Private International Law (Implementation of Agreements) Bill [HL]
Tuesday 17th March 2020
(4 years, 9 months ago)
Lords ChamberPrivate International Law (Implementation of Agreements) Act 2020 View all Private International Law (Implementation of Agreements) Act 2020 Debates Read Hansard Text Read Debate Ministerial Extracts
The Advocate-General for Scotland (Lord Keen of Elie) (Con)
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 Wallace of Tankerness (LD)
My Lords, this is undoubtedly an important Bill. It may not attract much attention in your Lordships’ House but it nevertheless is important, as the Minister indicated in moving that it be read a second time. In the debate on the gracious Speech on 8 January, the Minister indicated that it is
“a Bill enabling us to operate agreements on private international law”
after the transition period following our departure from the European Union. He specifically mentioned agreements that
“can help to return home a child abducted by one of their parents, help two parents living in different countries to agree custody arrangements in the best interests of their children, or help a UK business to resolve issues with a supplier based abroad.”—[Official Report, 8/1/20; cols. 187-88.]
These are obviously vital for both family and commercial reasons. It is therefore important that we do not have any post-Brexit lacunae in our law.
I put my name on the speakers’ list to raise the specific issue of the Hague Convention 35, on the international protection of adults. It is the 11th convention listed in Annexe B to the Explanatory Notes on this Bill. I am grateful to the Minister and his Bill team for taking the time last week to discuss this with me. I will return to that.
As my noble friend Lord Marks of Henley-on-Thames is understandably unable to be with us this evening, I confirm that my party is generally supportive of the Bill. But, as with all legislation, it is important that your Lordships’ House should scrutinise it properly. I sometimes think that is especially the case when we are dealing with a Bill generally thought to be a good thing; we must still give it proper scrutiny.
In its briefing to Peers, the Bar Council very much makes this point. In its concluding paragraph, it states:
“Private international law is at once both a highly technical field and one that is extremely important in regulating the lives of individuals and businesses when they cross borders. Never has there been a greater need to consult specialists in this field to ensure rigorous scrutiny and to produce a cogent and coherent strategy in this field.”
It is important that we bear that in mind. Indeed, I ask the Minister: in the drafting of the Bill, how much consultation took place with specialists in the area?
I have no doubt that there will be detailed scrutiny in Committee. I will just highlight one or two points. As is often the case, the issue of delegated powers requires highlighting. As I understand it, it is a basic rule of constitutional law that when treaties are made by virtue of the royal prerogative, the involvement of Parliament is nevertheless required to change the law, to confer rights on individuals or, indeed, to deprive them of rights. That is invariably done by way of primary legislation.
Clause 2 confers regulation-making powers on the appropriate national authorities
“for the purpose of, or in connection with, implementing any international agreement … so far as relating to private international law”.
Clause 2(7) defines “international agreement” as
“a convention, treaty or other agreement to which the United Kingdom is, or is expected to become, a party”.
In other words, primary legislation may not be required. It may be done by regulation sometime in the future. In a non-EU context, when did we last have an international agreement or treaty implemented without primary legislation? In his speech moving this Second Reading, the Minister mentioned the Constitutional Reform and Governance Act and indicated that that would nevertheless give Parliament a locus. It is important to recall that the 20th report of Session 2017-19 by your Lordships’ Constitution Committee—of which I had the privilege of being a member and of which the noble and learned Lord, Lord Judge, was at the time a member—concluded:
“The current mechanisms available to Parliament to scrutinise treaties through CRAG are limited and flawed. Reform is required to enable Parliament to conduct effective scrutiny of the Government’s treaty actions, irrespective of the consequences of Brexit.”
I hope that when we come to scrutinise this, we will get some answers from the Government as to why they think CRaG is sufficient in circumstances where, in the past, it was all done through primary legislation. Indeed, as the noble and learned Lord, Lord Judge, will well remember from his time on the Constitution Committee, recurring themes are delegated powers and treaty making and parliamentary scrutiny, as in our report. These two come together in this Bill, and we will want to give careful attention to that.
I referred to Hague Convention 35, of 13 January 2000, on the international protection of adults. It is for the protection of vulnerable adults who, by reason of impairment or insufficiency of their personal faculties, are not in a position to protect their interests. The convention determines which court has jurisdiction to take protection measures, which law is to be applied in the circumstances and who may be a vulnerable person. It establishes a system of central authorities that should co-operate, locate vulnerable adults and give information on the status of vulnerable persons to other authorities. The smooth legal arrangements for matters covered by the Bill, which the noble and learned Lord referred to in his speech, must surely also apply to some very vulnerable people.
The convention has 17 signatories and has been ratified for 10 jurisdictions. I use the word “jurisdiction” advisedly: although the United Kingdom is a contracting party, the convention has been ratified only by the United Kingdom Government on behalf of Scotland, on 5 November 2003. That ratification followed on from Section 85 and Schedule 3 to the Adults with Incapacity (Scotland) Act 2000. I declare a personal interest, because I was the Minister responsible for taking that legislation through the Scottish Parliament.
Since then, in Northern Ireland, there has been Schedule 9 to the Mental Capacity Act (Northern Ireland) 2016, which states that the convention will have effect in Northern Ireland—although there has not yet been ratification for Northern Ireland. In England and Wales, I understand that Schedule 3 to the Mental Capacity Act 2005 makes some provision, but we have not had ratification in respect of England and Wales either. It may be argued that the procedures established by the 2005 Act mean that, in practice, courts in England and Wales, and in Northern Ireland, can recognise and enforce protective measures from other states, be they contracting parties or not. But most contracting states will recognise and enforce only protection measures from other contracting states. As an example, France, Germany or Switzerland will recognise and enforce protection measures from each other, and from Scotland, but not from England, Wales or Northern Ireland. Why should citizens in these parts of the United Kingdom not enjoy the advantages enjoyed by those habitually resident in, or closely connected to, Scotland?
I believe it is in the hands of the United Kingdom Government to rectify this. It may not require legislation if some of the procedures are already in place through the 2005 Act. However, I hope that the advantage might be taken in this Bill to move forward on this and implement the convention for England and Wales and Northern Ireland.
One final matter is the difficulty that can be experienced in relation to the recognition of protection measures within the United Kingdom. Ratification of Hague Convention 35 may not necessarily resolve that, as they remain internal matters among the jurisdictions within these islands. Schedule 6 to the Bill deals with regulations made under Clause 2 and refers to implementing or applying an international convention to a particular part of the United Kingdom. In that regard, the Bar Council said that if it were to be given effect in, say, Scotland, but not elsewhere in the United Kingdom, the question of whether to apply an international convention’s rules between parts of the United Kingdom would often be very difficult. Where it is to be applied, extensive amendments to that convention are often appropriate; an example is the provisions in the Civil Jurisdiction and Judgments Act 1982, which apply a substantially modified form of the European Union rules to instruct UK cases. The Bar Council is concerned that Schedule 6 does not provide sufficient safeguards in this respect, and considers that it should be amended to provide the requisite clarification. I would be interested if, in reply, the noble and learned Lord could say something about intra-United Kingdom recognition and indicate how some of the concerns raised by the Bar Council may be addressed.
In conclusion, some of the briefings and representations I received on notification of HC35 have highlighted numerous difficulties in the operation of the law in relation to powers of attorney and civil instruments, and more general issues on the rights of persons with disabilities. However, those are for another day. I believe that today there is an opportunity for the Government to commit themselves to taking a small step in the sphere of private international law which could be of benefit to an important section of our community.
Lord Judge (CB)
My Lords, the noble and learned Lord, Lord Mance, has had the courtesy to show me a draft of what he is going to say. In view of the fact that he will say everything that I would have thought of saying, and rather a lot more—and will do it rather better—I shall be brief. But I would like to say before he speaks that I agree with him. In particular, I agree that this is sensible legislation. We need to have these arrangements. But I have a particular reservation about vesting power in a Minister, using secondary legislation apparently to change the entire law of arbitration as it works in this country. That needs to be examined, and the noble and learned Lord will no doubt develop the point.
The reason I am speaking is of course because we are dealing with secondary legislation, and this is yet another example of proposed legislation that is not exactly regulation-lite—I spell that “lite” because I want to show your Lordships that I have even seen Diet Coke. This is not diet regulation. We have one clause, then a second clause which is simply a regulation-making power, then we have 66 pages, perhaps more—yes, we come to page 68—and then we find the mother and father of Schedule 6, which is more regulation-making powers. Dare I ask the Minister a question? It has been a long day, and he has had to listen to a lot of speeches. Is Schedule 6 tucked away because it is shy of showing its face? It could just as easily have been part of a major structure of the Bill, not a schedule. But that is a minor detail.
Schedule 2 is not so bad. It is certainly better than Schedule 6. As the Minister said in opening, it attracts, or would attract, the provisions of the Constitutional Reform and Governance Act. However, as noble and learned Lord, Lord Wallace of Tankerness, just explained, the Constitution Committee took a view that that did not provide all the answers to everything. Therefore, we have a measure of parliamentary control over Section 2 and the use of the regulations there, not none, which is therefore rather better.
I have simple questions about Schedule 2. What will the powers be used for? Why are they needed if the powers in Clause 2 are as clear as they are and are subject to the controls which the Minister suggested? I want to know what possible thought the Minister has in mind about why we need a Henry VIII clause. “Has it just come off the computer? Let’s stick a Henry VIII clause in.” Amending primary legislation is precisely what Henry VIII clauses are about. The House has heard me on numerous occasions on this topic. I will not entertain the few of your Lordships who are here tonight about it, but I would like the Minister to see whether he could help us with it. Beyond that, I have no further observations to make. We need to be careful about how we run our legislation through regulatory mechanisms.
Baroness Shackleton of Belgravia (Con)
My Lords, I put my name down to speak in this debate, not about what the Bill addresses but about what it fails to address. In the field in which I operate—matrimonial law—many elements of it are swept up by Hague and Lugano. Sadly, divorce is not. At the moment, the first past the post principle works. When we leave the EU there will be an enormous vacuum, and there has been no direction to the judges or to the people who practise in this area as to what will happen.
The prediction among divorce lawyers is that, following self-imposed confinement, it is very likely that the divorce rate will rise. Our peak times are after long exposure during the summer holiday and over Christmas. One has only to imagine what it will be like when families are sealed in a property for a long period of time.
Added to this, no legislation has come to this House, or indeed to the other place, on premarital contracts, and there is a real division between how this country deals with them and how the rest of Europe deals with them. The incentive to get proceedings in this country with parallel proceedings in another country will be even greater than usual when people are restricted from moving to another country. When a petition is lodged in this country, how will our courts deal with it? Are we or are we not going to deal with first past the post? What will be necessary to avoid a tsunami of litigation is for there to be some certainty as to what we are going to do. I fully understand that we cannot commit the other 27 parties to Brussels II, but our courts need to know what is going to happen.
Lord Mance (CB)
My Lords, this is an area in which I have long been engaged as a practitioner, and I believe that I still have the honour of chairing the Lord Chancellor’s advisory committee on private international law—although, so far as I recall, we were not consulted on this Bill, nor on the 2018 regulations on private international law that until now have operated as the default on Brexit.
At the heart of this Bill is jurisdiction. Former practitioners such as I know that jurisdiction is commonly the most important preliminary issue in international litigation. The noble Baroness, Lady Shackleton, referred to this in the context of divorce. I shall be referring to commercial litigation, but the same applies to other areas, including matrimonial disputes, children, insolvency and divorce. Any party wishing to avoid or delay liability or a judgment will seek the slowest or most amenable jurisdiction. To prevent this, it is common in commercial law to insist on an agreed forum for disputes—a choice of court or arbitration clause, often in favour of London.
London’s practitioners and courts have a reputation for the impeccable handling of complex disputes. It is part of the package of financial, business and trading facilities and activities that has made London a—if not the—world business centre. But what matters is that other courts and states recognise our jurisdiction. We can legislate domestically for all we are worth, but international recognition and enforcement of jurisdiction and judgments require in practice reciprocal international agreement.
The Bill’s Explanatory Memorandum notes that “key stakeholders” have consistently made clear the importance of the UK continuing to take a leading role internationally on private international law. The Minister has emphasised that it is essential for legal certainty to have a framework. The memorandum goes on to say that the UK
“will need to take steps to ensure continued participation in key PIL international law agreements”,
and that Brexit will allow the UK
“to agree ambitious new PIL frameworks with international partners all over the world”.
There is hyperbole in both statements. We are ceasing to participate in some key instruments with EU states, and the Bill is unspecific—to say the least—about the ambitious new frameworks with other world partners.
From the end of this year, the UK will cease to be party to what is probably—in fact, certainly—the most significant set of private international law measures in the world: the Brussels regime regulating jurisdiction and the enforcement of judgments across EU states, and parallel measures such as the insolvency Regulation 2015/848 and the regulation on jurisdiction, recognition and enforcement in matrimonial and parental matters. The UK was itself a proponent of the successful recasting in 2012 of the first of those—the central Brussels regulation—to meet UK needs. As the Minister noted, we helped build these instruments.
The Government’s ambitions do not extend to repeating this existing framework, which has, over 35 years, attracted very considerable support in London as elsewhere. However, some form of substitute is now necessary, to apply as between the UK and EU states. In relation to children, there are, happily, the Hague conference conventions of 1996 and 2007—non-EU measures, which are referred to in the Bill—on which to fall back. In relation to commercial law, insolvency and divorce, there are no such parallels, although there are other measures focusing on commercial law, which are referred to in the Bill, to which I come.
The Bill is by its own lights a sensible measure, but its lights are rather dimmer than the halogen welcome given to it by the Explanatory Memorandum. I take first the Hague choice of court convention of 2005, which Clause 1(2) of the Bill paves the way to joining. That is an excellent instrument, again promoted by this country. In that, the committee that I chair had the privilege of playing a role but, absent specific declaration, it does not cover the very important area of asymmetric jurisdiction clauses. Many of the derivatives and banking clauses on which the City relies are asymmetric; in other words, they give one party but not the other, or others, a choice of jurisdiction. The better view is that the existing Brussels regime covers all choice of court clauses, whether they are asymmetric or not.
As a consequence of that, if you go to the website of the International Swaps and Derivatives Association, the first document you will see is headed “ISDA Amendment Agreement”, to change
“English Law to Irish or French Law”.
It provides the means to change the usual London jurisdiction clause in favour of Paris or Ireland. That is a measure of the current doubts about the future value of English jurisdiction clauses, which have been allowed to continue for some four years now to the detriment of London as a world centre.
A second problem about the Hague choice of court convention is that, even on the most optimistic reading, it covers only exclusive jurisdiction clauses agreed since l October 2015, when the EU first signed the UK up as a member state. In contrast, the 2012 Brussels regulation, which we have at present, applies to all proceedings begun since 10 January 2015; that is, proceedings begun rather than jurisdiction clauses agreed. But this will cease to apply to all proceedings begun after the end of this year. So, the position is that presently enforceable asymmetric jurisdiction clauses in favour of London will cease to be recognised at an international level by other EU states overnight on 31 December 2020. Indeed, all enforceable jurisdiction clauses, asymmetric or not, will cease to be recognised at an international level; they may, of course, be recognised at an overseas domestic level—that is quite a different matter. Until 19 June 2018, the UK’s position was that such clauses should be preserved, or grandfathered; that is, retain their current validity. This has gone. No doubt, even an additional glimmer of Court of Justice jurisdiction after the end of the year, however benign, was not acceptable.
A third problem with the Hague choice of court convention is that it contains a list of excluded topics, which is considerably longer than that in the Brussels regime. The excluded topics include, for example, personal injury, simple tort claims, immovable property and intellectual property claims.
I turn to the second instrument, which the Explanatory Memorandum and the Government’s paper on the future relationship evince enthusiasm for acceding to. As already mentioned, that is the Lugano Convention 2007; Clause 2 of the Bill would be used for that. The Lugano Convention corresponds to the main Brussels regulation before it was recast in 2012. As a result, it has severe defects. On the other hand, no doubt the great attraction, in the Government’s eyes, would be that the European Court of Justice would have no jurisdiction over it; there would be an obligation merely to take account of Court of Justice jurisprudence, not necessarily to agree with it.
On the other hand, the UK needs the consent of the other parties to join. There are four, three of which have welcomed the UK aboard. Switzerland, Iceland and Denmark all welcomed the UK aboard, but the last party—the EU, for its member states—is apparently silent, and there are rumours that it may not consent. Any clarity the Minister can give would be most welcome.
Even if we were to sign up, the un-recast, unreformed Lugano has significant weaknesses. First, its arbitration exclusion is less clear than the Brussels regime; again, that is important for London. Secondly, it is vulnerable to the famous “Italian torpedo”, whereby a London choice of court clause can be undermined by an entirely wrong or even abusive commencement of jurisdiction in some other court—the typical example being Italy. The aphorism comes from an Italian law professor, so I am not, I hope, in any way using unduly what is a well-quoted phrase. Lugano’s third defect is that it makes no provision for stay of proceedings in the face of prior litigation in a non-contracting state: in other words, you can agree on a New York choice of court clause, but Lugano will override it. That is an extraordinarily Eurocentric provision, which the recast Brussels regime avoids, largely. Can the Government say whether, having joined Lugano, they hope to follow the Brussels example, whereby the UK did have a big role, and recast the Lugano convention to cure these defects?
There is one other problem with signing up which the Government may have overlooked—again, I would welcome the Minister’s comments. If we sign up to Lugano, we are locked into its limitations, potentially precluding us from getting the advantages of the next instrument which the Government express an interest in joining: the 2019 Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters. This is fairly hot off the press: it is mentioned in the Explanatory Memorandum and, again, the UK played a significant role in its preparation in the Hague conference. Perhaps it is one of the “ambitious new” private international law frameworks which the Government hope to agree
“with international partners all over the world”.
The less hyperbolic reality is that it has at present only two member states, with which our most obvious affinity is purely alphabetical: Uruguay and Ukraine. Even according to the Hague conference website, they have only signed, not ratified.
Secondly, this instrument deals only with recognition and enforcement; it does not limit or define jurisdiction, as the Brussels regime and Lugano do. Nevertheless, it appears to have one particular advantage in relation to our former EU partners which Lugano does not. It should be noted that the EU has expressed interest in signing up to the 2019 convention. If it does and we do, the convention will go some way to avoiding the Italian torpedo, because it will enable the refusal of such recognition or enforcement of any judgment given in breach of a choice of court clause, whether exclusive or asymmetric. For example, if proceedings were commenced in Italy in breach of a choice of court clause pointing to London, the UK or any EU contracting state could refuse to recognise the judgment. That beneficial provision would go some way to evading the Italian torpedo and correcting the main defect of the Lugano convention. Under Lugano, EU and Lugano courts—including the UK if it joined Lugano—would have to recognise and enforce the Italian judgment, even though it was patently given in proceedings started in Italy in breach of a London choice of court clause.
The UK would lose the advantages of this beneficial provision if we signed up to Lugano before signing up to the 2019 Hague convention, because Article 23 of the latter states expressly that it does
“not affect the application by a Contracting State of a treaty that was concluded”
by that state prior to conclusion of the convention. I would be very glad to hear the Government’s thinking on this. On the face of it, the message is: festina lente—in other words, be very careful and do not sign up immediately to Lugano without thinking very hard about it. By all means, sign up to the Hague choice of court convention as soon as possible, but consider whether it may not be better to wait for the EU to sign up to the 2019 convention and sign up ourselves at least before any attempt to join Lugano.
There are one or two minor points, or at least more minor points, although I do not want to underestimate their importance, particularly relating to the width of the powers relating to delegated legislation, on which noble Lords have already spoken. Even taking into account the Constitutional Reform and Governance Act, providing for scrutiny of any international agreement, the powers of delegated legislation are of a width that is questionably wide. That refers among other things, but perhaps particularly, to the Henry VIII clause, which my noble and learned friend Lord Judge has referred to.
Of particular interest to me, I declare as a practising arbitrator, is the definition of “private international law” to include recognition or enforcement of foreign arbitral award. Private international law normally keeps court jurisdiction and arbitration separate. International arbitration awards are enforceable under the New York convention of 1958. Brexit should not affect the enforceability or recognition and enforcement of arbitration awards. The Bill seems quite an inappropriate place to give Ministers the power to make regulations about arbitration, even subject to affirmative approval.
I conclude by welcoming this opportunity to discuss openly in this House a subject of huge importance to the City and this country’s financial position. There has been a fear that it may have been too low down the Government’s agenda and the subject of too little attention. I hope this debate will have focused minds and that there will now be wide and open consultation on whatever future measures, ambitious or not, the Government may consider signing up to.
Lord Collins of Highbury (Lab)
My Lords, the Bill is clearly vital to the future of UK private international law, and we on this side of the House strongly support the principle of it. My noble friend Lady Chakrabarti would normally be dealing with this Bill but unfortunately, she is self-isolating due to feeling unwell. I am sure Members of the House will join me in wishing her a speedy recovery—certainly, I hope, in time for Committee.
I too am grateful to noble Lords who have spoken. All my favourite lawyers are here, and I have to agree with the noble and learned Lord, Lord Judge, that that has made my task a lot easier, because I can simply say that I totally agree with the contribution of the noble and learned Lord, Lord Mance. However, I will come on to some specifics in that regard.
The Bar Council brief, on which I am heavily relying, highlights that we are entering a major period of decision-making—a point amplified strongly by the noble and learned Lord, Lord Mance—regarding the future of UK private international law, both nationally and internationally. It is clear that the Bill must be part of a wider government strategy, along with the ongoing negotiations at international level and the statutory instruments under the EU withdrawal Act. The noble and learned Lord, Lord Mance, has been very clear about the sequencing of some of the things we need to address.
As the noble and learned Lord, Lord Wallace, said, these matters are both highly technical and of the utmost importance in regulating the lives of individuals and businesses, and he quoted the Bar Council’s preference. I too ask the Minister to confirm that the Government intend to consult the specialists and take on board the comments about adapting a strategy.
Part of the problem with this debate is what comes next—what the Government hope to agree with the EU during and after the transition period. When does the Minister foresee the 2019 Hague judgments convention being implemented? The Law Society expressed the hope that it will become a central part of future international, civil and commercial law co-operation. What action are the Government taking to ensure faster uptake of the convention by the EU?
Again, I agree with the noble and learned Lord, Lord Mance: at the end of the transition period, the wide body of EU legislation will cease to be applicable, contingent on reciprocal treatment by member states. Despite the number of international conventions included in private international law, there is still no international convention in many areas. The Minister referred to the Government’s stated intention to apply to join the 2007 Lugano Convention on jurisdiction and the recognition and enforcement of judgments, which, as the noble and learned Lord, Lord Mance, highlighted, would require the agreement of each EU member state. As he made clear, it remains unclear whether the European Union would consent to the United Kingdom joining as a separate contracting state.
The noble and learned Lord also raised the issue of sequencing, which is very important; the default rules of private international law applicable in the United Kingdom after exit day are particularly important.
I do not wish to repeat the contributions that have been made, but the noble and learned Lord, Lord Judge, and I have spent some considerable time on Henry VIII clauses when considering previous Bills, not least the sanctions Bill that we had to deal with as a consequence of leaving the EU. That was a simple Bill —it had only two or three clauses—but it certainly gave the Government huge Henry VIII powers, particularly the ability to create and impose new criminal offences. My noble friend Lady Chakrabarti is concerned about those clauses and the power to create the offences that the Explanatory Notes appear to envisage. If that is the case, the affirmative resolution procedure does not provide sufficient parliamentary scrutiny. I understand that the Delegated Powers and Regulatory Reform Committee’s report will be published later this week. I will read it with interest, because I am sure it will make a number of recommendations that we will want to consider in Committee.
We welcome the Bill and its principal objectives but we will seek clarification of several issues, including, as the noble Baroness, Lady Shackleton, said, future family law provisions.
Lord Keen of Elie
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
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.