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

Debate between Lord Keen of Elie and Lord Mance

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Wednesday 13th May 2020 Lords Chamber

[Lord Keen of Elie]

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 Mance]

I have just a few points to raise with the Minister. At one point, he said that the first amendment would prevent us joining two other measures, the Singapore mediation convention and the 2019 Hague Convention. It is too easy to slip into that sort of language. What he really means is that it would prevent us joining those measures without proper parliamentary scrutiny by primary legislation.

In response to the Minister’s last point, yes or no can be a very important question, even if you cannot amend an international treaty once it is made; Lugano is a classic example. It is a difficult decision, as has been illustrated. It is also very easy to say that we would be prevented from implementing future measures in a timely manner, but there is no real evidence for that at all.

The Minister took various rather minor—if I may call them that— drafting points on, for example, the definition of related international instruments and ancillary provisions. Those would all be sorted out if the principle of the first four amendments was accepted.

On that principle, the Minister also took various points about the intra-UK relationship, suggesting that Amendments 4 and 5 raised complexity. As I see it, those amendments are perfectly simple. They ensure that the general power marches in tandem with the specific power to legislate Lugano into the intra-UK jurisdictional relationships and interrelationships with overseas territories. They are “keeping pace” amendments and there is nothing inconsistent or complicated about them.

As to the 1920 and 1933 Acts, I pointed out in my previous remarks that they are quite different, minor and limited measures relating to recognition of superior court judgments overseas, coming either from UK overseas territories or from territories with which we have reciprocal arrangements. Those judgments would have been recognised as common law by action on the judgments, which would operate as an estoppel in any event, so they are minor amendments.

It is true that the Civil Jurisdiction and Judgments Act contained some provisions for delegated legislation in respect of, for example, Gibraltar. However, it was a piece of primary UK legislation in the first place, and it is no doubt a tribute to the quality of the UK Parliament’s consideration of that legislation if overseas territories are willing to accept that they should be legislated for on a delegated basis.

[Lord Keen of Elie]

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.

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

Debate between Lord Keen of Elie and Lord Mance

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

[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 Mance]

It has signed but not ratified.

[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.