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

Debate between Lord Collins of Highbury and Lord Keen of Elie

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Tuesday 17th March 2020 Lords Chamber

[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.