Lord Keen of Elie

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That the Bill be now read a second time.

The Advocate-General for Scotland (Lord Keen of Elie) (Con)

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My Lords, this Bill underpins the Government’s ambition to deliver a new framework on private international law which has real and tangible benefits for people and businesses in the United Kingdom.

Private international law is viewed by some as a technical and specialist area of law, but it is an essential one. 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. For example, these agreements can help small businesses which have been left out of pocket by a supplier based in another country to seek redress, or if a family relationship breaks down and one spouse moves abroad, they make it easier to sort out arrangements in the best interests of their children. These are sometimes difficult and challenging situations to resolve, but private international law provides a framework to do that for the benefit of all parties.

Of course, leaving the European Union does not halt cross-border trade, travel or family relationships that cross boundaries. These will endure and indeed grow in the years ahead, and where disputes arise, there continues to be a need for a framework to settle them in a clear, fair and predictable way. By helping to resolve cross-border disputes quickly, international agreements on the private international law framework help to reduce costs for UK businesses, individuals and families who become involved in them. These agreements also provide legal certainty for those travelling, trading or living abroad. They help avoid confusion by preventing multiple court cases taking place in different countries on the same subject and sometimes reaching different conclusions. They ensure that the decisions of United Kingdom courts and relevant competent authorities can be recognised and enforced in other jurisdictions. The Bill will allow us to implement these important and beneficial agreements in domestic law.

During our membership of the European Union, we helped build, develop and refine an advanced framework on private international law. Now that 31 January 2020 marks the first time in over 20 years that full competence in this area of law has returned to the UK, we must address it. Our task is to lead on building such a framework on a bigger scale in a global setting. We will begin by building on and cementing our role in international fora, such as the Hague Conference on Private International Law, the United Nations Commission on International Trade Law and the International Institute for the Unification of Private International Law, with other global partners.

I turn briefly to the detail of the Bill, which has two main clauses. The first clause implements in domestic law three Hague conventions that the UK currently operates due to our previous membership of the EU. In other words, the EU is a signatory of those conventions on behalf of all its member states. We will become an independent contracting party to these conventions in our own right at the end of the current transition period. These three Hague conventions are widely supported by stakeholders in the legal and finance sectors and, I hope, by Members across this House. We need to ensure that these important conventions can continue to operate effectively in the future, so that businesses and individuals can continue to rely on their rules.

The first is the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition and Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, which 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 second is the 2005 Hague Convention on Choice of Court Agreements, which aims to ensure the effectiveness of exclusive choice of court agreements between parties to international commercial transactions. These clauses are common, particularly in high-value commercial contracts. Thirdly, the 2007 Hague Convention on the International Recovery of Child Support and other Forms of Family Maintenance provides rules for the international recovery of child support and spousal maintenance.

The second clause creates a delegated power which allows the Government to implement other private international law agreements in domestic law in future via secondary legislation. I confirm that the Government intend to use this power to implement the Lugano Convention 2007, if our application to accede to that convention in our own right is accepted by our international partners, including the EU. This would provide clear, reciprocal rules on cross-border judicial co-operation in civil and commercial matters between the United Kingdom and all the parties to the convention, which include the EU. That would take effect beyond the transition period. However, we also want to use this power to implement other agreements that the United Kingdom may join, both now and in the future. We are already considering joining the Singapore convention of 2019, and the Hague Judgments Convention of 2019.

This power is both well defined and, I suggest, narrow. It only allows the Government to implement agreements in the limited field of private international law, which, as the Bill states, covers areas such as jurisdiction, applicable law, and the recognition and enforcement of judgments. For example, we could not use the Bill to implement an agreement designed to do anything other than facilitate the efficient resolution of cross-border disputes. All regulations implementing a new agreement will use the draft affirmative procedure. Furthermore, where the Government are inclined to enter into an international agreement on private international law, then, at the level of international law, that will still require full compliance with the provisions of the Constitutional Reform and Governance Act 2010. There will, therefore, be parliamentary scrutiny of the international treaty itself before we seek to draw it down into domestic law by using the affirmative SI procedure.

In summary, the Bill enables us to remain at the forefront of promoting global co-operation in private international law, and it will be of significant assistance after the transition period for businesses, individuals and families. I beg to move.

Lord Keen of Elie

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I thank all noble Lords for their contributions to the debate. I will take some of those points in turn. The noble and learned Lord, Lord Wallace of Tankerness, raised Hague Convention 35. Hague, unlike Lugano, for example, can be entered into by a state, but can be ratified and applied in respect of only one jurisdiction within the state. It so happens that Hague Convention 35 was implemented in respect of Scotland, but not of England and Wales, nor, I believe, Northern Ireland. I am not able to explain why it has been in abeyance for a number of years with respect to those other jurisdictions, but I can say that since the noble and learned Lord raised the point with me I have spoken to officials who are addressing that matter. Certainly, our recommendation would be that it should be applied in respect of England and Wales as well.

The noble and learned Lord asked when we last implemented an international treaty obligation without primary legislation. My stock response was going to be that we now have CRaG 2010, but he went on to criticise that. While I understand that some observations have been made about the sufficiency of CRaG, my response is that we now have primary legislation that requires parliamentary scrutiny in circumstances where we intend to enter into an international treaty. It is in that context that we use the affirmative procedure to draw down those obligations and apply them in domestic law. I venture that that is an acceptable mechanism, because it requires parliamentary scrutiny at the stage of international law. It allows parliamentary scrutiny at the stage of drawing it down into domestic law in accordance with the duality principle.

The noble and learned Lord, Lord Judge, adopted and advanced the submissions of the noble and learned Lord, Lord Mance—which shows courage and, indeed, prescience. He also asked why we refer to arbitration. We do not intend to intrude wholesale on the New York convention or other aspects of arbitration, but it might be that there will be bilateral or multilateral jurisdictional issues where a party wishes to refer to arbitration. If, at that stage in the negotiation, we consider that appropriate, albeit in a limited circumstance, we will want to have the power to proceed with such an agreement. However, we are conscious of the need to keep a dividing line between provisions with regard to arbitration that are generally addressed by wholly different conventions, such as the New York convention, as distinct from those that apply more generally in private international law. We are not endeavouring to cross any lines there.

Schedule 6 is where it is because that is where it should be. It is not hiding. I reassure the noble and learned Lord of that. With regard to Schedule 2, my understanding is that it reflects or replicates the text of the 1996 Hague Convention on child protection and is in that form for that reason.

A question was also raised by the noble Lord, Lord Collins, and others about why we have these Henry VIII powers to amend primary legislation. There may be circumstances in which we want to insert implementation provisions into existing primary legislation. I ask noble Lords to notice that that is exactly what we are doing with Clause 1, where we are putting the three Hague Conventions into the Civil Jurisdiction and Judgments Act 1982. It might be that we will want to use existing primary legislation and implement using existing primary legislation. That is why that power has been taken.

The noble and learned Lord, Lord Mance, gave a very detailed and reasoned distinction between the merits of the Brussels regime, in which we played a very prominent part, and the perhaps deficiencies, to use one term, or the less robust regime we find in Hague and even in Lugano, which essentially reflects Brussels rather than Brussels Ia and Brussels IIa. I have to notice that there are those differences. It is a consequence of us having left the EU on 31 January 2020 —it is as simple as that, is it not? I know the noble and learned Lord recognises that. We cannot be part of the Brussels regime now we have left the EU, and the Government have made it clear that they will not be subject to the jurisdiction of the ECJ.

Of course, if and when we become a party to Lugano, we will seek to move forward the Council of the Lugano Convention to address its equivalence because Lugano originally reflected Brussels I and Brussels II and it is yet to catch up, as it were, with Brussels Ia and Brussels IIa, but certainly if we were a party to it, we can see that we could drive the direction of travel.

That said, we have to be careful about when we engage in the Lugano process. We have made an application to the Council of the Lugano Convention. We have letters of support from the three existing Lugano states, but noble Lords are quite right to point out that we require the consent of the EU to become a party to the Lugano Convention. There are also questions about the way in which that will interrelate with the provisions of the 2019 Hague Convention, and we will have to look at that. Again, my understanding is that we were a material contributor to the development of the Council provision on the 2019 Hague Convention as well, so we are familiar with it, and we see its considerable benefit, all the more so if the EU were to become a contracting state to the 2019 convention.

However, the noble and learned Lord, Lord Mance, is ahead of me. I thought only Uruguay had ratified so far, but he was able to add Ukraine.

Lord Keen of Elie

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I apologise—it has signed but not ratified. As the noble and learned Lord will know, it takes a little time for signatures. There has to be a certain number of states signing to the convention and then ratification can take place. Clearly, we are conscious of that. The noble and learned Lord has highlighted a real issue, which is the care we must take in considering our position with regard to Lugano and with respect to the 2019 Hague Convention. If we were not conscious of that before, we are now, if I can put it that way. It may be that the Lord Chancellor’s consultative committee should have sat earlier.

I hope I have addressed the majority of the points that have been raised so far. There was one point the noble and learned Lord, Lord Wallace, raised about intra-UK powers. We will have powers to implement an agreement intra-UK but clearly we would do so only after engagement with the devolved Administrations because the implementation of private international law is a devolved competence, albeit that entry into the treaty at the level of international law is a reserved competence. I reassure the noble and learned Lord that we would not do that without full consultation with the relevant parties.

I see that the noble Baroness, Lady Shackleton, is about to rise, but before she does so I shall just say that in the absence of Brussels and in the absence of provision in international law convention under Hague for certain matters, such as jurisdiction on divorce, we will fall back on our previous common-law position, which some will regard as less than entirely satisfactory, but it is a consequence of us having left the EU. I hope that that anticipates the intervention I was going to get.

Given the hour, I will rest my further submissions there. I look forward to further detailed discussion of these matters in Committee.

The Advocate-General for Scotland (Lord Keen of Elie) (Con)

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My Lords, I thank all noble Lords for their contributions to the debate. I shall of course speak to each of the amendments, Amendments 1, 4 and 5. When taken together, as the noble and learned Lord, Lord Falconer, observed, they have the effect of restricting the power to implement international private law agreements contained in Clause 2 in the 2007 Lugano Convention. But they not only limit the power of the United Kingdom to implement private international law agreements in this way, they also restrict our ability to mirror any such arrangements as between the United Kingdom’s different legal jurisdictions, and indeed as between the United Kingdom and the Crown dependencies and overseas territories.

Of course we accept, as we have previously, that the most pressing need for the power is in relation to the Lugano convention itself. Our application to rejoin the convention as an independent contracting party was made on 8 April—

Lord Keen of Elie

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I think that I am coming back. I apologise, but something happened on the computer.

We have made the application and it is hoped that, subject to agreement, we will be able to rejoin the Lugano convention from the end of the transition period.

I will pause to notice some of the observations made by my noble friend Lady McIntosh of Pickering and the noble Lord, Lord Marks, with reference to Brussels Ia and IIa restated. My noble friend asked in a number of ways what steps we are taking with regard to what she termed the Brussels convention and what progress is being made on that matter. I think we have to remind ourselves that Brussels Ia and IIa do not form an international convention; they are internal instruments of the EU to which you may be a party only if you are a member of the EU. We of course have the transition period during which we enjoy the benefits of Brussels Ia and IIa until the end of the year, but there is no basis on which we can be members of Brussels, as was suggested, after the end of the transition period. That is why we are concerned to apply for membership of Lugano.

With regard to a number of the observations made by the noble and learned Lord, Lord Mance, of course I readily acknowledge that Lugano is not as well developed in a number of respects as the Brussels Ia and IIa restated provisions. We are well aware of that. We would hope to advance Lugano once we are a member, but we have to acknowledge that it is not on a par with Brussels Ia and IIa.

However, Lugano is not the only potential use of the power in Clause 2. For instance, Amendment 1 would prevent us joining two other private international law agreements on which the Government are currently considering their position. They are the Singapore convention on mediation and the Hague judgments convention of 2019. I will return to the latter in a moment because it has been mentioned before.

With regard to the Singapore convention, I have shared with noble Lords a copy of an exemplar statutory instrument to demonstrate the sorts of agreements that we may wish to implement under the Clause 2 power. While the final decision on joining that convention is still to be taken, I invite noble Lords to look at that exemplar statutory instrument when considering the ways this power might be used. The instrument contains what are, essentially, technical implementing regulations for a treaty agreed at the level of international law. The choice for this House and the other place at the point of implementation is about not the specific provisions of an agreement, but whether to approve the United Kingdom’s implementation of the whole agreement in domestic law.

Beyond those two examples of private international law agreements which already exist, and which the UK is considering joining, we are actively engaged in work through the Hague conference to develop rules on jurisdiction in international civil and commercial cases. The global arena of private international law is constantly developing. We have been active in it in the past, and hope and intend to take a leading role in the future.

Restricting the scope of the Clause 2 power in the way envisaged by this amendment would, I suggest, prevent the United Kingdom implementing any future agreements in a timely manner. That would in turn delay the benefit of those agreements to citizens and businesses. I regard that as an unsatisfactory position, given that in many cases there is considerable advantage to be gained from such international co-operation in the area of private international law. It would also mean that primary legislation will be needed to insert into a schedule to the Civil Jurisdiction and Judgments Act 1982 the text of the United Kingdom’s declarations and reservations in relation to the 2005 Hague Convention and the 2007 Hague Convention, in the absence of which the terms of the United Kingdom’s accession to those agreements will be far less accessible to users.

I also point out that it will mean that the definition of “relevant international agreement”, as used in subsections (2) and (3), and presently defined in subsection (7) by cross-reference back to subsection (1), will be unclear. That term is also used in Schedule 6 and defined by cross-reference back to Clause 2. In addition, the way that Amendment 1 has been drafted would not in practice allow us to make implementing regulations in advance of becoming a contracting party but only after joining. In that respect, I venture that it is defectively drafted because, essentially, one has to take these things in a particular order.

I turn to Amendment 4. As drafted, Clause 2(2) allows the terms of an international agreement, subject to suitable modifications, to be applied between United Kingdom jurisdictions: for example, between England and Scotland. Amendment 4 seeks to restrict this power to allow for only the Lugano convention to be applied in this way. International agreements on private international law would not ordinarily apply between the United Kingdom’s three jurisdictions because such agreements apply only between contracting parties and it is the United Kingdom Government, not their separate jurisdictions, who join international agreements. Although the relationship between the different parts of the union are perhaps far deeper than they are between foreign jurisdictions and ourselves, it often means that the rules between different UK jurisdictions need to be detailed and bespoke. Applying the same rules between United Kingdom jurisdictions that we apply with foreign jurisdictions will, not invariably but very often, be desirable. For example, it could reduce the number of sets of rules that courts need to apply in cases raising cross-border issues, making them more efficient and easier for courts, lawyers and litigants to understand. It would also mean that intra-UK private international law rules are at least as effective and up to date as the rules applied between the United Kingdom and foreign jurisdictions. Clause 2(2) allows for such keeping pace but would be exercised only if the relevant jurisdictions agree that it is beneficial to do so.

These sorts of arrangements are not without precedent. All three UK jurisdictions already apply rules that mirror the EU Brussels 1A regulation on jurisdiction for cross-border cases and much of the EU maintenance regulation as between themselves. The fact that, thanks to Schedule 4 to the Civil Jurisdiction and Judgments Act 1982, a modified version of the Brussels 1A rules is applied to cases between Scotland, Northern Ireland and England and Wales means that there might be limited prima facie rationale for suggesting that we replace this with the application of the rules under the Lugano convention. The rules are already substantially similar.

However, in addition, the amendment that I referred to has an altogether more significant deficiency. By limiting the intra-UK application of private international law agreements to the Lugano convention, the amendment may well result in the perverse situation in which the intra-UK rules are out of step, out of date and less effective than those governing the relationship between all three of these jurisdictions and a foreign jurisdiction. If the amendment were accepted, separate primary legislation would be needed to achieve this, potentially resulting in the intra-UK rules being less effective and less comprehensive than the rules that we apply with foreign jurisdictions until such primary legislation was passed.

Perhaps I may give an example. If the United Kingdom decided in future to join a new private international law agreement dealing with cross-border cases regarding children, the inability to implement that agreement between the UK’s jurisdictions at the same time as implementing an agreement between the UK and foreign jurisdictions could lead to families finding it more difficult to resolve disputes where parents live in, say, Northern Ireland and England than where one parent lives in the United Kingdom and the other in a foreign country. That would be a very strange outcome.

Amendment 5 has an effect similar to that of Amendment 4 in that it seeks to restrict the ability, under the Clause 2 power, for the United Kingdom to enter into arrangements with the Crown dependencies and overseas territories that mirror, subject to suitable modifications, the provisions of a private international law agreement to which the United Kingdom is a party. As I explained in relation to Amendment 4, the UK Government are the contracting party to international agreements on private international law. As such, these agreements would not ordinarily apply as between the United Kingdom and one of the Crown dependencies or overseas territories.

However, as with the relationships between the different legal jurisdictions of the UK, applying the same rules between the UK and the Crown dependencies and overseas territories that we apply with foreign jurisdictions will sometimes be desirable. It can ensure that the relationships between the various members of the wider UK family can be at least as effective and up to date as those applied between the United Kingdom and foreign jurisdictions. Clause 2(3), as presently drafted, allows for such keeping pace but only if the relevant territorial Government agree that it is beneficial to do so.

I submit that this builds on a significant body of precedent. Both the Administration of Justice Act 1920 and the Foreign Judgments (Reciprocal Enforcement) Act 1933 enable the Government, via Order in Council, to recognise and enforce civil and commercial judgments from the Crown dependencies and overseas territories where reciprocal arrangements have been entered into with them. Furthermore, Section 39 of the Civil Jurisdiction and Judgments Act 1982 enables the Government, by Order in Council, to apply a modified version of the Brussels 1968 convention between the United Kingdom and a Crown dependency or overseas territory. Indeed, an order was made in respect of Gibraltar in 1997 to do exactly that: applying a modified version of this convention to relations between the UK and Gibraltar—an arrangement that sustains to this day.

Lord Keen of Elie

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My Lords, I of course am listening to the contributions made to the debate in Committee and will take account of the observations that have been made. I make no comment on the procedural issues that the noble Lord raised.

Lord Keen of Elie

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First, let me make it clear that I do not accept that it is an invariable constitutional practice that the implementation in domestic law of an international law treaty is undertaken by way of primary legislation only. Secondly, when it comes to the implementation of a treaty that has been entered into at the level of international law, the purpose of drawing it down into domestic law is either to accept it into domestic law or not to accept it into domestic law. There is no scope for amending the terms of the treaty that has already been entered into. Therefore, the use of the affirmative statutory instrument procedure is considered appropriate. It gives this House and the other place ample opportunity to debate whether they should draw down the treaty obligations into domestic law. There is, essentially, no real scope for amendment; therefore, we consider the affirmative procedure perfectly adequate for that purpose.

Lord Keen of Elie

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I thank the noble and learned Lord, Lord Mance, for his further observations. I simply notice this: for the last 20 years, Parliament has had no oversight of the drawing down of these obligations into domestic law because it has been an EU competence. That has not led to any dramatic constitutional issue, as far as I am aware.

In the meantime, however, we have introduced CRaG, which means that the entering into a treaty at the level of international law is now subject to scrutiny by Parliament. After that scrutiny, the Executive can enter into the relevant treaty. Then, when it is drawn down into domestic law, the affirmative statutory instrument procedure ensures that both Houses of Parliament have an opportunity to scrutinise and debate this. There is no difficulty about that; it is the outcome that matters.

However, I notice the noble and learned Lord’s observation that there is little that can be done by way of amendment at that stage. That is why we would suggest that the affirmative procedure was a perfectly adequate mechanism, as distinct from primary legislation.

Lord Keen of Elie

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On that point, of course I accept that Lugano does not go as far as Brussels Ia and IIa—Brussels restated. We are all well aware of that. As regards the interplay between Lugano and the Hague Convention 2019, one has to bear in mind that Hague has not been signed or acceded to by the EU. We do not know if or when it may intend to do so. Indeed, it is noteworthy that it took the EU 10 years to sign and accede to the Hague Convention 2005. On the other hand, Lugano is there and available as a convention. A number of noble and learned Lords have acknowledged its importance in the context of private international law. Therefore, it is appropriate that we proceed with Lugano at this stage.

Lord Keen of Elie

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I mentioned them earlier in my observations with regard to the 1920 and 1933 Acts, which, by Order in Council—not even a statutory instrument—can draw these matters down into domestic law.

Lord Keen of Elie

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There may of course be incidental policy issues that arise when we come to draw down into domestic law an obligation, or obligations, undertaken at the level of international law. Clearly, in circumstances where there were policy choices to be made, a Government would consult upon those matters to bring forward policy choices that were acceptable to stakeholders. If they were not acceptable to Parliament, even after consultation, Parliament would not pass the affirmative SI in question. I do not accept that it is necessary in each and every instance to bring forward primary legislation for this purpose. In those exceptional cases where there may be consequential issues to be addressed, clearly they will be addressed at policy level. They will be consulted upon and the matter brought forward. The Government will not bring forward a policy proposal for an incidental measure without realising that Parliament would be prepared to accept it. That would be a pointless exercise.

Lord Keen of Elie

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My Lords, I begin with Amendment 2, which as the noble and learned Lord, Lord Falconer, noted, would seek to limit the scope of the Clause 2 power to implement agreements to those that relate exclusively to private international law, whereas of course in its present form of drafting it is clearly intended to extend to the implementation of private international law provisions in wider agreements. In previous correspondence, as noted by the noble and learned Lord, Lord Mance, I referred, as an example, to the jurisdiction of the provisions of the 1961 Warsaw Convention, which is concerned with international carriage by air. The point made by the noble and learned Lord, Lord Mance, was: why would you seek a power to implement such a private international law provision outwith the wider terms of the relevant international agreement? There may be some force in that point. It is one that I would like to consider further, and I will do so before we reach Report.

Amendment 6, which was just referred to by noble Lords, seeks to remove legal aid from the scope of the matters about which Clause 2 regulations can make provision. In the light of the observations of the noble Lord, Lord Thomas, perhaps I should explain that the Bill as presently drafted does not expressly include legal aid in the scope of the definition of private international law. However, under Clause 2(5)(c), it allows for regulations that implement or apply a private international law agreement to make provision for legal aid. This would mean that, where a private international law agreement to which the UK chose to become a party included obligations in relation to legal aid, those could be given domestic effect through Clause 2 regulations.

The reason for that approach to the matter of private international law and legal aid in the Bill is that, although there is some doubt about whether legal aid is typically encompassed in the scope of what is referred to as private international law as generally understood by practitioners and academics, there are circumstances in which a private international law agreement could contain specific legal aid provisions. This normally arises, as one might expect, in the field of family law. For example, there is a requirement in the 1980 Hague Convention on international child abduction for a contracting state to apply the same legal aid rules to citizens of, and persons habitually resident in, other contracting states in matters covered by the convention as it would to its own citizens and residents. It is therefore the Government’s view that, should similar conventions arise in the future providing for critical cross-border co-operation in matters of private international law, it would be unfortunate if there were to be a delay in people benefiting from the provisions of such an important convention.

Where a private international law agreement imposes requirements relating to legal aid that go beyond the sorts of areas for which the United Kingdom Government currently provide such funding domestically, we would need to think very carefully before proceeding. However, the normal process of consultation during the development of, and before taking the international steps to join, a convention of this nature would provide an opportunity for consideration of any legal aid implications.

In short, the amendment would create unhelpful doubt around whether the Clause 2 power could be used to implement a private international law agreement that included provisions relating to legal aid, and indeed it might even render that impossible.

Amendment 9 seeks to restrict the Clause 2 power to implement in domestic law only the private international law agreements to which the UK is already a contracting party and nothing further. It will not be possible for the Government to take the final steps necessary under international law for the United Kingdom to become bound by a new agreement in this area, such as depositing an instrument of ratification, because, in order to do that, the necessary implementing legislation must already have been made and, as a result of this amendment, it would need a different legislative vehicle.

Lord Keen of Elie

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My Lords, as with the previous groups of amendments, the underlying theme is that Clause 2 should not stand part of the Bill, but we have to look at these amendments in the context that it does stand part. They would therefore limit the power conferred by that clause—that context is important.

When discussing Amendments 4 and 5, I pointed out that, in the context I have just described, they in turn would result in an unacceptable restriction of the power in Clause 2 and would mean that co-operation on private international law matters between different parts of the United Kingdom family would be significantly less well developed than it is between the United Kingdom and international partners. As a matter of policy, we see no way to justify such a position. Why, for example, should two parties in London and Edinburgh have less legal certainty about the way in which their dispute will be resolved than if the dispute was between parties based in London and Paris or New York? Of course, the point is then made that it is not a question of whether, but how. If you are able to have this regulatory-making power under Clause 2 with regard to foreign jurisdictions, why not intra-UK?

If, as suggested by the noble and learned Lord, Lord Wallace, the concern is the power being perceived as risking imposing a position on Scotland, Northern Ireland, the Crown dependencies or overseas territories without consultation or consent, I would seek to assuage those concerns. Such arrangements under the power would require the agreement of all the relevant Administrations—the United Kingdom Government and the Government of the relevant devolved Administration, Crown dependency or overseas territory. Indeed, such a measure would be considered only after the Government had consulted appropriately with relevant stakeholders, and the statutory instrument to give effect to such a “mirroring” provision—that is what it would be—would still be subject to the scrutiny of the affirmative procedure, as I noted before.

There are examples where such mirroring-type relationships already apply. We apply a modified version of the terms of the 1968 Brussels Convention, an instrument that was the forerunner to Brussels I and the recast Brussels IA regulation, between the United Kingdom and Gibraltar. That works perfectly well. Therefore, assuming Clause 2 stands part of the Bill, we do not see any reason why it should be amended in the way suggested.

I now turn to Amendment 18, which would in turn require fresh primary legislation if the UK wished to amend or revoke, at a later date, any declarations it chose to make when it first implemented a new international agreement. This would mean, for example, that if, in implementing the 2005 Hague Convention, the Government decided to replicate the current EU declaration in regard to certain insurance contracts being out of scope of the convention and then wished to review that decision later, primary legislation would be required to implement that change.

Our policy intention is to replicate the current EU declaration in relation to the exclusion of certain insurance contracts when we accede to the 2005 Hague Convention later this year, because this is how the convention rules currently apply here and, given the tight timeframe between now and the end of the transition period, it makes sense to maintain the status quo and then review in the longer term. Under the proposed amendment, if we wished to change our position following that review, we would have to wait for a primary legislative vehicle to give effect to that change. In our view, that would simply create undue delay on a matter which could be addressed through secondary legislation without losing any of the desired scrutiny. It is in these circumstances that I respectfully ask the noble and learned Lord not to press his amendments.

Lord Keen of Elie

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Let me be clear: I do not accept the underlying premise of the noble and learned Lord’s argument. However, I am perfectly content to look at this before the next stage of the Bill in order that I can, again, reassure him of the position. There is no intent here to proceed to regulatory-making power without the consent of the relevant devolved Administration. That would be wholly inappropriate, and I accept the noble and learned Lord’s observation that it would conflict with the devolved settlement. However, I am perfectly willing to look at this again.

Lord Keen of Elie

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My Lords, I am obliged to the noble Lord, Lord Foulkes of Cumnock, for tabling what he very candidly pointed out were probing amendments. I am also obliged to the noble and learned Lord, Lord Wallace, who drew on his experience of the devolved Administrations and was able to outline the position in this matter. I will come in a moment to address the questions raised by the noble and learned Lord, Lord Hope, in the context of these provisions.

As the noble Lord, Lord Foulkes, pointed out, two authorities are identified in this part of the Bill that might proceed to implement matters of private international law in Scotland. That is consistent with legislation in other areas. The Secretary of State might decide, with the consent of the Scottish Ministers, to make UK-wide provision for implementation. That is why he is one of the identified national authorities, because there are circumstances in which the Scottish Ministers would be entirely content for there to be UK-wide provision.

Alternatively, if that is not the case, Scottish Ministers may themselves then proceed as a national authority to implement the matter in domestic law. That is because, as the noble and learned Lord, Lord Wallace, pointed out, the position is that—I am sorry, something came up on another phone and rather distracted me—the implementation of private international law is a devolved issue under the Scotland Act, so allowance is made for both provisions.

As regards this Bill, an LCM was discussed between officials. The Scottish Ministers have recommended that such an LCM should be provided, and the noble and learned Lord, Lord Wallace, pointed out the terms of the recommendation that Scottish Ministers have made to the Scottish Parliament with regard to this matter. Indeed, there was prior discussion about these proposals last year, when the Lord Chancellor, for example, was in communication with the Scottish Government on matters of the convention. Perhaps I can clarify this by reference to the points made by the noble and learned Lord, Lord Hope. The Secretary of State may be a national authority with the consent of Scottish Ministers because Scottish Ministers may, as sometimes happens, wish to see UK-wide regulations made here for implementation. Alternatively, as the national authority, they may choose to do that for themselves. The Secretary of State clearly does have the power to do that because under the Scotland Act there is the power to legislate for the entirety of the United Kingdom as regards the implementation of a matter that is otherwise within the devolved competences, so that does not raise an issue either.

With regard to the matter of whether or when it would be one national authority or the other, that is simply a matter that will be discussed, as it is in other contexts, between the United Kingdom Government and Scottish Ministers. If Scottish Ministers are content that the UK Government should legislate UK-wide on this matter, that will happen. If they are content for that to be done, then Scottish Ministers will deal with the matter. The Secretary of State cannot deal with the matter without the consent of Scottish Ministers, so I hope that that puts minds at rest in this regard.

As regards the identification of the Secretary of State as an authority and the reference, for example, in the Scotland Act to a Minister of the Crown, I accept that the reference in this Bill is more limited. Because I cannot answer immediately, I will consider why it was thought appropriate to limit it to the Secretary of State as opposed to the wider reference to a Minister of the Crown. But I will look at that to see whether there is an issue there that needs to be addressed.

As regards consultation on the implementation of international treaties, that is not an issue, but as regards entering into international treaties, that is of course a reserved matter. I recognise that it is appropriate that Scottish Ministers and others should be consulted on these matters for their interests when they arise. I do not understand that to be a difficulty in this context, nor a matter that would require express provisions in the terms of this Bill.

I thank the noble Lord, Lord Foulkes of Cumnock, for his probing amendment and I hope that I have been able to put minds at rest as regards why there are two identified national authorities for the purposes of Clause 2. In the event that Clause 2 stands, these are appropriate alternative mechanisms for the implementation of these provisions.

One final matter raised by the noble Lord, Lord Foulkes, was the issue of contract, but of course, where you have a contract, it will have a choice of jurisdiction and a choice of law. If the contract has Scotland as a choice of jurisdiction and Scots law as the choice of law, that will be binding if we have a situation in which, for instance, the Lugano provision applies. I hope that that answers the query in so far as I have understood it.

I cannot give a precise date for the provision of the LCM, but as the noble and learned Lord, Lord Wallace of Tankerness, himself indicated, Scottish Ministers have recommended the granting of an LCM, and it is not anticipated that there will be any difficulty. With that, I invite the noble Lord to withdraw the amendment.

Lord Keen of Elie

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My Lords, I thank the noble Lord for what I understand are, again, probing amendments. As I perhaps explained, the Crown dependencies and overseas territories have a constitutional relationship with the United Kingdom whereby the United Kingdom is responsible for their foreign relations. This means that the Crown dependencies and overseas territories do not generally themselves join international agreements, including agreements in the area of private international law, which we are concerned with here. Instead, an agreement that applies in the United Kingdom can usually be extended to apply also in a Crown dependency or overseas territory. We work with those Crown dependencies and overseas territories to determine where and when they would wish to have a private international law agreement apply between them and other contracting parties. The scope of the United Kingdom’s ratification of that agreement is then extended to them. This means that multilateral agreements extended to the Crown dependencies and overseas territories apply only between those jurisdictions on the one hand and the other contracting parties on the other, but not between the Crown dependencies and overseas territories and the UK. To apply the agreement with the UK, there needs to be a separate mirroring arrangement, as it is sometimes termed. I referred to that in responding to earlier amendments.

The general power within Clause 2(3) allows the United Kingdom to maintain and develop a private international law framework with the Crown dependencies and overseas territories as well as with foreign partners. That is the intent here.

The noble Lord asked about consultation. There was consultation, not with the governors of the Crown dependencies and overseas territories, but with each attorney-general and their officials. My understanding is that they were entirely content with the way in which these provisions are extended to the benefit of the Crown dependencies and overseas territories.

The noble Lord raised the question of entrustment. It does not directly arise in this context, but entrustment is where the United Kingdom essentially consents to a Crown dependency, for example, entering into an agreement at the level of international law. That can sometimes happen where, for example, a Crown dependency wants a reciprocal agreement with a foreign partner.

The behaviour of the overseas territories is monitored by the Foreign and Commonwealth Office and there are instances in which, for the purposes of good governance, the United Kingdom will intervene in the affairs of an overseas territory. The noble Lord himself gave an example in respect of the Turks and Caicos Islands where that has been done.

As regards the choice of court or arbitration that the noble Lord referred to, in so far as I understand his point, I would respond that it is up to parties to a private contract to determine how their disputes, if any, will be resolved. For that purpose, the parties can choose a law or legal system to apply to their private contract and the jurisdiction in which their disputes will be resolved. That is an issue that arises only in the context of their private contract and in the context of what we are dealing with here, which is private international law. At the level of private international law, we are concerned with the way in which other jurisdictions respect that law, respect the choice of jurisdiction and, indeed, then respect the judgment of that jurisdiction when it comes to enforcement.

I hope that answers the points raised by the noble Lord. I thank him for the probing amendments, but I invite him to withdraw Amendment 14.

Lord Keen of Elie

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My Lords, I thank noble Lords and noble and learned Lords for their contribution to this part of the debate. Since the commencement of this Committee, the matter of whether Clause 2 should stand part of the Bill has in a sense been the elephant in the virtual Chamber—or perhaps the virtual elephant in the Chamber. I therefore do not intend to rehearse or repeat the arguments that have been made repeatedly in Committee. However, I want to make it clear that the Government regard the powers in Clause 2 as essential to achieving their objective to build up the United Kingdom’s position in private international law, not only in the immediate future but in years to come.

Of course, there is one particularly pertinent example of our ambition; namely, our ambition to accede to the 2007 Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, and the desire—indeed, the need—to do that before the end of the transition period. It would be gravely unfortunate if a gap was to emerge between the end of the transition period, when we continue to look to the Brussels I and IIa regime, and the application of the 2007 Lugano Convention. We are concerned that that should be avoided.

Briefly, first, we consider that the proposal in Clause 2 is not only essential but proportionate. International law agreements are generally uncontroversial and technical in nature, and the detailed content of the private international law agreements to which the Bill will apply will already be determined at the international level; they are by their very nature clear and precise in their terms.

Lord Keen of Elie

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As regards the UK-US negotiations, I say only that I am not in a position to comment on how far they have gone, or on whether they have engaged the issue of private international law at all.

Lord Keen of Elie

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My Lords, the noble Lord, Lord Adonis, has made a number of extremely telling and important points. We are clearly in a situation where we must ensure either that we have an entirely reliable voting system in the upper Chamber, or alternatively a clear and telling government majority. I suspect that it is more likely that we will seek to secure the former.

The Advocate-General for Scotland (Lord Keen of Elie) (Con)

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My Lords, this government amendment seeks to allow certain provisions of the Bill to be extended to the Isle of Man through what is commonly known as a permissive extent clause. This is a well-established method of enabling UK legislation to be extended to the overseas territories and Crown dependencies.

I should clarify that the amendment was explicitly requested by the Isle of Man Government due to the legislative pressures that Tynwald, the island’s parliament, currently faces. I want to be clear with noble Lords that I am moving the amendment to allow debate and to put on record the request from the Isle of Man Government. I recognise that some noble Lords expressed concerns in the earlier parts of this Committee stage about both the scope and purpose of Clause 2, to which this amendment relates. I will therefore seek to withdraw the amendment once noble Lords have had an opportunity to speak to it.

Returning to the detail of the amendment, this permissive extent clause provides for the addition of a narrow delegated power that, when activated, will allow certain provisions of the Bill to apply in the Isle of Man. The power is exercisable by an Order in Council, which can be made at a time agreed between the UK Government and the Isle of Man Government.

Once made, the Order in Council would extend the Clause 2(1) power to the appropriate authority on the Isle of Man. This would enable the Isle of Man to make its own regulations to implement international agreements on private international law. This power could be used only to implement agreements that the United Kingdom has extended to apply in the Isle of Man, which means that both the United Kingdom and the Isle of Man would be able to operate the agreement between their own jurisdictions and the other contracting parties.

In addition, the amendment would enable the Isle of Man to implement an arrangement to apply the terms of a private international law agreement, subject to necessary modifications, between the Isle of Man and the United Kingdom. Clause 2(3) already provides this power to the United Kingdom. The amendment will enable that power to be extended to the Isle of Man to give it the power to do the same, alleviating the need for it to enact its own primary legislation to implement such an arrangement. Of course, in both cases, the arrangement will be about operating a private international law agreement that the United Kingdom has joined, as anything else would fall outside the scope of the power.

The amendment would not affect the United Kingdom directly. It would require the Queen to approve an Order in Council at a meeting of the Privy Council and would allow the Isle of Man also to make use of this important legislation. Should there be any effect on the UK, it is likely that any agreed arrangement relating to applying private international law agreements between the UK and the Isle of Man could be implemented efficiently both here and in that dependency by mutual agreement.

As I have already stated, this measure is limited to the Isle of Man simply because it issued a formal request for the Bill to include this permissive extent clause. We have engaged with the other Crown dependencies and overseas territories on the Bill; they have not requested that this provision be extended to them. In these circumstances, I beg to move.

Lord Keen of Elie

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I am obliged to noble Lords for their contribution to the debate, and note what has been said. Perhaps I may respond to the points made by the noble Lords, Lord Adonis and Lord Mann, and touched upon by the noble and learned Lord, Lord Falconer—although I have a correction to make there. The reason why this is being done only in respect of the Isle of Man is that the Isle of Man has specifically requested that this mechanism should be available, so that we can proceed by way of an Order in Council from the Privy Council. It will be for the other Crown dependencies to determine whether and when they wish to implement primary legislation within their own legislatures to come within the ambit of such international agreements as the United Kingdom draws down.

The noble and learned Lord, Lord Falconer of Thoroton, referred to variation between parts of the United Kingdom but of course the Crown dependencies are not part of the United Kingdom. They have a unique status and it is for them to determine whether and to what extent they wish to become a party to legislation that draws down into domestic law international treaty obligations. I continue to believe that this amendment is important and respect the request of the Government of the Isle of Man. However, I recognise the concerns expressed about the links between this amendment and the Clause 2 power to which exception is taken. The noble Lord, Lord Marks, and the noble and learned Lord, Lord Falconer of Thoroton, made that point. In these circumstances I will therefore withdraw the amendment, but I intend to continue this discussion at a later date. For present purposes, I beg leave to withdraw the amendment.

Lord Keen of Elie

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My Lords, taken together, the amendments relate broadly to either narrowing the scope of the Clause 2 power or increasing parliamentary scrutiny for use of that power, and I recognise the observations made by a number of noble Lords and noble and learned Lords that this is very much secondary to the opposition expressed to Clause 2 itself. I note the observation of the noble and learned Lord, Lord Falconer of Thoroton, that this is essentially a series of probing amendments.

Before I look at the various amendments, I note that the noble and learned Lord, Lord Falconer, and other noble Lords referred to the role of the Lord Chancellor’s Advisory Committee on Private International Law and the importance of consultation with it, with which I entirely concur. I am now co-chair of that committee, together with the noble and learned Lord, Lord Mance. Its recent meeting was extremely useful. We looked at some technical issues surrounding the application of the Hague conventions of 2005 and 2007 at the end of the transition period. We may hear a little more of that in due course.

Amendment 19 deals with the creation of a criminal offence in the implementation in domestic law of a relevant private international law agreement. The use of the Clause 2 power to create a criminal offence there is very constrained. It is true that private international law agreements do not generally require contracting parties to create criminal offences, and there are no such requirements in the private international agreements that the UK is currently considering joining and implementing under the powers in this Bill. However, it remains a very real possibility that we might negotiate or seek to join a new agreement where a power to create or extend existing criminal penalties will be needed to fully implement the international law obligation. Take an agreement on reciprocal recognition and enforcement of protection measures, for example. In England and Wales, protection measures such as non- molestation orders or injunctions may be made by the courts under the Family Law Act 1996 or the Protection from Harassment Act 1997. Breaches of those orders are punishable by criminal penalties. Any future private international law agreement in this area on reciprocal recognition of such orders, if successfully negotiated, would particularly benefit those who are most vulnerable in our society and reliant on such protection measures, whether they remain within the United Kingdom or travel abroad, where they would wish to retain the protection of such orders.

If we entered into such an agreement, it would seem reasonable and appropriate to exercise the Clause 2 power so that, for example, we could extend criminal penalties for breach of a UK order to also apply to the breach of an order issued by a relevant foreign court. Breach of an order issued by a foreign court would in effect carry the same criminal penalty as that for breach of an equivalent UK order. But that criminal offence-making ability would of course be subject to the limitations within the Clause 2 power itself as currently drafted. Let me be clear: we could not create an offence under this power which would carry a term of imprisonment of more than two years, for example. That is an important safeguard on the exercise of the Clause 2 powers in this area.

The Advocate-General for Scotland (Lord Keen of Elie) (Con)

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My Lords, I begin by thanking the noble and learned Lord, Lord Wallace of Tankerness, not only for his contribution to the debate but for engaging with my officials and me on this matter.

As noted, the amendment seeks to deal with the ratification of the 2000 Hague Convention on the International Protection of Adults in respect of England, Wales and Northern Ireland. Of course, the United Kingdom has ratified this convention, but the extent of this is limited to Scotland. I am pleased to confirm to the noble and learned Lord that it is our intention to extend the ratification of this convention to England and Wales. Discussions have commenced with officials in Northern Ireland to ascertain whether the Northern Ireland Executive would require the extension to apply to Northern Ireland.

The Mental Capacity Act 2005 largely implements the convention and contains powers to make any additional provision required. Schedule 3 to that Act provides for the recognition and enforcement in England and Wales of protective measures made in respect of vulnerable adults by the courts of other contracting states. Some Schedule 3 provisions are already in force and some will come into force upon ratification, at which point reciprocal recognition of domestic protective measures by other states will also come into effect. There remain some outstanding matters that require further implementation; largely, additional operational arrangements for the location or placement of vulnerable adults as between contracting states.

It is the Government’s view that the most appropriate way to implement these remaining matters is to make any additional provision required in or under the 2005 Act, using the powers provided for in that Act for this specific purpose. We will proceed with this as soon as we reasonably can, taking account of the need to take the Northern Ireland Executive with us if it is their wish that the matter be extended to Northern Ireland. In these circumstances, I invite the noble and learned Lord to withdraw this amendment.

Lord Keen of Elie

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My Lords, we debated Clause 2 at great length at Second Reading and in Committee, and I note the further observations made by noble, and noble and learned, Lords with regard to the issue. As I have explained, the Bill is about implementing in domestic law treaties that we have already determined to join. Parliament will be afforded scrutiny under the Constitutional Reform and Governance Act 2010—CRaG—process prior to ratification. If it is not content, ratification will not occur.

While I acknowledge that there are differing views as to how effective CRaG has been to this point, it is perhaps important to recognise that, as of 28 January this year, Parliament has decided to strengthen its procedures around the CRaG process by agreeing to create a new sub-committee of the European Union Committee to focus on treaties laid under the procedure. This should provide additional opportunities for scrutiny in this area. The Government look forward to engaging with the committee on these matters. I note the point made by the noble and learned Lord, Lord Mance, but I observe that ratification will ultimately be a matter for Parliament before implementation of an international agreement could ever take place.

Furthermore, as with other powers to implement international agreements by way of secondary legislation that exist in the fields of, for example, taxation or social security, we are talking about private international law agreements that are, by their nature, quite technical in their terms. The details of any rules contained in these sorts of agreements will already have been determined at the international level and are usually, by their very nature, clear and precise. The power seeks to allow Ministers to bring forward regulations to effectively implement rules that have been agreed with our international partners and to bring them into domestic law.

It is our view that the level of scrutiny afforded to the implementation of new agreements on private international law is reasonable and proportionate. The implementation of any such agreements would require an affirmative statutory instrument. Noble Lords will be aware that affirmative SI debates in this place are often very thorough, as they should be. There is no reason to suppose that there would be anything other than rigorous debate on the issue of implementation, just as there would be regarding ratification under CRaG.

It was argued in Committee and touched on this afternoon that there was a risk, under our approach, of a statutory instrument made under Clause 2 being struck down as non-compliant with, for example, the Human Rights Act 1998. Of course, that is true of any secondary legislation that the Government bring forward. However, the risk in respect of private international law agreements is not likely to be great. Indeed, I struggle to envisage a situation where the United Kingdom and its international partners would collectively agree a private international law treaty that was not compliant with the European Convention on Human Rights.

It remains the view of the Government that, in spite of the concerns raised, this power is necessary if we are to achieve our objective of building on the United Kingdom’s leadership role in private international law in the years to come. The noble Lord, Lord Holmes of Richmond, mentioned the importance of the choice of English law and jurisdiction, and if we are going to maintain that important role, we must ensure that we are in a position to move effectively—and that may mean rapidly—in the implementation of private international law agreements. That would allow us to make the most of the competence that will return to us at the end of the transition period.

As has been noted by noble Lords and noble and learned Lords, in the immediate term we have specific concerns about accession to the Lugano Convention 2007, and there are further issues with regard to other conventions that have been mentioned. We may not know the outcome of the United Kingdom’s application to accede to the Lugano Convention for some months, and we cannot implement this convention unless and until the terms of our accession are agreed with the existing contracting parties, including the European Union. So there is a very real concern that there will not be sufficient parliamentary time for bespoke primary legislation to be drafted and taken through Parliament before the end of the transition period. That would mean a delay in our ability to implement the Lugano Convention, with serious adverse effects on United Kingdom businesses, individuals and families with regard to cross-border disputes after the end of the transition period.

Beyond the implementation of Lugano, the power is essential also, in our view, for future private international law agreements. Mention was made of the Singapore Convention on Mediation and the 2019 Hague Convention on Recognition and Enforcement of Foreign Judgements in Civil or Commercial Matters. I acknowledge, as a number of noble and learned Lords observed, that the pace with which such conventions proceed can be relatively slow, but as and when there is the necessary conclusion and ratification, it may be necessary to find appropriate time in which to ensure implementation in domestic law. If that is not possible by way of primary legislation, we are liable to find ourselves at a distinct disadvantage in that respect.

The extension of this to the matter of arbitration was also mentioned, I believe by the noble and learned Lord, Lord Mance. The rules on recognition and enforcement of arbitral awards do of course fall within the definition of private international law. We recognise the success of the New York Convention, and that arbitration more broadly is an important matter approached by reference to that convention. The Government are not planning any change to our approach to arbitration, nor are we aware of any planned updates to the New York Convention, which is the leading international instrument in this area. We acknowledge that arbitration is a sensitive area, and that the current arrangements work well. I reassure noble Lords that, if there were any changes to the current arrangements for arbitration, that would be a matter on which we would consult extensively.

I return to the matter of precedent, which was touched on by the noble and learned Lord, Lord Falconer of Thoroton. It has been argued that taking a delegated power of this sort is unprecedented. However, we do not accept this. Our approach to Clause 2 broadly reflects the way in which we have implemented private international law agreements in recent years as an EU member state, under Section 2(2) of the European Communities Act 1972. Delegated powers have been taken to implement international agreements on private international law and in other contexts. That has been touched on already.

Of course, there are more recent instances—for example, the noble and learned Lord, Lord Wallace, raised the Mental Capacity Act 2005, which contains extensive and important delegated powers in this area, concerning the ratification of the 2000 Hague Convention on the International Protection of Adults, and the extension and ratification of that for England and Wales.

Lord Keen of Elie

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My Lords, Clause 1 implements important Hague private international law conventions, including the 2005 Hague Convention on Choice of Court Agreements and the 2007 Hague Convention on the international recovery of child support. These six government amendments aim to provide a clearer and simpler approach to the implementation of the transitional provisions in the 2005 and 2007 conventions. In particular, they aim to make further amendments to the 2018 EU exit SIs which were originally made in respect of the 2005 and 2007 conventions in the event of a non-negotiated withdrawal from the EU.

The Government are bringing forward these amendments following correspondence on the Bill from stakeholders and from the noble and learned Lord, Lord Mance. There was concern that the approach set out in Schedule 5 to the Bill was causing uncertainty for stakeholders. The approach involved continuing to rely on the transitional provisions of the EU exit SIs, which themselves relied on the saving of rights and obligations under Section 4 of the EU Withdrawal Act 2018. Concerns were also expressed about inconsistencies between the EU exit SIs and the transitional provisions of the conventions, to which the Bill gives legal effect under Clause 1. Furthermore, it was considered helpful to make it as clear as possible from which dates the conventions should be considered as applying in the United Kingdom.

Government Amendments 7 and 8 concern the savings provisions of the two 2018 EU exit SIs and make more extensive changes to them than originally set out in Paragraphs 3 and 4 of Schedule 5 to the Bill. The amendments revoke the savings provisions in the EU exit SIs in their entirety rather than retaining them in an amended form. Instead, reliance is placed on the transitional provisions in Article 16 of the 2005 Hague convention and Article 56 of the 2007 Hague convention which are given legal force by Clause 1. Amendments 4 and 6 are consequential on these changes to the EU exit SIs.

Amendment 9 makes it clear that the conventions should be interpreted as coming into force for the United Kingdom on the dates when the UK originally became bound by them—that is, upon the EU accession to the conventions—and that when the UK joins the conventions in its own right after the end of the transition period, it should be treated as having been bound by the conventions without interruption. This means in particular that in proceedings that take place after the UK rejoins the 2005 Hague convention in its own right, UK courts will apply the 2005 Hague convention rules to all relevant exclusive choice of court agreements made from 1 October 2015 in favour of the courts of an EU member state or the UK courts.

The content of these amendments was discussed at length at the main meeting of the Lord Chancellor’s Advisory Committee on Private International Law and the drafting has also been considered by the noble and learned Lord, Lord Mance, and other members of the committee. They have asked us to make sure that we provide a full explanation of the way in which the amendments are intended to work when we update the Explanatory Notes for the Bill before it passes to the other place, and I am happy to confirm that we will do so. Besides this, they were satisfied that the drafting properly gives effect to the policy intent, and I am very grateful to the noble and learned Lord, Lord Mance, and to the other members of the committee for their expertise in relation to this matter and for the time that they have spent considering these amendments.

I hope that this serves to reassure the House that these are sensible, proportionate and necessary amendments. I consider that they provide a clearer approach to the implementation of the transitional provisions for both Hague 2005 and Hague 2007 at the end of the transition period, and I hope that they will find support across the House. I beg to move.

Lord Keen of Elie

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My Lords, I am most obliged, particularly for the contribution from the noble and learned Lord, Lord Mance. As he noted, as co-chair of the Lord Chancellor’s Private International Law Advisory Committee, he and I discussed this very point in detail at the May committee. I greatly appreciate not only his contribution but those of the other members of the committee, who have an in-depth understanding and knowledge of how these international agreements work and how the choice of court clauses work.

I am conscious of the issue of choice of jurisdiction and choice of law clauses arising in contracts made before 1 October 2015. I am also conscious of our need to do what we can to simplify the process in regard to that matter and, indeed, the matter of serving out of a jurisdiction, which we would have to look at in the context of the rules. These matters have been raised and I have them in mind at present, so I am most obliged to noble Lords for their contributions.

Lord Keen of Elie

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My Lords, clearly, given that Clause 2 is no longer part of the Bill, this amendment would have no effect. However, I understand why the noble and learned Lord moved it—to allow further discussion of the issue. We believe that the inclusion of the provision to which the amendment relates would have been important in allowing the implementation of private international law agreements that necessitate the creation of a criminal offence, particularly in the family law area. I mentioned that in Committee.

In response to the observations of the noble and learned Lord, Lord Mance, I am not aware of any current examples where we have provided for criminal penalties when implementing a private international law agreement. However, that does not mean that it would not be the appropriate step to take in future agreements, for example, on mutual recognition and enforcement of protection measures, where the equivalent domestic orders were enforceable by criminal penalties such as orders under the Family Law Act 1996, or, indeed, injunctions under the Protection from Harassment Act 1997. One is looking to the equivalents of such orders made by a foreign court when it comes to enforcement in the United Kingdom.

I continue to suggest that the safeguards on the power that I outlined in Committee, including use of the affirmative procedure as a matter of course, would be effective and appropriate in this regard. However, since the Clause 2 delegated power is no longer part of the Bill, I invite the noble and learned Lord to withdraw his amendment. In the event that Clause 2 comes back to this House, it appears that there might be scope for him to revisit this issue.

Lord Keen of Elie

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My Lords, it appears to me that Schedule 6 is quite distinct to Clause 2 as a part of the Bill, but, clearly, it is entirely dependent upon the existence of Clause 2. Beyond that, I do not really comprehend what the noble and learned Lord is talking about.

Lord Keen of Elie

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It may well be that it should be deleted, but it is for the noble and learned Lord to move his amendment if he wishes it to be deleted.

Lord Keen of Elie

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No.

Lord Keen of Elie

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My Lords, I thank the noble Lord, Lord Hain, for meeting with me after Second Reading, when we discussed what he termed the copper-bottomed guarantee that he had sought in that debate. I explained to him the difficulty I had with that demand, given that it conflated the position of the Welsh Government with that of the Northern Ireland and Scottish Governments in circumstances where there was a quite separate and distinct divorce settlement with regard to the latter two, in contrast with the position in Wales. I understood him to appreciate that—indeed he even mentioned amending his amendment. I indicated that I did not think that necessary, because of course we are dealing here with a point of principle, and an important one.

Before I turn to the detail of the amendments, I stress to noble Lords that Ministry of Justice officials are in regular conversation with their counterparts in the devolved Administrations, not only about the matters contained within the Bill but whenever private international law issues arise that touch on areas of their devolved competence more generally. We are very conscious of our responsibilities under the devolution settlements, and our approach in this area is always to seek to engage early and often when any questions arise. It is my view that such an approach of early engagement is the best way to make consultation genuinely meaningful.

The noble and learned Lord, Lord Falconer of Thoroton, referred to an earlier observation by the noble and learned Lord, Lord Hope, with regard to his concern over the devolved aspects of the Bill. I have to say that I am perplexed by the observations of the noble and learned Lord, Lord Hope, and perhaps I should have responded earlier. There are two distinct ways in which these matters can be dealt with in the devolved context of Scotland. One is by the Scottish Ministers and the other is by the Secretary of State with the consent of the Scottish Ministers. The latter avenue is of course there because there are circumstances in which the Scottish Government will say to the UK Government, “We are quite content that you should implement these provisions throughout the United Kingdom without us having to replicate your efforts”. I hope that that assists in clarifying that point.

The Government have fully honoured the devolution settlements in this area as we approached the drafting of the Bill, including, I may add, the Clause 2 power itself and how it can be exercised in particular in relation to Northern Ireland and Scotland. It is important to point out at the outset that the devolution settlement is different in distinct parts of the United Kingdom, as I said before, and that difference is reflected in the Bill.

Amendment 11 affects Scotland and Northern Ireland, where private international law is a devolved matter, differently to Wales, where these matters are almost entirely reserved. For Scotland and Northern Ireland, there are already two designated “appropriate national authorities”, as I just mentioned, which may exercise the Clause 2 power for those jurisdictions: either the Scottish Ministers or a Northern Ireland department, or alternatively, the Secretary of State acting with the consent of those Ministers or the Northern Ireland department. Either way, the ultimate decision on use of the Clause 2 power in Scotland and Northern Ireland rests with the devolved Administrations, and that is reflected in the Bill.

In principle, I have no objection to consulting before the Secretary of State can make regulations which apply in Scotland and Northern Ireland. Indeed, it is something that would happen, because he can make those regulations only with the consent of the Scottish Government or of the Northern Ireland department. I refer also to Clause 2(7)(b)(i) and (c)(i), which provide that the Secretary of State already needs the consent of the Scottish Ministers or a Northern Ireland department to legislate for those parts of the United Kingdom. I do not see how one would gain such consent without consultation. It goes without saying that if you are to secure consent, you must consult and engage.

The Scottish Government and Northern Ireland Administration have been fully engaged in the drafting of the Bill, including the Clause 2 power, and there is strong support from both devolved Administrations on the Clause 2 power as currently drafted. That is reflected in the fact that a legislative consent Motion has already been granted by the Northern Ireland Assembly, and another has been laid before the Scottish Parliament, with both the Scottish Government and the Scottish Parliament’s Justice Committee recommending that consent be granted. There we have a clear picture of what is happening in the devolved Administrations with regard to the Bill, and in particular Clause 2, and their welcome of these developments. They are the product of consultation and of consent.

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 Keen of Elie

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My Lords, as the noble and learned Lord, Lord Thomas of Cwmgiedd, and my noble friend Lord Holmes observed, it is important that we maintain the position of English law and the jurisdiction, particularly in London, with regard to commercial dispute resolution just as it is maintained under the New York convention with respect to arbitration. That is why we have made our application to the council of the Lugano convention to join that body, but it is step that can be taken only with the consent of the member states and the EU. We recognise that if our application is accepted it is a matter of urgency for us to draw down that treaty into domestic law, which in part explains the position that we have adopted with regard to Clause 2.

It is not often that I find myself in a position where I have to correct the noble Lord, Lord Foulkes of Cumnock. Indeed, I regard this as highly unusual, but I observe that where he said that the Government had decided not to proceed with Clause 2 that was not entirely accurate. It was decided for us, and there is a distinction to be drawn there. As regards the state of play with the Crown dependencies, the provision with respect to the Isle of Man fell with the amendments to the Bill in this House. As regards the Council of Europe, while in theory it may seek to promote some issues in respect of private international law, I do not understand that it has done so or that it imminently intends to do so, but I will make further inquiry and if necessary write to the noble Lord.

The noble Lord, Lord Thomas of Gresford, talked about a matter of principle with regard to the introduction of what would amount to a criminal offence of some limited penalty by way of secondary legislation or something other than primary legislation, a situation that has obtained for almost 50 years since the European Communities Act 1972.

The noble Lord, Lord McConnell of Glenscorrodale, raised prior consultation. I reiterate the points I made at an earlier stage with regard to that. Both the Government of Wales and the Government of Scotland granted an LCM to the Bill in its original form, so they appeared to be relatively content with its provisions.

I am not clear about the reference made by the noble Lord, Lord Mann, to Northern Cyprus in the context of the Bill, but I understand the complications that arise with regard there to private international law, and I would be content to speak to him later if there is a further point that he would like to elucidate, and I would be happy to consider it.

The Government are content to support this group of amendments as they relate to elements of the Bill which no longer function without the delegated power previously in Clause 2. However, as I have made clear, the Government’s position on the Clause 2 delegated power has not changed.

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—

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.

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.

Lord Stewart of Dirleton

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

Lord Stewart of Dirleton

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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—

Lord Stewart of Dirleton

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