses, whether they manufacture widgets or any other products.

The Bill recognises that we will now be able to have the seamless re-implementation into British domestic law of the three Hague conventions named in clause 1 —Hague 1996, 2005 and 2007—and it will also allow for the timely implementation of the 2007 Lugano convention. I respectfully say to the hon. Member for East Lothian (Kenny MacAskill) of the SNP, who is no longer in his place: the whole point is that we want to go beyond Lugano and this provides us with the ability to do so. It will do so not as a rubber-stamping exercise —not a bit of it. There is proper parliamentary scrutiny, first through the CRaG procedure and, secondly, through the affirmative statutory instrument procedure.

On the points that the hon. Gentleman made about consultation, the consultations will, as required by the statute, take place before there is any attempt to extend the power or to implement any agreement. They will be tailored and proportionate, but there will be complete transparency about what has taken place. A thorough and detailed explanation will be provided to Parliament on who we have consulted, and a fair and balanced summary of the views expressed within the explanatory memorandum that accompanies any statutory instrument made under the power.

That is the right thing to do. That is what is set out in the statute and we have now got to a place where I can say, I commend the Bill to the House.

Question put and agreed to.

Remaining Lords amendments agreed to.

Rosie Winterton Portrait Madam Deputy Speaker (Dame Rosie Winterton)
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In order to allow for safe exit and entry before the next business, we will have a three-minute suspension.

Sitting suspended.

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

(Ping Pong (Hansard))
(Ping Pong (Hansard): House of Lords)
Thursday 19th November 2020

(4 months, 3 weeks ago)

Lords Chamber

Read Hansard Text
Scotland Office

Commons Amendments

Motion on Amendments 1 to 1B

Moved by

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton
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That this House do agree with the Commons in their Amendment 1, and do propose Amendments 1A and 1B as amendments thereto—

1: After Clause 1, insert the following new Clause—

“Implementation of other agreements on private international law

(1) The appropriate national authority may make regulations for the purpose of, or in connection with, implementing any international agreement, as it has effect from time to time, so far as relating to private international law (a “relevant international agreement”).

(2) The appropriate national authority may make regulations for the purpose of, or in connection with, applying a relevant international agreement, with or without modifications, as between different jurisdictions within the United Kingdom.

(3) The appropriate national authority may make regulations for the purpose of, or in connection with, giving effect to any arrangements made between—

(a) Her Majesty’s government in the United Kingdom, and

(b) the government of a relevant territory,

for applying a relevant international agreement, with or without modifications, as between the United Kingdom, or a jurisdiction within the United Kingdom, and that territory.

(4) Regulations under this section may make—

(a) consequential, supplementary, incidental, transitional or saving provision;

(b) different provision for different purposes or for different parts of the United Kingdom.

(5) Regulations under this section may include provision about—

(a) enforcement of obligations arising under or by virtue of the regulations;

(b) sharing of information;

(c) legal aid.

(6) Schedule (Regulations under section (Implementation of other agreements on private international law)) makes further provision about regulations under this section.

(7) In this section—

“appropriate national authority” means—

(a) in relation to England and Wales, the Secretary of State;

(b) in relation to Scotland—

(i) the Scottish Ministers, or

(ii) the Secretary of State acting with the consent of the Scottish Ministers;

(c) in relation to Northern Ireland—

(i) a Northern Ireland department, or

(ii) the Secretary of State acting with the consent of a Northern Ireland department

“international agreement” means a convention, treaty or other agreement to which the United Kingdom is, or is expected to become, a party; “private international law” includes rules and other provisions about—

(a) jurisdiction and applicable law;

(b) recognition and enforcement in one country or territory of any of the following that originate in another country or territory—

(i) a judgment, order or arbitral award;

(ii) an agreement, decision or authentic instrument determining or otherwise relating to rights and obligations;

(c) co-operation between judicial or other authorities in different countries or territories in relation to—

(i) service of documents, taking of evidence and other procedures, or

(ii) anything within paragraph (a) or (b);

“relevant international agreement” has the meaning given in subsection (1);

“relevant territory” means—

(a) the Isle of Man;

(b) any of the Channel Islands;

(c) a British overseas territory.

(8) This section and Schedule (Regulations under section (Implementation of other agreements on private international law)) have effect, with the following modifications, in relation to a model law adopted by an international organisation of which the United Kingdom is a member as it has effect in relation to an international agreement to which the United Kingdom is, or is expected to become, a party.

The modifications are—

(a) a reference in this section or that Schedule to implementing or applying a relevant international agreement is to be read as a reference to giving effect to the model law (with or without modifications);

(b) subsection (1) is to be read as if the words “as revised from time to time” were substituted for the words “as it has effect from time to time”.”

1A: After subsection (3) insert—

“(3A) Regulations under subsections (1) to (3) may only be made during the operative period.

(3B) The operative period is the period of five years beginning with the day on which this Act is passed.

(3C) The appropriate national authority in relation to a part of the United Kingdom may by regulations extend the operative period for that part of the United Kingdom by a period of five years.

(3D) The power under subsection (3C) may be exercised more than once.

(3E) The operative period may not be extended for any part of the United Kingdom after it has expired in relation to that part of the United Kingdom.”

1B: In subsection (5) leave out “this section” and insert “subsections (1) to (3)”

Lord Stewart of Dirleton Portrait The Advocate-General for Scotland (Lord Stewart of Dirleton) (Con)
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My Lords, I will speak to Commons Amendments 1 to 5 and Amendments 1A, 1B and 4A to 4E, which are in my name.

Private international law is a technical area of law, but it is important to people and businesses that become involved in legal disputes with a cross-border aspect. A family may need to enforce a maintenance decision when one parent moves abroad, or a small business that has been left out of pocket by a foreign supplier may need to seek redress. Agreements on private international law create reciprocal rules to enable UK businesses, families and individuals to resolve these difficult and challenging situations. They prevent multiple court cases taking place in different countries and allow for the decisions of UK courts to be recognised and enforced across borders. All of this helps to reduce costs and anxiety for the parties involved.

The House will recall that this Bill contains two substantive clauses. The first implements three key Hague conventions which currently apply as a consequence of our former membership of the European Union, allowing us to continue to co-operate on important aspects of private international law with existing partners. The second establishes a delegated power to implement further agreements on private international law now that we have regained full competence in this area from the European Union. This stood part of the Bill on its Lords introduction but was removed on Report. Commons Amendments 1, 2, 4 and 5 simply return this clause, and related provisions, to the Bill.

There is also Commons Amendment 3, which I hope will be uncontroversial and will not address in detail. It adds a permissive extent clause to the Bill allowing the implementing power to be extended to the Isle of Man; this is at the request of the Isle of Man Government. This is the standard approach to extending UK legislation to the overseas territories or Crown dependencies and in this case does not directly affect the United Kingdom. My noble and learned friend Lord Keen spoke in detail on this amendment back in May but was unable to move the amendment at the time.

The agreements implemented under Clause 1 are widely supported by interested parties in the legal and finance sectors, and indeed by Members in this House and the other place. The 1996 Hague Convention aims to improve the protection of children in cross-border disputes. It deals with issues such as residence of and contact with children whose parents live in different countries. The 2005 Hague Convention on Choice of Court Agreements aims to ensure the effectiveness of exclusive choice of court agreements between parties to international commercial transactions. The 2007 Hague Convention provides rules for the international recovery of child support and spousal maintenance. The Government have already taken the necessary international steps to ensure our continued membership of these agreements following the end of the transition period.

It is vital that the UK’s membership of these agreements continues seamlessly from the end of the transition period. This means that Clause 1 needs to be in force within a few weeks. Although the implementation of the Hague conventions contained in Clause 1 is agreed and not subject to further amendments, the timing aspect creates an imperative for us to agree a way forward on the delegated power promptly.

Before I address the amendments, I will clarify the types of agreements that can be implemented under the delegated power. The power only covers the implementation of international agreements on a very narrowly defined area of law: agreements which are typically uncontroversial and have received widespread support in Parliament in the past. The Bill only allows implementation of private international law agreements which it defines in subsection (7) of the relevant clause. Principally, such agreements cover rules on jurisdiction to hear disputes which raise cross-border issues; which country’s law should apply to such cases; recognition and enforcement of foreign judgments; and co-operation between judicial and other authorities in different countries on these matters. It will not be possible for matters outside the areas covered by the definition of “private international law” in the clause to be implemented using the power.

I know that, in the past, debate on this Bill has touched on topics such as the Hague-Visby Rules, or the 1961 Warsaw Convention on the carriage of goods by air. Let me be clear: these conventions—bar possibly one or two provisions—are out of scope of the power, and if the UK joined these conventions today they would still need to be implemented by primary legislation. This Bill is only concerned with implementing provisions on private international law, not any international agreements on private law matters generally.

Bearing that point in mind, I turn to the amendments. This House has already discussed the delegated power at length and made its views known. However, the clause comes back from the other place with a majority of 149, so, despite the reservations many of your Lordships have and have expressed, I believe we need to accept that such a clause has a place in the Bill and think about how to make it more acceptable to this House. The amended clause will still allow private international law agreements to be implemented promptly. This is important because, following the end of the transition period, there is a need to update the United Kingdom’s private international law framework. The Government have already made clear their intention to join the Lugano Convention. This power minimises any gap in its application if we are able to rejoin that convention and allows us to respond flexibly if we are not.

Implementation of these narrow and technical private international law agreements is largely about drawing down into domestic law detailed rules that have already been agreed at an international level. There is very limited ability for Ministers to deviate from these once the UK agrees to become bound by the relevant agreement. The rules in the agreement will not be amendable, and implementation will often largely be a yes or no question, coupled with making provisions largely of a procedural or technical nature, making the affirmative statutory instrument procedure appropriate. There are well-established precedents for implementing agreements which meet our definition of private international law by secondary legislation. It is not just that much of our current private international law framework was implemented under the powers of the European Communities Act. Even before that, there were many examples of agreements of this type being implemented through secondary legislation. The most notable of these is the Foreign Judgments (Reciprocal Enforcement) Act 1933.

Without this power, each new private international law agreement or update to an existing agreement would require primary legislation. Given the need to update our private international law framework and the current busy parliamentary agenda, such a requirement would be disproportionate and damaging. The intellectual arguments about the extent to which the implementation of international agreements by secondary legislation is constitutionally appropriate are important, but the other House recognised that those arguments are not the beginning and end of this debate. We must remember that these agreements can have a real impact on the lives of the general public, and delays in implementing them and reaping their benefits could negatively impact UK businesses and families. It is my view that the power provides a proportionate solution to an important problem, while retaining a far greater role for Parliament in the scrutiny process than it has had for many years.

All that said, I recognise the many and varied concerns that have previously been raised about this power. Opinions are sincerely held and there is merit to many of the points which have been made. I have sought to familiarise myself with the views your Lordships expressed in the Chamber during earlier debates, and I have listened closely to concerns expressed by noble Lords in engagement with myself and ministerial colleagues in recent weeks. The amendments in my name are a good-faith attempt to find a way forward. Indeed, the noble Lord, Lord Pannick, described the suite of amendments that I have put before this House as “substantial and constructive”. They attempt to strike a balance, sensitive to the aims of the Government and the concerns of your Lordships’ House.

First, Amendment 4A removes from the power the ability to create criminal offences which are punishable by imprisonment. In my analysis of the debates on this Bill, it is clear that this aspect of the power has been the most widely criticised. I certainly see that this is a sensitive issue, and it is right that the Government act cautiously. Although private international law agreements do not generally require contracting parties to create criminal offences, there are exceptions. Some conventions include non-discrimination clauses that require states to apply the same enforcement methods for foreign judgments as are available in domestic cases.

In fact, our current approach to the implementation of the Lugano Convention, which the Government intend to reimplement promptly should our application to rejoin as an independent contracting party be successful, includes a criminal offence in Northern Ireland. This applies where a person obliged to pay maintenance under an incoming maintenance decision, subject to recognition and enforcement in Northern Ireland, fails to update a Northern Ireland court with changes to their address. In my view, this is a good example of the “limited” type of criminal offence with which we are concerned and highlights the value of retaining the ability to create offences punishable by, for example, fines. Although I understand the concerns that some may have about even this type of criminal offence being created by secondary legislation, there are in practice a large number of offences created by secondary legislation and retaining this aspect of the power, albeit in a more restricted form, is not out of step with other legislation.

The effect of the amendment, therefore, would be to require any provisions in a private international law agreement that entail the creation of criminal offences carrying a custodial sentence to be implemented by primary legislation. This will provide Parliament with significant additional scrutiny of this important matter. I hope that this addresses a major source of concern about the power.

Secondly, Amendments 1A and 1B, and 4C, 4D and 4E, add a five-year sunset period—extendable on a recurring basis by affirmative statutory instrument—to the regulation-making power. This is not an amendment that the Government would ideally have wanted to make to the Bill. We still consider the delegated power to be a proportionate approach that would afford the flexibility to implement future private international law agreements promptly in the years to come. The Government have already been clear about how they intend to use the power over the next few years. This amendment would ensure that if a future Government, of any colour, wanted to extend the five-year period, they would need to provide similar clarity. This approach of providing an extendable sunset period has been taken in other legislation, such as the Trade Bill. It is also, in my view, proportionate for the implementation of agreements of this nature—technical agreements, agreed at international law level, being drawn down into domestic law. This additional role for Parliament provides significant additional scrutiny and will influence how Governments use the power.

The reviewable sunset period means that the Government can still make necessary changes to the UK’s framework of PIL agreements over the next few years and maintain their ability to respond flexibly to any uncertainty following the end of the transition period. However, it would also provide the Government with an opportunity to review the use of this power in the future without the current time pressures and to take a reasoned decision on whether it should be terminated. If the Government believe at that stage that the power should be extended, they will need to make their case to Parliament and have the regulations approved in both Houses. I also remind colleagues that a statutory instrument to extend the power would still be subject to an obligation to consult—something I will come on to talk about in more detail shortly. I believe that this approach strikes the right balance between flexibility and scrutiny and offers an effective solution to many of the concerns raised. To my mind, it represents a workable compromise between the position of the Government, as set out, and the principal concerns that the House had aired.

The third amendment, Amendment 4B, puts an obligation on the Secretary of State to consult before using the implementing power or extending it for a further five-year period. My ministerial colleagues have made it clear at various stages of the Bill’s passage that they greatly value the views of experts in this area. The current Lord Chancellor reconvened the advisory committee on private international law, chaired by the noble and learned Lord, Lord Mance, and I know that both the Lord Chancellor and Minister Chalk have engaged regularly with other members of the legal sector through the Ministry of Justice’s International Law Committee. Consultation is our usual practice, and indeed the Ministry of Justice has already consulted the advisory committee on draft regulations that it may make under the power to implement the Lugano Convention 2007, should our application to rejoin be successful. However, having reflected on the views expressed to me since I took on responsibility for the Bill, I have concluded that putting on the face of the legislation an obligation to carry out such consultation, before making regulations under the delegated power, is a proportionate and appropriate step.

This obligation to consult is drafted in a general way so as not to refer specifically to any groups or bodies. This is because, while the advisory committee, for example, contains a significant wealth of expertise in the field of private international law, it is not a statutory body. Therefore, to refer specifically to it in legislation would not be appropriate. Equally, referring to specific parliamentary committees is not without risk, as interested committees may change or be renamed as time passes. Parliament would already have an opportunity to scrutinise draft affirmative statutory instruments to be made under the power and, even without naming them in the legislation, the Government would always consider most seriously any representations made by parliamentary committees. The same applies to other named consultees that some may suggest adding to the Bill. The Government will be under a duty to make sure that the consultation carried out is appropriate.

I also remind the House that a statutory obligation to consult carries with it a requirement to take due account of the representations received. I can give an undertaking that the Government will meet that requirement. We will provide a thorough and detailed explanation of the consultation that has taken place, setting out not only those with whom we have consulted, but a fair and balanced summary of the views expressed. That will be set out in the Explanatory Memorandum that must accompany any statutory instrument laid before this House. This will give parliamentarians and any relevant parliamentary committee an opportunity to scrutinise the consultation that has taken place and the way the Government have taken account of the views that have been expressed.

I am satisfied that this approach strikes the right balance between ensuring that the Government take account of the views of the relevant experts while allowing for a flexible approach to engage with the most appropriate interested parties in each specific case. I hope that your Lordships will agree that it demonstrates that the Government are sincere in their intent to engage Parliament and other stakeholders in the process. In my view, when taken as a whole, these three amendments represent a significant amount of extra scrutiny for Parliament. I hope that the House will consider them a compromise sensitive to the aims of both sides. I beg to move.

Earl of Kinnoull Portrait The Deputy Speaker (The Earl of Kinnoull) (Non-Afl)
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The question is that the House do agree with the Commons in their Amendment 1 and do propose Amendments 1A and 1B as amendments thereto. On Amendment 1C, I call the noble and learned Lord, Lord Falconer of Thoroton.

Amendment 1C (as an amendment to Amendment 1A)

Moved by

1C: Leave out subsection (3D).

Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton (Lab)
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My Lords, I move my Amendment 1C as an amendment to Amendment 1A. It would leave out subsection (3D) of the Government’s proposed amendment. Leaving out the subsection would mean that the power to extend the sunset period could be exercised only once.

I start by welcoming the noble and learned Lord, Lord Stewart of Dirleton. Throughout the process of this Bill, he has been very engaged, incredibly helpful, very courteous and really engaged in the detail, and we are all incredibly grateful for that. I also compliment him on the presentation he has just made, which was persuasive and clear and addressed all the issues. So I really am glad to see him there and I completely support him—as indeed does the whole House—in relation to the bringing into UK domestic law and ratifying the three treaties referred to, and which remain referred to, in Clause 1 of the Bill.

I remain disappointed and believe it to be very much the wrong policy to give the Government the power to introduce private international law treaties by secondary legislation, as in the amendment introduced by the Commons to the Bill that was sent from the Lords. There was an almost universal view in this House when it was last here that that should not be dealt with by secondary legislation, because it would reduce the quality of private international law agreements that were given the force of law by legislation. The question of whether it was legitimate to do it by secondary legislation was considered after the consideration of evidence, both by the Constitution Committee of this House—and I am glad to see the noble Lord, Lord Pannick, here as a distinguished member of the Constitution Committee—and the Delegated Powers Committee of this House as well. Both considered, in detail, evidence put before by them by the Ministry of Justice and rejected the suggestion that secondary legislation was the appropriate way to deal with such treaties.

I did not find the reasons given by the noble and learned Lord convincing. But he, like his distinguished predecessor, the noble and learned Lord, Lord Keen of Elie, did not really engage on the issue of why to use secondary rather than primary legislation. He asserted that secondary legislation had been used in the past, and, like his predecessor, referred to the 1933 and 1920 Acts. What he was referring to was bringing into force the provisions on enforcement of judgments in those two Acts in relation to individual territories or countries. All that happens by that secondary legislation is that additional countries are added, whether they be Commonwealth countries for the 1920 Act, or non-Commonwealth countries for the 1933 Act. I would not have any objections whatever to something like that. But that is not the power taken in this Bill; it is the whole of the private international law agreement. It would not just be the addition of countries; it would be the whole Foreign Judgments (Reciprocal Enforcement) Act 1933 in the examples that have been given. That will lead to this country having a worse network of private international law agreements than it has had previously. That is bad for this country, because one of the things we are incredibly good at is private international law. That is what makes English law so attractive to commercial institutions. I am disappointed that no real additional arguments have been advanced.

I accept the political reality here; this House has almost universally asked the other place to think again, and the noble and learned Lord, Lord Stewart of Dirleton, is right to point out that it had the opportunity to think again and decided to go ahead. We have to accept that in a case such as this.

In relation to the sunset clause, these agreements take a long time to negotiate and introduce—with the possible exception of us adhering to Lugano, because that may have to be done in a hurry, so I can see that there is a case there. I am interested that the noble and learned Lord, Lord Stewart of Dirleton, has said that if one had Hague-Visby or Warsaw, that would not be covered by this Bill and would, therefore, have to be introduced by primary legislation. I am not sure, then, under what circumstances this is ever going to apply in substance, because the nature of these private international agreements is that they will have provisions about jurisdiction and enforcement as well as about substantive law—Hague-Visby and the Warsaw convention.

If there is anything about substantive law, such as what it would be in relation to the return of children—that comes under the Hague convention—as I understand what the noble and learned Lord is saying, although it does deal with jurisdiction and judgment issues, it also sets out a standard of law like Hague-Visby, and that would not be covered. I am grateful for that, because it means that, in significant private international law agreements, primary legislation will always be used. If that is right, although I can see the arguments in relation to Lugano, after the five years are up, the right predilection for the Government would be to say, “That is enough—let us go back to being the country that really looks at private international law agreements.” It would meet the Government’s requirement to deal with Lugano, and it would preserve our primary place in relation to the quality of the private international law agreements we make and the quality of the way we introduce them. Yes, you have to introduce what you have agreed, but there are many other things around them as well. I hope that the noble and learned Lord will be able to assure me that the starting point of the Government would be that one is enough and that there would need to be special reasons why there would be an extension for a second time.

I strongly support the amendment of the noble Lord, Lord Marks, which would place in the Bill an obligation to consult with each head of the three judiciaries of the United Kingdom, on the basis that if you put those consultees on the face of the Bill, they will ensure that the right people in the legal community are consulted. I am, at the moment, at a loss to understand how on earth that could be objectionable. I note that it is said that the Lord Chancellor’s advisory committee on private international law might change its nature. I can see that, but that could probably be dealt with by a power to change the title, to be given to the Minister under secondary legislation. However, I think it is extremely unlikely that the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland are going to have a significant name change within the next 100 years. If they did, no doubt every piece of legislation would be changed to reflect that. So why not?

The noble and learned Lord has done so much for us; the key thing from this side of the House’s point of view is that our quality as a country in this area should continue. There is no politics in this; it is just about getting the right result. I hope that he will reflect and give some assurances that might make the position easier.

Lord Marks of Henley-on-Thames Portrait Lord Marks of Henley-on-Thames (LD)
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My Lords, I add my welcome of the noble and learned Lord, Lord Stewart of Dirleton, to his place in taking over this technical but difficult Bill, one that raises issues of principle.

I welcome the government amendments, which have the power to act as safeguards on the power reinserted into the Bill by the Commons amendments. I agree with the summary by the noble Lord, Lord Pannick, of the Government’s amendments as sensible and constructive. But I share the disappointment of the noble and learned Lord, Lord Falconer of Thoroton, that the Commons amendments reinstate the delegated power that this House so comprehensively rejected.

I also agree with the noble and learned Lord, Lord Stewart, that outlawing the power to create offences punishable by imprisonment is of particular importance. I welcome the fact that the principle of a sunset clause has been accepted, although, for all the reasons mentioned by the noble and learned Lord, Lord Falconer, it should be meaningful and not liable to be endlessly renewed. It is also important that the Government have introduced a requirement for consultation before regulations are made. On that, in particular, I am grateful to the noble and learned Lord for the time he and the Bill team have spent with me and others discussing the government amendments to the Commons amendments and considering suggested changes.

For my part, I support the amendment on the sunset clause in the name of the noble and learned Lord, Lord Falconer, for all the reasons he gave. I understand the Government’s concern to ensure that there is sufficient time to bring new private international law agreements into UK law, and I accept that there may possibly, on occasion, be a need for more than five years to achieve that. However, I simply cannot see the need for further extensions beyond 10 years. It is in the nature of these international agreements that they take a long time to be finalised. However, the point about the first five years is that there are a number of international agreements, notably the Lugano Convention 2007, to which the Government wish to accede, which may need to be brought into law in the reasonably short term, and there are others on the horizon that may need more than five years. The problem with allowing for extensions beyond 10 years—that is, more than one extension—is that such a long sunset period may involve permitting the Government to implement in the UK international agreements that are currently unforeseen and unforeseeable. It was partly to address that issue that this House took the view that primary legislation should be required before implementing such agreements in domestic law.

I appreciate that this issue is addressed, in part at least, by the requirement for consultation before regulations are made implementing further private international law agreements. That requirement is, indeed, a welcome safeguard. My amendment to government Amendment 4B is designed to ensure that such consultations are both objective and impartial and seen to be so. The shortcoming of the present proposal is that the choice of those to be consulted lies entirely, in England and Wales, with the Secretary of State and, in Scotland and Northern Ireland, with Scottish Ministers, the relevant Northern Ireland department or the Secretary of State acting with their consent. That means that the power to choose who is to be consulted lies entirely with the Executive.

Of course, we accept that many Ministers can be confidently relied on to exercise that power dispassionately, but that confidence cannot always be assumed, and it has not always been justified by Secretaries of State. The change in the role of the Lord Chancellor may also have had an impact. I understand the Government’s concern to ensure that there is flexibility in the choice of those to be consulted. It goes without saying that, for example, a convention concerned with family law matters may call for different experts to be consulted than would a convention concerned with commercial law or contractual matters. That is why my amendment does not seek to impose on the Secretary of State a list of those who must be consulted. It lies behind what the noble and learned Lord said about the Government’s reasons for not setting out such a list, but I and others are also concerned to ensure not only that the choice of those to be consulted is clearly objective, impartial and apolitical but that the organisation, management and follow-up of the consultations are thorough and meaningful.

Accordingly, I understood the noble and learned Lord to be offering, on behalf of the Government, assurances to the House in that connection. I invite him to confirm, first, that consultation on the implementation of a private international law agreement will generally be in public, and that the Government will announce their intention to consult and invite people to offer their views. Secondly, will he confirm that if the Government decide that such a consultation will not be in public they will publicly explain that decision and the reasons behind it? Thirdly, will he confirm that the Government will report on the outcome of such consultations, if not in a separate report, then, as he envisaged, in or in a document accompanying the Explanatory Memorandum that comes with any proposed regulations made under the powers in the Bill? Finally, I understood the Minister to be offering an undertaking, which I ask him to confirm, to ensure that the explanations in or accompanying such explanatory memoranda will be thorough and detailed, setting out whom the Government have consulted and a fair and balanced summary of the views expressed in any such consultation.

Such assurances and undertakings, if confirmed in the terms I have set out, would offer reassurance to those of us who are concerned that all such consultations will be the genuine safeguards we need them to be. I beg to move.

Earl of Kinnoull Portrait The Deputy Speaker (The Earl of Kinnoull) (Non-Afl)
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The following Members in the Chamber have indicated that they wish to speak: the noble Lords, Lord Pannick and Lord Berkeley. I therefore call the noble Lord, Lord Pannick.

Lord Pannick Portrait Lord Pannick (CB)
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My Lords, I echo the words of the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Marks, in welcoming the Advocate-General for Scotland, the noble and learned Lord, Lord Stewart, to his post. I thank him and the Minister in the Commons, Alex Chalk, and their officials for taking the time to discuss with me and many other Members of this House our concerns, the House’s concerns and the concerns of the Constitution Committee about the delegated powers in the Bill and how those concerns can be accommodated by amendments. The noble and learned Lord has taken a very welcome constructive approach to these issues and I thank him sincerely for that. He has tabled amendments that go a significant way, in my view, to meeting those concerns.

Like the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Marks, I would have liked, ideally, to see greater restrictions on the use of delegated powers in this context, but the theme tune that often—not always, but often—accompanies Lords’ consideration of Commons amendments is the Rolling Stones song “You Can’t Always Get What You Want”, and since we will not get exactly what we want today, the next best thing is for the Minister to assure noble Lords of the Government’s intentions in this context. Again, he has very helpfully gone a long way to do that this afternoon. I ask him to confirm my understanding on three topics that are raised by paragraph 1A, on consultation, as introduced by government Amendment 4B.

The first of these topics is the purpose of the consultation. There is a mandatory obligation to consult. It is not a discretion; there is a duty to consult. The amendment does not expressly say what the purpose is, but does the Minister agree that it is implicit that one of the purposes of the consultation will be to assist the Secretary of State in deciding whether it is appropriate to implement a particular international agreement by regulations, or whether primary legislation is needed?

Can the Minister confirm that the Government recognise that some international agreements, even when they are in the scope of this Bill, as explained by the Minister, may require changes that are so significant that it would not be appropriate to implement the international agreement other than by primary legislation? I suppose, also, the consultation might assist on whether the international agreement would alter substantive law, albeit incidentally, which I understood the Minister to accept would not be an appropriate subject for delegated legislation. That is the first matter: the purpose of consultation.

The second matter on which I would welcome assistance from the Minister concerns who is to be consulted. This topic was addressed by the noble Lord, Lord Marks. Does the Minister agree that it is difficult to envisage that there would ever be a case when it would not be appropriate to consult the senior judiciary? I understand that the Minister does not want to write it into the Bill, but it would be helpful if he could acknowledge that it is very difficult to envisage that it would ever be appropriate not to consult the senior judiciary. Does he also recognise that, if the Secretary of State is to be properly informed by this consultation, it will also require—other than possibly in the most exceptional cases—an invitation to the Law Society, the Bar Council and NGOs such as Liberty and Justice to express their views? I am not asking him to give a categorical assurance that this will be done in every case but, in respect of normal cases, I ask him to confirm his understanding that that is what he would expect normally to occur.

The third matter that I hope the Minister will address concerns the publication of the fruits of consultation—a topic that he helpfully mentioned in his opening remarks. Again, the noble Lord, Lord Marks, referred to this. I too understood the Minister to have confirmed that the Government intend to publish a report on the consultation responses when laying regulations before Parliament. It would give the House great reassurance if the Minister could confirm—as the noble Lord, Lord Marks, asked—that this will be a full, detailed report of who has been consulted, what they said, and what the Government’s response was if the Government disagreed with them.

The reason why this is so important is because, if regulations are laid, the House will itself want to consider whether the subject matter of the regulations makes it inappropriate for the Government to proceed by way of delegated, rather than primary, legislation. The committees of this House—particularly the Constitution Committee and the Delegated Powers Committee—and the House itself will want to take account of those consultation responses when forming their views. Again, I thank the Minister very warmly. I hope he can confirm my understanding on these issues.

Lord Berkeley Portrait Lord Berkeley (Lab)
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My Lords, I am grateful to be able to participate in this debate. I join other noble Lords in welcoming the noble and learned Lord, Lord Stewart. I am grateful for the time he spent with me and the Commons Minister Alex Chalk MP discussing what I am about to talk about. I also congratulate my noble and learned friend Lord Falconer of Thoroton on his birthday today.

My interest is in something called the Luxembourg Rail Protocol, which we have all agreed is an item of private international law. The protocol is sponsored, along with the Cape Town convention, by the organisation UNIDROIT—I hope I have the right pronunciation. The UK is a full member of this organisation. The purpose of this rail protocol is very similar to a successful one that has existed for the air sector for many years. It is to do with moveable equipment: the financing, recognition, protection and enforcement of creditor rights in relation to equipment that can move. I spoke briefly about this in Committee on the Trade Bill, which I shall return to, but obviously, if investors want to financially support equipment that can be moved anywhere around the world, they want to have some comfort that they know where it is and will get their due money back or whatever.

I recall, from my experience in the railway industry about 20 or 30 years ago, that there was a time when rail wagons got as far as Italy and sometimes never came back. It is not like that today, but it might be like that in other parts of the world. It is really important for UK businesses—not only those that operate or own the relevant bits of equipment but also the export business that will come. I am advised that this needs to be done before the end of the year to provide continuity.

There has been quite a lot of debate here—and in our discussions with Ministers—as to whether this needs primary or secondary legislation. Other noble Lords with much greater experience than I have been discussing it this afternoon. I originally put down an amendment in Committee on the Trade Bill, and the Minister, the noble Viscount, Lord Younger, said he was very supportive of fitting the Luxembourg Rail Protocol into UK law, but thought that the Trade Bill was not really the right place for it. He said it would be much better if it were done as a statutory instrument under the scope of this Bill, assuming that the text of this Bill allows it to happen. I know that there have been planned discussions between Ministers here and Ministers in the Department for Transport, because obviously they will have to promote some secondary legislation, but the important thing now is for the Minister, when he comes to wind up, to give the strongest assurance that the Government are empowered under this Bill—or Act, as it will be—to adopt the Luxembourg Rail Protocol through secondary legislation, and that he will do all he can to encourage the Department for Transport to get this moving so that we have a statutory instrument by the end of the year. I know there is a big queue of legislation, but it would be really good if that could happen. Given that so many Ministers have said to me that they want this to happen and that it is good for businesses—I have not heard anyone saying that it should not happen—I hope that the Minister will be able to give me the strongest assurance that he can.

Earl of Kinnoull Portrait The Deputy Speaker (The Earl of Kinnoull) (Non-Afl)
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Does anybody else in the Chamber wish to speak? I call the noble Lord, Lord Mance.

Lord Mance Portrait Lord Mance (CB) [V]
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My Lords, I declare an interest as a practitioner in the field of private international law and as joint chair of the Lord Chancellor’s advisory committee on private international law, to which reference has been made. I do not, of course, speak in that capacity and, as I mentioned on a previous occasion, that committee was not consulted about this Bill before its original introduction, although we have been very happy to be involved subsequently in relation to machinery under and related to the Bill.

I too welcome the Minister to his place and possibly, in succession to his predecessor the noble and learned Lord, Lord Keen of Elie, to a co-chairing of that committee with me. I would of course welcome that very much. I particularly welcome his measured and very careful consideration of the issues raised by the Bill. Described as “technical”, it has happily and rightly also been described as “important”. It is promoted as part of the United Kingdom’s preparation for the post-Brexit era—I will come back to that. It will certainly introduce into the UK’s legal systems three identified and very valuable Hague conventions, which have been mentioned, including the choice of court convention of 2005. As the noble and learned Lord, Lord Falconer of Thoroton, said, what has been controversial is the provision for the introduction by delegated legislative regulations of any number of further private international law measures which might be agreed at international level during an indefinite future.

I hope that I shall not be thought ungrateful in what follows for the mercies which have been granted. Certainly, the amendment relating to offences and the removal of the delegated power to create criminal offences punishable by imprisonment is highly welcome. So too is the Government’s agreement to limit the operation of Clause 2 to an operative period of five years. However, that is renewable, as has been pointed out, so that is not as large a change as the House wished —and I think would still wish—to see. The five-year period is capable of being extended by regulations and, moreover, more than once. In that respect, I support what the noble and learned Lord, Lord Falconer of Thoroton, said.

If the Bill is addressing the post-Brexit era, let us truly hope that that at least will be well and truly past within 10 years. In any event, we should be under no illusion that any great volume of instruments is likely to require attention under the Bill. Again, I echo a point that the noble and learned Lord, Lord Falconer, made. We know that the Government have, for better or worse, decided, if permitted by the European Union, to sign up to membership of the Lugano Convention 2007—that paler image of the present Brussels regime, which, as I previously remarked, is well accepted and understood, and popular in the City in particular. The signing up to the Lugano Convention 2007 will, as I have also pointed out, largely undo as regards EU states the potential benefits of signing up to the Hague choice of court convention 2005. That is because Lugano trumps the choice of court convention under the internal terms providing for their priority.

Apart from that, the 2019 Hague convention is a possibility which has been mentioned. It relates to recognition of judgments and one day, but certainly not soon, it may come into play as a possibility. At the moment it has no subscriptions of any significance at all. Then there is the Singapore mediation convention, previously much loved by government speakers here and in another place—but I am glad to see that, I think realistically, it was not mentioned by the noble and learned Lord, Lord Stewart. Its significance in promoting the enforcement of agreements reached as a result of mediation is certainly commendable but hardly earth shattering, those agreements being in any case enforceable at common law.

The reality is that as a country we do not go around the world trying to reach new ad hoc agreements regarding private international law matters, whether on jurisdiction or on recognition or enforcement of judgments. Such matters are nowadays undertaken at a regional—for example, EU—level or at an international level, such as the Hague conference level, which has produced the three conventions to which we will sign up under Clause 1. The UK is currently playing its part, and the Lord Chancellor’s advisory committee has been involved in relation to the discussions in The Hague regarding the possible supplementing of the 2019 convention by a lis pendens and/or forum conveniens convention—in other words, a convention dealing with the plague or problem of concurrent litigation in different countries. However, there never has been and there is unlikely ever to be, at least after the end of this year, any imperative to make immediate decisions about accession to or implementation of private international measures. As has been pointed out previously, they have in the past merited parliamentary consideration on the Floor of this House. Indeed, I consider that the merits or demerits of the Lugano Convention would have been such a matter. It will not get that consideration, but future measures should. Even if Clause 2 goes through as it is, that, as has been pointed out, does not preclude Ministers from bringing matters to the House in the ordinary, traditional way.

I will not go back at length on the limited number of past measures which have allowed a limited degree of delegated legislation in this field: the Administration of Justice Act 1920, a measure covering other of Her Majesty’s jurisdictions overseas, and the Foreign Judgments (Reciprocal Enforcement) Act 1933. These Acts deal with judgments which would anyway have been enforceable by action at common law and were simply given a convenient means of enforcement by statutory delegated legislation. They did not cover jurisdiction but only recognition and enforcement of judgments. I endorse what the noble and learned Lord, Lord Falconer, said on that. I see that reference was made in another place to the Mental Capacity Act 2005, but that is a wholly unpersuasive precedent which simply enabled the bringing into force by regulations of the specific Hague Convention on the International Protection of Adults 2000. In other words, it is a parallel to Clause 1, which brings into force specific Hague conventions, and not a parallel to the present Clause 2 that we are considering.

The appropriate course in private international matters which are important is that wherever possible they should receive full parliamentary attention before international ratification. Looking back over the history of legislation, there is the Civil Jurisdiction and Judgments Act 1982, but it also occurred in relation to legislation which has been mentioned previously: the Carriage by Air Act 1961 and the Carriage of Goods by Road Act 1965, which are hybrid—they have provisions extending outside private international law.

Three committees had no doubt about the inappropriateness of the reinstated clause—two of them have been mentioned—and the Constitution Committee noted the inadequacy of CRaG as a means of scrutiny of matters proceeding at international level. One hopes that will be addressed at some point, but it is a fact at the moment. So my message would be that if Clause 2 is to stay in the Bill, we should welcome the concessions which have very helpfully been made, but we should do all we can still further to limit its presence as an intruder. I therefore support the amendment of the noble and learned Lord, Lord Falconer, in that respect.

The amendment to Amendment 4B tabled by the noble Lord, Lord Marks, which I also support, arises again from another small governmental step, for which I express gratitude. However, it is not a very large one. Under it, before making regulations, the Secretary of State must

“consult such persons as the Secretary of State thinks appropriate.”

Well, no doubt that means that he cannot simply consult his own conscience or go into the next room, but I suppose he might go out into Petty France. It is completely open, and of a generality and subjectivity which is not very helpful. Therefore, I welcome the suggestions that have been made and the assurances which the Minister has given today about actual intentions.

The background, as I have said, is that there was no consultation with the Lord Chancellor’s advisory committee about the original Bill, so any assurances now are valuable. Those proposed by the noble Lords, Lord Marks of Henley-on-Thames and Lord Pannick, are welcome in the interests of, first, public consultation, which will generally be appropriate; it may not be appropriate in every case but it is generally important. Family and commercial issues arouse great interest around the country. Secondly, there should be an objective process, and thirdly, it should be transparent.

The amendment in the name of the noble Lord, Lord Marks, selects three persons whom he suggests—and I endorse—should be introduced as consultees, at least to identify other consultees. One could, as has been suggested and as the noble Lord, Lord Pannick, mentioned, identify the presence of the Law Society and the Bar as invaluable contributors, as well as the senior judiciary. One way or another, such persons would have the independent task of identifying relevant stakeholders, which would ensure objectivity and completeness in consultation.

The present phrase has a certain bathetic quality about it, which the Minister has done a considerable amount to dispel. I repeat my welcome for that but I ask him to give the assurances requested by the noble Lords, Lord Marks and Lord Pannick. On that basis, the Bill would be on a sounder footing and those of us who had understandable concerns about it would, I hope, find them considerably alleviated.

Lord Thomas of Gresford Portrait Lord Thomas of Gresford (LD) [V]
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My Lords, it is indeed a privilege to follow the magisterial and extensive exposition of the noble and learned Lord, Lord Mance, whose depth of experience and knowledge I defer to. He referred to the Bill as an intruder, which was an interesting description.

The Second Reading took place on 17 March, just at the beginning of lockdown. The noble and learned Lord, Lord Keen of Elie, outlined the wide scope of the issues raised by the Bill. He said:

“Without private international law agreements, UK businesses, individuals and families would struggle to resolve the challenges they face when dealing with cross-border legal disputes.”—[Official Report, 17/3/20; col. 1439.]

The Minister echoed that opening today but I was surprised when he suggested that the area of law was narrow. As we have heard from the noble Lord, Lord Berkeley, it may encompass disappearing railway carriages in Italy, which has an Agatha Christie ring about it.

The new clause inserted by the other place reflects that width. The Westminster Government or a devolved Government may, by regulation, implement any international agreement so far as it relates to private international law. Further, the appropriate national authority may, by regulation, apply any agreement between the different jurisdictions within the United Kingdom or give effect to any arrangements between the UK Government and the British Overseas Territories, the Isle of Man or the Channel Islands. The emphasis throughout is on any future agreement of whatever nature that involves private international law anywhere in the world or internally within the United Kingdom.

It would appear that the Government have listened to the many voices suggesting that these clauses are excessively wide. Consequently, in response, the Minister today introduced the outline of a sunset clause, limited in the first instance to five years. He said that the urgent need is “ to update the framework” lost by our leaving the EU. The principle that there should be a temporal limit to the exercise of these wide powers in the uncertainties of the present time is clearly a good one. Unfortunately, the Government have decided that, like the British Empire, the sun shall never set upon these provisions. That is the effect of granting power to extend the operative period, not just for a further period of five years but, under proposed new subsection (3D), to renew the power to extend the period indefinitely. It just keeps rolling along. That makes a mockery of a sunset clause; consequently, I am delighted to support the amendment in the name of the noble and learned Lord, Lord Falconer.

As I said at earlier stages of the Bill, our hugely unsatisfactory procedures for passing secondary legislation by resolution, whether affirmative or negative, may be tempered in the interests of democracy by consultation with interested parties. Amendment 4 pays lip service to that concept but, in effect, gives power to the Minister to choose whomsoever he thinks appropriate to consult. The wording is loose, such that although there is a duty to consult if the Minister thinks subjectively that there is nobody appropriate—as the noble Lord, Lord Pannick, said—he does not have to exercise that choice; or, as the noble and learned Lord, Lord Mance, said a moment ago, he could walk out into the street and consult someone.

The purpose of the amendment in the name of my noble friend Lord Marks of Henley-on-Thames is to bring some objectivity to the exercise. The Minister may be surprised to know that the shelf life of a Minister in this and the previous Government tends to be no more than two years, and that Secretaries of State come and go through the various offices of state without necessarily knowing anything at all about their work. As WS Gilbert put it over 100 years ago, the way to advancement may well be to polish up the brasses on the big front door of No. 10.

Consequently, it is only sensible to have the guiding hand of the head of the judiciary in the various jurisdictions. No doubt the Sir Humphreys of this world can suggest that the Secretary of State rounds up the usual suspects, but that is no substitute for the Lord Chief Justice and his peers, who have a lifetime of experience of the legal world and the whole of the judiciary to draw on for advice as to who the suspects should be. As the noble Lord, Lord Pannick, said, it is inconceivable that they should not be consulted in any event.

I support the amendment in the name of my noble friend Lord Marks and, in particular, his call for a full and transparent report on the fruits of the consultation.

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton (Con)
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My Lords, I begin by thanking noble Lords for their thoughtful and erudite contributions. I thank them also for their courteous and warm words of welcome to me at the Dispatch Box. I echo the words of the noble and learned Lord, Lord Falconer of Thoroton, in a phrase that I think will resonate with the entire House and with which none of us would disagree: our imperative is the preservation of this country’s good name and its standing in private international law matters.

The matters raised in the course of our discussions overlapped to some extent but I will, if I may, do my best to treat the contributions to the debate in the order in which they were made. First, I shall address the comments of the noble and learned Lord, Lord Falconer of Thoroton, in relation to Amendment 1C, which omits some text from my Amendment 1A, the effect of which would be to allow the sunset period—which my amendment allows to be extended for five years by affirmative statutory instrument—to be extended only once.

The Government have been clear about how we wish to use this power over the next few years. As your Lordships have heard, this includes Lugano or alternatives with Norway, Iceland and Switzerland, should our application be unsuccessful, as well, potentially, as the Singapore convention on mediation and the 2019 Hague judgments project, following consultation. If the Government ask Parliament to extend the power in five years, we will need to make our case again and have regulations approved in both Houses. To make a persuasive case, the Government will provide similar clarity on how we intend to use the power over the next five years and for every five-year period thereafter, should we pursue further extensions. Clearly, I cannot provide that detail now but, by the time such an extension is requested, it will be available and Parliament will be able to consider how the power has previously been used.

Essentially, this reviewable sunset requires the Government to consult on, and obtain parliamentary approval for, our strategy in this area of law every five years. I submit that this gives Parliament more oversight of government policy in private international law than it has ever had before. The need to come back to Parliament at five-year intervals with a plan for how the power will be used will act as a powerful regulator.

I mention the words of the noble and learned Lord, Lord Mance, on the ability of our procedures to properly scrutinise statutory instruments brought before this House and the other place. I respectfully submit that the Bill is not an occasion for a referendum on those powers generally, irrespective of the views that Members of this House have of their efficacy.

I do not know what the situation will be like in nine years. If this power is deemed to have been necessary only in the years following our departure from the European Union, the Government could decide not to extend the power any further or Parliament could refuse to approve such an extension. By then, this power may be widely accepted as proportionate and appropriate. If that is the case, requiring Parliament to pass new primary legislation to extend an existing uncontroversial power seems highly undesirable, especially if the delay while parliamentary time is found for primary legislation leaves, for example, a family who would benefit from a new agreement about child maintenance or custody across borders in a worse position than they would be in if the Government could move quickly to implement such an agreement by secondary legislation.

My view is that the power represents a balanced and proportionate approach to implementing these uncontroversial and technical agreements. The sunset amendment in my name represents a significant concession by the Government to take account of the concerns of this House, while still retaining some aspect of the flexible approach that we originally sought, so that we balance constitutional concerns with the needs of those who depend on these agreements. I urge the noble and learned Lord to consider withdrawing his amendment.

I turn to the views of the noble Lord, Lord Marks, who tabled Amendment 4F, which adds a requirement for the Secretary of State to consult specified persons. This overlaps with matters raised by the noble Lord, Lord Pannick. It specifies that the Secretary of State should consult the Lord Chief Justice, the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland ahead of using the main delegated powers in the Bill. I recognise that the intent behind this is to ensure that the consultation process is robust, and that is clearly important. We consider that the Government would greatly value the opinions of these persons on these matters, but we believe it unnecessary to stipulate in the Bill that they should be consulted. I am concerned, because there are a number of reasons why this may not work in practice.

It is worth making the point that there may be specific subject areas within private international law, such as disputes around child abduction, in which not only the legal profession would have a stake. I fully appreciate this—I see the noble and learned Lord across the Table nodding. To echo the point of the noble Lord, Lord Pannick, it may be difficult to conceive of a situation in which the views of those specified senior judges would not be considered important, so that they were not consulted. But it may be more appropriate for the Lord Chancellor to take the views of third-sector organisations. The original drafting of the amendment allows for flexibility when this is the case.

While private international law is not ordinarily a subject on which the Government undertake a full public consultation, such as was mooted, there could be situations in future where that would be proportionate. There may also be situations when the power is used to bring forward a minor technical statutory instrument to update the terms of an agreement. My colleague Minister Chalk, in his speech in the other place, referred to an Order in Council that the previous Labour Government had made in 2003, simply updating the names of courts captured by an agreement between the United Kingdom and Israel. If such an instrument were brought forth under this power, we would anticipate the level of consultation on it being proportionate, compared to situations when we are implementing a new agreement. It would not require the views of the senior judges specified by the noble Lord, Lord Pannick, and other noble Lords. It remains important that the Lord Chancellor can retain the flexibility to consider whom it is appropriate to consult on a case-by-case basis.

In addition, this amendment would require us to consult the Lord President of the Court of Session and the Lord Chief Justice of Northern Ireland in every case. As the delegated power is currently drafted to respect the devolution position and allow for the devolved Administrations to bring forward their own implementing legislation should they wish to, it may be that, in some circumstances, this Parliament and the Secretary of State are concerned only with implementation for England and Wales. In those circumstances, I am not sure that consultation with the judiciary of Scotland and Northern Ireland would be appropriate. In the exercise of their devolved competence, I am not sure that the Scottish Parliament or the Northern Ireland Assembly ought to be bound to consult the judiciary of England and Wales—enlightening and important as such consultation may be.

Further, since the start of this process, the Government have been clear that this power would be used to implement the Lugano Convention. The importance of this has come up several times during debates on the Bill. There is widespread agreement that it needs to be implemented promptly if the United Kingdom’s application is to be successful. To that end, we have already discussed the matter at length with the Ministry of Justice’s international law committee and have shared a draft of the proposed implementing regulations with, and received views on them from, the Lord Chancellor’s advisory committee on private international law, which includes representatives from both Scotland and Northern Ireland, and sitting and former members of the judiciary. This has provided useful feedback. A requirement to go back to these judges would cause unnecessary delay, increasing the gap when the Lugano Convention is not in force—a situation that we all want to avoid. What would happen if, for instance, a consultee suggested by the Lord Chief Justice failed to respond? It is not beyond the realms of conjecture for that to be the case with third-sector organisations or specific learned individuals. Any of that could result in delay.

While I acknowledge that the intent behind the noble Lord’s amendment is to ensure that any consultation is robust, and is therefore entirely reasonable, for the reasons I have outlined, I am concerned about how it would work in practice. I consider it to be unnecessary if the objective is simply to ensure that the Government consult in an effective manner, and I therefore respectfully ask him to withdraw his amendment.

I thank the noble Lord, Lord Berkeley, for his comments and for meeting to discuss these issues with me and my ministerial colleague Minister Chalk last week. I endorse the noble Lord’s views on the importance of the rail industry and of the Luxembourg protocol. I suggest that the analogy he drew of disappearing railway carriages was an example of him speaking figuratively. The application of the protocol is narrower than that. The Government consider this to be an important issue and are thinking about how best to implement the protocol in the United Kingdom. As we discussed last week, we consider that the power in this Bill is too narrow to fully implement the protocol, although the provisions in applicable law would be within its scope. I acknowledge once again his excellent work in championing this important issue and assure him that the Government are fully seized of his views and of the importance of the matter he has raised. It would provide, as it is intended, things to assist the smooth and seamless flow of trade across borders.

The noble Lord, Lord Pannick, raised a number of issues, and if I overlap in the comments I am making, I apologise to the House. I confirm that the obligation to consult will require us to take account of all the views expressed, including where people might express a view that primary legislation is appropriate to deal with a particular issue. The Government’s approach throughout on the delegated power has sought to be pragmatic and not dogmatic. We want to be proportionate in our implementation of PIL agreements but, where consultees make strong arguments about the appropriateness of primary legislation for a particular agreement, we would listen and consider them in the proper manner.

I shall go back to a matter raised by the noble Lord that I may have already touched on, which is the identity of consultees. As he does—I think it is universal across the Chambers—I envisage that the views of the senior judiciary would be sought on these matters. We have already shared the draft of a statutory instrument to implement Lugano with the Lord Chancellor’s advisory committee on private international law and have discussed the issue at length with the international law committee at the Ministry of Justice, both of which contain representatives of the judiciary. The matter of whether concerns were raised at that stage by those representatives is perhaps neither here nor there, but the consultations took place and in neither case were concerns raised about the use of secondary legislation for the matter. As I think I said earlier, I can envisage a situation where there may be very technical procedural updates to a convention that do not require a senior judicial view on their implementation, such as updating the name of a foreign court that is referred to in an existing agreement. However, where a statutory instrument under the power implements a new agreement or makes material changes to an existing one, I agree that the views of the senior judiciary would be sought. To put the noble Lord’s point shortly: why not then simply stipulate in gremio of the Bill that the judiciary should be consulted? I reiterate my point that that might add extra bureaucratic weight to the burdens of its office and would not promote the flexibility in this exercise which the Government seek to accomplish.

The noble Lord, Lord Pannick, also asked about the terms of a report that would be issued at the conclusion of the consultation process. This matter was raised by other noble Lords as well. While it is not the Government’s intention to publish a separate report summarising the consultation responses, we intend to provide Parliament with a detailed explanation of the persons with whom we have consulted and a fair and balanced summary of the views they have expressed within the Explanatory Memorandum that accompanies any statutory instrument made under the power. Of course, were that summary of those views to misrepresent them to any extent, that could immediately be brought to the attention of this House and the other place. That is the right approach. It will give Parliament the opportunity properly to consider the exercise which the Government have undertaken and to scrutinise and hold to account where appropriate. Those remarks also echo the views of the noble Lord, Lord Thomas of Gresford, in his point relating to the effectiveness of the consultation procedure. I respectfully disagree with the proposal that this would permit the Government to make a mockery of the sunset clause. As I have stated, the procedures that I have outlined provide Parliament as a whole with a greater opportunity to scrutinise such measures than has been afforded for many a year.

In spite of my initial remarks, I appreciate that I have taken speakers out of order. I turn finally to the views of the noble and learned Lord, Lord Mance, and the valuable tour of the private international law horizon that he gave, which were most welcome. On the matter of the period of five years, the approach that the Government seek to take and urge on the House will take into account the fact that, notwithstanding that tour of the horizon of private international law, we cannot know precisely what lies ahead. The five-year periods permit the Government to see measures as they arise, to see the approach of conventions as they arise and to act accordingly in relation to formulating what the country’s policy ought to be. In those circumstances, we take the view that the five-year sunset period with the renewable extension permitted would give the Government the opportunity to give full and careful consideration to private international law agreements which they may decide would be beneficial for the United Kingdom to join. It would also provide ample time to fulfil our obligation in statute to consult relevant stakeholders.

The Ministry of Justice is in the process of formulating a 10-year strategy for private international law. The five-year renewable sunset would align more closely with our long-term strategy and enable the Government to be more agile in negotiations with our partners around the world. That sunset clause which the Government need to bring back to Parliament every five years would, as I have said, act as a good regulator to ensure that they are achieving their aims of re-establishing an effective framework of private international law agreements in the years to come. It is important that the Government can do this without the current pressures, but it is right that Parliament also has the opportunity to hold the Government to account, should they fall short.

Before I conclude, I remind the House that we need to agree a version of the Bill so that Clause 1 can be enforced before the end of the transition period. This clause provides a clear and simple approach to the implementation of three vital Hague conventions which affect the lives of people in the United Kingdom. Because of this, the Government’s priority is to avoid an extended back and forth between here and the other place. That does not mean, however, that we are trying to avoid the valuable scrutiny that the ping-pong process can offer.

I am grateful once again to your Lordships for your time and consideration of the Government’s proposals. The approach we have taken in these amendments reflects this. We have engaged with a number of your Lordships ahead of the Bill returning to this Chamber. We have sought to listen and have tabled the suite of amendments that has been considered today. We submit that this is not a paltry offer of the bare minimum which would address on any level at all the principal concerns your Lordships have raised. The amendments are a genuine attempt to reach a meaningful compromise in the areas that have raised most concern. I am grateful to the noble and learned Lord, Lord Falconer of Thoroton, and to others for their acknowledgement of the importance of removing matter relating to the criminalisation of offences punishable by periods of imprisonment.

The amendments seek to address the particular concerns around appropriate scrutiny, while protecting the Government’s core policy objective. We could send this Bill back to the Commons, only to have it come back to us once more to make final tweaks to these amendments, but I urge your Lordships to see the bigger picture. This package of amendments is balanced and proportionate. We must consider not just the constitutional issues but the impact these agreements have on families and businesses. We need to pass this Bill, and time is moving on. This is an opportunity for us to send the Bill back to the other place with a clear signal that this House has balanced pragmatism with principle and found an effective compromise that it should support. I beg to move.

Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton (Lab)
- Hansard - - - Excerpts

May I express the gratitude of the whole House for the care with which the noble and learned Lord, Lord Stewart of Dirleton, dealt with every single issue that was raised? That I disagree with some of the answers is not the same as saying that he did not deal with them. For a Bill like this, it was an absolute model of going through every issue and putting the Government’s argument; I am incredibly grateful for that. There is nobody more disdainful than me when questions are not answered but, my goodness, the noble and learned Lord did a very good job and the whole House is grateful for that.

I will focus on my amendment, which concerns not being able to extend and extend the provision. My reading of what the noble and learned Lord said is that the sunset clause was intended in part to deal with the objections raised by this House. As he knows, the reason for those objections is that we do not consider secondary legislation appropriate. He replied, in effect, that there are good reasons for it—Lugano, primarily. As I read it, he is saying that unless there are good reasons, the sun will set on this Bill. If that is the right approach and what he is indeed saying, my view is that the Lugano provisions that currently apply—we may be only four or five weeks away from wanting them to come into force—mean that it is very unlikely that future circumstances will arise that would justify using secondary legislation. I hope that is what he means.

The noble and learned Lord has acknowledged the reasons why this House did not want the secondary power. In those circumstances, mindful of the need to get the three conventions in Clause 1 on to the statute book 1, I will not be moving my amendment—but only on the basis that I earnestly expect that the Government will not need one, let alone two extensions to the sunset clause. I beg leave to withdraw the amendment standing in my name.

Amendment 1C withdrawn.

Motion on Amendments 1 to 1B agreed.

Motion on Amendments 2 and 3

Moved by

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton
- Hansard - - - Excerpts

That this House do agree with the Commons in their Amendments 2 and 3.

2: Clause 2, page 2, line 28, at end insert—

“(2) Regulations under section (Implementation of other agreements on private international law) may make provision binding the Crown.

(3) The reference to the Crown in subsection (2) does not include—

(a) Her Majesty in Her private capacity,

(b) Her Majesty in right of the Duchy of Lancaster, or

(c) the Duke of Cornwall.”

3: Clause 3, page 2, line 30, at end insert—

“(2) Her Majesty may by Order in Council provide for section (Implementation of other agreements on private international law) (including Schedule (Regulations under section (Implementation of other agreements on private international law))) and section 2(2) and (3) to extend, with or without modifications, to the Isle of Man.”

Motion on Amendments 2 and 3 agreed.

Motion on Amendments 4 to 4E

Moved by

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton
- Hansard - - - Excerpts

That this House do agree with the Commons in their Amendment 4, and do propose Amendments 4A, 4B, 4C, 4D and 4E as amendments thereto—

4: After Schedule 5, insert the following new Schedule—

“SCHEDULE

Regulations under section (Implementation of other agreements on private international law)

Restrictions on power to make regulations

1 (1) Regulations under section (Implementation of other agreements on private international law) may not include—

(a) provision that confers power to legislate by means of regulations, orders, rules or other subordinate instrument (other than rules of procedure for courts or tribunals);

(b) provision that creates an offence for which an individual who has reached the age of 18 (or, in relation to Scotland or Northern Ireland, 21) is capable of being sentenced to imprisonment for a term of more than two years (ignoring any enactment prohibiting or restricting the imprisonment of individuals who have no previous convictions).

(2) Sub-paragraph (1)(a) does not prevent the modification of a power to legislate conferred otherwise than under section (Implementation of other agreements on private international law), or the extension of any such power to purposes of a similar kind to those for which it was conferred.

(3) A power to give practice directions or other directions regarding matters of administration is not a power to legislate for the purposes of sub- paragraph (1)(a).

Regulations to be made by statutory instrument or statutory rule

2 The power to make regulations under section (Implementation of other agreements on private international law)—

(a) is exercisable by statutory instrument, in the case of regulations made by the Secretary of State;

(b) is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)), in the case of regulations made by a Northern Ireland department.

Parliamentary or assembly procedure

3 (1) This paragraph applies to a statutory instrument containing regulations made by the Secretary of State under section (Implementation of other agreements on private international law).

(2) If the instrument contains (whether alone or with other provision)—

(a) provision made for the purpose of implementing or applying, in relation to the United Kingdom or a particular part of the United Kingdom, any relevant international agreement that has not previously been the subject of any such provision (whether made by regulations under section (Implementation of other agreements on private international law) or otherwise),

(b) provision made for the purpose of giving effect, in relation to the United Kingdom or a particular part of the United Kingdom, to any relevant arrangements that relate to a particular territory and have not previously been the subject of any such provision (whether made by regulations under that section or otherwise),

(c) provision that creates or extends, or increases the penalty for, a criminal offence, or

(d) provision that amends primary legislation,

it may not be made unless a draft of the instrument has been laid before each House of Parliament and approved by a resolution of each House.

(3) In this Schedule “relevant arrangements” means arrangements of the kind mentioned in section (Implementation of other agreements on private international law) (3).

(4) If sub-paragraph (2) does not apply to the instrument, it is subject to annulment in pursuance of a resolution of either House of Parliament.

4 (1) This paragraph applies to regulations made by the Scottish Ministers under section (Implementation of other agreements on private international law).

(2) The regulations are subject to the affirmative procedure (see section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010) (asp 10)) if they contain (whether alone or with other provision)—

(a) provision made for the purpose of implementing or applying, in relation to Scotland, any relevant international agreement that has not previously been the subject of any such provision (whether made by regulations under section (Implementation of other agreements on private international law) or otherwise),

(b) provision made for the purpose of giving effect, in relation to Scotland, to any relevant arrangements that relate to a particular territory and have not previously been the subject of any such provision (whether made by regulations under that section or otherwise),

(c) provision that creates or extends, or increases the penalty for, a criminal offence, or

(d) provision that amends primary legislation.

(3) If sub-paragraph (2) does not apply to the regulations, they are subject to the negative procedure (see section 28 of the Interpretation and Legislative Reform (Scotland) Act 2010).

5 (1) A Northern Ireland department may not make regulations under section (Implementation of other agreements on private international law) that contain (whether alone or with other provision)—

(a) provision made for the purpose of implementing or applying, in relation to Northern Ireland, any relevant international agreement that has not previously been the subject of any such provision (whether made by regulations under section (Implementation of other agreements on private international law) or otherwise),

(b) provision made for the purpose of giving effect, in relation to Northern Ireland, to any relevant arrangements that relate to a particular territory and have not previously been the subject of any such provision (whether made by regulations under that section or otherwise),

(c) provision that creates or extends, or increases the penalty for, a criminal offence, or

(d) provision that amends primary legislation,

unless a draft of the regulations has been laid before the Northern Ireland Assembly and approved by a resolution of the Assembly.

(2) Regulations under section (Implementation of other agreements on private international law) made by a Northern Ireland department are subject to negative resolution, within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954, if a draft of the regulations was not required to be laid before the Northern Ireland Assembly and approved by a resolution of the Assembly.

(3) Section 41(3) of that Act applies for the purposes of sub-paragraph (1) in relation to the laying of a draft as it applies in relation to the laying of a statutory document under an enactment.

Interpretation

6 In this Schedule—

“amend” includes repeal or revoke;

“primary legislation” means any provision of—

(a) an Act of Parliament,

(b) an Act of the Scottish Parliament,

(c) an Act or Measure of Senedd Cymru, or

(d) Northern Ireland legislation;

“relevant arrangements” has the meaning given in paragraph 3(3); “relevant international agreement” has the same meaning as in section (Implementation of other agreements on private international

law).”

4A: In paragraph 1(1), in paragraph (b), leave out from “offence” to end of paragraph

(b) and insert “punishable by imprisonment.”

4B: After paragraph 1 insert—

“Consultation

1A Before the Secretary of State makes regulations under section (Implementation of other agreements on private international law) the Secretary of State must consult such persons as the Secretary of State thinks appropriate.”

4C: In paragraph 3(2), after paragraph (d) insert “, or

(e) provision made under section (Implementation of other agreements on private international law) (3C),”

4D: In paragraph 4(2), after paragraph (d) insert “, or

(e) provision made under section (Implementation of other agreements on private international law) (3C).”

4E: In paragraph 5(1), after paragraph (d) insert “, or

(e) provision made under section (Implementation of other agreements on private international law) (3C),”

Amendment 4F not moved.

Motion on Amendments 4 to 4E agreed.

Motion on Amendment 5

Moved by

Lord Stewart of Dirleton Portrait Lord Stewart of Dirleton
- Hansard - - - Excerpts

That this House do agree with the Commons in their Amendment 5.

5: In the Title, line 1, at end insert “and to provide for the implementation of other international agreements on private international law.”

Motion on Amendment 5 agreed.

Sitting suspended.

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

(3rd reading: House of Commons)
(Committee stage: House of Commons)
(Committee: 1st sitting)
(Committee: 1st sitting: House of Commons)
(Report stage: House of Commons)
Tuesday 6th October 2020

(6 months, 1 week ago)

Commons Chamber

Read Hansard Text Bill Main Page
Ministry of Justice

Considered in Committee

[Dame Eleanor Laing in the Chair]

Eleanor Laing Portrait The Chairman of Ways and Means (Dame Eleanor Laing)
- Hansard - - - Excerpts

I should explain that, in these exceptional circumstances, although the Chair of the Committee would normally sit in the Clerk’s chair during Committee stage, in order to comply with social distancing requirements, I will remain in the Speaker’s Chair, although I will be carrying out the role not of Deputy Speaker but of Chairman of the Committee. During Committee, the occupant of the Chair should be addressed as Chair of the Committee, rather than as Deputy Speaker.

Clause 1

Implementation of the 1996, 2005 and 2007 Hague Conventions

Jonathan Djanogly Portrait Mr Jonathan Djanogly (Huntingdon) (Con)
- Hansard - - - Excerpts

I beg to move amendment 2, page 2, line 20, at end insert—

“3F The 2007 Lugano Convention to have the force of law

(1) The 2007 Lugano Convention shall have the force of law in the United Kingdom.

(2) For the purposes of this Act the 2007 Lugano Convention is to be read together with any reservations or declarations made by the United Kingdom at the time of the approval of the Convention.

(3) For convenience of reference the English text of the 2007 Lugano Convention is set out in Schedule 3H.”

Eleanor Laing Portrait The Chairman
- Hansard - - - Excerpts

6 Oct 2020, midnight

With this it will be convenient to discuss the following:

Amendment 3, page 2, line 21, leave out “3G” and insert “3H”.

Amendment 4, page 2, line 22, leave out “4” and insert

“(Schedule to be inserted as Schedule 3H to the Civil Jurisdiction and Judgments Act 1982)”.

Amendment 1, page 2, line 24, at end insert—

“(5) The 2007 Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgements in Civil and Commercial Matters shall have the force of law in the United Kingdom, conditional upon the United Kingdom accession to such Convention.”

Clause 1 stand part.

Government amendment 5.

This amendment provides that regulations made under NC5 may make provision binding the Crown.

Clause 2 stand part.

Government amendment 6.

This amendment inserts a new subsection into Clause 3. This allows Her Majesty by Order in Council to extend to the Isle of Man NC5 (including NS4) and subsections (2) and (3) of Clause 2 inserted by Amendment 5.

Clause 3 stand part.

Government new clause 5—Implementation of other agreements on private international law (No. 3)—

“(1) The appropriate national authority may make regulations for the purpose of, or in connection with, implementing any international agreement, as it has effect from time to time, so far as relating to private international law (a ‘relevant international agreement’).

(2) The appropriate national authority may make regulations for the purpose of, or in connection with, applying a relevant international agreement, with or without modifications, as between different jurisdictions within the United Kingdom.

(3) The appropriate national authority may make regulations for the purpose of, or in connection with, giving effect to any arrangements made between—

(a) Her Majesty’s government in the United Kingdom, and

(b) the government of a relevant territory,

for applying a relevant international agreement, with or without modifications, as between the United Kingdom, or a jurisdiction within the United Kingdom, and that territory.

(4) Regulations under this section may make—

(a) consequential, supplementary, incidental, transitional or saving provision;

(b) different provision for different purposes or for different parts of the United Kingdom.

(5) Regulations under this section may include provision about—

(a) enforcement of obligations arising under or by virtue of the regulations;

(b) sharing of information;

(c) legal aid.

(6) Schedule (Regulations under section (Implementation of other agreements on private international law (No. 3))) makes further provision about regulations under this section.

(7) In this section—

‘appropriate national authority’ means—

(a) in relation to England and Wales, the Secretary of State;

(b) in relation to Scotland—

(i) the Scottish Ministers, or

(ii) the Secretary of State acting with the consent of the Scottish Ministers;

(c) in relation to Northern Ireland—

(i) a Northern Ireland department, or

(ii) the Secretary of State acting with the consent of a Northern Ireland department

‘international agreement’ means a convention, treaty or other agreement to which the United Kingdom is, or is expected to become, a party;

‘private international law’ includes rules and other provisions about—

(a) jurisdiction and applicable law;

(b) recognition and enforcement in one country or territory of any of the following that originate in another country or territory—

(i) a judgment, order or arbitral award;

(ii) an agreement, decision or authentic instrument determining or otherwise relating to rights and obligations;

(c) co-operation between judicial or other authorities in different countries or territories in relation to—

(i) service of documents, taking of evidence and other procedures, or

(ii) anything within paragraph (a) or (b);

‘relevant international agreement’ has the meaning given in subsection (1);

‘relevant territory’ means—

(a) the Isle of Man;

(b) any of the Channel Islands;

(c) a British overseas territory.

(8) This section and Schedule (Regulations under section (Implementation of other agreements on private international law (No. 3))) have effect, with the following modifications, in relation to a model law adopted by an international organisation of which the United Kingdom is a member as it has effect in relation to an international agreement to which the United Kingdom is, or is expected to become, a party.

The modifications are—

(a) a reference in this section or that Schedule to implementing or applying a relevant international agreement is to be read as a reference to giving effect to the model law (with or without modifications);

(b) subsection (1) is to be read as if the words ‘as revised from time to time’ were substituted for the words ‘as it has effect from time to time’.”

This new clause contains a power to implement international agreements relating to private international law.

Amendment (a) to Government new clause 5, in subsection (1), leave out from “implementing” to “relevant ” and insert “the”.

This amendment together with amendments (c), (d) and (g) is intended to ensure the powers in Government NC5 may be used only to implement the 2007 Lugano Convention.

Amendment (b) to Government new clause 5, in subsection (1), leave out “any” and insert “an”.

This amendment with Amendment (f) is intended to ensure that order making powers are confined to the international treaties set out in clause 1 only.

Amendment (c) to Government new clause 5, in subsection (2), leave out “a” and insert “the”.

See explanatory statement for Amendment (a).

Amendment (d) to Government new clause 5, in subsection (3), leave out “a” and insert “the”.

See explanatory statement for Amendment (a).

Amendment (e) to Government new clause 5, in subsection (6), leave out

“Schedule (Regulations under section(Implementation of other agreements on private international law (Amendment3)))”

and insert

“Schedule (Regulations under section(Implementation of other Agreements on Private International Law (Amendment 2)))”.

This amendment would provide for super-affirmative procedure to be applied in accordance with NS3 to regulations made under Government NC5.

Amendment (f) to Government new clause 5, in subsection (7), after “party”, insert

“and which is set out in section 1.”

This amendment with Amendment (b) is intended to ensure that order making powers are confined to the international treaties set out in clause 1 only.

Amendment (g) to Government new clause 5, in subsection (7), leave out

“has the meaning given in subsection (1)”

and insert

“means the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters signed at Lugano on 30th October 2007 (the ‘2007 Lugano Convention’);”.

See explanatory statement for Amendment (a).

New clause 1—Implementation of other agreements on private international law—

“(1) The appropriate national authority may make regulations for the purpose of, or in connection with, implementing an international agreement, as it has effect from time to time, so far as relating to private international law (a ‘relevant international agreement’).

(2) The appropriate national authority may make regulations for the purpose of, or in connection with, applying a relevant international agreement, with or without modifications, as between different jurisdictions within the United Kingdom.

(3) The appropriate national authority may make regulations for the purpose of, or in connection with, giving effect to any arrangements made between—

(a) Her Majesty’s government in the United Kingdom, and

(b) the government of a relevant territory,

for applying a relevant international agreement, with or without modifications, as between the United Kingdom, or a jurisdiction within the United Kingdom, and that territory.

(4) This section applies (subject to subsection (5)) where the United Kingdom has authenticated a relevant international agreement.

(5) This section applies only if the proposed agreement is not binding on the United Kingdom as a matter of international law unless it is ratified by the United Kingdom.

(6) Before the United Kingdom ratifies the proposed agreement, a Minister of the Crown must lay before Parliament a report which gives details of the proposed agreement.

(7) In this section a reference to authenticating a relevant international agreement is a reference to doing an act which establishes the text of the agreement as authentic and definitive as a matter of international law.

(8) This section applies where a Minister of the Crown proposes to make regulations under subsections (1), (2) or (3) for the purpose of implementing a relevant international agreement to which the United Kingdom and another signatory (or other signatories) are signatories.

(9) A draft of the statutory instrument containing the regulations may not be laid before Parliament unless, at least 10 Commons sitting days before the draft is laid, a Minister of the Crown has laid before Parliament a report which gives details of, and explains the reasons for, the relevant international agreement.

(10) In this section ‘Commons sitting day’ means a day on which the House of Commons begins to sit.

(11) Regulations under this section may make—

(a) consequential, supplementary, incidental, transitional or saving provision;

(b) different provision for different purposes or for different parts of the United Kingdom.

(12) Regulations under this section may include provision about—

(a) enforcement of obligations arising under or by virtue of the regulations;

(b) sharing of information;

(c) legal aid.

(13) No regulations may be made under subsections (1),(2) or (3) after the end of the period of 2 years beginning with the date of enactment of this Act.

(14) In this section—

‘appropriate national authority’ means—

(a) in relation to England and Wales, the Secretary of State;

(b) in relation to Scotland—

(c) in relation to Northern Ireland—

‘international agreement’ means a convention, treaty or other agreement to which the United Kingdom is, or is expected to become, a party and which is set out in section 1 of this Act;

‘private international law’ includes rules and other provisions about—

(a) jurisdiction and applicable law;

(b) recognition and enforcement in one country or territory of any of the following that originate in another country or territory—

(c) co-operation between judicial or other authorities in different countries or territories in relation to—

‘relevant international agreement’ has the meaning given in subsection (1);

‘relevant territory’ means—

(a) the Isle of Man;

(b) any of the Channel Islands;

(c) a British overseas territory.

(15) This section has effect, with the following modifications, in relation to a model law adopted by an international organisation of which the United Kingdom is a member as it has effect in relation to an international agreement to which the United Kingdom is, or is expected to become, a party.

The modifications are—

(a) a reference in this section or that Schedule to implementing or applying a relevant international agreement is to be read as a reference to giving effect to the model law (with or without modifications);

(b) subsection (1) is to be read as if the words ‘as revised from time to time’ were substituted for the words ‘as it has effect from time to time’.”

This new clause is a modified version of clause 2 removed from the Bill by the House of Lords. This new clause requires a Minister to lay a report before Parliament at least 10 Commons sitting days before regulations implementing a relevant international agreement are laid in draft under subsections (1), (2) and (3) requires a Minister to lay a report before Parliament before the UK ratifies a private international law agreement with another country and contains a sunset provision.

New clause 2—Implementation of the 2007 Lugano Convention—

“(1) The Secretary of State may make regulations for the purpose of, or in connection with, implementing the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters signed at Lugano on 30th October 2007 (the ‘2007 Lugano Convention’), in the event that the United Kingdom becomes a party to the Convention in its own right.

(2) The Secretary of State must consult the Scottish Ministers, the Welsh Ministers and a Northern Ireland Department before making regulations under subsection (1).

(3) Regulations under subsection (1) are subject to super-affirmative resolution procedure (see Schedule (Super-affirmative resolution procedure)).”

This new clause would enable the Secretary of State to make regulations implementing the Lugano Convention in the UK, subject to the super-affirmative resolution procedure in NS2.

New clause 6—Report on relevant international agreement—

“(1) This section applies (subject to subsection (2)) where the United Kingdom has authenticated a relevant international agreement in accordance with section (Implementation of other agreements on private international law (No. 3)).

(2) This section applies only if the proposed agreement is not binding on the United Kingdom as a matter of international law unless it is ratified by the United Kingdom.

(3) Before the United Kingdom ratifies the proposed agreement, a Minister of the Crown must lay before Parliament a report which gives details of the proposed agreement.

(4) In this section a reference to authenticating a relevant international agreement is a reference to doing an act which establishes the text of the agreement as authentic and definitive as a matter of international law.”

This new clause requires a Minister to lay a report before Parliament before the UK ratifies a private international law agreement with another country.

New clause 7—Report to be laid with regulations under section 2(1), (2) or (3)—

“(1) This section applies where a Minister of the Crown proposes to make regulations under section (Implementation of other agreements on private international law (No. 3)) (1), (2) or (3) for the purpose of implementing a relevant international agreement to which the United Kingdom and another signatory (or other signatories) are signatories.

(2) A draft of the statutory instrument containing the regulations may not be laid before Parliament unless, at least 10 Commons sitting days before the draft is laid, a Minister of the Crown has laid before Parliament a report which gives details of, and explains the reasons for, the relevant international agreement.

(3) In this section, ‘Commons sitting day’ means a day on which the House of Commons begins to sit.”

This new clause requires a Minister to lay a report before Parliament at least ten Commons sitting days before regulations implementing a relevant international agreement are laid in draft under subsections (1), (2) and (3) of Government NC5.

New clause 8—Sunset Provisions—

“No regulations may be made under subsections (1),(2) and (3) of section (Implementation of other agreements on private international law (No. 3)) after the end of the period of 2 years beginning with the date on which this Act is passed.”

That schedule 1 be the First schedule to the Bill.

That schedule 2 be the Second schedule to the Bill.

That schedule 3 be the Third schedule to the Bill.

That schedule 4 be the Fourth schedule to the Bill.

That schedule 5 be the Fifth schedule to the Bill.

Government new schedule 4—Regulations under section (Implementation of other agreements on private international law (No. 3)).

New schedule 1—Schedule 4A—

“Schedule to be inserted as Schedule 3H to the Civil Jurisdiction and Judgments Act 1982

SCHEDULE 3H

Text of the 2007 Lugano Convention

CONVENTION ON JURISDICTION AND THE RECOGNITION AND ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS

(Concluded on 30 October 2007)

The High Contracting Parties to this Convention,

Determined to strengthen in their territories the legal protection of persons therein established,

Considering that it is necessary for this purpose to determine the international jurisdiction of the courts, to facilitate recognition, and to introduce an expeditious procedure for securing the enforcement of judgments, authentic instruments and court settlements,

Aware of the links between them, which have been sanctioned in the economic field by the free trade agreements concluded between the European Community and certain States members of the European Free Trade Association,

the Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, as amended by the Accession Conventions under the successive enlargements of the European Union,

the Lugano Convention of 16 September 1988 on jurisdiction and the enforcement of judgments in civil and commercial matters, which extends the application of the rules of the 1968 Brussels Convention to certain States members of the European Free Trade Association,

Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, which has replaced the abovementioned Brussels Convention,

the Agreement between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, signed at Brussels on 19 October 2005,

Persuaded that the extension of the principles laid down in Regulation (EC) No 44/2001 to the Contracting Parties to this instrument will strengthen legal and economic cooperation,

Desiring to ensure as uniform an interpretation as possible of this instrument,

Have in this spirit decided to conclude this Convention, and have agreed as follows—

TITLE I

SCOPE

Article 1

(1) This Convention shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters.

(2) The Convention shall not apply to—

(a) the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills and succession;

(b) bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings;

(c) social security;

(d) arbitration.

(3) In this Convention, the term ‘State bound by this Convention’ shall mean any State that is a Contracting Party to this Convention or a Member State of the European Community. It may also mean the European Community.

TITLE II

JURISDICTION

SECTION 1

General provision

Article 2

(1) Subject to the provisions of this Convention, persons domiciled in a State bound by this Convention shall, whatever their nationality, be sued in the courts of that State.

(2) Persons who are not nationals of the State bound by this Convention in which they are domiciled shall be governed by the rules of jurisdiction applicable to nationals of that State.

Article 3

(1) Persons domiciled in a State bound by this Convention may be sued in the courts of another State bound by this Convention only by virtue of the rules set out in Sections 2 to 7 of this Title.

(2) In particular the rules of national jurisdiction set out in Annex I shall not be applicable as against them.

Article 4

(1) If the defendant is not domiciled in a State bound by this Convention, the jurisdiction of the courts of each State bound by this Convention shall, subject to the provisions of Articles 22 and 23, be determined by the law of that State.

(2) As against such a defendant, any person domiciled in a State bound by this Convention may, whatever his nationality, avail himself in that State of the rules of jurisdiction there in force, and in particular those specified in Annex I, in the same way as the nationals of that State.

SECTION 2

Special jurisdiction

Article 5

A person domiciled in a State bound by this Convention may, in another State bound by this Convention, be sued—

(1) (a) in matters relating to a contract, in the courts for the place of performance of the obligation in question;

(b) for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be—

in the case of the sale of goods, the place in a State bound by this Convention where, under the contract, the goods were delivered or should have been delivered;

in the case of the provision of services, the place in a State bound by this Convention where, under the contract, the services were provided or should have been provided;

(c) if (b) does not apply then subparagraph (a) applies;

in the case of the sale of goods, the place in a State bound by this Convention where, under the contract, the goods were delivered or should have been delivered;

in the case of the provision of services, the place in a State bound by this Convention where, under the contract, the services were provided or should have been provided;

(2) in matters relating to maintenance—

(a) in the courts for the place where the maintenance creditor is domiciled or habitually resident; or

(b) in the court which, according to its own law, has jurisdiction to entertain proceedings concerning the status of a person if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties; or

(c) in the court which, according to its own law, has jurisdiction to entertain proceedings concerning parental responsibility, if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties.

(3) in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur;

(4) as regards a civil claim for damages or restitution which is based on an act giving rise to criminal proceedings, in the court seized of those proceedings, to the extent that that court has jurisdiction under its own law to entertain civil proceedings;

(5) as regards a dispute arising out of the operations of a branch, agency or other establishment, in the courts for the place in which the branch, agency or other establishment is situated;

(6) as settlor, trustee or beneficiary of a trust created by the operation of a statute, or by a written instrument, or created orally and evidenced in writing, in the courts of the State bound by this Convention in which the trust is domiciled;

(7) as regards a dispute concerning the payment of remuneration claimed in respect of the salvage of a cargo or freight, in the court under the authority of which the cargo or freight in question—

(a) has been arrested to secure such payment; or

(b) could have been so arrested, but bail or other security has been given;

provided that this provision shall apply only if it is claimed that the defendant has an interest in the cargo or freight or had such an interest at the time of salvage.

Article 6

A person domiciled in a State bound by this Convention may also be sued—

(1) where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings;

(2) as a third party in an action on a warranty or guarantee, or in any other third party proceedings, in the court seized of the original proceedings, unless these were instituted solely with the object of removing him from the jurisdiction of the court which would be competent in his case;

(3) on a counter-claim arising from the same contract or facts on which the original claim was based, in the court in which the original claim is pending;

(4) in matters relating to a contract, if the action may be combined with an action against the same defendant in matters relating to rights in rem in immovable property, in the court of the State bound by this Convention in which the property is situated.

Article 7

Where by virtue of this Convention a court of a State bound by this Convention has jurisdiction in actions relating to liability from the use or operation of a ship, that court, or any other court substituted for this purpose by the internal law of that State, shall also have jurisdiction over claims for limitation of such liability.

SECTION 3

Jurisdiction in matters relating to insurance

Article 8

In matters relating to insurance, jurisdiction shall be determined by this Section, without prejudice to Articles 4 and 5(5).

Article 9

(1) An insurer domiciled in a State bound by this Convention may be sued—

(a) in the courts of the State where he is domiciled; or

(b) in another State bound by this Convention, in the case of actions brought by the policyholder, the insured or a beneficiary, in the courts for the place where the plaintiff is domiciled; or

(c) if he is a co-insurer, in the courts of a State bound by this Convention in which proceedings are brought against the leading insurer.

(2) An insurer who is not domiciled in a State bound by this Convention but has a branch, agency or other establishment in one of the States bound by this Convention shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be domiciled in that State.

Article 10

In respect of liability insurance or insurance of immovable property, the insurer may in addition be sued in the courts for the place where the harmful event occurred. The same applies if movable and immovable property are covered by the same insurance policy and both are adversely affected by the same contingency.

Article 11

(1) In respect of liability insurance, the insurer may also, if the law of the court permits it, be joined in proceedings which the injured party has brought against the insured.

(2) Articles 8, 9 and 10 shall apply to actions brought by the injured party directly against the insurer, where such direct actions are permitted.

(3) If the law governing such direct actions provides that the policyholder or the insured may be joined as a party to the action, the same court shall have jurisdiction over them.

Article 12

(1) Without prejudice to Article 11(3), an insurer may bring proceedings only in the courts of the State bound by this Convention in which the defendant is domiciled, irrespective of whether he is the policyholder, the insured or a beneficiary.

(2) The provisions of this Section shall not affect the right to bring a counter-claim in the court in which, in accordance with this Section, the original claim is pending.

Article 13

The provisions of this Section may be departed from only by an agreement—

(1) which is entered into after the dispute has arisen; or

(2) which allows the policyholder, the insured or a beneficiary to bring proceedings in courts other than those indicated in this Section; or

(3) which is concluded between a policyholder and an insurer, both of whom are at the time of conclusion of the contract domiciled or habitually resident in the same State bound by this Convention, and which has the effect of conferring jurisdiction on the courts of that State even if the harmful event were to occur abroad, provided that such an agreement is not contrary to the law of that State; or

(4) which is concluded with a policyholder who is not domiciled in a State bound by this Convention, except insofar as the insurance is compulsory or relates to immovable property in a State bound by this Convention; or

(5) which relates to a contract of insurance insofar as it covers one or more of the risks set out in Article 14.

Article 14

The following are the risks referred to in Article 13(5)—

(1) any loss of or damage to—

(a) seagoing ships, installations situated offshore or on the high seas, or aircraft, arising from perils which relate to their use for commercial purposes;

(b) goods in transit, other than passengers’ baggage, where the transit consists of or includes carriage by such ships or aircraft;

(2) any liability, other than for bodily injury to passengers or loss of or damage to their baggage—

(a) arising out of the use or operation of ships, installations or aircraft as referred to in point 1(a) insofar as, in respect of the latter, the law of the State bound by this Convention in which such aircraft are registered does not prohibit agreements on jurisdiction regarding insurance of such risks;

(b) for loss or damage caused by goods in transit as described in point 1(b);

(3) any financial loss connected with the use or operation of ships, installations or aircraft as referred to in point 1(a), in particular loss of freight or charter-hire;

(4) any risk or interest connected with any of those referred to in points 1 to 3;

(5) notwithstanding points 1 to 4, all large risks.

SECTION 4

Jurisdiction over consumer contracts

Article 15

(1) In matters relating to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession, jurisdiction shall be determined by this Section, without prejudice to Articles 4 and 5(5), if:

(a) it is a contract for the sale of goods on instalment credit terms; or

(b) it is a contract for a loan repayable by instalments, or for any other form of credit, made to finance the sale of goods; or

(c) in all other cases, the contract has been concluded with a person who pursues commercial or professional activities in the State bound by this Convention of the consumer’s domicile or, by any means, directs such activities to that State or to several States including that State, and the contract falls within the scope of such activities.

(2) Where a consumer enters into a contract with a party who is not domiciled in the State bound by this Convention but has a branch, agency or other establishment in one of the States bound by this Convention, that party shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be domiciled in that State.

(3) This section shall not apply to a contract of transport other than a contract which, for an inclusive price, provides for a combination of travel and accommodation.

Article 16

(1) A consumer may bring proceedings against the other party to a contract either in the courts of the State bound by this Convention in which that party is domiciled or in the courts for the place where the consumer is domiciled.

(2) Proceedings may be brought against a consumer by the other party to the contract only in the courts of the State bound by this Convention in which the consumer is domiciled.

(3) This Article shall not affect the right to bring a counter-claim in the court in which, in accordance with this Section, the original claim is pending.

Article 17

The provisions of this Section may be departed from only by an agreement—

(1) which is entered into after the dispute has arisen; or

(2) which allows the consumer to bring proceedings in courts other than those indicated in this Section; or

(3) which is entered into by the consumer and the other party to the contract, both of whom are at the time of conclusion of the contract domiciled or habitually resident in the same State bound by this Convention, and which confers jurisdiction on the courts of that State, provided that such an agreement is not contrary to the law of that State.

SECTION 5

Jurisdiction over individual contracts of employment

Article 18

(1) In matters relating to individual contracts of employment, jurisdiction shall be determined by this Section, without prejudice to Articles 4 and 5(5).

(2) Where an employee enters into an individual contract of employment with an employer who is not domiciled in a State bound by this Convention but has a branch, agency or other establishment in one of the States bound by this Convention, the employer shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be domiciled in that State.

Article 19

An employer domiciled in a State bound by this Convention may be sued—

(1) in the courts of the State where he is domiciled; or

(2) in another State bound by this Convention—

(a) in the courts for the place where the employee habitually carries out his work or in the courts for the last place where he did so; or

(b) if the employee does not or did not habitually carry out his work in any one country, in the courts for the place where the business which engaged the employee is or was situated.

Article 20

(1) An employer may bring proceedings only in the courts of the State bound by this Convention in which the employee is domiciled.

(2) The provisions of this Section shall not affect the right to bring a counter-claim in the court in which, in accordance with this Section, the original claim is pending.

Article 21

The provisions of this Section may be departed from only by an agreement on jurisdiction—

(1) which is entered into after the dispute has arisen; or

(2) which allows the employee to bring proceedings in courts other than those indicated in this Section.

SECTION 6

Exclusive jurisdiction

Article 22

The following courts shall have exclusive jurisdiction, regardless of domicile—

(1) in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, the courts of the State bound by this Convention in which the property is situated.

(a) However, in proceedings which have as their object tenancies of immovable property concluded for temporary private use for a maximum period of six consecutive months, the courts of the State bound by this Convention in which the defendant is domiciled shall also have jurisdiction, provided that the tenant is a natural person and that the landlord and the tenant are domiciled in the same State bound by this Convention;

(2) in proceedings which have as their object the validity of the constitution, the nullity or the dissolution of companies or other legal persons or associations of natural or legal persons, or of the validity of the decisions of their organs, the courts of the State bound by this Convention in which the company, legal person or association has its seat. In order to determine that seat, the court shall apply its rules of private international law;

(3) in proceedings which have as their object the validity of entries in public registers, the courts of the State bound by this Convention in which the register is kept;

(4) in proceedings concerned with the registration or validity of patents, trade marks, designs, or other similar rights required to be deposited or registered, irrespective of whether the issue is raised by way of an action or as a defence, the courts of the State bound by this Convention in which the deposit or registration has been applied for, has taken place or is, under the terms of a Community instrument or an international convention, deemed to have taken place.

(5) in proceedings concerned with the enforcement of judgments, the courts of the State bound by this Convention in which the judgment has been or is to be enforced.

SECTION 7

Prorogation of jurisdiction

Article 23

(1) If the parties, one or more of whom is domiciled in a State bound by this Convention, have agreed that a court or the courts of a State bound by this Convention are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. Such an agreement conferring jurisdiction shall be either—

(a) in writing or evidenced in writing; or

(b) in a form which accords with practices which the parties have established between themselves; or

(c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.

(2) Any communication by electronic means which provides a durable record of the agreement shall be equivalent to ‘writing’.

(3) Where such an agreement is concluded by parties, none of whom is domiciled in a State bound by this Convention, the courts of other States bound by this Convention shall have no jurisdiction over their disputes unless the court or courts chosen have declined jurisdiction.

(4) The court or courts of a State bound by this Convention on which a trust instrument has conferred jurisdiction shall have exclusive jurisdiction in any proceedings brought against a settlor, trustee or beneficiary, if relations between these persons or their rights or obligations under the trust are involved.

(5) Agreements or provisions of a trust instrument conferring jurisdiction shall have no legal force if they are contrary to the provisions of Articles 13, 17 or 21, or if the courts whose jurisdiction they purport to exclude have exclusive jurisdiction by virtue of Article 22.

Article 24

Apart from jurisdiction derived from other provisions of this Convention, a court of a State bound by this Convention before which a defendant enters an appearance shall have jurisdiction. This rule shall not apply where appearance was entered to contest the jurisdiction, or where another court has exclusive jurisdiction by virtue of Article 22.

SECTION 8

Examination as to jurisdiction and admissibility

Article 25

Where a court of a State bound by this Convention is seized of a claim which is principally concerned with a matter over which the courts of another State bound by this Convention have exclusive jurisdiction by virtue of Article 22, it shall declare of its own motion that it has no jurisdiction.

Article 26

(1) Where a defendant domiciled in one State bound by this Convention is sued in a court of another State bound by this Convention and does not enter an appearance, the court shall declare of its own motion that it has no jurisdiction unless its jurisdiction is derived from the provisions of this Convention.

(2) The court shall stay the proceedings so long as it is not shown that the defendant has been able to receive the document instituting the proceedings or an equivalent document in sufficient time to enable him to arrange for his defence, or that all necessary steps have been taken to this end.

(3) Instead of the provisions of paragraph 2, Article 15 of the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial matters shall apply if the document instituting the proceedings or an equivalent document had to be transmitted pursuant to that Convention.

(4) Member States of the European Community bound by Council Regulation (EC) No 1348/2000 of 29 May 2000 or by the Agreement between the European Community and the Kingdom of Denmark on the service of judicial and extrajudicial documents in civil or commercial matters, signed at Brussels on 19 October 2005, shall apply in their mutual relations the provision in Article 19 of that Regulation if the document instituting the proceedings or an equivalent document had to be transmitted pursuant to that Regulation or that Agreement.

SECTION 9

Lis pendens—related actions

Article 27

(1) Where proceedings involving the same cause of action and between the same parties are brought in the courts of different States bound by this Convention, any court other than the court first seized shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seized is established.

(2) Where the jurisdiction of the court first seized is established, any court other than the court first seized shall decline jurisdiction in favour of that court.

Article 28

(1) Where related actions are pending in the courts of different States bound by this Convention, any court other than the court first seized may stay its proceedings.

(2) Where these actions are pending at first instance, any court other than the court first seized may also, on the application of one of the parties, decline jurisdiction if the court first seized has jurisdiction over the actions in question and its law permits the consolidation thereof.

(3) For the purposes of this Article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.

Article 29

Where actions come within the exclusive jurisdiction of several courts, any court other than the court first seized shall decline jurisdiction in favour of that court.

Article 30

For the purposes of this Section, a court shall be deemed to be seized—

(1) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the plaintiff has not subsequently failed to take the steps he was required to take to have service effected on the defendant; or

(2) if the document has to be served before being lodged with the court at the time when it is received by the authority responsible for service, provided that the plaintiff has not subsequently failed to take the steps he was required to take to have the document lodged with the court.

SECTION 10

Provisional, including protective, measures

Article 31

Application may be made to the courts of a State bound by this Convention for such provisional, including protective, measures as may be available under the law of that State, even if, under this Convention, the courts of another State bound by this Convention have jurisdiction as to the substance of the matter.

TITLE III

RECOGNITION AND ENFORCEMENT

Article 32

For the purposes of this Convention, ‘judgment’ means any judgment given by a court or tribunal of a State bound by this Convention, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as the determination of costs or expenses by an officer of the court.

SECTION 1

Recognition

Article 33

(1) A judgment given in a State bound by this Convention shall be recognised in the other States bound by this Convention without any special procedure being required.

(2) Any interested party who raises the recognition of a judgment as the principal issue in a dispute may, in accordance with the procedures provided for in Sections 2 and 3 of this Title, apply for a decision that the judgment be recognised.

(3) If the outcome of proceedings in a court of a State bound by this Convention depends on the determination of an incidental question of recognition that court shall have jurisdiction over that question.

Article 34

A judgment shall not be recognised—

(1) if such recognition is manifestly contrary to public policy in the State in which recognition is sought;

(2) where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so;

(3) if it is irreconcilable with a judgment given in a dispute between the same parties in the State in which recognition is sought;

(4) if it is irreconcilable with an earlier judgment given in another State bound by this Convention or in a third State involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the State addressed.

Article 35

(1) Moreover, a judgment shall not be recognised if it conflicts with Sections 3, 4 or 6 of Title II, or in a case provided for in Article 68. A judgment may furthermore be refused recognition in any case provided for in Article 64(3) or 67(4).

(2) In its examination of the grounds of jurisdiction referred to in the foregoing paragraph, the court or authority applied to shall be bound by the findings of fact on which the court of the State of origin based its jurisdiction.

(3) Subject to the provisions of paragraph 1, the jurisdiction of the court of the State of origin may not be reviewed. The test of public policy referred to in Article 34(1) may not be applied to the rules relating to jurisdiction.

Article 36

Under no circumstances may a foreign judgment be reviewed as to its substance.

Article 37

(1) A court of a State bound by this Convention in which recognition is sought of a judgment given in another State bound by this Convention may stay the proceedings if an ordinary appeal against the judgment has been lodged.

(2) A court of a State bound by this Convention in which recognition is sought of a judgment given in Ireland or the United Kingdom may stay the proceedings if enforcement is suspended in the State of origin, by reason of an appeal.

SECTION 2

Enforcement

Article 38

(1) A judgment given in a State bound by this Convention and enforceable in that State shall be enforced in another State bound by this Convention when, on the application of any interested party, it has been declared enforceable there.

(2) However, in the United Kingdom, such a judgment shall be enforced in England and Wales, in Scotland, or in Northern Ireland when, on the application of any interested party, it has been registered for enforcement in that part of the United Kingdom.

Article 39

(1) The application shall be submitted to the court or competent authority indicated in the list in Annex II.

(2) The local jurisdiction shall be determined by reference to the place of domicile of the party against whom enforcement is sought, or to the place of enforcement.

Article 40

(1) The procedure for making the application shall be governed by the law of the State in which enforcement is sought.

(2) The applicant must give an address for service of process within the area of jurisdiction of the court applied to. However, if the law of the State in which enforcement is sought does not provide for the furnishing of such an address, the applicant shall appoint a representative ad litem.

(3) The documents referred to in Article 53 shall be attached to the application.

Article 41

The judgment shall be declared enforceable immediately on completion of the formalities in Article 53 without any review under Articles 34 and 35. The party against whom enforcement is sought shall not at this stage of the proceedings be entitled to make any submissions on the application.

Article 42

(1) The decision on the application for a declaration of enforceability shall forthwith be brought to the notice of the applicant in accordance with the procedure laid down by the law of the State in which enforcement is sought.

(2) The declaration of enforceability shall be served on the party against whom enforcement is sought, accompanied by the judgment, if not already served on that party.

Article 43

(1) The decision on the application for a declaration of enforceability may be appealed against by either party.

(2) The appeal is to be lodged with the court indicated in the list in Annex III.

(3) The appeal shall be dealt with in accordance with the rules governing procedure in contradictory matters.

(4) If the party against whom enforcement is sought fails to appear before the appellate court in proceedings concerning an appeal brought by the applicant, Article 26(2) to (4) shall apply even where the party against whom enforcement is sought is not domiciled in any of the States bound by this Convention.

(5) An appeal against the declaration of enforceability is to be lodged within one month of service thereof. If the party against whom enforcement is sought is domiciled in a State bound by this Convention other than that in which the declaration of enforceability was given, the time for appealing shall be two months and shall run from the date of service, either on him in person or at his residence. No extension of time may be granted on account of distance.

Article 44

The judgment given on the appeal may be contested only by the appeal referred to in Annex IV.

Article 45

(1) The court with which an appeal is lodged under Article 43 or Article 44 shall refuse or revoke a declaration of enforceability only on one of the grounds specified in Articles 34 and 35. It shall give its decision without delay.

(2) Under no circumstances may the foreign judgment be reviewed as to its substance.

Article 46

(1) The court with which an appeal is lodged under Article 43 or Article 44 may, on the application of the party against whom enforcement is sought, stay the proceedings if an ordinary appeal has been lodged against the judgment in the State of origin or if the time for such an appeal has not yet expired; in the latter case, the court may specify the time within which such an appeal is to be lodged.

(2) Where the judgment was given in Ireland or the United Kingdom, any form of appeal available in the State of origin shall be treated as an ordinary appeal for the purposes of paragraph 1.

(3) The court may also make enforcement conditional on the provision of such security as it shall determine.

Article 47

(1) When a judgment must be recognised in accordance with this Convention, nothing shall prevent the applicant from availing himself of provisional, including protective, measures in accordance with the law of the State requested without a declaration of enforceability under Article 41 being required.

(2) The declaration of enforceability shall carry with it the power to proceed to any protective measures.

(3) During the time specified for an appeal pursuant to Article 43(5) against the declaration of enforceability and until any such appeal has been determined, no measures of enforcement may be taken other than protective measures against the property of the party against whom enforcement is sought.

Article 48

(1) Where a foreign judgment has been given in respect of several matters and the declaration of enforceability cannot be given for all of them, the court or competent authority shall give it for one or more of them.

(2) An applicant may request a declaration of enforceability limited to parts of a judgment.

Article 49

A foreign judgment which orders a periodic payment by way of a penalty shall be enforceable in the State in which enforcement is sought only if the amount of the payment has been finally determined by the courts of the State of origin.

Article 50

(1) An applicant who in the State of origin has benefited from complete or partial legal aid or exemption from costs or expenses shall be entitled, in the procedure provided for in this Section, to benefit from the most favourable legal aid or the most extensive exemption from costs or expenses provided for by the law of the State addressed.

(2) However, an applicant who requests the enforcement of a decision given by an administrative authority in Denmark, in Iceland or in Norway in respect of maintenance may, in the State addressed, claim the benefits referred to in paragraph 1 if he presents a statement from the Danish, Icelandic, or Norwegian Ministry of Justice to the effect that he fulfils the economic requirements to qualify for the grant of complete or partial legal aid or exemption from costs or expenses.

Article 51

No security, bond or deposit, however described, shall be required of a party who in one State bound by this Convention, applies for enforcement of a judgment given in another State bound by this Convention on the ground that he is a foreign national or that he is not domiciled or resident in the State in which enforcement is sought.

Article 52

In proceedings for the issue of a declaration of enforceability, no charge, duty or fee calculated by reference to the value of the matter at issue may be levied in the State in which enforcement is sought.

SECTION 3

Common provisions

Article 53

(1) A party seeking recognition or applying for a declaration of enforceability shall produce a copy of the judgment which satisfies the conditions necessary to establish its authenticity.

(2) A party applying for a declaration of enforceability shall also produce the certificate referred to in Article 54, without prejudice to Article 55.

Article 54

The court or competent authority of a State bound by this Convention where a judgment was given shall issue, at the request of any interested party, a certificate using the standard form in Annex V to this Convention.

Article 55

(1) If the certificate referred to in Article 54 is not produced, the court or competent authority may specify a time for its production or accept an equivalent document or, if it considers that it has sufficient information before it, dispense with its production.

(2) If the court or competent authority so requires, a translation of the documents shall be produced. The translation shall be certified by a person qualified to do so in one of the States bound by this Convention.

Article 56

No legalisation or other similar formality shall be required in respect of the documents referred to in Article 53 or Article 55(2), or in respect of a document appointing a representative ad litem.

TITLE IV

AUTHENTIC INSTRUMENTS AND COURT SETTLEMENTS

Article 57

(1) A document which has been formally drawn up or registered as an authentic instrument and is enforceable in one State bound by this Convention shall, in another State bound by this Convention, be declared enforceable there, on application made in accordance with the procedures provided for in Article 38, et seq. The court with which an appeal is lodged under Article 43 or Article 44 shall refuse or revoke a declaration of enforceability only if enforcement of the instrument is manifestly contrary to public policy in the State addressed.

(2) Arrangements relating to maintenance obligations concluded with administrative authorities or authenticated by them shall also be regarded as authentic instruments within the meaning of paragraph 1.

(3) The instrument produced must satisfy the conditions necessary to establish its authenticity in the State of origin.

(4) Section 3 of Title III shall apply as appropriate. The competent authority of a State bound by this Convention where an authentic instrument was drawn up or registered shall issue, at the request of any interested party, a certificate using the standard form in Annex VI to this Convention.

Article 58

A settlement which has been approved by a court in the course of proceedings and is enforceable in the State bound by this Convention in which it was concluded shall be enforceable in the State addressed under the same conditions as authentic instruments. The court or competent authority of a State bound by this Convention where a court settlement was approved shall issue, at the request of any interested party, a certificate using the standard form in Annex V to this Convention.

TITLE V

GENERAL PROVISIONS

Article 59

(1) In order to determine whether a party is domiciled in the State bound by this Convention whose courts are seised of a matter, the court shall apply its internal law.

(2) If a party is not domiciled in the State whose courts are seised of the matter, then, in order to determine whether the party is domiciled in another State bound by this Convention, the court shall apply the law of that State.

Article 60

(1) For the purposes of this Convention, a company or other legal person or association of natural or legal persons is domiciled at the place where it has its—

(a) statutory seat; or

(b) central administration; or

(c) principal place of business.

(2) For the purposes of the United Kingdom and Ireland ‘statutory seat’ means the registered office or, where there is no such office anywhere, the place of incorporation or, where there is no such place anywhere, the place under the law of which the formation took place.

(3) In order to determine whether a trust is domiciled in the State bound by this Convention whose courts are seized of the matter, the court shall apply its rules of private international law.

Article 61

Without prejudice to any more favourable provisions of national laws, persons domiciled in a State bound by this Convention who are being prosecuted in the criminal courts of another State bound by this Convention of which they are not nationals for an offence which was not intentionally committed may be defended by persons qualified to do so, even if they do not appear in person. However, the court seised of the matter may order appearance in person; in the case of failure to appear, a judgment given in the civil action without the person concerned having had the opportunity to arrange for his defence need not be recognised or enforced in the other States bound by this Convention.

Article 62

For the purposes of this Convention, the expression ‘court’ shall include any authorities designated by a State bound by this Convention as having jurisdiction in the matters falling within the scope of this Convention.

TITLE VI

TRANSITIONAL PROVISIONS

Article 63

(1) This Convention shall apply only to legal proceedings instituted and to documents formally drawn up or registered as authentic instruments after its entry into force in the State of origin and, where recognition or enforcement of a judgment or authentic instruments is sought, in the State addressed.

(2) However, if the proceedings in the State of origin were instituted before the entry into force of this Convention, judgments given after that date shall be recognised and enforced in accordance with Title III—

(a) if the proceedings in the State of origin were instituted after the entry into force of the Lugano Convention of 16 September 1988 both in the State of origin and in the State;

(b) in all other cases, if jurisdiction was founded upon rules which accorded with those provided for either in Title II or in a convention concluded between the State of origin and the State addressed which was in force when the proceedings were instituted.

TITLE VII

RELATIONSHIP TO COUNCIL REGULATION (EC) No 44/2001 AND OTHER INSTRUMENTS

Article 64

(1) This Convention shall not prejudice the application by the Member States of the European Community of the Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, as well as any amendments thereof, of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, signed at Brussels on 27 September 1968, and of the Protocol on interpretation of that Convention by the Court of Justice of the European Communities, signed at Luxembourg on 3 June 1971, as amended by the Conventions of Accession to the said Convention and the said Protocol by the States acceding to the European Communities, as well as of the Agreement between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, signed at Brussels on 19 October 2005.

(2) However, this Convention shall in any event be applied—

(a) in matters of jurisdiction, where the defendant is domiciled in the territory of a State where this Convention but not an instrument referred to in paragraph 1 of this Article applies, or where Articles 22 or 23 of this Convention confer jurisdiction on the courts of such a State;

(b) in relation to lis pendens or to related actions as provided for in Articles 27 and 28, when proceedings are instituted in a State where the Convention but not an instrument referred to in paragraph 1 of this Article applies and in a State where this Convention as well as an instrument referred to in paragraph 1 of this Article apply;

(c) in matters of recognition and enforcement, where either the State of origin or the State addressed is not applying an instrument referred to in paragraph 1 of this Article.

(3) In addition to the grounds provided for in Title III, recognition or enforcement may be refused if the ground of jurisdiction on which the judgment has been based differs from that resulting from this Convention and recognition or enforcement is sought against a party who is domiciled in a State where this Convention but not an instrument referred to in paragraph 1 of this Article applies, unless the judgment may otherwise be recognised or enforced under any rule of law in the State addressed.

Article 65

Subject to the provisions of Articles 63(2), 66 and 67, this Convention shall, as between the States bound by this Convention, supersede the conventions concluded between two or more of them that cover the same matters as those to which this Convention applies. In particular, the conventions mentioned in Annex VII shall be superseded.

Article 66

(1) The conventions referred to in Article 65 shall continue to have effect in relation to matters to which this Convention does not apply.

(2) They shall continue to have effect in respect of judgments given and documents formally drawn up or registered as authentic instruments before the entry into force of this Convention.

Article 67

(1) This Convention shall not affect any conventions by which the Contracting Parties and/or the States bound by this Convention are bound and which in relation to particular matters, govern jurisdiction or the recognition or enforcement of judgments. Without prejudice to obligations resulting from other agreements between certain Contracting Parties, this Convention shall not prevent Contracting Parties from entering into such conventions.

(2) This Convention shall not prevent a court of a State bound by this Convention and by a convention on a particular matter from assuming jurisdiction in accordance with that convention, even where the defendant is domiciled in another State bound by this Convention which is not a party to that convention. The court hearing the action shall, in any event, apply Article 26 of this Convention.

(3) Judgments given in a State bound by this Convention by a court in the exercise of jurisdiction provided for in a convention on a particular matter shall be recognised and enforced in the other States bound by this Convention in accordance with Title III of this Convention.

(4) In addition to the grounds provided for in Title III, recognition or enforcement may be refused if the State addressed is not bound by the convention on a particular matter and the person against whom recognition or enforcement is sought is domiciled in that State, or, if the State addressed is a Member State of the European Community and in respect of conventions which would have to be concluded by the European Community, in any of its Member States, unless the judgment may otherwise be recognised or enforced under any rule of law in the State addressed.

(5) Where a convention on a particular matter to which both the State of origin and the State addressed are parties lays down conditions for the recognition or enforcement of judgments, those conditions shall apply. In any event, the provisions of this Convention which concern the procedures for recognition and enforcement of judgments may be applied.

Article 68

(1) This Convention shall not affect agreements by which States bound by this Convention undertook, prior to the entry into force of this Convention, not to recognise judgments given in other States bound by this Convention against defendants domiciled or habitually resident in a third State where, in cases provided for in Article 4, the judgment could only be founded on a ground of jurisdiction as specified in Article 3(2). Without prejudice to obligations resulting from other agreements between certain Contracting Parties, this Convention shall not prevent Contracting Parties from entering into such conventions.

(2) However, a Contracting Party may not assume an obligation towards a third State not to recognise a judgment given in another State bound by this Convention by a court basing its jurisdiction on the presence within that State of property belonging to the defendant, or the seizure by the plaintiff of property situated there—

(a) if the action is brought to assert or declare proprietary or possessory rights in that property, seeks to obtain authority to dispose of it, or arises from another issue relating to such property; or

(b) if the property constitutes the security for a debt which is the subject-matter of the action.

TITLE VIII

FINAL PROVISIONS

Article 69

(1) The Convention shall be open for signature by the European Community, Denmark, and States which, at the time of the opening for signature, are Members of the European Free Trade Association.

(2) This Convention shall be subject to ratification by the Signatories. The instruments of ratification shall be deposited with the Swiss Federal Council, which shall act as Depositary of this Convention.

(3) At the time of the ratification, the Contracting Parties may submit declarations in accordance with Articles I, II and III of Protocol 1.

(4) The Convention shall enter into force on the first day of the sixth month following the date on which the European Community and a Member of the European Free Trade Association deposit their instruments of ratification.

(5) The Convention shall enter into force in relation to any other Party on the first day of the third month following the deposit of its instrument of ratification.

(6) Without prejudice to Article 3(3) of Protocol 2, this Convention shall replace the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters done at Lugano on 16 September 1988 as of the date of its entry into force in accordance with paragraphs 4 and 5 above. Any reference to the 1988 Lugano Convention in other instruments shall be understood as a reference to this Convention.

(7) Insofar as the relations between the Member States of the European Community and the non-European territories referred to in Article 70(1)(b) are concerned, this Convention shall replace the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, signed at Brussels on 27 September 1968, and of the Protocol on interpretation of that Convention by the Court of Justice of the European Communities, signed at Luxembourg on 3 June 1971, as amended by the Conventions of Accession to the said Convention and the said Protocol by the States acceding to the European Communities, as of the date of the entry into force of this Convention with respect to these territories in accordance with Article 73(2).

Article 70

(1) After entering into force this Convention shall be open for accession by—

(a) the States which, after the opening of this Convention for signature, become Members of the European Free Trade Association, under the conditions laid down in Article 71;

(b) Member States of the European Community acting on behalf of certain non-European territories that are part of the territory of that Member State or for whose external relations that Member State is responsible, under the conditions laid down in Article 71;

(c) any other State, under the conditions laid down in Article 72.

(2) States referred to in paragraph 1, which wish to become a Contracting Party to this Convention, shall address their application to the Depositary. The application, including the information referred to in Articles 71 and 72 shall be accompanied by a translation into English and French.

Article 71

(1) Any State referred to in Article 70(1)(a) and (b) wishing to become a Contracting Party to this Convention—

(a) shall communicate the information required for the application of this Convention;

(b) may submit declarations in accordance with Articles I and III of Protocol 1.

(2) The Depositary shall transmit any information received pursuant to paragraph 1 to the other Contracting Parties prior to the deposit of the instrument of accession by the State concerned.

Article 72

(1) Any State referred to in Article 70(1)(c) wishing to become a Contracting Party to this Convention—

(a) shall communicate the information required for the application of this Convention;

(b) may submit declarations in accordance with Articles I and III of Protocol 1; and

(c) shall provide the Depositary with information on, in particular—

(i) their judicial system, including information on the appointment and independence of judges;

(ii) their internal law concerning civil procedure and enforcement of judgments; and

(iii) their private international law relating to civil procedure.

(2) The Depositary shall transmit any information received pursuant to paragraph 1 to the other Contracting Parties prior to inviting the State concerned to accede in accordance with paragraph 3 of this Article.

(3) Without prejudice to paragraph 4, the Depositary shall invite the State concerned to accede only if it has obtained the unanimous agreement of the Contracting Parties. The Contracting Parties shall endeavour to give their consent at the latest within one year after the invitation by the Depositary.

(4) The Convention shall enter into force only in relations between the acceding State and the Contracting Parties which have not made any objections to the accession before the first day of the third month following the deposit of the instrument of accession.

Article 73

(1) The instruments of accession shall be deposited with the Depositary.

(2) In respect of an acceding State referred to in Article 70, the Convention shall enter into force on the first day of the third month following the deposit of its instrument of accession. As of that moment, the acceding State shall be considered a Contracting Party to the Convention.

(3) Any Contracting Party may submit to the Depositary a text of this Convention in the language or languages of the Contracting Party concerned, which shall be authentic if so agreed by the Contracting Parties in accordance with Article 4 of Protocol 2.

Article 74

(1) This Convention is concluded for an unlimited period.

(2) Any Contracting Party may, at any time, denounce the Convention by sending a notification to the Depositary.

(3) The denunciation shall take effect at the end of the calendar year following the expiry of a period of six months from the date of receipt by the Depositary of the notification of denunciation.

Article 75

The following are annexed to this Convention—

a Protocol 1, on certain questions of jurisdiction, procedure and enforcement,

a Protocol 2, on the uniform interpretation of this Convention and on the Standing Committee,

a Protocol 3, on the application of Article 67 of this Convention,

Annexes I through IV and Annex VII, with information related to the application of this Convention,

Annexes V and VI, containing the certificates referred to in Articles 54, 58 and 57 of this Convention,

Annex VIII, containing the authentic languages referred to in Article 79 of this Convention, and

Annex IX, concerning the application of Article II of Protocol 1.

These Protocols and Annexes shall form an integral part of this Convention.

Article 76

Without prejudice to Article 77, any Contracting Party may request the revision of this Convention. To that end, the Depositary shall convene the Standing Committee as laid down in Article 4 of Protocol 2.

Article 77

(1) The Contracting Parties shall communicate to the Depositary the text of any provisions of the laws which amend the lists set out in Annexes I through IV as well as any deletions in or additions to the list set out in Annex VII and the date of their entry into force. Such communication shall be made within reasonable time before the entry into force and be accompanied by a translation into English and French. The Depositary shall adapt the Annexes concerned accordingly, after having consulted the Standing Committee in accordance with Article 4 of Protocol 2. For that purpose, the Contracting Parties shall provide a translation of the adaptations into their languages.

(2) Any amendment of Annexes V through VI and VIII through IX to this Convention shall be adopted by the Standing Committee in accordance with Article 4 of Protocol 2.

Article 78

(1) The Depositary shall notify the Contracting Parties of—

(a) the deposit of each instrument of ratification or accession;

(b) the dates of entry into force of this Convention in respect of the Contracting Parties;

(c) any declaration received pursuant to Articles I to IV of Protocol 1;

(d) any communication made pursuant to Article 74(2), Article 77(1) and paragraph 4 of Protocol 3.

(2) The notifications will be accompanied by translations into English and French.

Article 79

This Convention, drawn up in a single original in the languages listed in Annex VIII, all texts being equally authentic, shall be deposited in the Swiss Federal Archives. The Swiss Federal Council shall transmit a certified copy to each Contracting Party.

In witness whereof, the undersigned Plenipotentiaries, have signed this Convention.

Done at Lugano, on 30 October 2007.”

New schedule 2—Super-affirmative resolution procedure—

“1 If the Secretary of State considers it appropriate to make regulations for the purpose of, or in connection with, implementing any international agreement, the Secretary of State Minister may lay before Parliament—

(a) draft regulations, and

(b) an explanatory document.

2 The explanatory document must introduce and give reasons for implementing the international agreement.

3 Subject as follows, if after the expiry of the 40-day period the draft regulations laid under subsection (1) are approved by a resolution of each House of Parliament, the Minister may make regulations in the terms of the draft regulations.

4 The procedure in paragraphs (5) to (8) shall apply to the draft regulations instead of the procedure in paragraph (3) if—

(a) either House of Parliament so resolves within the 30-day period, or

(b) a committee of either House charged with reporting on the draft regulations so recommends within the 30-day period and the House to which the recommendation is made does not by resolution reject the recommendation within that period.

5 The Secretary of State must have regard to—

(a) any representations,

(b) any resolution of either House of Parliament, and

(c) any recommendations of a committee of either House of Parliament charged with reporting on the draft regulations, made during the 60-day period with regard to the draft regulations.

6 If, after the expiry of the 60-day period, the draft regulations are approved by a resolution of each House of Parliament, the Secretary of State may make regulations in the terms of the draft regulations.

7 If, after the expiry of the 60-day period, the Secretary of State wishes to proceed with the draft regulations but with material changes, the Secretary of State may lay before Parliament—

(a) a revised draft of the regulations, and

(b) a statement giving a summary of the changes proposed.

8 If the revised draft regulations are approved by a resolution of each House of Parliament, the Secretary of State may make regulations in the terms of the revised draft regulations.

9 For the purposes of this Schedule regulations are made in the terms of draft regulations or revised draft regulations if they contain no material changes to their provisions.

10 In this paragraph, references to the ‘30-day’, ‘40-day’ and ‘60-day’ periods in relation to any draft regulations are to the periods of 30, 40 and 60 days beginning with the day on which the draft regulations were laid before Parliament.

11 For the purposes of paragraph 10 no account is to be taken of any time during which Parliament is dissolved or prorogued or during which either House is adjourned for more than four days.”

This new Schedule would apply the super-affirmative resolution procedure to regulations implementing the Lugano Convention in the UK (see NC2).

New schedule 3—Regulations under section (Implementation of other agreements on private international law (No. 2))—

“Restrictions on power to make regulations

1 (1) Regulations under section (Implementation of other agreements on private international law (No. 2)) may not include—

(a) provision that confers power to legislate by means of regulations, orders, rules or other subordinate instrument (other than rules of procedure for courts or tribunals);

(b) provision that creates an offence for which an individual who has reached the age of 18 (or, in relation to Scotland or Northern Ireland, 21) is capable of being sentenced to imprisonment for a term of more than two years (ignoring any enactment prohibiting or restricting the imprisonment of individuals who have no previous convictions).

(2) Sub-paragraph (1)(a) does not prevent the modification of a power to legislate conferred otherwise than under section (Implementation of other agreements on private international law (No. 2)), or the extension of any such power to purposes of a similar kind to those for which it was conferred.

(3) A power to give practice directions or other directions regarding matters of administration is not a power to legislate for the purposes of sub-paragraph (1)(a).

Regulations to be made by statutory instrument or statutory rule

2 The power to make regulations under section (Implementation of other agreements on private international law (No. 2))—

(a) is exercisable by statutory instrument, in the case of regulations made by the Secretary of State;

(b) is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)), in the case of regulations made by a Northern Ireland department.

Parliamentary or assembly procedure

3 (1) This paragraph applies to a statutory instrument containing regulations made by the Secretary of State under section (Implementation of other agreements on private international law (No. 2)).

(2) If the instrument contains (whether alone or with other provision)—

(a) provision made for the purpose of implementing or applying, in relation to the United Kingdom or a particular part of the United Kingdom, any relevant international agreement that has not previously been the subject of any such provision (whether made by regulations under section (Implementation of other agreements on private international law (No. 2)) or otherwise),

(b) provision made for the purpose of giving effect, in relation to the United Kingdom or a particular part of the United Kingdom, to any relevant arrangements that relate to a particular territory and have not previously been the subject of any such provision (whether made by regulations under that section or otherwise),

(c) provision that creates or extends, or increases the penalty for, a criminal offence, or

(d) provision that amends primary legislation,

it may not be made unless it has been approved under the super-affirmative procedure (see paragraph 4).

(3) In this Schedule ‘relevant arrangements’ means arrangements of the kind mentioned in section (Implementation of other agreements on private international law (No. 2)) (3).

(4) If sub-paragraph (2) does not apply to the instrument, it may not be made unless a draft of the instrument has been laid before each House of Parliament and approved by a resolution of each House.

Super-affirmative procedure

4 (1) If the Secretary of State considers it appropriate to make regulations for the purpose of, or in connection with, implementing any international agreement, the Secretary of State may lay before Parliament—

(a) draft regulations, and

(b) an explanatory document.

(2) The explanatory document must introduce and give reasons for implementing the international agreement.

(3) Subject as follows, if after the expiry of the 40-day period the draft regulations laid under sub-paragraph (1) are approved by a resolution of each House of Parliament, the Secretary of State may make regulations in the terms of the draft regulations.

(4) The procedure in sub-paragraphs (5) to (8) shall apply to the draft regulations instead of the procedure in sub-paragraph (3) if—

(a) either House of Parliament so resolves within the 30-day period, or

(b) a committee of either House charged with reporting on the draft regulations so recommends within the 30-day period and the House to which the recommendation is made does not by resolution reject the recommendation within that period.

(5) The Secretary of State must have regard to—

(a) any representations,

(b) any resolution of either House of Parliament, and

(c) any recommendations of a committee of either House of Parliament charged with reporting on the draft regulations, made during the 60-day period with regard to the draft regulations.

(6) If after the expiry of the 60-day period the draft regulations are approved by a resolution of each House of Parliament, the Secretary of State may make regulations in the terms of the draft regulations.

(7) If after the expiry of the 60-day period the Secretary of State wishes to proceed with the draft regulations but with material changes, the Secretary of State may lay before Parliament—

(a) a revised draft of the regulations, and

(b) a statement giving a summary of the changes proposed.

(8) If the revised draft regulations are approved by a resolution of each House of Parliament, the Secretary of State may make regulations in the terms of the revised draft regulations.

(9) For the purposes of this paragraph regulations are made in the terms of draft regulations or revised draft regulations if they contain no material changes to their provisions.

(10) In this paragraph, references to the ‘30-day’, ‘40-day’ and ‘60-day’ periods in relation to any draft regulations are to the periods of 30, 40 and 60 days beginning with the day on which the draft regulations were laid before Parliament.

(11) For the purposes of sub-paragraph (10) no account is to be taken of any time during which Parliament is dissolved or prorogued or during which either House is adjourned for more than four days.

Scottish affirmative procedure

5 (1) This paragraph applies to regulations made by the Scottish Ministers under section (Implementation of other agreements on private international law (No. 2)).

(2) The regulations are subject to the affirmative procedure (see section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010).

Northern Ireland affirmative procedure

6 (1) A Northern Ireland department may not make regulations under section (Implementation of other agreements on private international law (No. 2)) unless a draft of the regulations has been laid before the Northern Ireland Assembly and approved by a resolution of the Assembly.

(2) Section 41(3) of that Act applies for the purposes of sub-paragraph (1) in relation to the laying of a draft as it applies in relation to the laying of a statutory document under an enactment.

Interpretation

7 In this Schedule—

‘amend’ includes repeal or revoke;

‘primary legislation’ means any provision of—

(a) an Act of Parliament,

(b) an Act of the Scottish Parliament,

(c) an Act or Measure of Senedd Cymru, or

(d) Northern Ireland legislation;

‘relevant arrangements’ has the meaning given in paragraph 3(3);

‘relevant international agreement’ has the same meaning as in section (Implementation of other agreements on private international law (No. 2)).”

This new schedule is linked to Amendment (e) to Government NC5 and makes provision for regulations made by the Secretary of State under Government NC5 to be subject to super-affirmative procedure, and for all regulations made under that section by Scottish Ministers or Northern Ireland departments to be subject to the relevant affirmative procedure.

Government amendment 7.

Amendment 8, in title, line 1, at end add

“and the Lugano Convention of 2007;”

This amendment is consequential on either Amendment 1 or on Amendments 2 to 4 and NS1.

Amendment 9, line 1, at end add

“and to provide for the implementation of other international agreements on private international law, subject to certain conditions.”

This amendment is consequential on NC1.

Amendment 10, line 1, at end add

“and to provide, subject to a super-affirmative procedure, for the implementation of the Lugano Convention of 2007.”

This amendment is consequential on NC2 and NS2.

Amendment 11, line 1, at end add

“and the Lugano Convention of 2007; and to provide, subject to consultation and a super-affirmative procedure, for the implementation of other international agreements on private international law.”

This amendment is consequential on Amendment (e) to Government NC5 and NS3.

Jonathan Djanogly Portrait Mr Djanogly
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The main outstanding issue with the Bill concerns parliamentary scrutiny—that is, of the UK’s accession to a private international law treaty itself and then concerning orders made pursuant to that treaty. To those Members who may have been mesmerised by the complexity of the amendments today, I should say that this was not helped by the Government tabling their amendments only late last week, which required an element of guesswork for everyone else. Having said that, this belies a high level of consistency in the approach taken with tabled amendments by those who remain concerned at the Government’s position, as I shall explain.

Following Second Reading, the Government have unfortunately decided to re-table, almost unamended, the order-making powers as new clause 5, which was so decisively rejected in the other place. Despite multiple meetings with Ministers—where, I have to say, they have only been polite and listening—I am not much the wiser about the Government’s reasons for what can only be seen as a significant proposed extension of the power of the Executive.

The Government’s hinted amendment to remove criminal sanctions of more than two years’ sentencing from the order-making powers would be a good start but would not be nearly enough. I have therefore tabled amendment 2 and others, in my and others’ names. Those amendments need to be put into the context of the Bill as a whole. That is because the Bill only deals with the UK’s entering specific existing PIL treaties. It does not look at how we approve, or scrutinise entering, other future PIL treaties in the first place. Then it goes on to give the broad order-making powers for any unnamed future PIL treaties. I would suggest that, by focusing on future order-making powers, rather than the initial treaties themselves, it is effectively putting the cart before the horse.

Let us look at the initial treaty scrutiny in more detail. What is clear—and it is between both Houses—is that there is not a demand for approval by Parliament prior to signing of PIL treaties, in the same way, for instance, as exists, and is being argued for in the Trade Bill, for free trade agreements, so it is surely even more important that we have in place a modern, efficient and fair system for scrutinising PIL treaties before their ratification. The current system for doing so is via the Constitutional Reform and Governance Act 2010—CRaG—but no fewer than three Lords Committee reports over the past two years have described that legislation, based as it is on the 1924 Ponsonby convention, as outdated, inadequate, flawed and in urgent need of reform. In practice, a system designed a century ago to debate relatively simple trade deals was hidden behind the scrutiny and legislator approval afforded by our membership of the EU. Post Brexit, we now need a modern system that equates to those being used by our negotiating partners.

Different Departments of State are giving varying support for reform of CRaG, but none seems to wish to take ownership of it. It would be really good to have the Minister say today that the CRaG legislation does need reform and that his Department will take responsibility for that reform process. The issue is important, and intrinsic to our attitude to order-making powers in the Bill; because if, as those Lords Committees have been suggesting, there were to be a specific treaty Committee, and such a Committee could insist on a debate in Government time within a set period, with specific guidelines on access to information, the scrutiny of amendments, mandates, devolved Administration consultation and calls for evidence, then attitudes to order-making under these treaties would surely be somewhat more understanding.

When pointing out our lack of scrutiny compared with other countries, Ministers have said that although, yes, they admit it is true for the United States, Japan and the European Union, it is not true for Commonwealth countries such as Australia. I took that somewhat at face value, but a month ago there was a report by Emily Jones and Anna Sands of Oxford University, and they looked at the Australian equivalent system. In some ways, technically, it is similar to that of the UK; the power to enter treaties is a prerogative power. However, in practice, in the Australian system, once a treaty has been signed it is laid before Parliament for at least 15 joint sitting days before a binding treaty action is taken—20 days for major treaties—and the Government provides a national interest analysis to inform the Committee scrutiny work. There is also a very well established Joint Standing Committee system, which was set up as far back as 1996. The point being that, yes, I have heard Ministers say that we have the same system as in Australia, and technically we could say that; but in practice, they have a very much further developed scrutiny process than we have, and actually in both Australia and Canada, there are significant demands to move to a more United States-type system.

With that in mind, and as a first step, I tabled, in new clause 1 and as a stand-alone provision in new clause 6, a requirement that a Minister should lay a report before Parliament before the UK ratifies a PIL agreement with another country. I do not suggest that as an alternative to general reform of the CRaG Act, or as a move to the superior Australian system, but I move it as a reminder that the Justice Department should be adopting better practice, whatever happens with CRaG.

As things stand, however, these order-making powers attach to any PIL treaty made at any time in the future. That is much too broad. For instance, it treats laws on signing international business contracts or international financial bond issues as bundled together with the laws dealing with international divorces or child contact, which is surely wrong. That is the purpose behind amendment 2 and subsection (13) of new clause 1. A similar approach is adopted in Opposition amendments (a) and (b) to Government new clause 5. On the one hand, clause 1 is extended to include other treaties that we want to join; I have inserted Lugano, but there may be others. On the other hand, the new clause 5 order-making powers are restricted only to those treaties mentioned in clause 1, and not all PIL treaties now or at any time in the future, as provided in Government new clause 5.

Given the Government’s possible rejection of amendments 1 and 2, I think it important that, as a fall-back alternative, those Government new clause 5 order-making powers should be subject to a sunset provision. Although I do not agree with the arguments that these broad powers are needed in every case to sort things out in the aftermath of Brexit, at least with the sunset provision we would have a prospective return to normality. That is why there is a two-year sunset provision to the order-making powers in my new clause 1 and as a stand-alone in my new clause 8. Just as an improved scrutiny process is needed for initially entering these PIL treaties, it is also important when it comes to the orders made in respect of those PIL treaties. To be frank, I am currently not satisfied that Ministers have these important processes in place.

I have mentioned the CRaG Act, but also important is how Committees of the House are given a strong and ordered scrutiny role for future PIL treaties. I note that the Justice Committee, chaired by my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), was not even mentioned on Second Reading when the Minister spoke about consulting with Committees in the other place. My hon. Friend may well wish to address that in his comments later, but to me it was a somewhat stark reminder of how our scrutiny processes here are far from what they should be.

In an attempt to help the scrutiny process, new clauses 1 and 7 contain a further proposal that orders to implement a relevant international agreement can be laid only if a report is issued at least 10 Commons sitting days before laying such regulations—less than they have in Australia, I note. Such a report would give details of, and the reasons for, the agreement.

The official Opposition and the Scottish National party have taken a slightly different approach by proposing super-affirmative procedures, which seem to me to be also a reasonable way to improve scrutiny and which deserve the Minister’s consideration. As I said initially, the various parties’ amendments today are remarkably similar despite their quantity. I hope that that has not gone unnoticed by the Government.

In conclusion, we are talking about private international treaties that normally take many years to gestate. They are important for cross-border commerce and social issues, but are very rarely party political. There is rarely, if ever, anything fast moving about their formation—that is something of an understatement, I think—and there should be plenty of time for proper scrutiny of both their adoption and orders made in relation to them.

Whatever happens here today, the Bill needs to go back to the other place. I hope that that will provide a breathing space for Ministers to take stock of the issues at hand and agree a compromise position that should, frankly, have been reached by now.

Robert Neill Portrait Sir Robert Neill (Bromley and Chislehurst) (Con)
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I rise in support of the amendments in my name and that of my hon. Friend the Member for Huntingdon (Mr Djanogly). I agree with and adopt the arguments that he has made—in particular, in relation to scrutiny and the inadequacy of the current arrangements under the CRaG Act. That is not satisfactory, and we are going to have to address it sooner or later. As a consequence of leaving the European Union, we will be signing a great number of international treaties and other important international obligations, too—free trade agreements of many kinds. We do have to put in place a fit-for-purpose system, and relying on the Ponsonby convention really is not sustainable at the current time.

I had the pleasure, funnily enough, of knowing the third Lord Ponsonby of Shulbrede—now no longer with us—who was very active in London government, and it was his grandfather who was responsible for this. That is itself indicative of the passage of time. It was in 1924, at the time of the Zinoviev letter, when this convention was put in place, so we really do have to have something—with every respect to the memory of the Lords Ponsonby—that is more fit for purpose for the modern time, particularly because this deals with very important issues and because international treaties have themselves become much more complex and very frequently now have implications for domestic law, as well as international treaty law obligations. Therefore, a new system, as set out of my hon. Friend, for scrutinising these issues is something we have to do at some point.

The one issue that does need to be dealt with quickly—my hon. Friend is right about how long such treaties take—is that we should sign up to the Lugano convention as a matter of absolute urgency. It is one of the unfortunate consequences of our departing from the European Union that we will leave one of the most sophisticated and effective means of civil justice co-operation that exists. That was not probably something very much debated during the referendum, and it is perhaps collateral damage in that sense of the broader decision that was taken, which I have to respect, but it is an important potential loss for British legal services and British business.

That can be made good if we swiftly joined Lugano, and a number of other international conventions, including the various Hague conventions, that go with it. That is why our amendment would in fact place joining Lugano in the Bill, although I will not read out new schedule 1 in detail. There is a real concern among businesses, as well as among lawyers, of a lacuna. At the moment, any British company or individual contracting with someone in the EU or the European Free Trade Association for that matter would, by virtue of our membership of the EU, be part of the Brussels I and Brussels II recast conventions and also of the Rome conventions in relation to domestic family law. Those enable contracts to be recognised and enforced, and judgments of the courts on those contracts to be recognised and enforced automatically in any of the member states. We have that advantage at the moment by virtue of our membership of the EU, carried over in the transition period, but that will go.

Obviously, for any contract to be worth its weight, it has to be enforceable—there is no point in having it otherwise—and that runs across every type of business. There is the significant and highly lucrative development of derivatives and other financial instruments, in which the City of London remains a world leader, and they have to be enforceable should they ever be called upon, as do contracts for manufacturers or the supply of agricultural produce. Contracts for any type of good or service that have an international dimension have to be effectively enforceable, and the same applies for the rights of individuals.

For example, for the British tourist or business person abroad who is injured in a road accident where the defendant—the driver at fault—is resident in one of the continental states, at the moment they can pursue their action in Bromley county court if need be or in the High Court to get a judgment and then have it enforced in France, Germany or elsewhere. Without getting into Lugano, there will be a gap in that person’s ability to seek justice and redress. It would be unconscionable if we should get ourselves into that state of affairs.

There is also the position of the single parent if the father, perhaps, of a child has moved to one of the EU jurisdictions. At the moment, the mother can enforce the judgment of the British family courts for maintenance payments, access arrangements and so on. They can be enforced in the place where the father is domiciled, and she can get her money. Again, it would be unconscionable if we were to have a gap. I know that that is not what the Minister wants, and I know that the Government are striving earnestly to achieve this, but at the moment we do not have it. If I get the chance, I may say more about that on Third Reading, but that is why we think giving statutory provision for Lugano in the Bill demonstrates its importance.

As the negotiations go forward, it is obviously important that we get a deal on free trade in relation to goods and tariffs, but absolutely as important is that we get a deal on judicial co-operation—whether criminal and police co-operation, but also civil co-operation. I hope that our negotiators will be saying, “If we get a deal with the EU, part of that must include the Commission dropping its current objections to the UK joining Lugano.” I hope that that is a negotiating gambit at the moment. The EFTA members are happy for us to join. The EU members at the moment, on the advice of the Commission, are not. This may not be easy, because France and Germany, in particular, have a history of being highly protective towards their jurisdictions in matters of legal services, so it is not something that is to be a footnote for Mr Frost’s agenda—the full Frost agenda, if I can put it that way. It should be central. That is why we think it is sufficiently important to flag it up on the face of the Bill. The Minister knows that, and I think it needs to be stated and put out there, right across Government.

My other points relate to scrutiny matters and the need for us to move forward, because there will be other important treaties that we will need to sign up to. I am grateful for the briefings given by the Law Society and the Bar Council in that regard, and I ought to refer to my entries in the Register of Members’ Financial Interests. It is important, for example, that, as well as signing up to Lugano, we have a means of drawing on the choice of court convention 2005. That is critical as a supplement to Lugano. It is important that we should move to joining the Hague judgments convention 2019, which the UK was instrumental in developing. Putting those two together will be very important for the long-term future of English law clauses in many international contracts. There is a concern otherwise and some evidence already of suggestions of international contracts now having ouster clauses from English law, rather than having specific buy-in clauses to English law. That would be damaging to our position as an international commercial law centre and we want to avoid that. There has to be a means of dealing with that swiftly—there is no question of that—but there also has to be proper scrutiny, because these are complex matters.

We also need, of course, to be in Lugano as soon as possible, so that we can deal with the much vexed question of the “Italian torpedo”, which is not a piece of naval history, but is, in fact, what is sometimes described as a race to the courts. It is about going to the court where a party can claim some residence that is likely to get them the easiest and swiftest deal. It is a name from an Italian law professor, so it is not meant with any disrespect to Italians. This gets to the problem of conflicting cases being run in different jurisdictions—a case being run in Italy and a case being run in the UK, for example, on the same subject matter. It is often family work. To change Lugano, we have to be in it, so that is why, again, getting into Lugano swiftly is absolutely critical. That is all the more important in those cases, since we will not be able to rely on the Brussels regime, as it has been recast, largely—ironically—as a result of work by British Ministers and British jurists to improve the system. That is why we need a proper system for ratification.

The other important point to make at this stage is there are some significant gaps, which I hope the Minister will be able to address, in terms of how we go forward. We know, for example, that within the international conventions to which we seek to adhere, there are ousters at the moment by the EU in relation to contracts for insurance. The insurance market is very important to the United Kingdom, so we have to find a means of making sure that we will have effective recognition and enforcement of judgments in relation to insurance contracts. That is an important issue for the United Kingdom. We will need a means of dealing with what appear to be slightly inconsistent approaches—between the approach in the Bill and that in some of the regulations that were brought in under the European Union (Withdrawal) Act 2018, set in tandem with the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019. That is essentially about how we resolve disputes after exit day. There is a distinction in the approach adopted between common law and EU law in those two separate regulations, so that needs to be ironed out as a matter of some speed. Otherwise, we run the risk of conflict.

In fact, the House of Lords European Union Committee, back in 2016-17, highlighted the risk of adverse consequences for business and the importance of having certainty with this on the choices that businesses are making as to whether or not to select English contract law as the law governing commercial relationships. Of course the same would apply, where relevant, to Scots contract law because both jurisdictions have well-developed legal processes and a good reputation in those fields, so it is important that we preserve that. But the way in which the Government are doing it, with this very broad-ranging regulation-making power, is troubling.

As a former criminal practitioner, I have a particular issue with the ability the Bill at the moment gives the Government to increase penalties and, potentially, to create new offences by statutory instrument. We all know that certain types of offence have been created over the years by SIs, and the Minister and I have both dealt with them when in practice at the Bar, but generally they are of a regulatory nature—for example, they deal with health and safety, construction or vehicles. Taking out offences that have a sentence of more than two years as a maximum penalty is a start, but I am sure the Minister will know that offences carrying less than two years’ imprisonment can have profound reputational consequences for those who may be convicted of them. Often, the fact of the conviction of the offence will destroy someone’s reputation or career, rather than, of itself, the length of the sentence. I therefore hope the Government will reflect again on whether it is appropriate to use these SIs for the creation or extension of any type of criminal offence or penalty without a much greater level of scrutiny, which one would ordinarily expect. That is why the super-affirmative procedure offers a way forward, but better still let us use these to deal with regulatory and civil law matters, not ones that touch on the liberty or reputation of the subject.

It is important that we come to a clear decision on how we go forward with the considerable detail that will need to be put together once we have left. As well as getting into Lugano, a lot of these other SIs due to come into force at the end of the transition period were brought in swiftly at the time, and the Bar Council has expressed concern at the lack of consultation with the professions on them. I hope that the Minister can now make this good by undertaking that there will be the closest possible consultation with the specialists in the profession, for example, with the Family Law Bar Association, the Law Society’s family law committee and the Lord Chancellor’s international law committee, which is headed by distinguished jurists. Let us reach out to the expertise in the legal community in the UK and not do it “in-house” within Whitehall; let us bring in the important expertise we have elsewhere.

As to what we are going to do about arbitral arrangements, we have a growing arbitration centre in the UK. Arbitration and mediation are often seen as an important way forward for international dispute resolution, and we need to have a firm framework upon which we can undertake those matters in the future. The amendments that my hon. Friend the Member for Huntingdon and I have tabled are not intended to obstruct the Bill; they would help its passage through the other place, where I fear it will otherwise have some difficulty. The Minister has seen the speeches in the other place, so there is a bit of enlightened self-interest here. I urge the Minister to listen favourably to what we say and let us see whether we can find some compromise and undertakings at least on the way forward that will meet some of those legitimate concerns.

John Howell Portrait John Howell (Henley) (Con)
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Let me first declare an interest, as an associate of the Chartered Institute of Arbitrators. I take a different view on this Bill from my hon. Friends the Members for Huntingdon (Mr Djanogly) and for Bromley and Chislehurst (Sir Robert Neill). When I looked at the Bill and what it does, two words came out as being necessary to preserve, the first of which was agility. The Government need to have the agility to be able to implement treaties in this way. The second word was “flexibility”, which partly comes down to the issue of speed. My hon. Friend the Member for Huntingdon was wrong when he said that these sort of treaties take forever and there is no rush to get them through. There is a rush to get them through. One example of where there is a need to get a treaty sorted out is the Singapore mediation convention. It harms absolutely no one. All it does is make the decisions that are reached in mediation in countries that have signed the convention applicable anywhere around the world. It stops the enormously artificial process of having a mediation and then changing the mediators for another set of arbitrators, who then introduce the arbitration on exactly the same lines as the mediation in order for it to be caught by the New York convention, which is applicable around the world and which we have signed.

Understanding why we need to be quick with that treaty, which, as I say, does no harm, comes back to the visit that I and colleagues from both sides of the Houses made to Singapore earlier in the year. We have heard that many people see alternative dispute resolution as the way forward, but that is a complacent way of looking at the situation in the UK. The UK is not doing very well at maintaining itself as a global hub for alternative dispute resolution. The facilities available for conducting arbitration or mediation are far inferior to those that can be found in Singapore. If we sit around for much longer thinking that we can carry on being the global hub for this, we will lose that position very quickly and it will go to somebody else.

The techniques that we need to approve a major treaty are completely different from the sort of techniques that are needed to adopt a small treaty such as the Singapore mediation convention. We are speaking not about a new Maastricht treaty, but about treaties such as the Singapore mediation convention. We do not need an Act of Parliament for that; we need Ministers to get on with signing and implementing them as quickly as possible.

The Law Society has rather missed the point. It stresses the point that the effects of a treaty can have influence on domestic law, but it totally ignores the need for speed and it falls into the trap of complacency when it looks at the situation in the UK and the global role that we play. The House of Lords, when it looked at the measure and made its recommendations, also failed to recognise those points. I say again to the Minister that he needs to judge these amendments and new clauses according to whether they increase his agility and flexibility to get treaties such as the Singapore mediation convention signed and operational as quickly as possible.

Sarah Dines Portrait Miss Sarah Dines (Derbyshire Dales) (Con)
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6 Oct 2020, 12:05 a.m.

It is a pleasure to speak under your chairmanship, Dame Eleanor. As a relatively new Member of Parliament, it really is a joy to be speaking on this Bill. I refer the House to my entry in the Register of Members’ Financial Interests. I was a practising barrister for 30 years and for many of those years, I practised in these areas.

I am truly delighted to be speaking on this Bill in Committee. The very consideration of it is evidence that the transition period of our leaving the EU is coming to an end. For me, that is very welcome news. I support the propositions put forward by my hon. Friend the Member for Henley (John Howell), who said that the Government need to be responsive, and there is a need for speed, agility and considered thought.

It is of course right that, prior to the end of the transition period, the UK takes steps to ensure continued participation in key agreements in its own right, at last as a free and independent trading nation. From 1 February, the UK has regained full competence to enter into this sort of international agreement in the field in its own right. This is wonderful progress. As the UK develops its wider trading policy with the EU and the rest of the world, PIL agreements will be key to supporting cross-border commerce, which will be particularly important going forward. They will also regulate the very foundations of our society—how we deal with international family law matters—and build confidence for consumers as to how trade and disputes will be settled, all of which are very good things.

Cross-border commerce and trade are a vital part of life and UK businesses, individuals and families need to be able swiftly to settle cross-border disputes. International agreements on PIL are designed to help us: they provide that legal framework to resolve these difficult situations. These agreements will help us, as I know from my practice, to return children who have been abducted by one of their parents. They will also help a small business that has been left out of pocket by a supplier in another country to seek redress. Without these agreements, and without them being promptly brought into our law, families and businesses will be engaged in cross-border disputes that they will struggle to resolve. There are competing jurisdictions and competing processes, and it is very important that these matters are settled swiftly.

I have direct experience in my 30 years at the English Bar of just these types of disputes—far too many cases for me to go into in this short speech. The 1996 Hague convention is a well-known multilateral treaty aimed at improving the protection of children. It provides an important framework for the resolution of issues, such as residence and contact between separated parents who live in different countries. It is essential that we move swiftly on this, and this Bill allows us to do so and to move forward. Similarly, not to repeat too much of what my learned friends have said, the 2005 Hague convention is another multilateral treaty aimed, this time, at ensuring the effectiveness in relation to court agreements.

We really need to get this matter right. This is hugely important. It will contribute to London continuing to be a major legal and commercial centre in the world. It is important that we take considered, but swift, decisions. I hope that, in my term as a Member of Parliament, this place moves forward to be more responsible and more responsive to what its citizens need, rather than looking back at some of the lesser parts of our history. It is time to move on.

The 2007 Hague convention focused on the international recovery of child support and other forms of family maintenance. These are very important treaties and they need to be dealt with promptly. Again, I have been involved in many such cases at the Bar. It is essentially a good thing. By supporting this Bill, the House will help to ensure that civil, commercial and family law judgments will continue to be recognised and enforced across borders by our international partners. These agreements are likely to reduce costs for UK businesses, individuals and families involved in cross-border disputes while decreasing legal certainty for all—those travelling, those trading, those living, and those marrying and having families abroad. We do, of course, need to be agile and fast. We need to be considered. The points made by my hon. Friend the Member for Henley were spot on. Although I have great respect for my hon. Friends the Members for Bromley and Chislehurst (Sir Robert Neill) and for Huntingdon (Mr Djanogly), I do not support the amendments that they have brought forward. There is another time for detailed consideration of CRaG. There is another time for detailed consideration of reform. We need to act now.

When preparing for this speech, I was interested to read what was said in the House of Lords in relation to clause 2. It was very interesting to listen to what the noble Lords said on 13 May 2020, I was fascinated by what Lord Falconer said. I will not repeat it all, but what I will say is that I have waited 30 years to be able to say this in this House: what a prime example of political and legal grandstanding. The main argument was that to use delegated legislation was effectively a power grab—a matter of constitutional impropriety. What utter nonsense. We must not forget that it was the Labour Government who agreed to the use of delegated powers in all sorts of manners. We cannot spend 24 hours a day, every day, going through each and every little thing because the Opposition parties want to bring forward primary legislation. I am a free marketeer, a partial libertarian, I think that we need less law. We need very well-honed, primed, proper law to deal with the situation in point.

There is nothing wrong with delegated legislation, for which we have a well-established scrutiny system. It is highly hypocritical for those opposing the Bill to object to the use of the DL in the other House when prior to our leaving the EU we had little or no say on the implementation of treaties—they were solely a matter of EU competence and as a nation we had little say. At least our own Ministers will be able to decide on these issues when exercising properly delegated legislation. I know which institution I have more trust in. It is the Ministers of this Government who are held to account in this Chamber, rather than those in the EU.

In conclusion, it is constitutionally appropriate and proportionate to use delegated powers to implement international agreements on PIL law in domestic law. Without such a power, things would be difficult. We simply are not able, and it is not appropriate, to bring in primary legislation each and every time. This is a measured, proportionate approach, and I have absolutely no hesitation in supporting the Bill and opposing the amendments.

Jerome Mayhew Portrait Jerome Mayhew (Broadland) (Con)
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6 Oct 2020, 12:05 a.m.

I cannot match the technical analysis of my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), but I hope I can bring to today’s deliberations some practical experience of the implications of new clauses 2 and 5.

The honouring of agreements has been at the heart of international trade since such trade began, but it is worth remembering that Governments have not always supported international trade. If we look back at the approach of our Government and other Governments in Europe from the 16th and 17th centuries, and even well into the 18th century, we see that we operated mercantilist policies that actively prevented international trade. Such trade was discouraged to protect domestic manufacturing. Policies such as high border tariffs were implemented, and there were even export bans on tools that could be used to improve manufacturing in third countries. Many arcane rules and requirements to use local suppliers and local trades were implemented to make it harder to undertake international trade.

There was also no support for the legal enforcement of contracts. Consequently, businesses had to make their own arrangements, which were founded primarily on personal trust and the reputation of organisations and families. I have some personal experience: I was once recruited by my brother to work in his company, eventually as the managing director. His rationale was that he had no idea whether I was competent at anything but did know that I was unlikely to steal from him. I will leave it to other people to decide whether that was ultimately good for the economy of that business. On an international basis, that approach has been disastrous: throughout the 16th, 17th and 18th centuries there was a general stultification of growth.

I am delighted to say that it was the United Kingdom that led the world away from narrow protectionism and towards free trade. That great man Adam Smith led the charge. He destroyed the argument for protectionism, demonstrating the desirability of imports—they are more efficiently produced and therefore cheaper—and stating that exports were merely the necessary cost of acquiring them. It was through this place that we led the way in the repeal of protectionist laws: first, with the Reciprocity of Duties Act back in 1823, and then much more famously with the repeal of the corn laws in 1846. What was the result? We see it if we look around us today: the explosion of world trade.

PIL agreements have been crucial to the modern support of international trade. They bring legal certainty, deal with conflicts of jurisdiction and allow for judgments to be enforced internationally. The Bill helps to achieve those aims, particularly as we transition from EU membership into the big wide world. That transition period, to which I shall come back later in my speech, is relevant because of the time constraints that it imposes on Her Majesty’s Government.

I want to return to my first-hand experience of the impact of PIL agreements. I was the managing director of a UK-based SME that was entrepreneurial in its outlook, and we were doing pretty well in the UK, so naturally I looked to international markets as a means for expansion. In my time, I negotiated joint ventures in Russia, the United States of America, Australia and South Africa, as well as undertaking preliminary discussions in a number of other jurisdictions. It was noticeable that the only two joint ventures that we progressed to fruition were those in the United States of America and Australia, and the fundamental reasons that I felt unable to progress further in those other jurisdictions were the fears over the enforceability of contracts, particularly in relation to intellectual property, and the fears over the effectiveness of the rule of law in those jurisdictions. PIL agreements affect countless such economic decisions all around the world and in this country every day, so we must not underestimate their importance for economic decisions just like the ones that I took.

There is an urgent need for more PIL agreements, particularly as we move out of the transition period. They are an integral part of our pivot towards global Britain, and there should be no unnecessary delay in the Government’s ability not only to negotiate such agreements but to bring them into force. International enforceability is key to trade growth and to London remaining the centre of dispute resolution around the world. It is also key to the continued dominance of English and Welsh law, and it is worth reminding ourselves that that law is dominant because it is predictable in its interpretation and its enforceability. That is a key advantage for this jurisdiction.

I understand well the concerns that have been raised by old clause 2 and new clause 5. As a Back Bencher, I stand here to defend the rights of Parliament, but it is also right that I should do that with a sense of proportion. PIL agreements are significant—I have done my best to explain how significant they have been to international commerce—but they are fundamentally uncontroversial. They are not major treaties in the sense of Maastricht, which was mentioned by a previous speaker, and we need to have some practical considerations weighing on our mind as we decide whether we should implement new clause 5.

The transition period is a time when we should be lifting our eyes to the wider horizons of international trade, and that is going to mean many more PIL agreements. As my hon. Friend the Member for Henley (John Howell) highlighted, the Government’s agility, and their ability to strike while the iron is hot to take advantage of this brave new world into which we are entering, are material practical considerations. We also have the legislative timetable to consider. It is already clogged up with covid-related delays, and to require multiple Acts of Parliament to be progressed through that clogged-up timetable in order to progress time-sensitive and time-critical agreements would be disproportionate. It would create negative delay for the Government’s domestic agenda as they seek to progress this stodge, and delay for the implementation of the agreements themselves.

As a businessman and as a Back Bencher defending the rights of this Parliament, I operate with that sense of proportion, and my conclusion is that it would not be proportionate to prevent the Government from using secondary legislation in this manner. Consequently, I support the Government’s new clause 5 and I am against new clause 2.

Dehenna Davison Portrait Dehenna Davison (Bishop Auckland) (Con)
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6 Oct 2020, 12:05 a.m.

I rise today not as a lawyer, surprisingly—like many right hon. and hon. Members across the House—but merely as someone who has taken an interest in the Bill because I want the best for my constituents. I often joke that I am bilingual, because I can speak standard English and northerner, but I do not speak legalese, so Members may have to forgive me for a bit of plain speaking on this one.

New clause 5, which has been the subject of much discussion, effectively sets out the procedure by which international agreements on legal disputes are brought into UK law. The new clause would allow Ministers to implement treaties via an affirmative statutory instrument, rather than going through the full primary legislative process.

Some of my hon. Friends have expressed concerns about the impact of the Bill on parliamentary scrutiny. I assure colleagues that I firmly and fully believe in parliamentary scrutiny; last week, I was one of the signatories to the Brady amendment on the continuation of the Coronavirus Act 2020 for that very reason. However, I will make two key points. First, mechanisms for scrutiny already exist through CRaG and the affirmative statutory instruments procedure. That means that any statutory instruments laid would have to be actively approved by both Houses before coming into force, and would also be examined by the Joint Committee on Statutory Instruments.

Secondly, there is a finite amount of time available to us to debate matters in the House. As with many things in life, it is a matter of prioritisation. When I speak to Bishop Auckland residents, they want to know that Parliament is talking about the things that matter to them. Of course, to some, PIL treaties are highly important and at the top of their mind, but a vastly larger number of my constituents want to hear us talking about healthcare, education, crime and immigration—big picture stuff that has an impact right across society. If PIL treaties were subject to the full primary legislative process, there would be less time for those hugely important issues.

My hon. Friend the Member for Huntingdon (Mr Djanogly) was quite correct in outlining the complexity of the Bill and its amendments. Despite what I have just said about our constituents’ priorities, we also need to ensure that, despite its complexity, we do not lose sight of the tangible impact that the Bill could have on our constituents. I am grateful to my hon. Friend the Member for Broadland (Jerome Mayhew) for sharing his own experiences on that. If local Bishop Auckland companies that trade internationally, such as Equus Leather and Scott Leathers, were to enter into a dispute over, for example, unpaid invoices with a company from abroad, they would need to know how that legal process would work. We need to ensure that they are not dragged through UK courts and foreign courts, incurring all that additional cost, time and stress.

That is where PIL treaties come in. I firmly believe that Ministers need the freedom to make PIL treaties, knowing that they can be implemented into UK law quickly, to provide that protection for our businesses and individuals, as outlined by my hon. Friend the Member for Henley (John Howell) when he spoke about the speed that is sometimes needed. Furthermore, we need to be able to move quickly to cement international agreements and preserve our reputation on the global stage. As my hon. Friend also said, we need to make the UK a global hub for international dispute resolution, so speed is critical.

As we leave the EU at the end of year, this is our opportunity to go out into the world and make international agreements that will make things better for our constituents. We must embrace that opportunity and strike while the iron is hot, but, as my hon. Friend the Member for Derbyshire Dales (Miss Dines) rightly said, we do not need to lay primary legislation for every PIL agreement that our Ministers make. This is a proportionate Bill that allows us to protect our constituents, while new clause 5 ensures that in this Chamber, rather than seeing half-empty Benches bogged down by legalese and technical detail, we can continue to focus on the wider priorities of the people we are elected to serve.

Rob Butler Portrait Rob Butler (Aylesbury) (Con)
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I rise to speak in support of new clause 5 in the name of the Minister, which, on balance, I believe would result in proportionate scrutiny for the measures that would fall under the jurisdiction of the Bill. The general points about the need for international agreements on private international law have been well rehearsed. Without such agreements, there would be a considerable impact on British businesses, individuals and families who are engaged in cross-border litigation. Indeed, it is not inconceivable to foresee a situation where parallel judgments by different courts contradict each other, resulting in legal limbo with little hope of redress and no hope of justice.

That is perhaps particularly evident in the case of custody disputes, where a child has been abducted and taken outside the UK by one parent. Right hon. and hon. Members across the House are no doubt all too aware of examples of such cases. Sadly, that pain has been felt by families in my own constituency of Aylesbury. If we compound that heart-wrenching situation with a quagmire of legal process in different jurisdictions, with no mutual recognition of judgments, desperation becomes hopelessness, and loving parents risk permanent separation from their children.

Less emotional, but equally important, is the plight of small British businesses seeking redress from an overseas supplier or customer. Buckinghamshire has more microbusinesses than any other county in the country. There are small firms that need the law to be simple and straightforward, so that they can focus on what they do best—producing goods and services that generate wealth and taxes—safe in the knowledge that the judicial system is there to protect them.

New clause 5 seeks to use delegated legislation to ensure that any future agreements concerning international private law are speedily implemented, thus benefiting individuals, families and businesses in the ways I have described. Parliamentary scrutiny will exist through the affirmative process, and what is more, it will be prompt. That seems to be appropriate and proportionate. Insisting on primary legislation to bring such new agreements into effect is disproportionate and unnecessary, not least because of the likely challenges of finding parliamentary time for what, as other Members have said, are unlikely to be matters of huge controversy. When international private law agreements were in the competency of the European Union, they were implemented by direct effect. Once the transition period is over, Members of this House will be able to scrutinise and vote on such agreements, bringing power back to Parliament through the DL procedure.

I am rather surprised by some of the opposition to new clause 5, both from Opposition Members and from the other place, because what is proposed today is not novel. There is precedent for the Government’s proposed course of action, and precedent is not to be lightly dismissed. Indeed, in justifying the decision of one of Mr Speaker’s illustrious predecessors, Erskine May said that he had

“found what convinces the House of Commons more readily than any argument—I have found a precedent”.

Several Acts passed in this place contain delegated powers concerning international private law. The Foreign Judgments (Reciprocal Enforcement) Act 1933 contains delegated powers allowing decisions to be made by Order in Council. The same is true in family law relating to the Maintenance Orders (Reciprocal Enforcement) Act 1972 using the same mechanism. I therefore support the Government’s desire to introduce new clause 5 and hope that Members of the other place will feel able to take the opportunity afforded them of a second chance to consider the implications of their earlier action.

As we conclude the transition period from leaving the EU, I want the UK to be a country where we focus on getting deals done, where we support our businesses to trade and where we strive to protect our citizens’ rights in a way that is straightforward and fair. I have had countless emails from constituent businesses asking me to ensure that they can run as smoothly as possible after the transition period. I have not had one single email from a constituent business demanding primary legislation for every single commercial agreement that is made in future—that is not a cue to 38 Degrees to start such a campaign.

I want us to be agile in the way we respond to opportunities from our friends and partners overseas and able to follow up an agreement made in person with swift delivery of parliamentary scrutiny in proportionate form that enables us to implement a deal and reap the benefits in short order. Businesses in my constituency of Aylesbury are hungry for the opportunities that await us on the international markets. They want Parliament to pave the way for them to bring greater prosperity to our country. Let us do that with new clause 5.

Owen Thompson Portrait Owen Thompson (Midlothian) (SNP)
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I rise to speak in support of the amendments in the name of my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry) and myself. As other Members have said, there is a degree of consistency across a number of the amendments on the selection paper.

I welcome the action to enhance transnational co-operation. For once, instead of measures that seek to breach international agreements or upset international partners, this is a step in the right direction and a move that I hope we will see reflected in other bits of legislation that the Government bring forward.

I wish that this Bill was not necessary, but, having left the European framework, it is essential that we make alternative arrangements to ensure that the three Hague conventions still apply, to prevent Scottish businesses and families from being disadvantaged. The conventions add legal certainty for parties to cross-border commercial contracts, and they help with family maintenance decisions across borders and the protection of children in disputes where parents have separated but live in different countries. These conventions may be technical, but they are very practical for those caught in difficult and tangled situations. There is therefore a clear need to replace the previous mechanisms whereby the EU reached agreements on these types of cross-border disputes on behalf of member states.

Aspects of this legislation fall within the devolved competencies, forming parts of Scots private law relating to choice of jurisdiction, recognition of judgments and enforcement of decisions. The Bill, if passed, will provide reassurances, in particular, to those affected by cross-border family support and custodial mechanisms, so we are keen to see that move forward. The Scottish Government have considered the aspects that require a legislative consent motion under section 28 of the Scotland Act 1998 and will seek consent from the Scottish Parliament to allow agreement to the Bill. The Bill has been drafted with great respect for devolution and, again, I very much welcome that. It is the proper and democratic way to proceed. It is a great pity that that is not always the case with this Government, but certainly it is very much to be welcomed in this case.

I speak in favour of the amendments proposed by myself and my hon. and learned Friend the Member for Edinburgh South West. I pay tribute and give thanks to the Law Society of Scotland, which has supported us in the drafting of them. Amendment 10 has a particular focus on the Lugano convention, and the hon. Member for Bromley and Chislehurst (Sir Robert Neill) has already told us of the significance of the need to put the mechanism in place and of having it on the face of the Bill. Given the Government’s confirmation that they are intent on continuing with the convention, putting it on the face of the Bill would be a proper and appropriate way of doing that. The convention created common rules across the EU and EFTA, avoiding multiple court cases taking place on the same subject and saving the costs of all those involved. I welcome the steps taken.

The regrettable decision not to be part of the single market may yet come back to hit us. However, we are where we are, and if the UK joining the convention in its own right is accepted by 31 December, we will need to work quickly to introduce a simple mechanism to implement the convention. That is what the amendment from me and my hon. and learned Friend the Member for Edinburgh South West seeks to achieve, and I argue that the Government should amend the Bill to provide for a regulation-making power focused specifically on the implementation of the Lugano convention. That point is not being made just by Scottish National party Members; it is reflected on all sides of the House. That, in itself, speaks volumes.

It is important to note that that move would not preclude us from reinstating the previous regulation-making powers under clause 2 that were removed from the Bill during its passage in the other place. As was said earlier, that debate raised legitimate concerns about the lack of parliamentary scrutiny of delegated legislation, and I strongly suggest that the Government strongly reflect on that when seeking to reintroduce those powers.

The Bill fulfils a commitment in the political declaration between the UK and the EU, and I recognise that. I certainly welcome the fact that in this situation at least the Government appear to be looking to keep their promise and to keep private international law clear after the transition. As a proud internationalist, I welcome any measures that will continue to help to support and facilitate cross-border co-operation.

David Lammy Portrait Mr David Lammy (Tottenham) (Lab)
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On Second Reading, the official Opposition made it clear that they would oppose any attempts by the Government to reintroduce clause 2, which was removed by a majority in the other place. On Second Reading, numerous Members on both the Opposition and Government Benches made very sensible suggestions on how the Government could modify clause 2 and harness cross-party support. Sunset clauses, placing Lugano on the face of the Bill, as has been suggested by Members across the House this afternoon, and limiting the power of clause 2 were all among the suggestions discussed. Very sadly, the Government did not listen. That is surprising, particularly for this Minister, who is known to be attentive and a very able lawyer indeed.

The Government did not listen to the reasonable concerns voiced by the Chair of the Justice Committee, who, in his usual manner, made a moderate, sensible and clearly legally articulate speech, or to the concerns of the country’s most pre-eminent legal minds in the other place. They did not listen to the House of Lords Constitution Committee or to members of the Delegated Powers and Regulatory Reform Committee, which considered whether the powers contained in clause 2 should stand, and was frankly unanimous that the powers should not stand. They did not listen to the concerns of the Bar Council of England and Wales, the Law Society of England and Wales or the Law Society of Scotland. It is a great shame, therefore, that the Government have sought to reintroduce the exact same clause 2 in the shape of new clause 5, and the Labour party will keep its word and vote against new clause 5 today, if it remains in its current form.

The Lord Chancellor explained on Second Reading that the rationale for clause 2 was to ensure that the 2007 Lugano convention could be implemented swiftly and before the end of the transition period. That is a perfectly reasonable ambition. As we have heard, the Lugano convention is vital to ensuring that cross-border judgments can be enforced, and there is indeed a pressing need to implement it before the end of the transition period, but there is a question as to how.

The hon. Member for Huntingdon (Mr Djanogly) made a very good speech and his amendments go to the issue of the arrangements that we should have, particularly in relation to CRaG, as have been supported by the Chair of the Justice Committee. Even though those amendments are not in my name, I endorse what has been said; we do have to have architecture that is fit for purpose in the 21st century, and certainly architecture and scrutiny powers that befit the sixth biggest economy in the world and are as good as those in countries with which we would seek to have trade deals and private international agreements. But that is not the case. No one could argue that an arrangement set up in 1924 is fit for purpose. I support those remarks.

I turn to the amendments in my name and the name of the leader of the Labour party. Amendment (a) to new clause 5 would specifically allow new clause 5 to implement the Lugano convention. Similar amendments have been tabled by the Chair of the Justice Committee and by the Scottish National party. Each of those amendments would allow the Government to carry out their stated aim of implementing the Lugano convention without granting the Government sweeping Henry VIII powers and the ability to sideline Parliament. I say to the Under-Secretary of State for Justice, the hon. Member for Cheltenham (Alex Chalk), that he does not look like Henry VIII; nor, I suspect—when I recall the history books—does he have the manner of Henry VIII. Why, then, does he need these powers, which I fear he will rise to his feet to suggest he must have?

Of course, the Government have the other option, which is to add the Lugano convention to clause 1, which would allow them to implement it in domestic law as soon as the Bill is passed. As we set out on Second Reading, we have no objection to the important international agreements in clause 1 being incorporated into domestic law in the proper way—by primary legislation that is debated on the Floor of the House. We would have no objection to the Lugano convention being added to that list. If the genuine intention behind new clause 5 is to implement the Lugano convention, I look forward to the Government accepting Labour’s amendment (a) or one of the similar amendments, although we have to ask ourselves whether that is really the Government’s intention.

That brings me to Labour’s final amendment to new clause 5, amendment (e). Labour is concerned about the inclusion of new clause 5 because it represents a hugely significant change in the balance of power away from Parliament and to the Executive. New clause 5 would erase the convention that international legal agreements that change our domestic law can only be given force by an Act of Parliament. Instead, this Parliament will allow them to be implemented without any parliamentary scrutiny at all. We on the Labour Benches agree with the Constitution Committee, when it said:

“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.”

We heard from the hon. Member for Derbyshire Dales (Miss Dines), who spoke about her experience as a barrister for 30 years. There has been much debate in this Chamber about exiting the European Union, but the primary objective was to bring sovereignty back to this Parliament. That is why we did it. Why, then, are we having a debate today about taking that sovereignty away from this Parliament and giving it to the Executive? That is not the way things have traditionally worked in our country.

I am straining a bit to think of those private international law modules that I and several other Members took. It was not my favourite area of law, but I do not recall it being vaguely contentious in a partisan or political way. It was contentious sometimes for the parties involved, particularly in areas of child abduction or domestic affairs, and it can be very important economically for businesses in dispute, but I struggle to recall it being a partisan debate between political opponents.

It is rather peculiar therefore that yet again I find myself at this Dispatch Box representing the Labour party as the conservative in this Chamber—it is perhaps why I chose to wear my blue tie this afternoon—arguing for law as we have traditionally had it. I look forward to the radical speech that will follow from the Minister.

As Members of Parliament, we have a duty to exercise extreme caution when considering measures that change our constitution, particularly at times when the Executive are empowered and Parliament is weakened. As we have seen in recent months, the Government have shown a disturbing over-reliance on using secondary legislation to bypass Parliament, as well as to avoid parliamentary scrutiny. Giving effect to broad international treaties in domestic law should never be a rubber stamp exercise, and it is vital that Parliament has a say. That is why we tabled amendment (e), which would ensure that any international agreement the Government wish to implement by secondary legislation must be subject to a super-affirmative resolution procedure before Parliament.

Let me be clear on one point: the Labour party would much prefer that all international agreements were implemented by primary legislation, but we are also pragmatic. We recognise that, with the end of the transition period quickly approaching, the Government must move at pace to ensure that legislation is in place. The amendment would ensure that international agreements could be implemented by secondary legislation, but that Parliament would still be given a crucial chance to scrutinise the secondary legislation that flows and, further, to make recommendations to the Government. We believe that to be a wholly reasonable proposal that reflects the legislative difficulties posed by Brexit while also protecting the primacy of Parliament, and that is why, if the Government believe in the importance of parliamentary scrutiny, they should accept the amendment. After all, it would appear strange for a Government so keen to take back control with regard to leaving the European Union to be reluctant to allow our own Parliament to scrutinise the legislation relating to that departure.

We believe that the Labour amendments to new clause 5 provide the Government with a constructive and reasonable approach. The amendments allow the Government to achieve the objective they claim is behind new clause 5: to implement the Lugano convention while also protecting parliamentary scrutiny. Nothing in these amendments, or any of the other amendments, hinders the Government in their stated aim. Indeed, they serve no other purpose than to protect parliamentary scrutiny. If the Government vote against them, they will be voting for, as the hon. Member for Huntingdon quite rightly said, one of the largest potential power-grabs ever seen by the Executive in this Parliament. I hope that this Government do the right thing and show that they do indeed value the role of the House and the role and value of parliamentary scrutiny.

Alex Chalk Portrait The Parliamentary Under-Secretary of State for Justice (Alex Chalk)
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6 Oct 2020, 3:55 p.m.

It was a great pleasure to listen to the powerful advocacy of the right hon. Member for Tottenham (Mr Lammy). Unfortunately, on this occasion, I am unable to agree with him, but out of courtesy to him I will explain why.

It is a real pleasure to address the Committee of the Whole House on a Bill which, while technical, is of great importance. Private international law is not just an arcane and abstract legal construct. As my hon. Friends the Members for Broadland (Jerome Mayhew), for Derbyshire Dales (Miss Dines) and for Aylesbury (Rob Butler), among others, have indicated, it is a very real framework for the dispute resolution of cross-border civil and family justice matters that affect families and businesses in our country. Indeed, the hon. Member for Midlothian (Owen Thompson) made the point that every time we enter into one of these agreements we strengthen the international rules-based order. That is a point we should not lose sight of either.

I am very grateful for the quality of the debate that we have witnessed today, as well as on Second Reading. It has been, if I may say in all sincerity, a debate of conspicuous clarity and ability. I really do appreciate the interest that has been shown in these important matters. I thank colleagues from across the Committee for the time they have taken to prepare the amendments and for the explanations that they have provided. Even where the Government take a different view—which, as I say, I will come on to explain—I recognise that these are serious amendments that have been tabled in good faith in an endeavour to improve the legislation.

Let me begin, if I may, by turning to amendments 5 and 6, new clause 5, new schedule 4 and amendment 7. Taken together, these amendments, in effect, restore the implementing power that was deleted in the other place and reverse the consequential amendments that flow from their deletion. The ability to be able to implement PIL agreements in a timely and effective manner is important. One of the things that really shone out from the excellent contributions that we heard was the word “agility”, which was used by my hon. Friend the Member for Derbyshire Dales in referring to the context of family agreements, and by my hon. Friend the Member for Broadland and, indeed, by my hon. Friend the Member for Henley (John Howell) in talking about the Singapore mediation agreement. That agility is important. It is what allows the UK to be a credible negotiating counterparty, so that if British Ministers agree a PIL agreement—which, incidentally, strengthens the international rules-based order—it can be brought into effect in an agile way.

If indeed, as we all appear to accept, such agreements are good for citizens and businesses, we want to make sure that there is no undue delay in rolling out those benefits. There is a public interest in ensuring that implementation and scrutiny mechanisms are proportionate—again, a word that shone out from the contributions we have heard—in striking the important balance between timely implementation and appropriate scrutiny. If I may make one point about the contribution by the right hon. Member for Tottenham, I think it is fair to say that he did not dwell particularly on the scrutiny procedures that are in place. I will develop that a little bit, and I hope that will put his mind at rest. I do not suppose that I will be able to get him to join us on the Government Benches, but I live in hope.

The provisions are necessary and proportionate because the agreements are recognised across the House as manifestly in the public interest. If I may say respectfully to my hon. Friend the Member for Huntingdon (Mr Djanogly), one of the principal points he made actually, I suggest, undermined his argument. He said, “These are very rarely party political.” The right hon. Member for Tottenham said, “I don’t recall it being vaguely contentious.” He is absolutely right. These agreements are not contentious.

Indeed, if we look at the previous Lugano convention in 2007, or at the previous Hague conventions, which we are introducing under clause 1, nobody ever prayed against them. Equally, on the old Lugano convention—the 1988 one, which preceded the 2007 one—I think only three of their lordships spoke in the other place, there were no amendments and nothing was said here. We must ask ourselves: if my hon. Friends accept that this is non-contentious, why go for what might be perceived to be the disproportionate step?

Jonathan Djanogly Portrait Mr Djanogly
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I intervene only because the Minister suggested that I said something. I may have said that this is not party political, but that does not mean to say that it is not important, complicated and potentially contentious—but not for party political reasons.

Alex Chalk Portrait Alex Chalk
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6 Oct 2020, 12:03 a.m.

But ultimately, my hon. Friend cannot have it both ways. If we accept that it is not contentious, it is important that the mechanisms that are in place are proportionate to that. Indeed, the Opposition knew this when they were in government, because of course all these rule-making powers were on the statute book and they did not repeal them. There was the Administration of Justice Act 1920, the Foreign Judgments (Reciprocal Enforcement) Act 1933, the Maintenance Orders (Reciprocal Enforcement) Act 1972—I could go on. They stayed on the statute book because they are not really offensive to the constitutional balance that we enjoy, but not only were they not repealed; they were used.

The right hon. Member for Tottenham knows that because he was the Minister at the time. He was Minister at the Department for Constitutional Affairs when the British Government used the Foreign Judgments (Reciprocal Enforcement) Act 1933 to bring into force an international agreement with who? With Israel. He knows that because he was the Minister at the time. Who was the Lord Chancellor at the time? Lord Falconer. The right hon. Gentleman cannot very well say that these are a monstrous and egregious affront to our constitution when they were used, because they were used a second time in 2007. They created a power to give effect to bilateral agreements with the United States on reciprocal enforcement of family maintenance orders.

Just to complete that point, not only were those powers used; the right hon. Gentleman, for whom I have enormous respect, created new ones of his own. In 2005—[Interruption.] He is laughing, but he knows it is true. He was the Bill Minister on the Mental Capacity Act 2005, which, incidentally, on this very rainy weekend I had a chance to re-read. That Act created a wide delegated power to introduce international agreements in that area.

I do not want to labour this point too much, but I had a chance to look at proceedings in Committee on that Bill, during which a Conservative hon. Member talked about that specific power and effectively asked the right hon. Gentleman, “Is he sure that he wants to do this?” He added:

“Those in another place get very excited about any sort of Henry VIII clause.”

The right hon. Gentleman responded, effectively, “Don’t worry,” saying that

“they are technical and necessary provisions.”––[Official Report, Mental Capacity Public Bill Committee, 4 November 2004; c. 406-407.]

Is not that precisely the point? What was technical and necessary when he was in government has now become an egregious affront to our constitution.

David Lammy Portrait Mr Lammy
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The very able Minister has put his argument, but I remind him that under the previous Labour Government, we were in the European Union. This debate is about being outside it, and the best architecture for scrutiny in this House in those circumstances.

Alex Chalk Portrait Alex Chalk
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6 Oct 2020, 4:05 p.m.

But the point is that when we were in the European Union and the European Union had competence to enter into PIL agreements, those would be brought into effect in the United Kingdom via the doctrine of direct effect. What role did this Parliament have? None. We are seeking to introduce much more by way of parliamentary scrutiny—the points, respectfully, that the right hon. Gentleman did not advert to. First, there is the CRaG procedure, and secondly there is the affirmative procedure.

I am at pains to mention that because I talked just a few moments ago about the Israeli agreement and the United States agreement. How did those come into force? Not through the affirmative procedure, not even through the negative procedure, but through an Order in Council. In other words, normal hon. Members—mere mortals like most of the people in the Chamber—had no say at all; just Privy Counsellors. We therefore respectfully say that it does not lie in the mouth of the Opposition to raise these concerns.

My hon. Friend the Member for Bishop Auckland (Dehenna Davison) made the point powerfully that this precedent, which the Opposition understood when they were in government, recognises that there is an opportunity cost. If we start filling up the parliamentary timetable with such legislation, which everyone accepts is not controversial, there is less time and less space for schools, hospitals and transport, etc.

On the point about criminal offences, which was made powerfully by the Chairman of the Select Committee, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), this is an area where it is important to move cautiously. We will continue to reflect on the range of views expressed. I agree with him that an awful lot of offences are created by statutory instruments, but we need to take care, none the less.

Robert Neill Portrait Sir Robert Neill
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6 Oct 2020, 4:06 p.m.

I am grateful for the Minister’s observations in relation to criminal offences, and I will take him at his word as far as that is concerned. I know that he will want to take away, perhaps, how we deal with that proportionately.

The Minister refers to the value of the affirmative procedure, as is proposed. That, of course, is used when the PIL treaty first comes into force in our domestic law, but often these treaties or agreements can be modified as they go along. Can he help me with the concerns raised by the Bar Council and the Law Society about how the proposed scrutiny regime would deal with, for example, declarations that are attached to international agreements when we bring them into force? Such declarations can sometimes modify or limit their scope. Secondly, how will we deal with model laws, which are now often used in international trade negotiations?

Alex Chalk Portrait Alex Chalk
- Hansard - - - Excerpts

6 Oct 2020, 12:02 a.m.

If I may respectfully say so, that is an excellent point. That is one of the reasons why we seek to frame things this way, because one of the points my hon. Friend made most powerfully is that there are shortcomings in the Lugano convention. He talked about the Italian torpedo, but there are others, some of which Lord Mance referred to in the other place, for example.

How are we to be expected, in an agile and proportionate way, to address those changes, supposing they are negotiated, if we effectively have to have a new Act of Parliament each time? With respect, that would be wildly disproportionate. It would clog up this place unnecessarily, because there may be very good opportunities to improve those agreements and get them on to the statute book.

Let me deal with this business about Lugano, in amendments 1 to 4, 8 and 9, new clauses 1 and 2, new schedule 1, new schedule 3, new clause 5 and amendments (a) to (g). First, it is premature to put Lugano into the Bill while our application is outstanding, even if amendment 2 specifically includes reference to this being contingent on the UK’s accession. It is also inadequate—this is the point I was adverting to—as additional provisions will be required, mostly of a procedural or consequential nature, to properly implement to Lugano convention into domestic law.

For example, the civil procedure rules might need to be changed. What if Lugano is improved, as I indicated? What, also, if our application is unsuccessful? We may then need to move quickly. With whom will we want to move quickly? As my hon. Friend well knows, Norway, Iceland and Switzerland have published statements of support for our Lugano application, and that may be a route we would want to go down.

The most important point is that we have, and indeed should have, ambitions beyond Lugano. We must stay at the forefront of developments, whether the Singapore convention on mediation, as my hon. Friend the Member for Henley (John Howell) powerfully referred to, or the Hague convention on recognition and enforcement of foreign judgments in civil or commercial matters, also known as Hague ’19.

I advert to the fact that the Bill properly complies with the devolution settlement. We take that extremely seriously. As the hon. Member for Midlothian (Owen Thompson) indicated, both the Scottish Parliament and the Northern Ireland Assembly have passed legislative consent motions for the Bill, and the Welsh Government have agreed that an LCM is not required as PIL is almost entirely reserved. There is a small exclusion for Cafcass Cymru, but that is really it.

The right hon. Member for Tottenham spoke about the super-affirmative procedure, and I accept this amendment was submitted in the spirit of trying to be helpful. I entirely acknowledge that. These proposals are contained within paragraph 4 of new schedule 3, tabled by the Opposition, and there is a similar proposal in new schedule 2, although the SNP new schedule would introduce a super-affirmative scrutiny power only for Lugano. I respectfully make the point, and I appreciate that this is to the hon. and learned Member for Edinburgh South West (Joanna Cherry), but why would we need a super-affirmative scrutiny power for Lugano, which we have been operating for years? That is not very obvious to me.

The bar for the super-affirmative scrutiny procedure has always been high. Let us look at the context. Section 85 of the Northern Ireland Act 1998 provides for a super-affirmative procedure for regulations that deal with changes to reserved matters as set out in that Act. The Human Rights Act 1998 provides for such a procedure for remedial orders that deal with legislation that has been found to be incompatible—declarations of incompatibility. Under the Public Bodies Act 2011, a super-affirmative procedure is needed for orders that abolish, merge or change the constitutional funding arrangements. I dealt with those quickly, but the point is that super-affirmative procedure is reserved for matters of key constitutional importance. We must not forget that in the case we are discussing, we have the additional CRaG brake.

If we drill into the detail of super-affirmative procedure, it creates additional stages, but I query whether it results in improvements to the proposed regulations. Instead, it simply delays. It would also create a potential discrepancy between England and Wales and the devolved jurisdictions. One could easily imagine a situation whereby two litigants lived five miles either side of the border and the cases were dealt with differently, to the disadvantage of a litigant in England, because the Scottish Parliament had got on with it and simply brought an agreement into force. That would be unsatisfactory. I do not suggest that that is what the right hon. Member for Tottenham intends, but I fear it could be a consequence.

New clauses 1, 6 and 7 deal with laying the report. New clause 6 would require a report to be laid in Parliament before the UK ratifies an agreement. New clause 7 would require the Government to lay a report in Parliament for 10 House of Commons sitting days before a draft statutory instrument was laid. I accept the need for clear and detailed explanations, but it is not immediately obvious that new clause 7 would add anything to the current process. All SIs are already accompanied by an explanatory memorandum. I dug one out to prepare for the debate. It deals with the Civil Jurisdiction and Judgments Act 1982. It runs to 18 pages and is very detailed and helpful. Other than requiring the information 10 days earlier, I cannot see that new clause 7 would make a difference. We should not forget that an SI is typically laid several weeks before the House gets to debate it. None the less, I accept the point that my hon. Friend the Member for Bromley and Chislehurst made about the need to reach out to distinguished practitioners and jurists. It is right that we should do that, and I am keen for that happen.

I am very grateful for the consideration of the Bill in Committee. I share the desire to ensure that PIL agreements that we wish to join and domestically implement are appropriately scrutinised. All Governments must balance the need for scrutiny with the need to move in a timely manner to ensure that British citizens can enjoy the benefits of PIL agreements as soon as it is properly possible to provide for them. Those benefits are significant, and if the House gets the balance wrong, our citizens will be denied them by an unnecessarily labyrinthine process.

The proposed procedures provide for scrutiny of a delegated power using an affirmative SI together with the CRaG procedure to implement the agreements. That is a balanced and proportionate approach.

Robert Neill Portrait Sir Robert Neill
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Before the Minister sits down—

Alex Chalk Portrait Alex Chalk
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Just in the nick of time.

Robert Neill Portrait Sir Robert Neill
- Hansard - - - Excerpts

Perhaps the Minister can help my hon. Friend the Member for Huntingdon (Mr Djanogly) and me. I understand what the Minister is saying, and none of us wishes to create a labyrinthine process. Does he accept that it may be necessary to learn from experience with CRaG as we go forward? Are the Government closing their mind to the idea that we could seek refinements and improvements to the CRaG process as we operate it? The answer might help us.

Alex Chalk Portrait Alex Chalk
- Hansard - - - Excerpts

6 Oct 2020, 12:05 a.m.

I thank my hon. Friend for raising that point. There is no doubt that the CRaG process is evolving and maturing. Proper points have been made about the need to consider it and how it should evolve over time. I certainly do not want to shut my eyes or my ears to my hon. Friend’s proposals.

The Bill takes a balanced and proportionate approach. I therefore invite hon. Members to support the Government amendments and reject the remainder.

Jonathan Djanogly Portrait Mr Djanogly
- Hansard - - - Excerpts

The debate has been interesting and gone some way towards creating a more common understanding of the important issues at stake, the balance between efficient process and appropriate parliamentary scrutiny, and why, as I have argued, we need a more modern process of scrutiny for PIL treaties as much as for the ministerial orders that are derived from them.

We have had many great contributions today. My hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) explained why these treaties, particularly Lugano, are so important to a wide variety of people, and are not just techie stuff for lawyers. He also explained very well why we need proper scrutiny provisions, and raised the important point that we need to use the best expertise that we have available when we are determining these orders.

A variety of points were made. In fact, the same points were made by my hon. Friends the Members for Henley (John Howell), for Derbyshire Dales (Miss Dines), for Broadland (Jerome Mayhew) and for Bishop Auckland (Dehenna Davison). I think they all used the same phrase—that we need agility, flexibility and speed in the way that we approach these orders.

I do not necessarily see the amendment that I tabled today affecting any of those in a negative way. Indeed, I made the point that our opposite treaty partners generally have more stringent scrutiny provisions than we do, and they are not complaining about the lack of time. I was sorry, in that regard, that it was the Government’s approach to want to bring back new clause 5 rather than amend it—I will come back to that—but I did take on board the point made by my hon. Friend the Member for Henley and others, on the importance of London as an international legal centre and the importance of these treaties for commerce.

My hon. Friend the Member for Bishop Auckland noted the tangible impact for her constituents and their concerns about clogging up; I believe I have addressed those. My hon. Friend the Member for Aylesbury (Rob Butler) said that there was a precedent for what the Government propose, and the Minister made the same point. I do not deny that, but I would say that what was used, and what was acceptable, in the 1930s—or in the 1970s, the other example given—is not necessarily best practice now, and indeed is definitely not the current practice of Japan, the US or the EU. They all have much more developed processes than we have. Even the other Commonwealth countries, which, as I said, have our constitutional position, in practice have much more developed scrutiny measures than we have.

The hon. Member for Midlothian (Owen Thompson) explained very well that the approach being taken around the House has been pretty much the same in terms of what we want to see going back to the Lords. We have heard the Minister, and unfortunately it is a case of clause 2—or new clause 5—back with no amendments. I still do not understand the Government’s approach. It would have been good if this debate had happened at the final stages in the other place. Instead there was a polarised approach there. Throughout, the other place threw the order-making clause out altogether, leaving us to pick up the pieces. Sadly, we have failed to do so today, and now the Bill goes back to the other place in a situation where we should be agreeing this stuff, frankly. In this context, amendment 2 to include the Lugano treaty is good to have, but that is not the key issue at stake here, and as such I do not intend to request a Division on amendment 2 today. The Opposition are now saying again that they want the Government’s amendment to be thrown out rather than amended; I cannot support that approach either.

I end with a plea to the Minister. I hope that, as we take the Bill back to the other place, we can move away from this polarised position and come to a deal that enables us all to move forward. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 ordered to stand part of the Bill.

Clause 2

CROWN APPLICATION

Amendment made: 5, page 2, line 28, insert—

“(2) Regulations under section (Implementation of other agreements on private international law) may make provision binding the Crown.

(3) The reference to the Crown in subsection (2) does not include—

(a) Her Majesty in Her private capacity,

(b) Her Majesty in right of the Duchy of Lancaster, or

(c) the Duke of Cornwall.”—(Alex Chalk.)

This amendment provides that regulations made under NC5 may make provision binding the Crown.

Clause 2, as amended, ordered to stand part of the Bill.

Clause 3

EXTENT, COMMENCEMENT AND SHORT TITLE

Amendment made: 6, page 2, line 30, at end insert—

“(2) Her Majesty may by Order in Council provide for section (Implementation of other agreements on private international law) (including Schedule (Regulations under section (Implementation of other agreements on private international law))) and section 2(2) and (3) to extend, with or without modifications, to the Isle of Man.”—(Alex Chalk.)

This amendment inserts a new subsection into Clause 3. This allows Her Majesty by Order in Council to extend to the Isle of Man NC5 (including NS4) and subsections (2) and (3) of Clause 2 inserted by Amendment 5.

Clause 3, as amended, ordered to stand part of the Bill.

New Clause 5

IMPLEMENTATION OF OTHER AGREEMENTS ON PRIVATE INTERNATIONAL LAW (NO. 3)

“(1) The appropriate national authority may make regulations for the purpose of, or in connection with, implementing any international agreement, as it has effect from time to time, so far as relating to private international law (a “relevant international agreement”).

(2) The appropriate national authority may make regulations for the purpose of, or in connection with, applying a relevant international agreement, with or without modifications, as between different jurisdictions within the United Kingdom.

(3) The appropriate national authority may make regulations for the purpose of, or in connection with, giving effect to any arrangements made between—

(a) Her Majesty’s government in the United Kingdom, and

(b) the government of a relevant territory,

for applying a relevant international agreement, with or without modifications, as between the United Kingdom, or a jurisdiction within the United Kingdom, and that territory.

(4) Regulations under this section may make—

(a) consequential, supplementary, incidental, transitional or saving provision;

(b) different provision for different purposes or for different parts of the United Kingdom.

(5) Regulations under this section may include provision about—

(a) enforcement of obligations arising under or by virtue of the regulations;

(b) sharing of information;

(c) legal aid.

(6) Schedule (Regulations under section (Implementation of other agreements on private international law (No. 3))) makes further provision about regulations under this section.

(7) In this section—

“appropriate national authority” means—

(a) in relation to England and Wales, the Secretary of State;

(b) in relation to Scotland—

(i) the Scottish Ministers, or

(ii) the Secretary of State acting with the consent of the Scottish Ministers;

(c) in relation to Northern Ireland—

(i) a Northern Ireland department, or

(ii) the Secretary of State acting with the consent of a Northern Ireland department

“international agreement” means a convention, treaty or other agreement to which the United Kingdom is, or is expected to become, a party;

“private international law” includes rules and other provisions about—

(a) jurisdiction and applicable law;

(b) recognition and enforcement in one country or territory of any of the following that originate in another country or territory—

(i) a judgment, order or arbitral award;

(ii) an agreement, decision or authentic instrument determining or otherwise relating to rights and obligations;

(c) co-operation between judicial or other authorities in different countries or territories in relation to—

(i) service of documents, taking of evidence and other procedures, or

(ii) anything within paragraph (a) or (b);

“relevant international agreement” has the meaning given in subsection (1);

“relevant territory” means—

(a) the Isle of Man;

(b) any of the Channel Islands;

(c) a British overseas territory.

(8) This section and Schedule (Regulations under section (Implementation of other agreements on private international law (No. 3))) have effect, with the following modifications, in relation to a model law adopted by an international organisation of which the United Kingdom is a member as it has effect in relation to an international agreement to which the United Kingdom is, or is expected to become, a party.

The modifications are—

(a) a reference in this section or that Schedule to implementing or applying a relevant international agreement is to be read as a reference to giving effect to the model law (with or without modifications);

(b) subsection (1) is to be read as if the words “as revised from time to time” were substituted for the words “as it has effect from time to time”.”—(Alex Chalk.)

This new clause contains a power to implement international agreements relating to private international law.

Brought up, and read the First time.

Question put, That the clause be read a Second time.

New clause 5 read a Second time, and added to the Bill.

The list of Members currently certified as eligible for a proxy vote, and of the Members nominated as their proxy, is published at the end of today’s debates.

Schedules 1 to 5 agreed to.

New Schedule 4

Regulations under section (Implementation of other agreements on private international law (No. 3))

Restrictions on power to make regulations

1 (1) Regulations under section (Implementation of other agreements on private international law (No. 3)) may not include—

(a) provision that confers power to legislate by means of regulations, orders, rules or other subordinate instrument (other than rules of procedure for courts or tribunals);

(b) provision that creates an offence for which an individual who has reached the age of 18 (or, in relation to Scotland or Northern Ireland, 21) is capable of being sentenced to imprisonment for a term of more than two years (ignoring any enactment prohibiting or restricting the imprisonment of individuals who have no previous convictions).

(2) Sub-paragraph (1)(a) does not prevent the modification of a power to legislate conferred otherwise than under section (Implementation of other agreements on private international law (No. 3)), or the extension of any such power to purposes of a similar kind to those for which it was conferred.

(3) A power to give practice directions or other directions regarding matters of administration is not a power to legislate for the purposes of sub-paragraph (1)(a).

Regulations to be made by statutory instrument or statutory rule

2 The power to make regulations under section (Implementation of other agreements on private international law (No. 3))—

(a) is exercisable by statutory instrument, in the case of regulations made by the Secretary of State;

(b) is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)), in the case of regulations made by a Northern Ireland department.

Parliamentary or assembly procedure

3 (1) This paragraph applies to a statutory instrument containing regulations made by the Secretary of State under section (Implementation of other agreements on private international law (No. 3)).

(2) If the instrument contains (whether alone or with other provision)—

(a) provision made for the purpose of implementing or applying, in relation to the United Kingdom or a particular part of the United Kingdom, any relevant international agreement that has not previously been the subject of any such provision (whether made by regulations under section (Implementation of other agreements on private international law (No. 3)) or otherwise),

(b) provision made for the purpose of giving effect, in relation to the United Kingdom or a particular part of the United Kingdom, to any relevant arrangements that relate to a particular territory and have not previously been the subject of any such provision (whether made by regulations under that section or otherwise),

(c) provision that creates or extends, or increases the penalty for, a criminal offence, or

(d) provision that amends primary legislation,

it may not be made unless a draft of the instrument has been laid before each House of Parliament and approved by a resolution of each House.

(3) In this Schedule “relevant arrangements” means arrangements of the kind mentioned in section (Implementation of other agreements on private international law (No. 3))(3).

(4) If sub-paragraph (2) does not apply to the instrument, it is subject to annulment in pursuance of a resolution of either House of Parliament.

4 (1) This paragraph applies to regulations made by the Scottish Ministers under section (Implementation of other agreements on private international law (No. 3)).

(2) The regulations are subject to the affirmative procedure (see section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010) (asp 10)) if they contain (whether alone or with other provision)—

(a) provision made for the purpose of implementing or applying, in relation to Scotland, any relevant international agreement that has not previously been the subject of any such provision (whether made by regulations under section (Implementation of other agreements on private international law (No. 3)) or otherwise),

(b) provision made for the purpose of giving effect, in relation to Scotland, to any relevant arrangements that relate to a particular territory and have not previously been the subject of any such provision (whether made by regulations under that section or otherwise),

(c) provision that creates or extends, or increases the penalty for, a criminal offence, or

(d) provision that amends primary legislation.

(3) If sub-paragraph (2) does not apply to the regulations, they are subject to the negative procedure (see section 28 of the Interpretation and Legislative Reform (Scotland) Act 2010).

5 (1) A Northern Ireland department may not make regulations under section (Implementation of other agreements on private international law (No. 3)) that contain (whether alone or with other provision)—

(a) provision made for the purpose of implementing or applying, in relation to Northern Ireland, any relevant international agreement that has not previously been the subject of any such provision (whether made by regulations under section (Implementation of other agreements on private international law (No. 3)) or otherwise),

(b) provision made for the purpose of giving effect, in relation to Northern Ireland, to any relevant arrangements that relate to a particular territory and have not previously been the subject of any such provision (whether made by regulations under that section or otherwise),

(c) provision that creates or extends, or increases the penalty for, a criminal offence, or

(d) provision that amends primary legislation,

unless a draft of the regulations has been laid before the Northern Ireland Assembly and approved by a resolution of the Assembly.

(2) Regulations under section (Implementation of other agreements on private international law (No. 3)) made by a Northern Ireland department are subject to negative resolution, within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954, if a draft of the regulations was not required to be laid before the Northern Ireland Assembly and approved by a resolution of the Assembly.

(3) Section 41(3) of that Act applies for the purposes of sub-paragraph (1) in relation to the laying of a draft as it applies in relation to the laying of a statutory document under an enactment.

Interpretation

6 In this Schedule—

“amend” includes repeal or revoke;

“primary legislation” means any provision of—

(a) an Act of Parliament,

(b) an Act of the Scottish Parliament,

(c) an Act or Measure of Senedd Cymru, or

(d) Northern Ireland legislation;

“relevant arrangements” has the meaning given in paragraph 3(3);

“relevant international agreement” has the same meaning as in section (Implementation of other agreements on private international law (No.3)).”—(Alex Chalk.)

This new schedule makes further provision about regulations made under NC5.

Brought up, read the First and Second time, and added to the Bill.

Amendment made: 7, in title, line 1 at end insert

“and to provide for the implementation of other international agreements on private international law.”—(Alex Chalk.)

This amendment to the long title reflects the change to the Bill made by NC5.

The Deputy Speaker resumed the Chair.

Bill, as amended, reported.

Bill, as amended in the Committee, considered.

Third Reading

Alex Chalk Portrait Alex Chalk
- Hansard - - - Excerpts

6 Oct 2020, 12:06 a.m.

I beg to move, That the Bill be now read the Third time.

Let me start by thanking all the right hon, hon. and , in particular, learned Members from all parts of the House for their careful scrutiny of the Bill at each stage of its passage. A variety of opinions have been expressed, and I value all the contributions made on these important issues. We have been fortunate, throughout the passage of this Bill, that the debates have been genuinely enriched by the experience and expertise of the speakers, both in this House and in the other place. One thing that has been raised time and again from all involved is an acknowledgement of the importance of private international law and the real-world impact it can have on our constituents.

I have to accept that historically that acknowledgement has not always been in place. A former Lord Chancellor, Lord Hailsham, who introduced a key piece of private international law legislation, the Civil Jurisdiction and Judgments Bill, into the House of Lords in 1981 opened the Second Reading debate by saying:

“I rather feel that it should be accompanied by a Government health warning. There is nothing whatever that I can do to make my speech short, and those who expect to find it of throbbing human interest will, I fear, be wholly disappointed.”—[Official Report, House of Lords, 3 December 1981; Vol. 425, c. 1126.]

But of course we know in this House that this is extremely important. Reciprocal private international law rules provide a framework to enable UK businesses, families and individuals to resolve their difficult and challenging situations. They help to avoid confusion for all parties, by preventing multiple court cases from taking place in different countries on the same subject and reaching potentially different conclusions. Such reciprocal rules also allow for the decisions of UK courts to be recognised and enforced across borders. All of this helps to reduce costs and anxiety for the parties involved. It is therefore vital that in future our country is able not only to continue to co-operate on private international law matters with existing partners, but to implement in our domestic law new agreements that are fit for the 21st century.

The Bill underpins our ambition to deliver real and tangible benefits for the United Kingdom—for our citizens—both now and in the years to come. I reassure Members on a point that I know they realise but that can never be emphasised enough: although private international law can support and underpin cross-border trade, the Bill is not about the implementation of free trade agreements. The terms on which trade between two countries takes place are clearly outside the scope of the Bill.

Over the next few years, we face the challenge of replacing and updating the UK’s private international law framework, recognising our regained competence in this area of law. Although we have not yet agreed, as between this House and the other place, on how best to scrutinise future agreements, I am now confident that there is an eagerness to do so effectively. That eagerness recognises the overwhelming public interest of such agreements.

More broadly, I am pleased that, whatever the outcome of ping-pong, we will have in place legislation that allows the UK to realise the future opportunities in this area of law. I think all parties in this House are agreed not only that we want the UK to remain at the forefront of delivering justice internationally and to ensure that our legal services sector continues to flourish, but that we want to ensure that we are at the forefront of the international rules-based order—we want to see it strengthened and we want to play our part.

I conclude simply by thanking all Members for their contributions. I commend the Bill to the House.

David Lammy Portrait Mr Lammy
- Hansard - - - Excerpts

6 Oct 2020, 12:02 a.m.

I join the Minister in thanking colleagues from all parties for their thoughtful contributions to this important debate. I especially thank the hon. Member for Bromley and Chislehurst (Sir Robert Neill), the hon. and learned Member for Edinburgh South West (Joanna Cherry), and the hon. Members for Huntingdon (Mr Djanogly) and for Midlothian (Owen Thompson) for their eminently reasonable suggestions on how the Bill could secure cross-party support.

On Second Reading, Labour made it clear that we supported the fundamental principle behind the Bill. The Opposition fully accept that as we leave the largest network of private international law agreements in the world, we must have a legislative framework in place to replace it. As we leave the European Union, we must protect our country’s proud reputation as the international forum of choice for the resolution of commercial and legal disputes.

We should also remember the human aspects of private international law. Helping parents separated by borders to come to custody agreements in the interests of their children is very important, as is allowing the safe return of a child who has been abducted. That is why the Opposition have always been fully supportive of the Government’s desire to implement the international treaties listed in clause 1, each of which has been fully scrutinised by this House and is being brought into domestic law by primary legislation. That is how the implementation of international agreements has always been done, and how we would like to see it done in future.

Unfortunately, we have seen during the Bill’s passage the Government’s desire to prise parliamentary scrutiny away from this House and these Benches. That is something we regret and something to which the other place will no doubt return in the debate ahead. Once again, we see a Government keen to do all they can to avoid proper democratic scrutiny—a Government more at ease with ruling by decree than daring to test the will of this House.

Robert Neill Portrait Sir Robert Neill
- Hansard - - - Excerpts

6 Oct 2020, 4:50 p.m.

We have had a constructive set of debates on the Bill, and I pay tribute to all Members for the approach that has been adopted. I pay particular tribute to the skill and elan with which the Minister has steered the Bill through the House: he is a credit to our mutual profession. He is certainly no Henry VIII—and I say that in a good way—but of course he and I are both proud members of the Honourable Society of the Middle Temple. The nearest Tudor connection I can find is that the first Middle Templar to be Lord Chancellor was Lord, previously Sir, Richard Rich, for those who follow “A Man for All Seasons”. I am not sure whether that is a good sign, but I do not think that the Minister is a Richard in terms of personal integrity, since he was certainly one of the most successful Lord Chancellors but also one of the most corrupt. We have moved forward a great deal, and I suspect that the legacy still entertains us in Middle Temple with the wine cellar.

The Minister has done a great job on the Bill, and I hope he will reflect on some of the comments made, none of which were aimed to obstruct or make life difficult for the Government, because we all share the objective. I welcome the tone adopted throughout by the shadow Secretary of State, the right hon. Member for Tottenham (Mr Lammy), and those on the SNP Front Bench. It is important for the country’s sake that we get this right.

It has been rightly observed that this is not just about dry technical law. When I went to the London School of Economics in the ’70s, it had an international law module, which most of us avoided. It had just introduced a European law module, and somebody said, “There’ll never be much work around that,” which shows how things can be got wrong. As we exit a period of 40 or more years during which EU law has been an increasingly important part of our domestic and international legal systems, it is all the more important that we have a proper means of getting private international law agreements on a sound footing. I think we all share the Government’s objective in that.

I suspect that this may not be the last we hear of the Bill, either in the other place or here. I hope we will find a constructive way forward that meets some of the concerns raised in the other place about how scrutiny is dealt with. I welcome the Minister’s longer-term commitment to look at those issues. I hope he will take away the criminal sanctions aspect in particular, and the need to look at how CRaG operates.

May I give the Minister a further reading list, so to speak? As well as the Mental Capacity Act 2005 and the other things for a wet Friday, perhaps he could look at the Law Society and Bar Council briefings on how we deal with the two issues that I flagged briefly in Committee in relation to our having a proportionate and effective means of scrutinising the declarations that are frequently attached to international legal agreements. International agreements are often adopted by country with a declaration that modifies or limits the extent of its application to varying degrees. The Bill provides for the affirmative procedure for the initial adherence to the treaties, but it might not, as far as we can see at the moment, cover how we would properly scrutinise the declarations, which could have a significant impact.

An example of that, if the Minister wants it, is that we are committed to seeking to join in our own right the Hague choice of court convention 2005, which is an important document. When we joined it as part of the EU, the EU opted to exclude insurance contracts from that agreement. The provisions that we made following the withdrawal agreement and the memorandum on delegated powers that accompanies this Bill suggest that we will continue to exclude insurance contracts from it.

We need to think about why that is and how we will deal with scrutiny of changes to that, because the potential effect of that is to deprive court judgments based on excluded contracts of the right to be enforced by the 2005 convention when we hopefully sign up to it. That would leave a considerable gap in a very important sector of the British economy. Insurance and reinsurance markets are of real significance to the financial world, and we need to have a means of adjusting the position if that is required and taking on board those concerns. That is precisely the area where it is suggested that we should be talking to the experts in not only private international law but the insurance sector. I have already declared my interests in relation to these matters, but it is important that we take that as an example.

A similar issue arises in relation to how we will deal with model laws. Model laws are not international conventions that impose rights and duties between contracting states, but they are what are sometimes termed agreed soft law provisions, which are often modified substantially before they are given effect in domestic law. They are important, none the less, and they are a growing area of activity, so I hope the Minister can think about the mechanism that we have to ensure that they are properly scrutinised, as well as being brought in timeously. I flag those up as examples of what we need to do. It is certainly important that we do not just stop at joining Lugano. Whether it is on the face of the Bill or not, I know that the Minister and the Government are committed to joining it, and that is an important first step, but as we all know, there are other conventions that it is most important we seek to join, some of which have already been mentioned. I hope that we will push on swiftly, for example, to implement and ratify the 1997, 2005 and 2007 Hague conventions, because between them they would provide a suite of the vital civil and family law co-operation measures that we want to see continue after the transition period.

Of course, we also hope that the Government will ratify and implement in England and Wales the 2000 Hague convention on the international protection of adults. It has already been brought into force in Scotland but not in England and Wales, and it seems bizarre that a vulnerable adult could be treated differently if they were in Gloucester as opposed to Glasgow. That implementation would, for example, enable us to deal with important issues relating to vulnerable adults such as people who are subject to powers of attorney or who are under the jurisdiction of the Court of Protection and who might have overseas assets or overseas properties. Not having continuity of legal recognition of the judgments and contracts that are entered into could make it difficult to deal with those persons’ affairs.

These are techie issues, but they affect real lives, so the technical is not insignificant or without a human dimension. I hope that, as we go forward on a constructive basis, we can ensure that, having decided to leave the EU and branch out into broader areas of economic activity, the Government will make a concerted effort, as both the Law Society and the Bar Council have called for, to take a lead in selling, maintaining and building on the UK’s position as a jurisdiction of choice. Tens of thousands of jobs depend on it, as does billions of pounds-worth of economic activity, and it is in our fundamental national, strategic, economic interest to do this. With this Bill on the statute book, I hope that that is the most important thing the Government take forward as a matter of high policy in our negotiations to, hopefully, exit the EU with a deal, and in future free trade agreements.

So far, it has been tough to get free trade agreements to deal with services, and legal services in particular, but we have a potentially strong asset in our legal system and in the integrity and standing of our judiciary, which we should never pillory. No politician should ever knock lawyers for the sake of it, because ultimately, respect for the integrity of the system is fundamental. I know that the Minister and the Lord Chancellor share that view, and I hope that the Bill will give us an opportunity to build strongly on that.

Owen Thompson Portrait Owen Thompson
- Hansard - - - Excerpts

6 Oct 2020, 4:53 p.m.

I too welcome the contributions of all hon. and right hon. colleagues today and throughout the Bill’s previous stages. I am deeply disappointed that the amendments in the names of myself and my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry) were not supported by the Government, but I will try not to take it personally. However, we will always continue to try to do what we can to make the Government’s laws better than when they were presented. I also find myself, not for the first time, in the slightly strange position of agreeing with the hon. Member for Bromley and Chislehurst (Sir Robert Neill).

This is a largely technical Bill, but it will have important consequences for many businesses and individuals. We only have to consider the impact on an individual family, and the extra hassle they might have to go through, if we were unable to get a replacement or an agreement to continue with the Lugano convention. We cannot underestimate the impact on people if these things are not got right, so every effort needs to be made, regardless of whether it is on the face of the Bill. Obviously we will need to see what comes forward. I heard the Minister say that we should now move to replace and update the legislation on other conventions, and I would certainly encourage following the precedent set through this Bill’s process in working across the Chamber and in respecting the devolution settlement and the rule of international law.

John Howell Portrait John Howell (Henley) (Con)
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Let me add my gratitude to everyone who has spoken in this debate. It has been a very good debate, and I am sure that we have all learned a lot from it. I congratulate the Minister on what he has been able to do. What amazes me is that he has been able to get through the Bill without once using my skills as a mediator. That must be to his great credit.

We have here something that is in the interests of the country and that gives us a new tool in the box. From a personal point of view, I look forward to the Singapore mediation convention being signed and ratified by this country as quickly as possible. I even volunteer to sit on the statutory instrument Committee in order to do that.

Question put and agreed to.

Bill accordingly read the Third time and passed, with amendments.

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

(2nd reading)
(2nd reading: House of Commons)
Wednesday 2nd September 2020

(7 months, 1 week ago)

Commons Chamber

Read Hansard Text Bill Main Page
Ministry of Justice

Second Reading

Robert Buckland Portrait The Lord Chancellor and Secretary of State for Justice (Robert Buckland)
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2 Sep 2020, 12:03 a.m.

I beg to move, That the Bill be now read a Second time.

Private international law might sound rather dry and technical—[Laughter.] I get ready assent from the hon. and learned Member for Edinburgh South West (Joanna Cherry)—but at its heart sit the lives of real people and the challenges they face when legal disputes arise in relation to cross-border matters. I am talking about people such as the parents who need to make arrangements in the best interests of their children when a relationship breaks down and one spouse moves abroad, or the small business left out of pocket by a supplier based in another country needing to seek redress in the courts.

Reciprocal private international law rules provide a framework to allow businesses in the United Kingdom, families and individuals to resolve these difficult and challenging situations. They help to avoid confusion for all parties by preventing multiple court cases taking place in different countries on the same subject and potentially reaching different conclusions. Such reciprocal rules also allow for the decisions of UK courts to be recognised and enforced across borders. All this helps to reduce cost and anxiety for the parties involved. It is vital, therefore, that in the future the UK can not only continue to co-operate on private international law matters with existing partners, but implement new agreements into our domestic law that are fit for the 21st century, and this Bill underpins our ambition to deliver real and tangible benefits for our country and our citizens both now and in the years to come.

I would also like to reassure right hon. and hon. Members that whilst private international law can support and underpin cross-border trade, the Bill is not about the implementation of free trade agreements. The terms on which trade between two countries take place are clearly outside the scope of the Bill.

During our membership of the EU, we helped to build, develop and refine an advanced framework of rules on private international law. On 31 January 2020 we marked the first time in more than 20 years that full competence in this area of law returned to the UK. It is important that we acknowledge this new reality and take appropriate steps, and those include ensuring that our statute book is fit for purpose. The Bill achieves this by reimplementing in domestic law three key private international law agreements in which we currently take part so that in future we do not need to rely on retained EU law as the main legal basis for our continued participation.

These three agreements are Hague conventions, adopted under the auspices of the Hague conference on private international law. The UK currently operates them due to our previous membership of the EU, but we will become an independent contracting party to them in our own right at the end of the transition period. Our continued membership of these agreements is widely supported by interested parties in the legal and finance sectors, and indeed by Members in this House and the other place. Clause 1 ensures that these important conventions can continue to operate effectively in the future by stating that they

“shall have the force of law in the United Kingdom”

from the end of the transition period, instead of relying upon retained EU law for their implementation domestically beyond then. This will make their implementation clearer and more straightforward for practitioners, litigants and, indeed, our international partners.

These three conventions cover distinct areas of private international law in the fields of commercial and family law. The 2005 Hague convention increases legal certainty in disputes that relate to cross-border commercial contracts, which include an exclusive choice of court clause. It does this by ensuring that there is no dispute over where a case should be heard and enables any resulting judgment to be recognised and enforced across borders.

These types of choice of court clause are common in high-value commercial contracts, but in family law we are also reimplementing two conventions that cover sensitive and important issues for individuals and families who become engaged in cross-border disputes when a relationship unfortunately breaks down. The 1996 Hague convention improves the protection of children in cross-border disputes and helps families to resolve issues such as residence of and contact with children whose parents live in different countries. Finally, the 2007 Hague convention provides for the recovery of child support and other forms of family maintenance across borders.

The Government made a number of minor and technical amendments in the other place, which received widespread support, to provide a clearer and simpler approach to the implementation of the transitional provisions relating to the 2005 and 2007 conventions. However, the reimplementation of the Hague conventions is only a measure for the status quo. We need to ensure that we are ready for the opportunities that will arise in the future.

I firmly believe that we must now seize that opportunity of regaining full competence in this area by building on our long and proud history in private international law and cementing our role in international forums, such as the Hague Conference, the Council of Europe, the United Nations Commission on International Trade Law and the International Institute for the Unification of Private Law. We have long been a world leader in this field, and we should aspire to remain so. While being justifiably proud of our achievements in this space thus far, to really harness our potential we need a legislative vehicle to be able to implement any new agreements successfully negotiated with our international partners.

John Redwood Portrait John Redwood (Wokingham) (Con)
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This is an extremely good, positive vision. Can my right hon. and learned Friend give one or two examples of the kind of reforms or improvements that he would be looking to make when we exercise our influence?

Robert Buckland Portrait Robert Buckland
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I am grateful to my right hon. Friend, who will share my strong belief in the success of the legal services sector both in England and Wales, and in Scotland, as well as in the Northern Ireland jurisdiction, and the importance of maximising the advantage that we have not just in our outstanding rule of law reputation, but our reputation as an international forum for the resolution of disputes. I can think in particular of issues related to arbitration and mediation, where important international conventions are being developed, where the United Kingdom not only needs to be part of it, but to be at the heart of it when it comes to improving not just the prospects for legal services, but the opportunities for the businesses and the citizens we serve.

John Howell Portrait John Howell (Henley) (Con)
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My right hon. and learned Friend mentioned the Council of Europe. I want to stick on that, because it works on the basis of signing international treaties to get things done. At the moment, they take forever to get through, and the UK is one of the worst signers of them. Is this going to help to speed up the process?

Robert Buckland Portrait Robert Buckland
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I share my hon. Friend’s enthusiasm and sense of impatience about the pace of change in fora such as the Council of Europe. I just need to caution him on this basis. When it comes to the use of the powers that we anticipate under this Bill, we are talking about a narrowly defined type of agreement—practical, detailed but important changes that will lead to the sort of improvements that I referred to in responding to my right hon. Friend the Member for Wokingham (John Redwood). I am sure that as he hears not just my contribution but the one made in winding up by the Under-Secretary of State for Justice, my hon. Friend the Member for Cheltenham (Alex Chalk), he will be even clearer about the particular role that this Bill will play in the incorporation of international law.

That is very important, because concerns were raised in the other place that somehow this was a Trojan horse or an invitation to open the floodgates, to allow for the incorporation of major swathes of international treaty law into domestic legislation with minimal scrutiny. Nothing could be further from the case.

Robert Neill Portrait Sir Robert Neill (Bromley and Chislehurst) (Con)
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Will my right hon. and learned Friend give way?

Robert Buckland Portrait Robert Buckland
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I give way to my hon. Friend the Chair of the Justice Committee.

Robert Neill Portrait Sir Robert Neill
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I know that we will move on to the question of what is not in the Bill and what might be later, but before the Lord Chancellor leaves the issue of improving our access to international legal agreements, he has not yet mentioned our application to accede to the Lugano convention, which many regard as critical, it being markedly superior in a number of respects to those listed on the face of the Bill. There is a concern that the Commission is currently recommending against Britain joining the convention, even though the European Free Trade Association members of that convention support it. What is the position on that? Will he assure us that the Government regard this as one of the highest priorities in our ongoing negotiations? It should not be allowed to be hijacked and held as a hostage to fortune in other negotiations.

Robert Buckland Portrait Robert Buckland
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I can assure my hon. Friend that not only do the Government place a very high premium upon the importance of accession to Lugano, but I personally have vested my own time in direct discussions with counterparts at the Commission and other member states of the EU. In fact, in Zagreb, at the final Justice and Home Affairs Council, I took the opportunity to discuss this at length with several other member states and, indeed, the then newly appointed Commissioner for Justice, and we had a very productive discussion.

My view and that of Her Majesty’s Government is very straightforward: the application for Lugano is a discrete matter. It is separate from the negotiations that are ongoing with regard to a future free trade agreement, and it should be treated as a separate matter. The time for ideology has gone. This is a time for us all to remember that the interests of the citizens that member states serve are paramount, and the interests of ensuring that civil judgments are enforced as swiftly as possible are clear. I call upon all interested parties to put those priorities first, and then hopefully we will see a swifter conclusion to the negotiations, but I welcome the warm support we have had from EFTA countries both prior and subsequent to our application.

Jonathan Djanogly Portrait Mr Jonathan Djanogly (Huntingdon) (Con)
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I thank my right hon. and learned Friend for giving way on this Lugano point. I agree with everything he says: it should be treated as a discrete treaty, separate from us leaving the EU, and it is very important for our future trade. But if that is the case, why does he not mention Lugano on the face of the Bill? By doing so, he could perhaps limit the scope of the wide statutory instrument powers—the so-called Henry VIII powers—that I think he will talk about bringing back. He would then have the specific Bill that would make the other place a bit happier.

Robert Buckland Portrait Robert Buckland
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2 Sep 2020, 3:45 p.m.

I am always grateful to my hon. Friend, who served with distinction as a Justice Minister, for his long interest in these matters as a member of the profession. I did indeed consider whether this Bill should be a Lugano-specific Bill, but I took the view—and I will explain it in more detail in the body of my remarks—that, because of the narrow ambit of what we are seeking to achieve here, there was a necessary flexibility in allowing the United Kingdom Parliament, by affirmative resolution and therefore by debate on the Floor of the House, to determine whether particular future treaties could be incorporated into domestic law.

I do not regard these as Henry VIII powers. I accept the point that there is a distinction to be drawn in relation to the bringing forward of primary legislation, but as a matter of strict interpretation these are not powers that would allow us unilaterally to amend primary legislation, which, of course, is what a Henry VIII power is. These are powers that will allow us to use secondary legislation, but with the necessary parliamentary scrutiny before the incorporation in domestic law of these treaties. Let’s face it, while we were members of the EU, in large measure, because of the competence of the EU in this area, many of these arrangements and agreements took direct effect in our domestic law without any debate whatever. In my view, this actually represents a qualitative improvement and creates a consistency with that flexibility to allow us to make the sort of advances—I know he shares my view on those—which I referred to in my remarks to my right hon. Friend the Member for Wokingham. I am very grateful not just to him, but to all Members in the other place who gave the Bill detailed and careful consideration. However, we believe that it is constitutionally appropriate and proportionate to deploy delegated powers to implement the type of international agreement envisaged in the Bill.

This delegated power, in my strong view, is narrow, well defined and proportionate. Indeed, private international law itself is still a very narrowly defined area of law. It is familiar in scope and content to courts, legal advisers and experts in the field. The type of international agreement which can be implemented under the delegated power relates primarily to jurisdiction: rules that determine where a dispute is heard, rules that determine which country’s law applies, and rules on the recognition and enforcement of legal decisions or judgments in cross-border cases. No agreement could be implemented that was not related to these specific sorts of issues, which arise in relation to the resolution of cross-border disputes.

On that point, we recognise that the Delegated Powers and Regulatory Reform Committee’s report on the Bill recommended the removal of the proposed delegated power, but it is our view that that is, respectfully, a misinterpretation of the breadth of the powers sought and the types of international agreements it can cover. Many of the examples given in its report that had previously been implemented by primary legislation are not actually private international law agreements in themselves. Although those agreements contain specific private international law provisions, they are wider in their overall scope and could not have been implemented using the proposed delegated power to be reintroduced into the Bill.

It was also said in the other place that the use of delegated powers to implement private international law agreements would be constitutionally unprecedented. With the greatest respect, I wholly disagree. There are delegated powers to implement new bilateral agreements on recognition and enforcement of civil judgments via Orders in Council under the Administration of Justice Act 1920, the Foreign Judgments (Reciprocal Enforcement) Act 1933, the Maintenance Orders (Facilities for Enforcement) Act 1920 and the Maintenance Orders (Reciprocal Enforcement) Act 1972. Indeed, the powers under the 1933 Act were used as recently as 2003 by the Labour Government to update a bilateral agreement with Israel relating to the recognition and enforcement of judgments, and extending that agreement to cover judgments of the Israeli magistrates courts. However, while it is important to look back at the precedents that exist, it is vital that we look forward, too. The powers contained in those Acts only allow us to implement bilateral agreements in this area. Frankly, the world has moved on significantly since the ’20s and ’30s, because most private international law agreements are now made on a multilateral basis. We need to ensure that the necessary powers exist to implement such agreements in a timely manner.

Parliamentary scrutiny procedures have moved on as well, and our proposals recognise this by requiring statutory instruments made under the delegated power to implement new agreements to be subject to the affirmative resolution procedure, which provides much more scrutiny than the Order in Council process. Any decision for our country to join a particular agreement in this area of law would also still be subject to successful completion of parliamentary scrutiny procedures under the provisions of the Constitutional Reform and Governance Act 2010—CRAG—which many of us got to know intimately in the context of last year’s machinations on Brexit.

The delegated power in the Bill would not alter the well-established approaches to parliamentary scrutiny of treaties and the process of approving ratification under CRAG. Instead, it would simply be a mechanism to draw down the resulting treaty obligations into domestic law in readiness for the ratification of the treaty. The Government recognise that Parliament has begun to strengthen the scrutiny procedures under CRAG, including, importantly, the establishment of the International Agreements Sub-Committee in April of this year under the chairmanship of Lord Goldsmith. We look forward to working with the Committee, including on the scrutiny of the private international law agreements.

Jonathan Djanogly Portrait Mr Djanogly
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2 Sep 2020, 12:08 a.m.

Does my right hon. and learned Friend appreciate that that is the exact same Committee that has constantly been attacking CRAG as totally inadequate and unfit for purpose?

Robert Buckland Portrait Robert Buckland
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2 Sep 2020, 12:09 a.m.

Indeed it has made some very trenchant comments about CRAG, and that is precisely why it is important that that Committee does its work on improving and enhancing the procedure. I welcome its work and we will actively engage and ensure that that is so.

The most pressing need for the delegated power is to implement what we hope to see—namely, the Lugano convention, which we have already discussed. As I have said, we still do not know the outcome of our application. It is being considered by the contracting parties to the convention, including the EU. It currently underpins our private international law relationship with Switzerland, Norway and Iceland, but could also be used to underpin our relationship with the EU after the end of the transition period. It would provide valuable certainty on cross-border recognition and the enforcement of civil and commercial judgments, as well as clarity on which country’s courts may hear a dispute.

Robert Neill Portrait Sir Robert Neill
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I welcome my right hon. and learned Friend’s commitment to joining Lugano. It is important for all the reasons he has set out. There was compelling evidence given to the Justice Committee over a number of years about the importance of this. Also, is it not important that we join so that we can then, as one of the convention parties, seek to influence the development of the convention—for example, to avoid a race to the bottom in jurisdictional terms in dealing with the threat, as it is sometimes called, of the Italian torpedo? We cannot deal with the Italian torpedo until we are in Lugano to sort it out, so is that not all the more reason to reflect on putting this on the face of the Bill? Perhaps nothing would be lost by doing that.

Robert Buckland Portrait Robert Buckland
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2 Sep 2020, midnight

I am grateful to my hon. Friend. The Italian torpedo is not a reference to the successful naval action by the Royal Navy against the forces of fascist Italy in the second world war. This is a particular device taken by parties who issue proceedings in a jurisdiction that they know will not accept control over the particular proceedings. It is, in other words, a massive delaying tactic that can cause real obstruction to the course of justice and to the resolution of important disputes, and that is why he is right to say that Lugano would be very much a beginning when it comes to the development and refinement of that type of important co-operation.

My hon. Friend the Member for Huntingdon (Mr Djanogly) asked why we do not mention Lugano. Well, there is an obvious argument that I should have addressed, which is that, as we have not yet been able to join it, it would perhaps be premature for us to refer to it directly on the face of the Bill, as opposed to the Hague conventions, which we have joined. Regrettably, there will not be time to bring forward further primary legislation before the end of the year, should our application be approved within the next few months. Therefore, for that sad but practical reason, it would be right not to pass anticipatory legislation but rather to await the outcome of the negotiation and then to allow the use of the delegated power.

The power could also be used to implement other agreements. I have talked about mediation, and in particular the 2019 Singapore convention on mediation and 2019 Hague judgments convention. We have not yet taken a formal decision on either of those, but of course I am happy to talk more about those conventions with hon. Members during the passage of this Bill and, indeed, in the future as we decide on our final approach to these instruments.

John Howell Portrait John Howell
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If I catch your eye, Mr Deputy Speaker, I will speak a little more about the Singapore mediation convention, because I think everyone approves of it. All it does is bring mediation settlements under UK law in the same way that arbitration settlements are included within the New York convention. I hope that my right hon. and learned Friend’s offer to speak to people who are involved with this includes me, because I would be very happy to discuss it further.

Robert Buckland Portrait Robert Buckland
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I am grateful to my hon. Friend and he is right to mention the New York convention. Indeed, it develops the point I made to my right hon. Friend the Member for Wokingham about our ambition on the recognition of arbitral decisions and mediation resolutions, too.

The reintroduced delegated power would allow us to strengthen our internal UK and our wider UK family relationships, including those with the Crown dependencies and the overseas territories, by allowing us to apply and to implement the terms of an international agreement between the different jurisdictions of the UK or, indeed, to apply and implement an arrangement or a memorandum of understanding based on the terms of an agreement between a self-governing territory or a dependency and the United Kingdom. Of course, this would be done only with the agreement of the relevant devolved Administration or self-governing territory or dependency, because the Government recognise that private international law, including the implementation of agreements, is indeed fully devolved to Scotland and Northern Ireland, and this will continue to be reflected in any reintroduced delegated power in the Bill.

In summary, this Bill will allow our country to capitalise on regaining full competence to enter into international agreements on private international law in our own right after our withdrawal from the EU. It simplifies the implementation of three important Hague conventions in domestic law, to which the UK will be an independent party from the end of the transition period. The reintroduction of the former delegated power will also allow us quickly to implement any new agreements we strike with our international partners, thereby remaining at the forefront of promoting global co-operation and, indeed, best practice in this area. Finally, it will also allow our citizens to harness the benefits of these agreements in a timely manner, including to assist in the resolution of cross-border disputes. I commend the Bill to the House.

Alex Cunningham Portrait Alex Cunningham (Stockton North) (Lab)
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2 Sep 2020, midnight

Labour welcomes the principle of the Bill to maintain and enhance our legal co-operation across jurisdictions and to provide certainty and fairness for those involved in cross-border litigation. In a post-Brexit world, this is essential in attempting to maintain a prosperous economy, protecting our legal system, and providing for families and individual claimants engaged in cross-border disputes. International agreements provide clear and reciprocal mechanisms for dealing with international disputes. In doing so, they are crucial in protecting our country’s proud reputation as the world centre for resolving complex disputes, while offering us a competitive advantage in finance, business and trade.

However, this Bill, and the Chancellor talked about this, will also affect human stories. A wide range of family law issues can lead to cross-border disputes, including when one partner takes a child abroad and there is a disagreement about parenting arrangements—I have had such cases in my own surgeries—as well as when making arrangements for divorce in similar circumstances and, of course, issues relating to abduction and adoption. To keep our citizens safe, we must ensure we have robust international agreements so that justice can be done. Clause 1, which gives effect to international treaties in domestic law through primary legislation, is therefore both necessary and welcome. It is hoped that the provisions affecting the rules on jurisdiction and the recognition and enforcement of judgments overseas will play a crucial role in building a strong economy and provide some certainty for families in often desperately difficult circumstances.

Although we welcome the principle of the Bill as it currently stands, it must be noted that this is largely due to the successful efforts in the other place of my noble and learned Friend Lord Falconer and others to remove clause 2 of the Bill—[Laughter.] I am glad the Lord Chancellor finds that amusing. I will touch on that in due course, but, first, let us come to the specific points of the Bill on which we agree.

Clause 1 gives effect to key international conventions in our domestic law, which is welcomed on the Opposition Benches. The Lord Chancellor spoke of these issues. The 1996 Hague convention on jurisdiction, applicable law, recognition, enforcement and co-operation in respect of parental responsibility and measures for the protection of children is critical to improve the protection of children in cross-border disputes. The 2005 Hague convention on choice of court agreements aims to ensure the efficacy of exclusive choice of court agreements between parties to international commercial transactions. We support this incorporation into domestic law, as such clauses are commonly provided for in high-value commercial disputes.

The 2007 Hague convention on the international recovery of child support and other forms of family maintenance provides for the international recovery of child support and spousal maintenance. It is abundantly clear that this is a positive move, which will help to ensure that parents pay their fair share when providing for their children. We welcome these provisions and hope most certainly that we can offer that certainty in other areas of cross-jurisdictional disputes—I have just managed to tie my tongue in knots.

Labour will not, however, support any attempt by the Government to reintroduce clause 2, which would allow for the future agreements to be implemented via secondary legislation only. As we heard in the other place, this provision would be of profound constitutional significance. Labour is concerned that the reintroduction of clause 2 would represent an extension of the power of the Executive into uncharted territory, amending the convention that international legal agreements that change our domestic law can only be given force by an Act of Parliament.

Robert Buckland Portrait Robert Buckland
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I am listening with great interest to the hon. Gentleman’s speech. Would he care to comment on the involvement of the noble Lord Falconer as a Minister in the passage of the Mental Capacity Act 2005, which did precisely what the hon. Gentleman complains of with regard to the incorporation of important international agreements on mental capacity? I would be very interested in his view.

Alex Cunningham Portrait Alex Cunningham
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2 Sep 2020, 12:03 a.m.

The Lord Chancellor has an advantage over me; he has expertise in this particular area. I accept that we may have dealt with things quite differently in the past, but it is important that we recognise that this is a matter of international law.

I was rather surprised to hear the Lord Chancellor effectively rubbish the concerns of those in the other place, particularly given their comprehensive arguments. The House of Lords Constitution Committee said that this change would represent a

“significant new power that would change the way this type of international agreement is implemented in UK law and how Parliament scrutinises them.”

The House of Lords Constitution Committee and the Delegated Powers and Regulatory Reform Committee both considered whether the secondary legislating power should be granted, and both were very clear that it should not. The Constitution Committee stated:

“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.”

As his lordship, Lord Mance—the chair of the Lord Chancellor’s Advisory Committee on Private International Law and perhaps the pre-eminent expert in this area of law—told the other place:

“Opinion is almost universally against Clause 2. The two committees that have reported have categorically condemned it.”—[Official Report, House of Lords, 17 June 2020; Vol. 803, c. 2228.]

Lord Pannick, another pre-eminent constitutional lawyer, argued in the debate that there is

“no justification for allowing the law of this country to be changed by statutory instrument in this context without full parliamentary debate. That is because important policy decisions might arise in this context both on whether to implement an international agreement in domestic law and on the manner in which such an agreement is to be implemented.”—[Official Report, House of Lords, 17 June 2020; Vol. 803, c. 2224.]

The Delegated Powers and Regulatory Reform Committee also offered a stern warning about the unprecedented nature of the constitutional change, saying:

“For the first time there will exist a general power to implement international agreements on private international law by statutory instrument, thereby obviating the need for an Act of Parliament. This will be so regardless of the nature or importance of the agreement.”

In its briefing, the Bar Council was also highly critical of this new constitutional grab, stating:

“The Bar Council is…somewhat concerned that the power in section 2”—

that is, clause 2—

“to proceed by delegated legislation is very broad. For instance, it enables the appropriate national authority…to make regulations ‘for the purpose of, or in connection with, implementing any international agreement’”.

The power could extend to matters in our criminal law, such as increasing or, indeed, reducing the penalties for criminal offences.

To give effect to international treaties in domestic law is not a rubber-stamping exercise. The effect, implementation and enforcement of such provisions requires robust parliamentary debate; we must protect the parliamentary scrutiny of such important legal provisions at all costs. The Government have attempted to make arguments as to why the new constitutional measure would be necessary, but all have failed to convince. Their first argument was that the new provision would allow the Government to implement each new international agreement without unnecessary delay, yet there is no evidence to suggest that fast-track legislation is required. In the past, the implementation of international agreements has often taken years, and there is nothing to suggest that implementing them by primary legislation would cause any difficulties beyond the Government’s having to put legislation through normal parliamentary scrutiny.

The Government raised the 2007 Lugano convention, which deals with the jurisdiction and enforcement of judgments between members of the European Union. The Government’s argument appears to be that there may be only a short period during which to legislate to give effect to the Lugano provision at the end of the transition period. Of course, that is not an argument for developing the new executive power more generally. The Government have not considered providing for clause 2 only in relation to Lugano, which might be more amenable—why not? That question has already been posed this afternoon. The Lord Chancellor said that is the main reason that the Government want to have the delegated powers; if that is so, why does he not just put that on the face of the Bill and recognise the issues that have been raised in the other place?

The Government claimed that the Constitutional Reform and Governance Act 2010 allows for sufficient parliamentary scrutiny. Once more, that argument does not carry much weight. As a result of clause 2, the Government would be able to give force to model law without being subject to the scrutiny mechanism under the 2010 Act. That Act does not allow for the amendment of treaties or the consideration of measures to implement treaties. It is a red herring and the argument has unravelled when subjected to expert scrutiny.

This is an issue of constitutional propriety for a Government with a reputation for constitutional vandalism. The Conservative peer Lord Garnier stated:

“Unquestionably, the provisions in Clause 2, which gave the Executive the extensive future law-making powers originally in the Bill, have been shown to be constitutionally awkward and unwelcome, by the Constitution Committee, the Delegated Powers Committee and contributors to these debates. When the Bill goes to the other place, I trust that the Government will not use their large majority there to restore the Bill to its original form.”—[Official Report, House of Lords, 29 June 2020; Vol. 804, c. 483.]

Unfortunately, we on the Labour Benches fear that that is the very intention of the Government, who on so many occasions have shown themselves to be keen to avoid parliamentary scrutiny.

As Members of Parliament, we have a duty to tread with real care when reforming our constitution, especially when the Executive is empowered and the power of Parliament is undermined. There is no evidence before us as to why the reintroduction of clause 2 would be necessary or right; with that in mind, Labour will support the Bill as it currently stands but wholeheartedly oppose any attempts to reintroduce clause 2 as the Bill progresses through its remaining stages.

Robert Neill Portrait Sir Robert Neill (Bromley and Chislehurst) (Con)
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2 Sep 2020, 12:05 a.m.

I welcome the approach to the Bill that the Lord Chancellor has adopted and I support the Bill. I support it without hesitation, because it is necessary, but also with a measure of sadness, because I wish it were not necessary. It is a consequence of a decision that was taken that some of us continue to regret and is perhaps an example of the price that is paid in respect of an issue that some thought was technical and dry but that in fact affected people’s everyday lives and the prosperity of the business community of this country but was perhaps not given enough attention in the course of the debates that preceded our decision to leave the EU. Perhaps that caused us not to value enough the system of connections and regulation that we were party to.

The reality is that we are doing our level best—the Lord Chancellor and the Under-Secretary of State for Justice, my hon. Friend the hon. Member for Cheltenham (Alex Chalk) are doing precisely that—to put in place the best possible scheme that we can have and that is available to us when, at the end of the year, we leave the most comprehensive set of private international law agreements that exist. We just have to accept that that is the reality, but let us not kid ourselves that we will get any improvement: we will end up with something that is less good than we had and that we are leaving behind—ironically, when the Brussels IIa recast, particularly in its relation to the strengthening of the provisions in relation to jurisdiction-of-choice clauses, is something that Britain has succeeded in having changed and improved specifically to advance and protect the interests of the British-jurisdiction and English-law clauses that greatly advantage the City of London and our broader national financial services sector. I put that on the record as a matter of context and to get it off my chest, but it needs to be said, because it ought to influence the way and the speed with which we now move on this.

I welcome the fact that the Government have picked up, on this and the preceding measures, a number of the Justice Committee’s recommendations on how we might best deal with the situation that we find ourselves in. For example, bringing the Rome regulations on family and other matters, which did not require reciprocity, into domestic law, and implementing the Hague convention, as set out on the face of the Bill, are desirable. The ambition to join Lugano is, for reasons that we have already debated, very important. The Hague conventions are worthwhile but are not as good as what we had before, so moving to Lugano, which would be an improvement, would be a step forward.

I hope, too, that we swiftly deal with the other two conventions referred to in the helpful letter that the Under-Secretary of State for Justice, my hon. Friend the Member for Cheltenham, sent to all Members of Parliament: the 2019 Singapore convention and the future Hague convention agreements. There has been some debate in the other place, particularly from Lord Mance, about which order they shall come in. On balance, I am persuaded by the evidence that we have heard over the years and the arguments made by the Law Society of England and Wales—I think the Law Society of Scotland finds itself in the same place—that the more important thing is not to have any gap in the recognition and enforcement of judgments and recognition of international public clauses. That is why the Law Society favours pressing ahead with entry to Lugano as soon as we can, rather than waiting for what may develop with the Hague arrangements. The Government are right not to delay in that regard; we must press ahead.

That is, of course, the means by which we should deal with the Italian torpedo. I mention it not because this is like when we were doing trials in long, boring fraud cases, and there was sometimes a bit of a side bet to make an unlikely comment in one’s closing speech to the jury. The truth is, as we all know, that the Italian torpedo—the delaying tactic of seeking to thwart an exclusive jurisdiction clause, very often operating in favour of the UK, by commencing unmeritorious and almost abusive proceedings in another jurisdiction, which would then hold up the process—has caused a problem in commercial matters and real hardship in many family law cases. Getting the family law issues right is particularly important. The Government’s objective of ensuring that, for example, the partner of a finished relationship is able to enforce her maintenance payments from the other partner, who may be in one of the EU or other contracting states, is critical for ordinary individuals—not just businesses. Having in place a means of protecting the English and Scots law jurisdiction clauses, which are very important for financial services contracts, is critical too.

It is perhaps not the time to go into this in detail, but when we get to Committee, may I ask Ministers to reflect on the matter of asymmetrical jurisdiction, which was raised by Lord Mance, who has massive experience in this field? I tend to agree with him on that, whereas I am not persuaded about the sequencing of Lugano and Hague. He referred to it in some detail in his speech in the Lords. I will not repeat what he said, as he is much more experienced than me, the Lord Chancellor and the Under-Secretary of State, who did not have the fortune—literally or otherwise—to practise in that field. Lord Mance’s wise words are important, because this issue relates to derivative swaps and other financial instruments, which, for reasons that he set out well, are of particular importance to the UK financial services sector. As things stand at the moment, the provisions in the Bill do not sufficiently address that.

That is a technical but important matter for our business interests that we ought perhaps to reflect on as the Bill makes progress in Committee.

The other thing I want to say at this stage is that while I know the Lord Chancellor wishes to be ambitious in scope, I am not saying that this is necessarily a Henry VIII power or that all wide-ranging powers to amend by delegation are always wrong. Lord Garnier, who has been referred to as a mutual friend of all those on this side of the House and elsewhere, put it rather well when he said—I paraphrase him—that essentially all parties when in opposition oppose clauses of this type, but all parties when in government make use of them. He said that he had done so himself, and I did so myself when I was a Minister. Those on the Treasury Bench have done so at various times, so it is not a question of haloes in that regard—

Alex Cunningham Portrait Alex Cunningham
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But on this occasion, Lord Garnier was actually in support of the Opposition’s position.

Robert Neill Portrait Sir Robert Neill
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He was indeed, and if the hon. Gentleman allows me to develop it, I will suggest a nuanced way around this. It is not to say that we should not have delegated powers, but that we should perhaps look again at the way in which they are cast. I do not think it would necessarily be needed to bring back clause 2, as it was before it was removed by the other House—and I understand Lord Chancellor’s point about not bringing in pre-emptive legislation—but there was some merit and a genuine concern to assist in the point made by my hon. Friend the Member for Huntingdon (Mr Djanogly) about putting the power on the face of the Bill with a provision to exercise it at such time as the application was approved. That might remove the sting from it.

I know that the Under-Secretary has examples of instances when delegated legislation is used to create criminal offences. Those of us who have much more experience in that field, as the Lord Chancellor and others have, know it happens. It is not an objection in principle, but it might be possible to redraw the provisions more tightly to make sure that that is not unduly widened. Perhaps there are things that can be done to speed up the process without bringing ourselves into what might be quite a significant conflict given the size of the majority by which clause 2 was rejected in the other place; I think it was 320 to 233, so it was not a marginal matter. I hope, therefore, if we are to ensure the swift passage of the Bill, which is the one thing that we absolutely must have for the sake of avoiding a lacuna on 31 December this year, perhaps some imagination can be given to how that potential difficulty with the other place might be overcome.

I hope that we will be able to proceed with the Bill swiftly. We do not perhaps always give sufficient value and attention to these matters. The status of our civil law and the status of private international law are not talked about enough—

John Redwood Portrait John Redwood
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I wonder whether my hon. Friend will address my query to all the expert lawyers in the House about what Britain could now do by way of leadership to improve a big area like family law through these mechanisms. Does he have any ideas for Ministers?

Robert Neill Portrait Sir Robert Neill
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The first one is one that we have been talking about, which is early joining of Lugano, and being active in the international law field. I think we can do that and, in particular, one area in family law has been a concern, which was expressed by the Family Law Bar Association in evidence to the Select Committee some time ago. It is that the current arrangements in The Hague convention can tend—as the evidence of Philip Marshall, QC, the then chairman, suggested—to militate against mediation in family law cases. Active participation in that could be a very constructive way forward.

I am keen that we get on with this. As I know, and my hon. Friend the Member for Henley (John Howell) will talk about this more, Britain has a world-leading sector in mediation and arbitration, and that is something that we should also develop. In terms of commercial cases, it is of great value to the country, but it is also of real human value when it can be applied in mediation cases. Despite my regret about the necessity for the Bill, it is well put forward by the Lord Chancellor and I take on board his points. I hope that we will be able to resolve any outstanding issues between this House and the other place as to the best way forward to get the practical objectives that we all share across the House on the statute book as soon as possible.

Joanna Cherry Portrait Joanna Cherry (Edinburgh South West) (SNP)
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It is a pleasure to follow the Chair of the Justice Committee. I found much with which to agree in what he said and I share his regret that the Bill is necessary.

I start, however, by recognising that the Bill is necessary as a result of the United Kingdom’s withdrawal from the European Union, and I wish to make it clear that the Scottish National party supports the swift implementation of the 1996, 2005 and 2007 Hague conventions, because that will allow vital family law co-operation measures to continue after the transition period. My party is all for close and co-operative judicial relationships and we hope that, despite some worrying signs to the contrary, the United Kingdom will work with the European Union to ensure such relationships during and beyond the transition period.

However, my party’s support for the Bill does not change the fact that the Scottish National party, along with the majority of people living in Scotland, deeply regrets the withdrawal of the United Kingdom from the European Union on 31 January 2020. That happened without the consent of the people of Scotland and against the explicit wishes of our Parliament. In the EU referendum, which seems an awfully long time ago now, Scotland voted by a significant majority to remain in the European Union, and majority support for EU membership remains constant in opinion polls in Scotland. Indeed, at every electoral opportunity since the 2016 referendum, voters in Scotland have given my party and the other pro-EU parties a resounding majority. I know these facts may be unpalatable to some on the Government Benches but they are facts, and ignoring these facts—ignoring the repeatedly expressed democratic wishes of people in Scotland—has consequences. These consequences are plain to be seen in the fact that, even in the absence of a campaign, support for Scottish independence has reached 55% in the opinion polls during the current crisis. Brexit is widely recognised as a significant factor in the rise of that support, which is now at unprecedented levels.

The Government and those on their Back Benches would do well to listen to wise voices, such as that of the right hon. Member for Sutton Coldfield (Mr Mitchell), who last night told “Newsnight” that

“Brexit has made the case for the Union more difficult to push in Scotland”

and that it would be

“very difficult to resist”

a second independence referendum.

Nigel Evans Portrait Mr Deputy Speaker (Mr Nigel Evans)
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Order. I understand the point that the hon. and learned Lady is making, but is there any chance that she could now get to the Bill in front of us?

Joanna Cherry Portrait Joanna Cherry
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2 Sep 2020, 12:04 a.m.

I was about to do so, Mr Deputy Speaker, but I think it is important for the record that we restate the view, and make it crystal clear—as my constituents, and those who elected my fellow SNP Members, would wish us to do—that we are agreeing to the Bill only because we see it as inevitable to protect constituents and businesses in Scotland; but that we do not agree to the fact of Brexit, and that that has consequences, which I am sure are relevant to all discussions in this Parliament going forward—at least from the point of view of Scottish Members of Parliament.

Returning to the specific terms of the Bill, we accept the need to make preparations for the circumstances that will arise as a result of the end of the transition period. As others have said, although international private law is rather dry—as a student, I regarded it with dread—nevertheless it is really important to our constituents, and particularly important in the field of family law, but also really important for commerce and business.

As an aside, I was pleased to see that during the Bill’s passage through the Lords, the UK Government registered their intent to ratify and implement the 2000 Hague convention on the international protection of adults. That has already been done in Scotland, but I am pleased to see that it will now happen in England and Wales, and that there will be an appropriate consultation with the Northern Ireland Executive.

Although the Bill’s introduction has been triggered by the UK leaving the EU, there are aspects of it that go beyond Brexit. I think the Bill—certainly clause 2—was very much about the future strategy for international relations in the area of private international law, about which the Lord Chancellor spoke. I very much hope that for so long as Scotland remains part of the United Kingdom and, indeed, afterwards, when it becomes an independent nation, the strategy of the Government will be based on a commitment to international co-operation on private international law, including multinational agreements, and not just limited to the European Union. As others have said, these agreements are important because they allow and support the legal services sector in the United Kingdom, including in the separate jurisdiction of Scotland, to participate in private international law developments internationally. The commitment to international co-operation on international private law is in line with my party’s policy. We would like to see more international co-operation, not less, and that is certainly the strategy that an independent Scotland will pursue in the years to come.

I welcome the fact that this Bill was drafted to recognise that Scotland is a separate legal jurisdiction and to make provision accordingly. The Lord Chancellor knows that, in another area, I have had occasion to write to him recently to remind him of the fact that the Scottish system of civil justice is indeed completely independent from that of England. That is not just because of devolution, which, of course, is a fairly modern event. It is important to understand that the civil justice system under the Scotland Act 1998 is the preserve of the Scottish Parliament, but that separateness is also guaranteed by the Treaty of Union—in particular by article 19 of the Treaty of Union.

Although I am afraid, as the Lord Chancellor knows, that in the field of judicial review there may be a threat of an excursion into Scottish territory, I am very pleased to see that, in this Bill, that is not the case. None the less, it is worth reminding ourselves that it has often been said that some parts of the Treaty of Union, such as the preservation of Scotland’s Church and also Scotland’s legal system, are so fundamental that this Parliament does not have the power to legislate in contravention of them. I am aware that that point has never been definitively tested in a court of law, but were there to be an excursion into Scots law in the field of judicial review, that might be the opportunity to test that question, and I think the outcome of any such litigation could have interesting knock-on effects. However, as I say, it is not a bridge that we need to cross in relation to this Bill. I see the Lord Chancellor shaking his head with something approaching belief and I am sure that he will be aware that any interference in Scotland’s independent legal system would be met with some resistance, not just from adherence to the cause of Scottish independence, but from the Scottish legal profession. The two things are not always the same thing, although they are increasingly becoming the same thing.

I do not mean to jest here because I am grateful to the Government for having drafted this Bill in a way that recognises that, under section 126(4)(a) of the Scotland Act, private international law is part of Scots private law and that includes matters such as choice of law that this Bill covers, choice of jurisdiction, recognition of judgments and enforcement of decisions. There is also the convention under section 28(8) of the Scotland Act—the Sewel convention—that this Parliament would normally legislate with regard to matters that are within the legislative competence of the Scottish Parliament without the consent of the Scottish Parliament. I know that that has been breached on a number of occasions recently, but thankfully not in a relation to this Bill. Under the original clause 2 of this Bill, Scottish Ministers were given certain powers in relation to delegated legislation because, whereas negotiating and joining international agreements on private international law is reserved, implementing them in domestic law is devolved. As the Lord Chancellor will be aware, the Scottish Government have considered carefully the provisions of the Bill as originally laid insofar as they legislated for Scotland and legislative consent was sought from the Scottish Parliament and granted on 17 June. That was very much because the view was taken that, because the provisions of the Bill cover Scotland as a separate jurisdiction, Scotland would be placed in a prejudicial position if allowance was not made, and that would adversely impact on Scottish citizens and businesses. I think it is fair to say that my colleagues in the Scottish Government wanted to provide reassurance to those affected by cross-border family support and custody mechanisms, as other Members have adverted to.

Finally, I come to the removal of clause 2 in the other place. I appreciate that if clause 2 is not reinserted into the Bill, it will mean that for each private international law agreement the UK enters into in future, primary legislation will be required to implement it domestically. A lack of clause 2 would not mean that the UK did not have the ability to enter into these agreements, but it would mean that they would have to be brought before this House and implemented into law by way of primary legislation. I note that the Lord Chancellor intends to reinstate clause 2, but I say to him, having read the debate in the Lords, that legitimate concerns about parliamentary scrutiny, or the lack thereof, in relation to delegated legislation were raised.

Let me pick up on what other hon. Members have said. If it is the case, as it appears to me, that the Government’s clear policy is to rejoin the Lugano convention—obviously, we would need to do that quickly—I suggest to the Lord Chancellor, and I am indebted to the Law Society of Scotland for this suggestion, that one way around this would be to reintroduce clause 2 on the basis that it focuses only on the implementation of the Lugano convention. I believe that was suggested by the hon. Member for Huntingdon (Mr Djanogly). If the Government are insistent on bringing it back on a general basis, might I suggest attaching a sunset clause to it, perhaps for a year or so?

More broadly, the Government need to establish a clear and comprehensive approach to ratifying treatments, one that includes an appropriate role for this Parliament in providing scrutiny, because when the transition period ends, the UK will negotiate and sign treaties on a much larger scale than when we were members of the EU. Although the negotiating and signing of treaties is a function of government, exercised through prerogative powers, the increasing complexity of modern treaty obligations and the way they affect individual rights creates a need to ensure that they are adequately scrutinised here. As others have mentioned, it is particularly important that that happens when criminal offences are being created, or indeed amended or extended, because that has particular implications for individual rights. Let me finish by saying that if the Government do not find a way to enhance parliamentary scrutiny of these matters, the promise that leaving the EU meant taking back control will be made a mockery of.

Jonathan Djanogly Portrait Mr Jonathan Djanogly (Huntingdon) (Con)
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The Bill, as presented from the other place, is not in the least objectionable. As has been pointed out, the European Union (Withdrawal) Act 2018 automatically inserts directly effective treaty rights into domestic law after the end of the transition period. However, clause 1 takes a number of treaties that we all consider to be valuable and directly puts them into our own laws as though they were non-EU-signatory treaties. I agree that not only is that more transparent, but it makes a clear statement on our new post-Brexit position to the international community. So far, so good. The problem comes when we then get to discuss what Government powers should be in relation to the private international law issues that we do not currently know anything about.

Looking at this Bill, the dilemma I have, when including the Government’s stated intention to reinsert clause 2, is that we have an Administration keen to take back control when it comes to the EU, but there seems to be less of an issue with passing laws that facilitate the Executive handing out control and sovereignty to non-EU foreign powers with minimal parliamentary scrutiny. Building on one point made by my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), let me say that one confusing thing I find when looking through the Bill is working out which aspects of private international law we benefit from now through our former membership of the EU that we would wish ideally to retain. That is relevant because we still do much of our business with EU countries. We still have the most UK-owned foreign homes in France and Spain, and I would hazard a guess that UK citizens marry and have children with more European Union citizens than other foreigners.

The treaties set out in clause 1 are very limited—the protection of children, the exclusive choice of court agreements and family maintenance. They do not deal with insolvency, business law and many other key issues dealt with under European law. Could the Minister point me to some document that shows what is covered with the EU now and will be rolled over into our law, or to what extent those items feature in current EU deal negotiations? That would be helpful.

As the Lord Chancellor said, the issue with this Bill is not what is in it now, but rather what has been taken out by the other place—namely, the former clause 2 delegated powers provision. I note that no attempt was made in the other place to upset the royal prerogative and demand that PIL treaties are approved by Parliament before signature, although the weakness of the CRAG pre-ratification review process was well covered as being limited and flawed.

On looking at the debates on this Bill in the Lords, the key difference between the Government and almost everyone else who spoke was the Government’s contention that these proposed Henry VIII powers—that is what I think they are—were not a constitutional breach, as they had already been used for other laws. We heard the Lord Chancellor repeat that today. Lord Keen referred to the Mental Capacity Act 2005, which came up in an earlier intervention, but it was pointed out that that Act was the primary legislation that gave effect to an international convention, and as such, it was not the best example that the Minister might give.

It seems to me that we need to consider the Government’s suggestion that PIL is a narrow enough genre to merit its own delegated powers. That is a hard case to make, and it has not yet been made by the Government. To answer the point validly made by my right hon. Friend the Member for Wokingham (John Redwood), the processes, for instance, to enforce private contracts, international financial bonds or insolvency procedures are difficult to lump into the same basket as, say, child protection or mental health, which is what the proposal in clause 2 does.

The Government have repeatedly said that clause 2 is necessary to move ahead with the Lugano treaty, yet their wording referred to “any international agreement”, which could stretch to much more than the Lugano treaty. Furthermore, the proposed powers last without a sunset clause, so they could presumably be used in the future for not only the implementation of now unknown treaties but any changes to those unknown treaties, no matter how significant.

Other issues arise. I am concerned, for instance, about the extension of Executive power to use statutory instruments to change domestic law to give effect to model laws. I am concerned at such powers being used to make new criminal offences by order. A more general observation would be on the timing of the process. In recent weeks, Ministers have been arguing for Bills to be heard in an afternoon because of the covid emergency. International treaties, however, work on the slowest and most planned of timescales, so to say that these issues are time-constrained is not realistic. Likewise, to accuse these PIL subject areas of being only technical is unrelated to how very important they tend to be to the lives of people who actually need them. Furthermore, given how the world becomes an ever smaller place, I foresee these cross-border jurisdictional issues becoming more, not less, relevant and important, particularly with our being out of the European Union.

For all those reasons, my instinct suggests that the Government should accept the position presented to them by the Lords and simply move on. At the least, we could tie the powers to named foreseeable treaties in the Bill such as Lugano. However, if the Government are dead set on their current course, I suggest that they need to improve their offer to Parliament, and four areas comes to mind. First, they should limit the order-making powers to a period of, say, two years after each relevant treaty has been signed. Secondly, a Joint Committee should be formed to review the orders. Thirdly, a Government report should be issued to Parliament setting out the proposal, and fourthly, the report should be issued a minimum period of, say, 21 sitting days before the relevant SI Committee sits.

As things stand, the Government’s proposed reinsertion of clause 2 must represent one of the largest potential power grabs ever seen by the Executive in this Parliament. The Government should think again.

John Howell Portrait John Howell (Henley) (Con)
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2 Sep 2020, 4:40 p.m.

I first declare an interest as an associate of the Chartered Institute of Arbitrators.

I welcome this Bill and the proposals to change it during its next stages. As I said during an intervention, I want to mention one thing in particular—the Singapore mediation convention. This is a treaty that we have been waiting to sign since it was first talked about in 2018. It is absolutely unconscionable that it has not been signed, ratified and brought into UK law in a much shorter period. This goes to the heart of the question asked by my right hon. Friend the Member for Wokingham (John Redwood)—what do we need to do to keep ourselves ahead of the game in this? I went to Singapore and talked to the mediation community there. We are being left out. The centre of mediation is here in London. It is being left out because there is no means of making sure that the mediated conclusion to a dispute can be brought into law in another country. In fact, the process that one has to go through is a fairly arbitrary one where, after the mediation, one has to get new proponents as arbitrators, which increases the cost enormously, to have a formal arbitration that can be caught under the New York convention. That is an utterly absurd way to go about this.

We all know that mediation has become an important part of modern business, especially as the courts are busy. When I was doing my Industry and Parliament Trust fellowship in law and sitting with judges, I was very pleased that many of them advised the people who were pleading before them that they should go away and consider mediation beforehand. Getting a mediation settlement agreed and applicable across countries seems to be a very narrow and technical thing to do. It does not affect anyone in an adverse way, and it has been welcomed by almost everybody I have spoken to.

I hope that the Minister will be able to confirm that this Bill will allow us to steam ahead in getting the Singapore mediation convention ratified and brought into UK law so that, for the future, we can maintain our position in the UK as the centre of mediation in the world.

Jim Shannon Portrait Jim Shannon (Strangford) (DUP)
- Parliament Live - Hansard - - - Excerpts

2 Sep 2020, 4:44 p.m.

It is a pleasure to make some brief comments in this debate. The Lord Chancellor is no longer here, but I thank him for setting the scene so well for us all to follow. As we are all aware, the Library has made things clear in the notes on the Bill. I want to start with the words of the Bar Council:

“Private international law is at once both a highly technical field and one that is extremely important in regulating the lives of individuals and businesses when they cross borders. Never has there been a greater need to consult specialists in this field and to ensure rigorous scrutiny to produce a cogent and coherent strategy in this field. Time is short to ensure that United Kingdom private international law is left in a clear and satisfactory state upon exit day.”

That sets the scene for where we are and the importance of what we are trying to achieve.

The Bill as introduced into the House of Commons contains only one substantive clause that would give domestic effect to three international agreements covering aspects of private international law—the Hague conventions of 1996, 2005 and 2007. These provide a framework for determining jurisdiction and enforcement in international disputes covering child custody and maintenance, and civil and commercial matters. The United Kingdom currently participates in these arrangements as a result of our former membership of the EU, as well as the EU-wide measures covering co-operation on cross-border legal issues.

My interest in these matters comes purely from my constituency work load. Over the years, as a Member of Parliament since 2010 and as a Member of the Northern Ireland Assembly prior to that, constituents have come to me with such issues, and most of those were to do with the custody of children or divorce, but sometimes there were insolvency or commercial matters. However, the real issue was family law, so I am encouraged by what the Lord Chancellor said in relation to that, because there is a necessity to provide certainty and protection to children and families in what is often the very fractious and difficult environment of family disputes. Some cases and disputes that I have been involved in over the years as an elected representative—not as a legal matter; I am not legally qualified and I am always conscious of saying that—can be made additionally complicated by the cross-border element.

I have also been involved in issues when there have been accidents in other jurisdictions, where there were claims to be made and where accountability was part of that process, and that again comes under international law. On one or two occasions, someone has bought a product in another country and wants the right of recourse because it was defective. The hon. Member for Huntingdon (Mr Djanogly) referred to one of the greater issues in the last few years—the purchase of houses and villas. I suppose my introduction to this was on behalf of constituents who then had difficulties with the purchase of those properties, and with land disputes. These are key issues for some of my constituents. There were not just problems with the law—sometimes the problems were with the interpretation of the law and, ultimately, with the language difficulties that arose.

We have found, in most cases, that the successful Brexit vote has determined that we must have arrangements in place that will include the continuation of our ability to govern cross-border legal disputes. I believe that that is essential—as the Lord Chancellor said earlier—for Northern Ireland and our border with the EU member, the Republic of Ireland. We want, need and desire a good working relationship with the Republic of Ireland and, if possible, with the EU. Many international companies operate in Northern Ireland, such as Bombardier in my constituency, to which my hon. Friend the Member for Belfast East (Gavin Robinson) referred in a question to the Prime Minister today, as well as insurance firms. These are among many others in Northern Ireland who need confidence and the assurance that, in the post-transition period, they will continue to be offered the same protections that EU firms enjoy. It is very important for firms in my constituency to have that same protection and to know that that will happen because of the Bill we have before us.

In a briefing for the peers, the Bar Council welcomed clause 1 of the Bill, suggesting that although it might not be necessary, it would be helpful in making things clearer in primary legislation. I am pleased to see that this has been retained. The Lord Chancellor also stated that for the Scottish Parliament, which the hon. and learned Member for Edinburgh South West (Joanna Cherry) spoke about, and the Northern Ireland Assembly, matters will be devolved. Will the Minister say in his conclusion—it would be good to have this on record—whether there will be occasions when Westminster, or the House of Commons, will and can overrule what may happen at the Northern Ireland Assembly or the Scottish Parliament? I just want to have that on record, if possible.

The Bar Council also referred to the fact that it might be necessary to consult specialists in the field. The specialists that we have in the Northern Ireland Assembly and Northern Ireland will guide us and give advice, so it is always good to know whether there are occasions when we may find ourselves, not in conflict with the House of Commons in any way but with a difference of opinion legally.

In conclusion, I would also like the Minister, in summing up, to underline that the consultation process with those who work daily with the remit of this legal principle has cast the net wide—I am sure it probably has, but I ask him please to confirm it. Will he also confirm that he understands the necessary protections needed to ensure that on the day that our chains to Europe are finally broken—boy, do I look forward to that day—we have the continuity of domestic protection with effect to the three international agreements governing aspects of private international law, The Hague conventions of 1996, 2005 and 2007?

Shaun Bailey Portrait Shaun Bailey (West Bromwich West) (Con)
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2 Sep 2020, 4:50 p.m.

I promise that I will try to keep my comments as brief as possible. It is a bit of an intimidating experience to follow such distinguished lawyers, particularly as I was only sitting my legal practice course finals some two years ago, so to be here debating with the Lord Chancellor on private international law is an interesting one.

A really important point was raised at the start of the debate, which was about making the Bill applicable to real life. To reiterate that point, which was articulated particularly well, I must say, by the hon. and learned Member for Edinburgh South West (Joanna Cherry), this affects real people’s lives. This is about how businesses operate and how some of the most vulnerable children and young people in our society are protected. I think about the exporters in my region of the west midlands who account for a quarter of a million jobs. The export value of the goods sent out from the black country was something like £3.81 billion in 2018-19. The Bill is really important, because it relates to people’s livelihoods. It is absolutely vital that we get it right.

On the protections for young people who need financial support from absent parents, I have 3,000 lone parents in my constituency who rely on support for their children. Looking at my caseload, I would say that many of them do not get that support. We spend time having to fight very complex battles to receive very complex levels of support, so we must relate this to the situation on the ground. I think of businesses in my constituency, such as KTC Edibles in Wednesbury, which rely on these provisions to do their day-to-day business. It is as simple as that: they rely on private international law to ensure they can trade and can keep their employees in a job.

Turning more widely to the provisions in the Bill, I want to touch on the clause 2 that was removed by the other place. We have heard articulate arguments about that today. In my preparation for this debate, I read the comments in the other place. To an extent, I have sympathy with what was said on the possibility of utilising the delegated powers as some sort of Executive power grab. What I would say—I think this was articulated by my right hon. and learned Friend the Lord Chancellor—is that the preceding system was one of direct effect, so in a way it took those powers away from this place in the first place. Having said that, however, equally we cannot just remove the role of this place entirely. We cannot allow that to happen. I am somewhat reassured that, through the affirmative procedure, there is a degree of scrutiny. I appreciate that for some Members it is not the desired level of scrutiny, but I have been very impressed by my hon. Friend the Minister’s openness in taking forward suggestions on how it could perhaps be improved on.

David Davis Portrait Mr David Davis (Haltemprice and Howden) (Con)
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2 Sep 2020, 4:53 p.m.

Apart from diluting the number of lawyers here for my hon. Friend’s comfort—

Robert Neill Portrait Sir Robert Neill
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2 Sep 2020, 4:53 p.m.

We all need clients!

David Davis Portrait Mr Davis
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2 Sep 2020, 4:53 p.m.

I am the client of the House today.

The hon. and learned Member for Edinburgh South West (Joanna Cherry) made the very important point that these prospective pieces of legislation, only under secondary legislation, could actually create criminal offences and therefore impinge directly on the rights of our citizens. They could, when I think about it, even put the rights of those citizens under foreign laws, as has happened with the European arrest warrant and other such measures. Does my hon. Friend think that that specific test of whether it creates a criminal offence that might impinge on our citizens might require rather more than simply secondary affirmative legislation?

Shaun Bailey Portrait Shaun Bailey
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2 Sep 2020, 12:07 a.m.

I thank my right hon. Friend for his intervention. He raises a really important point very eloquently, which I would need to explore. I do not want to give him a definitive answer right now, because I would need to explore it further. If I were to do that I would want to formulate my opinion based on the fullest research, but he makes a really important point that is certainly one to take forward and one that I have listened to with great interest in this debate, which has sort of formed my opinion.

Moving forward with this, and conscious of the fact that I want to keep my remarks as brief as possible, I would say that my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) made an important point, which was supported by my right hon. Friend the Member for Wokingham (John Redwood): we have got to ensure that, as we move forward now, this country is at the forefront of improving private international law. We cannot just pass this legislation and think, “Right, okay, there we go. We are an observer, or we are just partaking.” We have to be a leader on this, because when that campaign was happening four years ago and people made that decision, whatever people’s views on that, one premise of the campaign was that we would once again be a leader in the world. To do that, we have to ensure that we take a proactive and positive approach.

I am heartened to see that there has been respect for the devolved Administrations, particularly for Scots law. We need to respect the unique legal structures and legal framework in Scotland. I am pleased to see that in the Bill.

To round up my comments, I would say that this is a Bill that, on the face of it, has broad support from all sides. There are some interesting debates still to be had as it proceeds on its passage and I am heartened by the way those on the Treasury Bench have been open to discussions and to listening. We might think this measure is technical and convoluted—the joy of legal debates among lawyers in the Tea Room—but it is people’s lives. This is every day. This is about keeping people in jobs. This is about ensuring that the most vulnerable in our society remain protected. I commend the Bill to the House.

Alex Cunningham Portrait Alex Cunningham
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2 Sep 2020, 12:04 a.m.

With the leave of the House, I will sum up on behalf of the Opposition.

When I was preparing my closing remarks, I thought I was following the hon. Member for Darlington (Peter Gibson) and I was going to remind him that he has the privilege to represent what was my home town for a large part of my life. He also has the privilege of following in the footsteps of great MPs such as Ted Fletcher, who was himself an internationalist and would have been interested in today’s proceedings. He was a person who believed very much in action rather than words, and he put his life in the line of fire when he fought in the trenches in Spain against the fascists in the civil war. I am pleased to have this opportunity to pay tribute to Ted, the first MP I was honoured to knock doors for. He inspired me and I would never have been here if it had not been for him.

As I said in my opening speech, Labour recognises the importance of private international law, particularly in a post-Brexit setting. Without the framework that private international law provides, UK businesses, families and individuals would face greater difficulty in seeking to resolve conflicts arising from cross-border disputes. As we get closer to the new year and the great and growing uncertainty posed by Brexit, the need for a clear and fair framework to settle cross-border disputes becomes ever more urgent. Without this framework, businesses and individuals would face great uncertainty. That is why Labour fully supports clause 1, which gives effect in domestic law to three important international agreements to improve the protection of children involved in cross-border disputes, regulate court arrangements relating to high-value international transactions, and allow for the recovery of child support and spousal maintenance.

Not only will each of those three agreements make a significant and positive change to domestic law; they will be incorporated in domestic law in the proper way, by primary legislation debated before the House. That is why we support them. This is the exact opposite of what the original clause 2 sought to do, and it is regrettable that the Government seek to bring it back in Committee. The Lord Chancellor would be wise to take the counsel of the hon. Member for Huntingdon (Mr Djanogly) and the Chair of the Select Committee, the hon. Member for Bromley and Chislehurst (Sir Robert Neill). They have outlined specific issues, and if the Government were to concentrate on those areas, they might find themselves with a little more support for their proposals. Also, the Government should do that because it would recognise the concerns of those in the other place. I hope that when the Minister winds up in a few minutes he addresses that good advice given by Members on his own side, because we know that clause 2 represents a very concerning extension of Executive power in any other circumstances, allowing the Government to bypass parliamentary scrutiny and implement private international law agreements by the back door by utilising statutory instruments. That would represent a dangerous break with past parliamentary practice, which so far requires all public international law treaties to be implemented by Act of Parliament. Instead, it would represent a permanent shift of power from Parliament to the Executive, with little reasoning provided for why such a shift is needed. Sadly, it appears that this shift is very much the approach of this Government and it must be challenged. That is why the Bill was amended in the other place. As we have heard, distinguished lawyers and constitutional experts across the political divide voted against the inclusion of this clause because it so offends the constitutional principle of parliamentary sovereignty that requires proper scrutiny of international agreements before they have effect in domestic law.

When the Government were asked to explain the need for the powers contained in clause 2 they provided three basic arguments. I spoke of them in my opening speech, so suffice it to say now that not one of those arguments held under expert scrutiny in the other place.

It is not only those of us on the Labour Benches who have been far from convinced by the case put forward by the Government for the need for clause 2. As we have heard, when the Constitution Committee considered whether this legislative power should be granted, it made it clear it should not. The Committee went on to say:

“It is inappropriate for a whole category of international agreements to be made purely by delegated legislation”.

It went on to say that that is not only because it reduces parliamentary scrutiny but because

“Such an approach risks undermining legal certainty.”

Why would the Government seek to reintroduce clause 2 at a later stage in the Bill’s passage if each of the arguments for its inclusion have been shown to be false? The Government currently have a perfectly reasonable and necessary Bill, which I imagine would receive wide cross-party support; we have seen examples of that this afternoon.

In conclusion, as we leave what is arguably the world’s most comprehensive network of private international law agreements in the new year, it is vital that we have a framework in place that fills that void. Labour recognises that, and it is our collective responsibility to defend parliamentary scrutiny, irrespective of procedural ease or expediency. For that reason, we will support this Bill in its current form but will reject any attempts to reintroduce clause 2 or any other clause that allows for the implementation of international agreements in domestic law by secondary legislation.

Alex Chalk Portrait The Parliamentary Under-Secretary of State for Justice (Alex Chalk)
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I want to begin by expressing my gratitude to all Members who have contributed to the debate, with speeches of conspicuous clarity of thought. It is clear that across the House there is proper concern about the balance that exists between the powers of the Executive and the powers of the legislature. I will return to that, because it is absolutely right that those important points are engaged with fully. But first let me make some brief introductory remarks, setting the stage for why this matters and why, indeed, the Government are taking the approach we are.

As others have indicated, the Bill might at first glance appear somewhat dry and academic, but, as my hon. Friend the Member for West Bromwich West (Shaun Bailey) noted, it is of great practical importance for the lives and livelihoods of individuals and businesses in all our constituencies. It is also important—this point should not be lost—for the international rules-based order, which we can and must consolidate and strengthen in the months and years ahead. My hon. Friend the Member for Henley (John Howell) made the excellent point about the urgency of a mediation agreement, but in summary this Bill provides a legal framework for resolving cross-border disputes, and that framework provides legal certainty about jurisdiction, recognition and enforcement for both businesses and individuals whose legal affairs cross borders.

As has been noted, it benefits individuals where, for example, the relationship with the former partner has broken down but both parties need to resolve the child contact arrangements where one parent lives overseas. Such cases have arisen in my constituency surgery in Cheltenham. They are very painful cases, and are more painful still without these rules in place. It benefits businesses, too, for example where suppliers are abroad and the parties want to know that the agreement to litigate any dispute in a particular country will be honoured and upheld internationally, and it matters that when our jurisdiction is chosen by the parties in a commercial agreement other courts and states will recognise and enforce that jurisdiction. That is really what matters.

How does this Bill achieve that? In essence, in two ways: first, it carries over international treaties that we were parties to by dint of our membership of the EU; and secondly—this is the point that has attracted the most attention in this debate—it creates a mechanism for us to participate in future agreements and, in doing so, to strengthen the international rules-based order for the benefit of all our citizens. I just want to underscore that point. There is a countervailing public interest in our being able to do that in a timely and efficient way, because the longer that we delay in implementing these arrangements, the longer the delay in strengthening the international rules-based order.

It is important to be clear what the Bill is not about. The Lord Chancellor did that before me, but it is right that I underscore it. It is not about trade agreements. Private international law agreements remain distinct from free trade agreements both in content and scope. As hon. Members well understand, FTAs are agreed between countries, and they remove or reduce tariffs and other restrictions on most goods traded between them to allow easier market access. FTAs rarely, if ever, contain specific private international law provisions.

Promoting international recognition of jurisdiction and enforcement is important because the UK is the chosen court centre for so much of the world’s litigation: 40% of all global corporate arbitrations used English law in 2018, 75% of cases in the UK commercial court in the same year were international in nature and English law is the leading choice of law for commercial contracts. That is underpinned by the excellence and integrity of our judiciary and the calibre of our legal practitioners. It is right to pay tribute to them, and I am pleased to have the opportunity to do so.

As a result, our successful legal sector contributed £26.8 billion to the economy in 2017 and employs over 300,000 people. To sustain that, we in the United Kingdom must be ready to contribute more than ever to the international rules-based order. For the UK to remain a progressive force in the field of private international law, we must be able both to negotiate and then to implement into British domestic law modern agreements with our international partners once the UK has decided to become bound by them.

The hon. Member for Strangford (Jim Shannon) made the point—he will forgive me for paraphrasing—“Look, will the British Government impose things on Northern Ireland?” The answer to that is no. Just as we recognise, of course, the distinct and distinguished legal arrangements that exist in Scotland, so it is in Northern Ireland, and no doubt that is what lay behind the legislative consent motions. While it would be the British Government who negotiate the agreement, the decision on whether to bring it into force is a devolved matter for the Ministers in Scotland and, indeed, in Northern Ireland, respectively.

Let me turn to what the Government are proposing to do in respect of clause 2 as was, before the other place removed it. The reintroduction of the delegated power to implement private international law agreements into domestic law via secondary legislation is necessary, proportionate and constitutionally appropriate. My hon. Friend the Member for Huntingdon (Mr Djanogly), in a characteristically eloquent speech, referred to this at one stage as, I think, the largest potential power grab for some time. I think that was his point, but I respectfully suggest that that needs to be placed in some wider context.

Let me first underscore the point that was touched on by my hon. Friend the Member for West Bromwich West, but also by the Lord Chancellor. Lest we forget, the arrangements that prevailed when we were in the European Union operated a bit as follows: the European Union, on behalf of all the member states, would go out to negotiate these agreements, and having reached an agreement with another country, it would fall to the UK Government in effect to implement it. How would that take place? It would take place either under the doctrine of direct effect, which lawyers in this Chamber will remember stems from the case of Van Gend en Loos, which essentially means—[Interruption.] The right hon. Member for Walsall South (Valerie Vaz) perhaps remembers; I am not sure.

The case of Van Gend en Loos means that, so long as such an agreement satisfies certain appropriate criteria, it would take effect in this country with no parliamentary intervention at all. In other words, hon. and right hon. Members would be entirely ousted from the process of its taking effect in the United Kingdom. However, even if it did take effect by way of direct effect, the effect of section 2(2) of the European Communities Act 1972 means that it would be Ministers using the negative resolution procedure who brought it into effect in this country.

Joanna Cherry Portrait Joanna Cherry
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Of course that is accurate, but as I said earlier, the whole point of Brexit was to take back control. If that is really what Brexit was about, why are the Government reintroducing clause 2 without any of the compromises that I and others have suggested? The whole project of leaving the EU was about taking back control—so we are told—yet the Government are taking that control, rather than giving it to the House or indeed the people.

Alex Chalk Portrait Alex Chalk
- Parliament Live - Hansard - - - Excerpts

When we talk about taking back control, it is important to note that in future it will not be the EU but the British Government negotiating private international law agreements. I am simply pointing out that when the EU negotiated the arrangements and Parliament had no role at all, it did not seem to attract any concern in this place, yet when it is the British Government negotiating them on behalf of the UK, it seems to create difficulties.

Alex Chalk Portrait Alex Chalk
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I will come to the hon. and learned Member’s second point in a moment, but first I will let my hon. Friend come in on this point.

Jonathan Djanogly Portrait Mr Djanogly
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The difference is that in the EU the Parliament has a vote and a potential veto on international trade agreements. My hon. Friend is arguing in effect that we move back to the position before we were in the EU. I think the point the hon. and learned Lady is making, which I would back up is, that we do not want to go back to what we had before we were in the EU; we want to move forward and have a system that is relevant to today’s democracy.

Alex Chalk Portrait Alex Chalk
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2 Sep 2020, 12:01 a.m.

I take that point completely. I will answer it by touching first on what the situation was before we entered the EU and then on how it ought to evolve in a way that I hope meets my hon. Friend’s concerns. He is right—others have touched on this—that arrangements were in place prior to our entering the EU, albeit on a bilateral basis, for us to enter into these sorts of agreements. Two have been touched on because they have been used quite recently: the Foreign Judgments (Reciprocal Enforcement) Act 1933 and the Maintenance Orders (Reciprocal Enforcement) Act 1972.

It is worth taking a moment to consider them. How is the first Act used in practice? In 2003, it was used for us to enter into a PIL agreement with Israel that had a significant impact: namely British courts would have to give effect to what magistrates courts in Israel said. Yet how was that brought into force in the UK? Was it brought into force through an Act of Parliament? No. Was it was brought into force through the affirmative resolution procedure? No. It was brought into force through an Order in Council. It states:

“Her Majesty, in exercise of powers conferred on Her by section 1(4) of the Foreign Judgments (Reciprocal Enforcement) Act 1933, is pleased, by and with the advice of Her Privy Council, to order”—

and then she gave effect to this private international law Bill. My point is simply that this procedure, which was used in 2003, is far inferior to what we are introducing in clause 2. We are doing away with any idea of an Order in Council, which we accept would be too old fashioned. The appropriate way to apply scrutiny in this House is through the CRAG procedure and the affirmative resolution procedure.

The second Act was used in respect of a US agreement in 2007 as a result of which an Order in Council had the effect that an order on maintenance would have to be given effect in the UK. How was that PIL agreement given effect in the UK? It was not through an Act of Parliament but again through an Order in Council, and again we are going beyond that in this Bill.

In dealing with this matter, I want to make one final and very important point. Not content with simply using Orders in Council to introduce PIL agreements in the past, in fact the House has legislated in recent memory to include more scope to introduce PIL agreements by way of delegated legislation. First, the House passed the Insolvency Act 2000, which created a power to introduce regulations in 2006. Secondly—this is the final point that I will make on this issue, but it does seem relevant—the House passed the Mental Capacity Act 2005. That Act created powers to make further provision as to private international law. Paragraph 32(1) of schedule 3 states:

“Regulations may make provision—(a) giving further effect to the Convention”—

that is the convention on the international protection on adults—

“or (b) otherwise about the private international law of England and Wales in relation to the protection of adults.”

In other words, it was being created in 2005.

Jonathan Djanogly Portrait Mr Djanogly
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I appreciate that, but it did not provide a statutory instrument for looking at international financial bonds, insolvency law or other jurisdictional issues; it was focused on that specific area. The point that has been made by many hon. Members this afternoon is that this is too broad.

Alex Chalk Portrait Alex Chalk
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2 Sep 2020, 12:03 a.m.

I accept my hon. Friend’s point, but the way it has been framed thus far is, “Look, this is constitutionally unprecedented.” It is not constitutionally unprecedented, and that ought to be borne in mind.

The distinguished Chair of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), made the proper point about criminal laws, and I recognise that that is something that we should look at carefully. It would be going too far to suggest that delegated legislation is not used to introduce criminal laws. An extremely distinguished paper was produced by academics at the University of Glasgow which went so far as to say that the overwhelming majority of criminal offences are created by delegated legislation, particularly where they are highly specific, technical, environmental offences and so on, so it is not without precedent at all, but I recognise that the point requires consideration.

In short, the Bill will future-proof our legislative requirements in this area for the years to come, while at the same time ensuring that UK businesses, individuals and families can continue to benefit from an efficient and effective framework to help resolve cross-border disputes. It will also ensure that our domestic laws can keep up to date with the latest developments in private international law in international forums, and that the UK can implement any agreements it intends to join in a timely manner while maintaining appropriate parliamentary oversight. I commend this Bill to the House.

Question put and agreed to.

Bill accordingly read a Second time.

PRIVATE INTERNATIONAL LAW (IMPLEMENTATION OF AGREEMENTS) BILL [LORDS]

Motion made, and Question put forthwith (Standing Order No. 83A(7)),

That the following provisions shall apply to the Private International Law (Implementation of Agreements) Bill [Lords]:

Committal

1. The Bill shall be committed to a Committee of the whole House.

Proceedings in Committee, on Consideration and up to and including Third Reading

2. Proceedings in Committee of the whole House, any proceedings on Consideration and any proceedings in legislative grand committee shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which proceedings in Committee of the whole House are commenced.

3. Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day.

4. Standing Order No. 83B (Programming committees) shall not apply to proceedings in Committee of the whole House, to any proceedings on Consideration or to other proceedings up to and including Third Reading.

Other proceedings

5. Any other proceedings on the Bill may be programmed.—(Leo Doherty.)

Question agreed to.

Nigel Evans Portrait Mr Deputy Speaker (Mr Nigel Evans)
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2 Sep 2020, 12:03 a.m.

We will now suspend the sitting for three minutes; those who are leaving the Chamber should do so carefully.

Sitting suspended.

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

(3rd reading (Hansard))
(3rd reading (Hansard): House of Lords)
Monday 29th June 2020

(9 months, 2 weeks ago)

Lords Chamber

Read Hansard Text
Ministry of Justice

Third Reading

Clause 2: Crown application

Amendment 1

Moved by

1: Clause 2, page 2, line 33, leave out subsections (2) and (3)

Lord Keen of Elie Portrait The Advocate-General for Scotland (Lord Keen of Elie) (Con)
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My Lords, I am grateful to the House for Members’ engagement on the Bill throughout its passage. The amendments in this group are all consequential on the removal of the delegated power contained in the former Clause 2 of the Bill. I am moving Amendment 1, and support Amendments 2 and 3, as the provisions to which they relate do not function without the delegated power.

Before I turn to the detail of the amendments, I wish to make clear from the outset that we believe that the delegated power contained in the former Clause 2 of the Bill was a necessary, proportionate and constitutionally appropriate measure, for the timely implementation in domestic law of future private international law agreements which the Government had decided that the UK should join. Subject to a successful application, this could have included the Lugano Convention 2007.

Any decision for the United Kingdom to join a treaty or agreement in this area of law would still have been subject to successful completion of parliamentary scrutiny procedures under the provisions of the Constitutional Reform and Governance Act 2010. The former delegated power in the Bill did not alter the well-established approaches to parliamentary scrutiny of treaties and wider ratification processes under CRaG. Instead, it was simply a mechanism to draw down the treaty obligations into domestic law in readiness for ratifying the treaty.

I will now speak to Amendment 1, in my name, which seeks to remove from the Bill subsections (2) and (3) of Clause 2, formerly Clause 3, which establishes the Crown application of the Bill. These provisions were consequential on what was, originally, Clause 2, containing the delegated power. They provided that regulations made in the exercise of the delegated power in former Clause 2 could bind the Crown, subject to exceptions which reflect those contained in Section 51 of the Civil Jurisdiction and Judgments Act 1982, as referred to in subsection (1).

The Government are bringing forward this amendment to remove these subsections from the Bill, as these two interlinked provisions were originally intended to apply to regulations made under the delegated power and therefore serve no function following its removal. As I have indicated, this is purely to ensure that the Bill is workable for its introduction into the other place, given the outcome of our deliberations in this House.

I have also put my name to Amendment 2, in the name of the noble and learned Lord, Lord Falconer of Thoroton. The amendment seeks to remove Schedule 6 from the Bill. It details how the delegated power could be exercised in practice, including the parliamentary procedures to be followed for making regulations. I accept that the House has made its view clear, and without the delegated power in the former Clause 2, Schedule 6 serves no useful purpose. In these circumstances, purely to enable the tidying up of the Bill, we support the amendment to remove Schedule 6 from the Bill at this point.

Amendment 3, also in the name of the noble and learned Lord, Lord Falconer, seeks to amend the Long Title of the Bill. Again, this is a consequence of the removal of the delegated power. Given that the new title more accurately reflects the content of the Bill as amended by the House, namely the implementation of the 1996, 2005 and 2007 Hague Conventions under Clause 1, in these circumstances the Government are content to support the amendment.

I beg to move.

Lord Falconer of Thoroton Portrait Lord Falconer of Thoroton (Lab)
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I am obliged to the noble and learned Lord. There is no dispute between us; all three amendments should be approved, to reflect the changes resulting from removing the wider power. The Minister repeated his argument for why that power should be there. We have had this argument three times now. It was rejected when he put it to the Delegated Powers Committee, rejected when it was put to the Constitution Committee, and massively rejected when it was put before your Lordships’ House, so there is no point repeating it again.

The Minister said that we should be dealing with subsequent conventions by secondary legislation. We have made amendments in this Bill to the three conventions that we are bringing in today. We could not have done so if his Clause 2 powers had been there. I hope that he will bring back what was the view of everybody in the Chamber, apart from him—namely that the Clause 2 power should not be there.

Lord Garnier Portrait Lord Garnier (Con) [V]
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My Lords, as is often the case with legislation bringing treaties into domestic law, the meat of this Bill is to be found in the schedules rather than the clauses. Unfortunately, there was some gristle in Clause 2 that made it less palatable. That said, there has been a universal desire to see the three conventions in question come into our post-EU domestic law, and, subject to the already-announced recognition of the points made on Report on 17 June by the noble and learned Lord, Lord Wallace of Tankerness, in relation to the Hague Convention 2000, the real substance of this Bill has been agreed. I congratulate my noble and learned friend the Advocate-General, who has been carrying the Bill more or less on his own.

However, I also commiserate with him on coping with the gristle. He has not looked, still less asked, for sympathy from any of us. I dare say that he might have hoped for more voluble support from this side of the House, but as the experienced advocate that he is, he has not revealed his disappointment, even when the noble and learned lord, Lord Mance, disobligingly compared him to Monty Python’s armless and legless Black Knight.

Unquestionably, the provisions in Clause 2, which gave the Executive the extensive future law-making powers originally in the Bill, have been shown to be constitutionally awkward and unwelcome, by the Constitution Committee, the Delegated Powers Committee and contributors to these debates. When the Bill goes to the other place, I trust that the Government will not use their large majority there to restore the Bill to its original form.

Having said that, I would not want the noble and learned Lord, Lord Falconer of Thoroton—who is just as much a politician as he ever was in government 15 years ago—or the Labour Party, to claim that the amended Bill shows them in an altogether angelic light. In these proceedings they have no halo to burnish. As they know only too well, and as was graciously accepted by the noble Lord, Lord Blunkett, in Committee, there were times when the noble and learned Lord, Lord Falconer, and his colleagues in government enthusiastically gave the Executive extensive Henry VIII powers—powers he now decries. The same could be said of my Liberal Democrat partners in the coalition Government and, I readily confess, of me.

However, let us in a Bill of this type and content, cast political point-scoring aside and do two things. First, we should send this Bill to the other place with our strong advice that those Henry VIII powers that were once in the Bill should stay out of it so that the three conventions can be brought back into our national law as soon as can be sensibly arranged. Secondly, we should invite a Joint Committee of both Houses thoroughly to investigate and review the use of Henry VIII powers and make recommendations on their future use. The Clause 2 powers were by no means the most egregious example of them, but I am not alone in thinking that Ministers should not make or amend the criminal law or the substantive law more generally by secondary legislation. That should be confined to administrative and simple regulatory matters.

Lord Thomas of Cwmgiedd Portrait Lord Thomas of Cwmgiedd (CB) [V]
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I too warmly support these necessary amendments. I do not wish to traverse the arguments that took place on Report or prior to that. I merely add a word about the Lugano convention. It is universally agreed among lawyers that although it may not be the best solution, it is probably the best available solution to the position that we are likely to find ourselves in at the end of the year. It is of the upmost importance to many in the United Kingdom economy, but in particular also to those who conduct legal business in London, that we adhere to the Lugano convention. I see no reason why the other parties to the convention will not agree. I therefore express my earnest hope that if that takes place there will be no delay whatever in bringing forward the necessary legislation to make it part of our law. Any delay in the matter of the reciprocal enforcement and recognition of judgments can do nothing but damage the position of the United Kingdom as a whole and in particular London as a dispute resolution centre.