Draft Recognition and Enforcement of Judgments (2019 Hague Convention etc.) Regulations 2024
(6 months, 3 weeks ago)
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The Parliamentary Under-Secretary of State for Justice (Gareth Bacon)
I beg to move,
That the Committee has considered the draft Recognition and Enforcement of Judgments (2019 Hague Convention etc.) Regulations 2024.
It is a pleasure to serve under your chairmanship, Mr Pritchard. The draft regulations form part of the implementing framework for the 2019 Hague convention on the recognition and enforcement of judgments in civil or commercial matters. They will amend the Civil Jurisdiction and Judgments Act 1982 to incorporate the convention into domestic UK law.
Following unanimous support in response to a Government consultation, the UK signed the 2019 Hague convention on 12 January this year. It was laid before Parliament on 25 March for treaty scrutiny, which was completed last week without objection. The UK Government are now preparing to ratify the convention to bring it into force between the UK and the existing parties, which will be the European Union, Ukraine, Uruguay and all European Union member states apart from Denmark. This legislation is instrumental to the UK joining the convention and needs to be in place prior to ratification to ensure that the UK can meet its obligations under the convention.
The convention will come into force for the UK just over a year after ratification. The Government aim to complete ratification as soon as possible this summer, which will allow the UK to start applying the 2019 Hague convention with the other parties a year later. The UK stands to be an early adopter of the convention, as a leader in the field of private international law.
I turn to the content and aims of the draft regulations, which will implement the 2019 Hague convention in UK law and facilitate the operation of the convention once it enters into force. The purpose of the convention is to establish a set of rules about whether a civil or commercial judgment made in the court of one country may be recognised and enforced in another. Without a uniform scheme, each country’s own domestic rules determine whether a judgment from another country will be recognised and enforced there. Those rules vary from country to country, which can give rise to uncertainty and a range of challenges for effective cross-border enforcement. The convention addresses many of those challenges by providing a uniform set of rules that all parties to the convention agree to apply with each other.
Joining the 2019 Hague convention will provide greater clarity and confidence for businesses and individuals in disputes, will reduce costs, will encourage international trade and will enhance access to justice. It will also provide greater predictability as to whether a UK judgment can be enforced abroad. This will encourage businesses to choose the UK’s world-beating courts for their international litigation, further increasing the attractiveness of the UK for international dispute resolution.
I turn to the detail of the draft regulations, which make implementing provisions for how the convention will operate in the UK. These comprise three key elements.
First, the draft regulations will create a registration requirement so that anyone seeking to recognise and enforce a foreign judgment in the UK under the convention has to apply to a UK court to register the judgment first. The applicant will be required to set out initial evidence that their judgment is eligible for recognition and enforcement under the convention. That will create a form of safeguard that enables the court briefly to assess whether the grounds for recognition and enforcement under the convention have been met, rather than its being automatic. However, it is designed to be as light-touch as possible; it is not akin to new proceedings. This is a well-understood, proven model with which legal practitioners and UK courts are already familiar. It is used consistently across the existing recognition and enforcement regime in the UK. Once the judgment is successfully registered, it will be treated as a judgment made by that court.
Secondly, the draft regulations will give either party the right, once a UK court has decided whether to register a judgment under the 2019 Hague convention, to apply to have that decision set aside if they do not agree with it. This provides an opportunity for either party to ask the court to reassess its decision in the light of any additional information. This is a form of recourse similar to an appeal. The setting aside route is well established for recognition and enforcement decisions, where the court will examine only a limited amount of information at the registration stage. This is deliberate, in order to make the process swift and not unnecessarily overburden the courts. However, there will be cases in which the court might not have had all the relevant facts. The decision can then be made again with further information provided.
Sir Liam Fox (North Somerset) (Con)
I am generally supportive of the Government’s case. If the aim is partly to bring parties in dispute to UK courts for dispute resolution, have the Government made any assessment of the impact that that will have on the capacity of our court system?
Gareth Bacon
We believe that we have sufficient capacity to cope. Actually, we are speeding up the process, because these cases would have to be taken to a UK court anyway. Taking this approach will mean that the rules have been agreed in advance; we believe that that will streamline capacity and make things easier.
Thirdly, the draft regulations will ensure that foreign judgments do not make their way into the intra-UK recognition and enforcement system in the Civil Jurisdiction and Judgments Act 1982. The 1982 Act’s rules govern the recognition and enforcement of judgments between the different jurisdictions of the UK; they allow judgments made in one UK jurisdiction to be near-automatically enforced in another.
The draft regulations will exclude judgments registered under the 2019 Hague convention from that mechanism. This is to ensure that courts in each jurisdiction— Scotland, Northern Ireland and England and Wales—can individually decide whether to recognise a particular foreign judgment. In practice, that means that although a judgment from a court in England can be near-automatically recognised and enforced in Scotland under the 1982 Act, a foreign judgment registered in an English court under the 2019 Hague convention will need to be registered separately in a Scottish court under the convention.
The 1982 Act also implements other conventions to which the UK is already a party, including the 2005 Hague convention on choice of court agreements. That convention includes recognition and enforcement rules for judgments given where an exclusive choice of court agreement was in place. This is an agreement stating that a dispute between parties will be determined exclusively by a specified court or by the courts of a specified country.
To ensure consistency with the UK’s recognition and enforcement regime and to avoid confusion for users, the draft regulations will make some amendments to the implementing provisions for the 2005 Hague convention, to bring them into line with the approach taken for the 2019 Hague convention. This includes amending the recourse route from a right of appeal to the application to set aside that I have described, as well as excluding the 2005 Hague convention from the same provisions in the 1982 Act from which we are excluding the 2019 convention: those that provide for the recognition and enforcement of judgments between the UK’s jurisdictions.
The draft regulations are an important step in implementing the 2019 convention. They will strengthen the framework for the international recognition and enforcement of judgments, giving UK businesses and citizens greater clarity, certainty and confidence as they work, live and operate across international borders. I hope that the Committee will join me in supporting them.
Ruth Cadbury (Brentford and Isleworth) (Lab)
It is a pleasure to serve under your chairmanship, Mr Pritchard. I thank the Minister for setting out the purpose and the detail of the draft regulations. As we know, the 2019 Hague convention was signed on behalf of the UK on 12 January this year, following the announcement on 23 November that the UK would join as soon as possible in response to a public consultation that the Government described as positive. The draft regulations will amend the Civil Jurisdiction and Judgments Act 1982 to give the 2019 convention force of law in the UK and to make further provision for the 2019 convention’s operation in the UK.
The Opposition support the draft regulations. We feel that in the post-Brexit era there are clear advantages that being a party to the 2019 judgments convention will bring to the UK. Labour has an iron-clad commitment to the rule of law, and it is upheld by the UK’s legal sector, which is worth £34 billion each year, which is a marvel on the world stage and second only to the United States.
It is welcome and perhaps unsurprising that all respondents to the consultation, from the legal sector to the public sector, thought that the UK should join Hague 2019. Having a uniform set of rules for a wide range of judgments between the UK and other contracting parties can increase confidence in the UK legal system. We agree with the Government’s stated belief that the convention will therefore benefit both businesses and consumers operating and living across borders between the UK and other countries. It will provide assurance that UK judgments in scope will be recognised and enforced by current and future contracting parties to the convention, and vice versa, which in turn will encourage trade and investment. We know that there are already 29 contracting parties for which the convention entered into force on 1 September 2023, with more to come.
Although we welcome the draft regulations, I am keen for the Minister to clarify a point about implementation and to answer a further question. The Hague 2019 convention was signed on behalf of the jurisdictions of Scotland, Northern Ireland and England and Wales, because the decision to join an international convention is a reserved matter, but the implementation of the convention is devolved to Scotland and Northern Ireland, as it relates to private international law, which is a devolved matter. The Minister touched on implementation in the devolved nations, but I would like a little more detail on the engagement that the Government have had and continue to have with the devolved Governments on the implementation process.
Several respondents to the public consultation that preceded the draft regulations identified some downsides to Hague 2019, although they did not consider that they outweighed the merits of joining. I want to highlight one such concern. One stakeholder’s submission said:
“A potential concern may arise if a state which does not have a reliable or fair judicial system, for example because judges are subject to improper political (or other) influence, became a party to the Convention, or if a state that was party to the Convention experienced a deterioration in the independent functioning of its judicial system or no longer upheld the rule of law. Whilst there are safeguards under Article 29 permitting a state to make a notification preventing the Convention from applying with another Contracting State, the notification can only be made at the time of ratification of the other state, and not subsequently, meaning this safeguard would not be available in the latter instance.”
I will be grateful if the Minister can assure the Committee that an appropriate safeguard is in place.
I conclude by reaffirming our support for the draft regulations. Seldom do we find such agreement in this place, but—and there is a “but”—there is a wider picture of an entrenched crisis across our justice system that we cannot forget: access to justice is dwindling, our crumbling court estate is buckling under the weight of unprecedented backlogs, and our prison estate is not fit for purpose and is hugely over capacity.
Chris Stephens (Glasgow South West) (SNP)
I will not detain the Committee long, which I am sure will be a relief to the many Committee members who saw me walking in and thought they might be here for 90 minutes. They won’t be.
The Minister described very well the position as it relates to Scotland. He will be able to confirm, I am sure, that the Scottish Parliament has given legislative consent to the draft regulations, and that the Minister for Victims and Community Safety has written to the Convener of the Equalities, Human Rights and Civil Justice Committee saying that Scottish Ministers intend to consent to this UK-wide statutory instrument. The regulations before the Committee appear to me to be fairly uncontentious, and I will not be opposing them.
Gareth Bacon
I am grateful to the hon. Member for Brentford and Isleworth for her support. She asked for two clarifications. The first was about the engagement that has taken place with the devolved Administrations; I am happy to confirm that there has been more or less constant engagement throughout the process. I understand that formal consent was provided for Northern Ireland by the permanent secretary at the Department of Justice in January 2024, that the Scottish Government notified the Scottish Parliament of the instrument in March, and that the Scottish Parliament agreed earlier this month that it is content for the Scottish Government to give formal consent. The delay is simply a matter of the processes going through in both Northern Ireland and Scotland. I hope that that has answered the queries of the hon. Members for Brentford and Isleworth and for Glasgow South West; I am grateful for their contributions to this debate.
Ruth Cadbury
There was also a point about the subsequent weakness of judicial process in certain circumstances.
Gareth Bacon
I apologise to the hon. Lady for that oversight. As she correctly said, there is a provision under article 29 such that if the UK objects to a new country formally ratifying the treaty, we can apply for this not to apply, both in that country and in this one. For a country that is already subject to it, she is correct to point out that there is no formal mechanism for withdrawing from it. I would venture to suggest—I will correct this if I inadvertently mis-speak here—that what would then happen is that there would be a negotiation among the parties to the convention. If agreement cannot be found, the UK could unilaterally withdraw from it, albeit that that would take a 12-month period of notice.
I am grateful for hon. Members’ contributions to the debate. Joining the 2019 Hague convention as soon as possible is in the UK’s best interests. As I have said, it is an important step for the UK to provide greater clarity and confidence for UK businesses and citizens who work and live across international borders. I am eager to see the necessary legislation in place to facilitate that. I therefore commend this draft regulations to the Committee.
Question put and agreed to.