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

Alex Chalk Excerpts

2nd reading & 2nd reading: House of Commons
Wednesday 2nd September 2020 Commons Chamber

[The Parliamentary Under-Secretary of State for Justice (Alex Chalk)]

I want to begin by expressing my gratitude to all Members who have contributed to the debate, with speeches of conspicuous clarity of thought. It is clear that across the House there is proper concern about the balance that exists between the powers of the Executive and the powers of the legislature. I will return to that, because it is absolutely right that those important points are engaged with fully. But first let me make some brief introductory remarks, setting the stage for why this matters and why, indeed, the Government are taking the approach we are.

As others have indicated, the Bill might at first glance appear somewhat dry and academic, but, as my hon. Friend the Member for West Bromwich West (Shaun Bailey) noted, it is of great practical importance for the lives and livelihoods of individuals and businesses in all our constituencies. It is also important—this point should not be lost—for the international rules-based order, which we can and must consolidate and strengthen in the months and years ahead. My hon. Friend the Member for Henley (John Howell) made the excellent point about the urgency of a mediation agreement, but in summary this Bill provides a legal framework for resolving cross-border disputes, and that framework provides legal certainty about jurisdiction, recognition and enforcement for both businesses and individuals whose legal affairs cross borders.

As has been noted, it benefits individuals where, for example, the relationship with the former partner has broken down but both parties need to resolve the child contact arrangements where one parent lives overseas. Such cases have arisen in my constituency surgery in Cheltenham. They are very painful cases, and are more painful still without these rules in place. It benefits businesses, too, for example where suppliers are abroad and the parties want to know that the agreement to litigate any dispute in a particular country will be honoured and upheld internationally, and it matters that when our jurisdiction is chosen by the parties in a commercial agreement other courts and states will recognise and enforce that jurisdiction. That is really what matters.

How does this Bill achieve that? In essence, in two ways: first, it carries over international treaties that we were parties to by dint of our membership of the EU; and secondly—this is the point that has attracted the most attention in this debate—it creates a mechanism for us to participate in future agreements and, in doing so, to strengthen the international rules-based order for the benefit of all our citizens. I just want to underscore that point. There is a countervailing public interest in our being able to do that in a timely and efficient way, because the longer that we delay in implementing these arrangements, the longer the delay in strengthening the international rules-based order.

It is important to be clear what the Bill is not about. The Lord Chancellor did that before me, but it is right that I underscore it. It is not about trade agreements. Private international law agreements remain distinct from free trade agreements both in content and scope. As hon. Members well understand, FTAs are agreed between countries, and they remove or reduce tariffs and other restrictions on most goods traded between them to allow easier market access. FTAs rarely, if ever, contain specific private international law provisions.

Promoting international recognition of jurisdiction and enforcement is important because the UK is the chosen court centre for so much of the world’s litigation: 40% of all global corporate arbitrations used English law in 2018, 75% of cases in the UK commercial court in the same year were international in nature and English law is the leading choice of law for commercial contracts. That is underpinned by the excellence and integrity of our judiciary and the calibre of our legal practitioners. It is right to pay tribute to them, and I am pleased to have the opportunity to do so.

As a result, our successful legal sector contributed £26.8 billion to the economy in 2017 and employs over 300,000 people. To sustain that, we in the United Kingdom must be ready to contribute more than ever to the international rules-based order. For the UK to remain a progressive force in the field of private international law, we must be able both to negotiate and then to implement into British domestic law modern agreements with our international partners once the UK has decided to become bound by them.

The hon. Member for Strangford (Jim Shannon) made the point—he will forgive me for paraphrasing—“Look, will the British Government impose things on Northern Ireland?” The answer to that is no. Just as we recognise, of course, the distinct and distinguished legal arrangements that exist in Scotland, so it is in Northern Ireland, and no doubt that is what lay behind the legislative consent motions. While it would be the British Government who negotiate the agreement, the decision on whether to bring it into force is a devolved matter for the Ministers in Scotland and, indeed, in Northern Ireland, respectively.

Let me turn to what the Government are proposing to do in respect of clause 2 as was, before the other place removed it. The reintroduction of the delegated power to implement private international law agreements into domestic law via secondary legislation is necessary, proportionate and constitutionally appropriate. My hon. Friend the Member for Huntingdon (Mr Djanogly), in a characteristically eloquent speech, referred to this at one stage as, I think, the largest potential power grab for some time. I think that was his point, but I respectfully suggest that that needs to be placed in some wider context.

Let me first underscore the point that was touched on by my hon. Friend the Member for West Bromwich West, but also by the Lord Chancellor. Lest we forget, the arrangements that prevailed when we were in the European Union operated a bit as follows: the European Union, on behalf of all the member states, would go out to negotiate these agreements, and having reached an agreement with another country, it would fall to the UK Government in effect to implement it. How would that take place? It would take place either under the doctrine of direct effect, which lawyers in this Chamber will remember stems from the case of Van Gend en Loos, which essentially means—[Interruption.] The right hon. Member for Walsall South (Valerie Vaz) perhaps remembers; I am not sure.

The case of Van Gend en Loos means that, so long as such an agreement satisfies certain appropriate criteria, it would take effect in this country with no parliamentary intervention at all. In other words, hon. and right hon. Members would be entirely ousted from the process of its taking effect in the United Kingdom. However, even if it did take effect by way of direct effect, the effect of section 2(2) of the European Communities Act 1972 means that it would be Ministers using the negative resolution procedure who brought it into effect in this country.

[Joanna Cherry]

Of course that is accurate, but as I said earlier, the whole point of Brexit was to take back control. If that is really what Brexit was about, why are the Government reintroducing clause 2 without any of the compromises that I and others have suggested? The whole project of leaving the EU was about taking back control—so we are told—yet the Government are taking that control, rather than giving it to the House or indeed the people.

[Alex Chalk]

When we talk about taking back control, it is important to note that in future it will not be the EU but the British Government negotiating private international law agreements. I am simply pointing out that when the EU negotiated the arrangements and Parliament had no role at all, it did not seem to attract any concern in this place, yet when it is the British Government negotiating them on behalf of the UK, it seems to create difficulties.

[Mr Djanogly]

rose—

--- Later in debate ---

[Alex Chalk]

I will come to the hon. and learned Member’s second point in a moment, but first I will let my hon. Friend come in on this point.

[Mr Djanogly]

The difference is that in the EU the Parliament has a vote and a potential veto on international trade agreements. My hon. Friend is arguing in effect that we move back to the position before we were in the EU. I think the point the hon. and learned Lady is making, which I would back up is, that we do not want to go back to what we had before we were in the EU; we want to move forward and have a system that is relevant to today’s democracy.

[Alex Chalk]

I take that point completely. I will answer it by touching first on what the situation was before we entered the EU and then on how it ought to evolve in a way that I hope meets my hon. Friend’s concerns. He is right—others have touched on this—that arrangements were in place prior to our entering the EU, albeit on a bilateral basis, for us to enter into these sorts of agreements. Two have been touched on because they have been used quite recently: the Foreign Judgments (Reciprocal Enforcement) Act 1933 and the Maintenance Orders (Reciprocal Enforcement) Act 1972.

It is worth taking a moment to consider them. How is the first Act used in practice? In 2003, it was used for us to enter into a PIL agreement with Israel that had a significant impact: namely British courts would have to give effect to what magistrates courts in Israel said. Yet how was that brought into force in the UK? Was it brought into force through an Act of Parliament? No. Was it was brought into force through the affirmative resolution procedure? No. It was brought into force through an Order in Council. It states:

“Her Majesty, in exercise of powers conferred on Her by section 1(4) of the Foreign Judgments (Reciprocal Enforcement) Act 1933, is pleased, by and with the advice of Her Privy Council, to order”—

and then she gave effect to this private international law Bill. My point is simply that this procedure, which was used in 2003, is far inferior to what we are introducing in clause 2. We are doing away with any idea of an Order in Council, which we accept would be too old fashioned. The appropriate way to apply scrutiny in this House is through the CRAG procedure and the affirmative resolution procedure.

The second Act was used in respect of a US agreement in 2007 as a result of which an Order in Council had the effect that an order on maintenance would have to be given effect in the UK. How was that PIL agreement given effect in the UK? It was not through an Act of Parliament but again through an Order in Council, and again we are going beyond that in this Bill.

In dealing with this matter, I want to make one final and very important point. Not content with simply using Orders in Council to introduce PIL agreements in the past, in fact the House has legislated in recent memory to include more scope to introduce PIL agreements by way of delegated legislation. First, the House passed the Insolvency Act 2000, which created a power to introduce regulations in 2006. Secondly—this is the final point that I will make on this issue, but it does seem relevant—the House passed the Mental Capacity Act 2005. That Act created powers to make further provision as to private international law. Paragraph 32(1) of schedule 3 states:

“Regulations may make provision—(a) giving further effect to the Convention”—

that is the convention on the international protection on adults—

“or (b) otherwise about the private international law of England and Wales in relation to the protection of adults.”

In other words, it was being created in 2005.

[Mr Djanogly]

I appreciate that, but it did not provide a statutory instrument for looking at international financial bonds, insolvency law or other jurisdictional issues; it was focused on that specific area. The point that has been made by many hon. Members this afternoon is that this is too broad.

[Alex Chalk]

I accept my hon. Friend’s point, but the way it has been framed thus far is, “Look, this is constitutionally unprecedented.” It is not constitutionally unprecedented, and that ought to be borne in mind.

The distinguished Chair of the Justice Committee, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), made the proper point about criminal laws, and I recognise that that is something that we should look at carefully. It would be going too far to suggest that delegated legislation is not used to introduce criminal laws. An extremely distinguished paper was produced by academics at the University of Glasgow which went so far as to say that the overwhelming majority of criminal offences are created by delegated legislation, particularly where they are highly specific, technical, environmental offences and so on, so it is not without precedent at all, but I recognise that the point requires consideration.

In short, the Bill will future-proof our legislative requirements in this area for the years to come, while at the same time ensuring that UK businesses, individuals and families can continue to benefit from an efficient and effective framework to help resolve cross-border disputes. It will also ensure that our domestic laws can keep up to date with the latest developments in private international law in international forums, and that the UK can implement any agreements it intends to join in a timely manner while maintaining appropriate parliamentary oversight. I commend this Bill to the House.

Question put and agreed to.

Bill accordingly read a Second time.

PRIVATE INTERNATIONAL LAW (IMPLEMENTATION OF AGREEMENTS) BILL [LORDS]

Motion made, and Question put forthwith (Standing Order No. 83A(7)),

That the following provisions shall apply to the Private International Law (Implementation of Agreements) Bill [Lords]:

Committal

1. The Bill shall be committed to a Committee of the whole House.

Proceedings in Committee, on Consideration and up to and including Third Reading

2. Proceedings in Committee of the whole House, any proceedings on Consideration and any proceedings in legislative grand committee shall (so far as not previously concluded) be brought to a conclusion one hour before the moment of interruption on the day on which proceedings in Committee of the whole House are commenced.

3. Proceedings on Third Reading shall (so far as not previously concluded) be brought to a conclusion at the moment of interruption on that day.

4. Standing Order No. 83B (Programming committees) shall not apply to proceedings in Committee of the whole House, to any proceedings on Consideration or to other proceedings up to and including Third Reading.

Other proceedings

5. Any other proceedings on the Bill may be programmed.—(Leo Doherty.)

Question agreed to.

[Mr Deputy Speaker (Mr Nigel Evans)]

We will now suspend the sitting for three minutes; those who are leaving the Chamber should do so carefully.

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

Alex Chalk Excerpts

Committee stage & 3rd reading & 3rd reading: House of Commons & Committee stage: House of Commons & Committee: 1st sitting & Committee: 1st sitting: House of Commons & Report stage: House of Commons
Tuesday 6th October 2020 Commons Chamber

We believe that the Labour amendments to new clause 5 provide the Government with a constructive and reasonable approach. The amendments allow the Government to achieve the objective they claim is behind new clause 5: to implement the Lugano convention while also protecting parliamentary scrutiny. Nothing in these amendments, or any of the other amendments, hinders the Government in their stated aim. Indeed, they serve no other purpose than to protect parliamentary scrutiny. If the Government vote against them, they will be voting for, as the hon. Member for Huntingdon quite rightly said, one of the largest potential power-grabs ever seen by the Executive in this Parliament. I hope that this Government do the right thing and show that they do indeed value the role of the House and the role and value of parliamentary scrutiny.

[The Parliamentary Under-Secretary of State for Justice (Alex Chalk)]

It was a great pleasure to listen to the powerful advocacy of the right hon. Member for Tottenham (Mr Lammy). Unfortunately, on this occasion, I am unable to agree with him, but out of courtesy to him I will explain why.

It is a real pleasure to address the Committee of the Whole House on a Bill which, while technical, is of great importance. Private international law is not just an arcane and abstract legal construct. As my hon. Friends the Members for Broadland (Jerome Mayhew), for Derbyshire Dales (Miss Dines) and for Aylesbury (Rob Butler), among others, have indicated, it is a very real framework for the dispute resolution of cross-border civil and family justice matters that affect families and businesses in our country. Indeed, the hon. Member for Midlothian (Owen Thompson) made the point that every time we enter into one of these agreements we strengthen the international rules-based order. That is a point we should not lose sight of either.

I am very grateful for the quality of the debate that we have witnessed today, as well as on Second Reading. It has been, if I may say in all sincerity, a debate of conspicuous clarity and ability. I really do appreciate the interest that has been shown in these important matters. I thank colleagues from across the Committee for the time they have taken to prepare the amendments and for the explanations that they have provided. Even where the Government take a different view—which, as I say, I will come on to explain—I recognise that these are serious amendments that have been tabled in good faith in an endeavour to improve the legislation.

Let me begin, if I may, by turning to amendments 5 and 6, new clause 5, new schedule 4 and amendment 7. Taken together, these amendments, in effect, restore the implementing power that was deleted in the other place and reverse the consequential amendments that flow from their deletion. The ability to be able to implement PIL agreements in a timely and effective manner is important. One of the things that really shone out from the excellent contributions that we heard was the word “agility”, which was used by my hon. Friend the Member for Derbyshire Dales in referring to the context of family agreements, and by my hon. Friend the Member for Broadland and, indeed, by my hon. Friend the Member for Henley (John Howell) in talking about the Singapore mediation agreement. That agility is important. It is what allows the UK to be a credible negotiating counterparty, so that if British Ministers agree a PIL agreement—which, incidentally, strengthens the international rules-based order—it can be brought into effect in an agile way.

If indeed, as we all appear to accept, such agreements are good for citizens and businesses, we want to make sure that there is no undue delay in rolling out those benefits. There is a public interest in ensuring that implementation and scrutiny mechanisms are proportionate—again, a word that shone out from the contributions we have heard—in striking the important balance between timely implementation and appropriate scrutiny. If I may make one point about the contribution by the right hon. Member for Tottenham, I think it is fair to say that he did not dwell particularly on the scrutiny procedures that are in place. I will develop that a little bit, and I hope that will put his mind at rest. I do not suppose that I will be able to get him to join us on the Government Benches, but I live in hope.

The provisions are necessary and proportionate because the agreements are recognised across the House as manifestly in the public interest. If I may say respectfully to my hon. Friend the Member for Huntingdon (Mr Djanogly), one of the principal points he made actually, I suggest, undermined his argument. He said, “These are very rarely party political.” The right hon. Member for Tottenham said, “I don’t recall it being vaguely contentious.” He is absolutely right. These agreements are not contentious.

Indeed, if we look at the previous Lugano convention in 2007, or at the previous Hague conventions, which we are introducing under clause 1, nobody ever prayed against them. Equally, on the old Lugano convention—the 1988 one, which preceded the 2007 one—I think only three of their lordships spoke in the other place, there were no amendments and nothing was said here. We must ask ourselves: if my hon. Friends accept that this is non-contentious, why go for what might be perceived to be the disproportionate step?

[Mr Djanogly]

I intervene only because the Minister suggested that I said something. I may have said that this is not party political, but that does not mean to say that it is not important, complicated and potentially contentious—but not for party political reasons.

[Alex Chalk]

But ultimately, my hon. Friend cannot have it both ways. If we accept that it is not contentious, it is important that the mechanisms that are in place are proportionate to that. Indeed, the Opposition knew this when they were in government, because of course all these rule-making powers were on the statute book and they did not repeal them. There was the Administration of Justice Act 1920, the Foreign Judgments (Reciprocal Enforcement) Act 1933, the Maintenance Orders (Reciprocal Enforcement) Act 1972—I could go on. They stayed on the statute book because they are not really offensive to the constitutional balance that we enjoy, but not only were they not repealed; they were used.

The right hon. Member for Tottenham knows that because he was the Minister at the time. He was Minister at the Department for Constitutional Affairs when the British Government used the Foreign Judgments (Reciprocal Enforcement) Act 1933 to bring into force an international agreement with who? With Israel. He knows that because he was the Minister at the time. Who was the Lord Chancellor at the time? Lord Falconer. The right hon. Gentleman cannot very well say that these are a monstrous and egregious affront to our constitution when they were used, because they were used a second time in 2007. They created a power to give effect to bilateral agreements with the United States on reciprocal enforcement of family maintenance orders.

Just to complete that point, not only were those powers used; the right hon. Gentleman, for whom I have enormous respect, created new ones of his own. In 2005—[Interruption.] He is laughing, but he knows it is true. He was the Bill Minister on the Mental Capacity Act 2005, which, incidentally, on this very rainy weekend I had a chance to re-read. That Act created a wide delegated power to introduce international agreements in that area.

I do not want to labour this point too much, but I had a chance to look at proceedings in Committee on that Bill, during which a Conservative hon. Member talked about that specific power and effectively asked the right hon. Gentleman, “Is he sure that he wants to do this?” He added:

“Those in another place get very excited about any sort of Henry VIII clause.”

The right hon. Gentleman responded, effectively, “Don’t worry,” saying that

“they are technical and necessary provisions.”––[Official Report, Mental Capacity Public Bill Committee, 4 November 2004; c. 406-407.]

Is not that precisely the point? What was technical and necessary when he was in government has now become an egregious affront to our constitution.

[Mr Lammy]

The very able Minister has put his argument, but I remind him that under the previous Labour Government, we were in the European Union. This debate is about being outside it, and the best architecture for scrutiny in this House in those circumstances.

[Alex Chalk]

But the point is that when we were in the European Union and the European Union had competence to enter into PIL agreements, those would be brought into effect in the United Kingdom via the doctrine of direct effect. What role did this Parliament have? None. We are seeking to introduce much more by way of parliamentary scrutiny—the points, respectfully, that the right hon. Gentleman did not advert to. First, there is the CRaG procedure, and secondly there is the affirmative procedure.

I am at pains to mention that because I talked just a few moments ago about the Israeli agreement and the United States agreement. How did those come into force? Not through the affirmative procedure, not even through the negative procedure, but through an Order in Council. In other words, normal hon. Members—mere mortals like most of the people in the Chamber—had no say at all; just Privy Counsellors. We therefore respectfully say that it does not lie in the mouth of the Opposition to raise these concerns.

My hon. Friend the Member for Bishop Auckland (Dehenna Davison) made the point powerfully that this precedent, which the Opposition understood when they were in government, recognises that there is an opportunity cost. If we start filling up the parliamentary timetable with such legislation, which everyone accepts is not controversial, there is less time and less space for schools, hospitals and transport, etc.

On the point about criminal offences, which was made powerfully by the Chairman of the Select Committee, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), this is an area where it is important to move cautiously. We will continue to reflect on the range of views expressed. I agree with him that an awful lot of offences are created by statutory instruments, but we need to take care, none the less.

[Sir Robert Neill]

I am grateful for the Minister’s observations in relation to criminal offences, and I will take him at his word as far as that is concerned. I know that he will want to take away, perhaps, how we deal with that proportionately.

The Minister refers to the value of the affirmative procedure, as is proposed. That, of course, is used when the PIL treaty first comes into force in our domestic law, but often these treaties or agreements can be modified as they go along. Can he help me with the concerns raised by the Bar Council and the Law Society about how the proposed scrutiny regime would deal with, for example, declarations that are attached to international agreements when we bring them into force? Such declarations can sometimes modify or limit their scope. Secondly, how will we deal with model laws, which are now often used in international trade negotiations?

[Alex Chalk]

If I may respectfully say so, that is an excellent point. That is one of the reasons why we seek to frame things this way, because one of the points my hon. Friend made most powerfully is that there are shortcomings in the Lugano convention. He talked about the Italian torpedo, but there are others, some of which Lord Mance referred to in the other place, for example.

How are we to be expected, in an agile and proportionate way, to address those changes, supposing they are negotiated, if we effectively have to have a new Act of Parliament each time? With respect, that would be wildly disproportionate. It would clog up this place unnecessarily, because there may be very good opportunities to improve those agreements and get them on to the statute book.

Let me deal with this business about Lugano, in amendments 1 to 4, 8 and 9, new clauses 1 and 2, new schedule 1, new schedule 3, new clause 5 and amendments (a) to (g). First, it is premature to put Lugano into the Bill while our application is outstanding, even if amendment 2 specifically includes reference to this being contingent on the UK’s accession. It is also inadequate—this is the point I was adverting to—as additional provisions will be required, mostly of a procedural or consequential nature, to properly implement to Lugano convention into domestic law.

For example, the civil procedure rules might need to be changed. What if Lugano is improved, as I indicated? What, also, if our application is unsuccessful? We may then need to move quickly. With whom will we want to move quickly? As my hon. Friend well knows, Norway, Iceland and Switzerland have published statements of support for our Lugano application, and that may be a route we would want to go down.

The most important point is that we have, and indeed should have, ambitions beyond Lugano. We must stay at the forefront of developments, whether the Singapore convention on mediation, as my hon. Friend the Member for Henley (John Howell) powerfully referred to, or the Hague convention on recognition and enforcement of foreign judgments in civil or commercial matters, also known as Hague ’19.

I advert to the fact that the Bill properly complies with the devolution settlement. We take that extremely seriously. As the hon. Member for Midlothian (Owen Thompson) indicated, both the Scottish Parliament and the Northern Ireland Assembly have passed legislative consent motions for the Bill, and the Welsh Government have agreed that an LCM is not required as PIL is almost entirely reserved. There is a small exclusion for Cafcass Cymru, but that is really it.

The right hon. Member for Tottenham spoke about the super-affirmative procedure, and I accept this amendment was submitted in the spirit of trying to be helpful. I entirely acknowledge that. These proposals are contained within paragraph 4 of new schedule 3, tabled by the Opposition, and there is a similar proposal in new schedule 2, although the SNP new schedule would introduce a super-affirmative scrutiny power only for Lugano. I respectfully make the point, and I appreciate that this is to the hon. and learned Member for Edinburgh South West (Joanna Cherry), but why would we need a super-affirmative scrutiny power for Lugano, which we have been operating for years? That is not very obvious to me.

The bar for the super-affirmative scrutiny procedure has always been high. Let us look at the context. Section 85 of the Northern Ireland Act 1998 provides for a super-affirmative procedure for regulations that deal with changes to reserved matters as set out in that Act. The Human Rights Act 1998 provides for such a procedure for remedial orders that deal with legislation that has been found to be incompatible—declarations of incompatibility. Under the Public Bodies Act 2011, a super-affirmative procedure is needed for orders that abolish, merge or change the constitutional funding arrangements. I dealt with those quickly, but the point is that super-affirmative procedure is reserved for matters of key constitutional importance. We must not forget that in the case we are discussing, we have the additional CRaG brake.

If we drill into the detail of super-affirmative procedure, it creates additional stages, but I query whether it results in improvements to the proposed regulations. Instead, it simply delays. It would also create a potential discrepancy between England and Wales and the devolved jurisdictions. One could easily imagine a situation whereby two litigants lived five miles either side of the border and the cases were dealt with differently, to the disadvantage of a litigant in England, because the Scottish Parliament had got on with it and simply brought an agreement into force. That would be unsatisfactory. I do not suggest that that is what the right hon. Member for Tottenham intends, but I fear it could be a consequence.

New clauses 1, 6 and 7 deal with laying the report. New clause 6 would require a report to be laid in Parliament before the UK ratifies an agreement. New clause 7 would require the Government to lay a report in Parliament for 10 House of Commons sitting days before a draft statutory instrument was laid. I accept the need for clear and detailed explanations, but it is not immediately obvious that new clause 7 would add anything to the current process. All SIs are already accompanied by an explanatory memorandum. I dug one out to prepare for the debate. It deals with the Civil Jurisdiction and Judgments Act 1982. It runs to 18 pages and is very detailed and helpful. Other than requiring the information 10 days earlier, I cannot see that new clause 7 would make a difference. We should not forget that an SI is typically laid several weeks before the House gets to debate it. None the less, I accept the point that my hon. Friend the Member for Bromley and Chislehurst made about the need to reach out to distinguished practitioners and jurists. It is right that we should do that, and I am keen for that happen.

I am very grateful for the consideration of the Bill in Committee. I share the desire to ensure that PIL agreements that we wish to join and domestically implement are appropriately scrutinised. All Governments must balance the need for scrutiny with the need to move in a timely manner to ensure that British citizens can enjoy the benefits of PIL agreements as soon as it is properly possible to provide for them. Those benefits are significant, and if the House gets the balance wrong, our citizens will be denied them by an unnecessarily labyrinthine process.

The proposed procedures provide for scrutiny of a delegated power using an affirmative SI together with the CRaG procedure to implement the agreements. That is a balanced and proportionate approach.

[Sir Robert Neill]

Before the Minister sits down—

[Alex Chalk]

Just in the nick of time.

[Sir Robert Neill]

Perhaps the Minister can help my hon. Friend the Member for Huntingdon (Mr Djanogly) and me. I understand what the Minister is saying, and none of us wishes to create a labyrinthine process. Does he accept that it may be necessary to learn from experience with CRaG as we go forward? Are the Government closing their mind to the idea that we could seek refinements and improvements to the CRaG process as we operate it? The answer might help us.

[Alex Chalk]

I thank my hon. Friend for raising that point. There is no doubt that the CRaG process is evolving and maturing. Proper points have been made about the need to consider it and how it should evolve over time. I certainly do not want to shut my eyes or my ears to my hon. Friend’s proposals.

The Bill takes a balanced and proportionate approach. I therefore invite hon. Members to support the Government amendments and reject the remainder.

[Mr Djanogly]

The debate has been interesting and gone some way towards creating a more common understanding of the important issues at stake, the balance between efficient process and appropriate parliamentary scrutiny, and why, as I have argued, we need a more modern process of scrutiny for PIL treaties as much as for the ministerial orders that are derived from them.

--- Later in debate ---

[Alex Chalk]

I beg to move, That the Bill be now read the Third time.

Let me start by thanking all the right hon, hon. and , in particular, learned Members from all parts of the House for their careful scrutiny of the Bill at each stage of its passage. A variety of opinions have been expressed, and I value all the contributions made on these important issues. We have been fortunate, throughout the passage of this Bill, that the debates have been genuinely enriched by the experience and expertise of the speakers, both in this House and in the other place. One thing that has been raised time and again from all involved is an acknowledgement of the importance of private international law and the real-world impact it can have on our constituents.

I have to accept that historically that acknowledgement has not always been in place. A former Lord Chancellor, Lord Hailsham, who introduced a key piece of private international law legislation, the Civil Jurisdiction and Judgments Bill, into the House of Lords in 1981 opened the Second Reading debate by saying:

“I rather feel that it should be accompanied by a Government health warning. There is nothing whatever that I can do to make my speech short, and those who expect to find it of throbbing human interest will, I fear, be wholly disappointed.”—[Official Report, House of Lords, 3 December 1981; Vol. 425, c. 1126.]

But of course we know in this House that this is extremely important. Reciprocal private international law rules provide a framework to enable UK businesses, families and individuals to resolve their difficult and challenging situations. They help to avoid confusion for all parties, by preventing multiple court cases from taking place in different countries on the same subject and reaching potentially different conclusions. Such reciprocal rules also 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. It is therefore vital that in future our country is able not only to continue to co-operate on private international law matters with existing partners, but to implement in our domestic law new agreements that are fit for the 21st century.

The Bill underpins our ambition to deliver real and tangible benefits for the United Kingdom—for our citizens—both now and in the years to come. I reassure Members on a point that I know they realise but that can never be emphasised enough: although private international law can support and underpin cross-border trade, the Bill is not about the implementation of free trade agreements. The terms on which trade between two countries takes place are clearly outside the scope of the Bill.

Over the next few years, we face the challenge of replacing and updating the UK’s private international law framework, recognising our regained competence in this area of law. Although we have not yet agreed, as between this House and the other place, on how best to scrutinise future agreements, I am now confident that there is an eagerness to do so effectively. That eagerness recognises the overwhelming public interest of such agreements.

More broadly, I am pleased that, whatever the outcome of ping-pong, we will have in place legislation that allows the UK to realise the future opportunities in this area of law. I think all parties in this House are agreed not only that we want the UK to remain at the forefront of delivering justice internationally and to ensure that our legal services sector continues to flourish, but that we want to ensure that we are at the forefront of the international rules-based order—we want to see it strengthened and we want to play our part.

I conclude simply by thanking all Members for their contributions. I commend the Bill to the House.

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

Alex Chalk Excerpts

Consideration of Lords amendments & Ping Pong & Ping Pong: House of Commons
Tuesday 24th November 2020 Commons Chamber

[The Parliamentary Under-Secretary of State for Justice (Alex Chalk)]

I beg to move, That this House agrees with Lords amendments 1A and 1B.

[Madam Deputy Speaker (Dame Rosie Winterton)]

With this it will be convenient to consider the Government motion to agree to Lords amendments 4A to 4E.

[Alex Chalk]

Private international law, sometimes known as conflict of laws, comprises rules applied by courts and parties involved in legal disputes for dealing with cases raising cross-border issues. The rules generally apply in the context of civil law, including specialist areas such as commercial, insolvency and family law. PIL typically includes rules to establish whether a court has jurisdiction to hear a claim that has cross-border elements, which country’s law applies to such a claim, and whether a judgment of a foreign court should be recognised and enforced. However, it can also encompass rules on co-operation between courts and other public authorities in different countries involved in dealing with cross-border issues, such as service of documents, taking of evidence abroad or even establishing efficient procedures to assist with the resolution of cross-border disputes.

These agreements are important. They are the sort of thing that a member of the public, or a business trading across borders may not know they need until a difficulty or a disagreement arises. Without these agreements, cross-border legal disputes can become expensive and difficult to resolve. With them, the path to resolution is clearer and smoother.

[Sir Robert Neill (Bromley and Chislehurst) (Con)]

I am very grateful to the Minister for giving way so early on in his speech. As he will know, I have to chair the Justice Committee in a few moments, but may I thank him for stressing the importance of this not just for the big financial institutions and businesses of this country, but for individuals? Will he confirm that, in accepting the amendments, we have managed to achieve an improvement to the Bill through the very constructive approach for which he in particular has been responsible? Will he also confirm that, as well as the Bill, it is the Government’s firm intention to seek to join the Lugano convention on the enforcement of judgments and other international co-operation at the earliest possible date, so that we do not have any gap post the end of the implementation period, and to move on to the other international conventions—Hague and others?

[Alex Chalk]

I thank the Chairman of the Justice Committee for his remarks and for the contribution he has made throughout the passage of the Bill. I am quite confident that we are in a better place because we have looked at it constructively. That is, in large part, because of the contributions he has made, together with others. Yes, this is about individuals as well as businesses, and yes, we want to use this as the vehicle to get into Lugano, which will be good for the rule of law, good for individuals, good for certainty and good for businesses.

I was making the point that these agreements mean the path to resolution is clearer and smoother. Just by way of a couple of examples, these agreements can help a family where relationships break down and one spouse moves abroad, and they can help to sort out arrangements for custody, access and maintenance in the best interests of the children. These agreements can provide a framework for a small business to seek redress when left out of pocket by a supplier based in another country.

[Christian Matheson (City of Chester) (Lab)]

The Minister is explaining the scope of the Bill and I am trying to understand it. We all represent constituents and I have a couple of constituents’ cases, for example one where there is a dispute over a property in Cyprus and another where a constituent was involved in an assault in Italy. They both relate to issues that are not cross-border, but relate specifically to incidents or disputes in those countries. Are those kinds of cases covered by the Bill, or does the Bill look at issues only where there are cross-border affairs that need to be resolved?

[Alex Chalk]

I am grateful to the hon. Gentleman for asking that question. The Bill is more likely to affect the former example, rather than the latter. On the specific issue of a criminal offence, that is likely to fall outwith the Bill. There is, of course, a regime for cross-border co-operation in that regard, but that normally sits outside private international law agreements, which tend to be about family issues—whether you have maintenance and enforcement, and which agreements are going to be upheld by which courts—and commercial agreements, for example, between a widget manufacturer in the hon. Gentleman’s constituency and a supplier in another part of the world. This relates to agreements that are already in existence which we want to roll over, but also creates the framework for us to agree and implement future agreements.



The Bill contains two substantive clauses. The first ensures the continued implementation of three Hague conventions on various aspects of private international law that are currently implemented—at least until the end of the transition period—under the European Union (Withdrawal Agreement) Act 2020. The second concerns the implementation of further PIL agreements—the point that I was just making—by secondary legislation. This clause was removed from the Bill in the Lords on Report, but was returned by this House in Committee back in October. Although clause 1 is not subject to the amendments in front of us today, the need to have these provisions in force by 31 December creates an imperative to resolve the outstanding issues without delay.

--- Later in debate ---

[Mr Jonathan Djanogly (Huntingdon) (Con)]

As things stand, is it the Minister’s intention that there will be only one five-year period—that in five years’ time the Government will drop it? Or is his current intention that it will be extended if other things come up?

[Alex Chalk]

The legislation is clear that it can be extended more than once, but the real point is that parliamentarians will want to be satisfied that that process is not entirely a rubber-stamping exercise and that, first, Governments of any stripe will be actively required to turn their attention to whether it is the proper thing to do—and they will be, because of the consultation requirements in the statute—and secondly, that Parliament will be sufficiently notified of the Government’s intention to do so that it is well placed to marshal whatever opposition it thinks is appropriate.

All of that feeds into the next points that I wish to make, but before I do so I should say that the Government have been clear about how they want to use the power over the next few years, and that includes in respect of implementing the Lugano convention—or, indeed, alternatives with Norway, Iceland and Switzerland, should our application be declined—as well as, subject to consultation, the Singapore convention on mediation and the 2019 Hague judgments project. I pause to mention that the Singapore convention has no more doughty champion in this place than my hon. Friend the Member for Henley (John Howell).

If the Government ask Parliament to extend the power in five years’ time, they will need to make their case again and have the relevant regulations approved in both Houses. In any view, the sunset amendment represents a significant concession by the Government. It takes account of the concerns that have been powerfully expressed, while still retaining a proper measure of the flexibility and agility that we seek—manifestly in the national interest, we contend—to support the UK’s long-term private international law strategy which, I pause to note, strengthens the international rules-based order.

Finally, on the third of the three points to which I referred, Lords amendment 4B adds a requirement for the Government to consult prior to making any regulations under the Bill, whether those regulations concern the implementation of a private international law agreement or propose to extend the sunset period—the point I just addressed with my hon. Friend the Member for Huntingdon (Mr Djanogly). The amendment puts on the face of the Bill the commitments that we have already made from the Dispatch Box on engagement with Parliament and other stakeholders. Although there will be times when a wide-ranging and broad consultation is appropriate—for instance, when the UK is seeking to join a new private international law agreement—there will be other times when the power is used to make minor technical and procedural updates to agreements, such as to update the name of a foreign court referred to in an existing agreement.

The requirement to consult applies across the piece but allows for a proportionate approach to different issues. Different instruments will require different approaches and, no doubt, different consultees, and the consultees who might be most appropriate to offer a view on an instrument about family law will not necessarily be the same as those who might add most value in respect of an instrument that deals with commercial disputes. As with any statutory obligation to consult, there is a requirement to take proper account of the representations received, and I can give an undertaking that the Government will meet that requirement. In the explanatory memorandum that must accompany any statutory instrument laid before this House, we will provide—I hope this will provide some comfort to my hon. Friend the Member for Huntingdon—a thorough and detailed explanation of the consultation that has taken place, setting out not only those whom we have consulted but a fair and balanced summary of the views expressed.

In conclusion, I restate the point about the importance of resolving this issue today. Clause 1 needs to be in force before the end of the transition period. It is plainly in the interests of this country to avoid an extended back and forth, and the Bill represents a pragmatic approach that respects the misgivings that have been expressed while ensuring that Governments retain the agility and flexibility that they need to enter into vital international agreements. I urge right hon. and hon. Members to accept this compromise as an appropriate and balanced approach.

[Madam Deputy Speaker (Dame Rosie Winterton)]

I call the shadow Minister, Alex Cunningham.

--- Later in debate ---

[John Howell (Henley) (Con)]

Let me first declare an interest as an associate of the Chartered Institute of Arbitrators.

I thought for a moment that I was going to welcome the agreement that there clearly is between my hon. Friend the Member for Huntingdon (Mr Djanogly) and me, but, given his last comments, I am not sure any more—I need to think about them. However, I think we are on the same sort of page at the moment.

I, too, welcome these Lords amendments and point out that they are a very good compromise between this House and the other place. I also welcome what the Minister has said in bringing them forward. In taking away the criminality, having a sunset clause and bringing in a consultation, they have done a tremendous amount to bridge the gap that there previously was during our discussions on this Bill. But in fundamental essence, the Bill remains the same in what it can do, and I am glad that it does.

I made the point on Report as to why that was important. I am not going to repeat the entire speech that I made then—I probably could not get away with that—but I stressed the need for agility and flexibility, and I put that in the context of the Singapore mediation convention. There is a great necessity to get the Singapore mediation convention into working order and on the statute book. The reason for that is twofold.

First, it fundamentally does no harm whatsoever—in fact, it does a tremendous amount of good for the small businesses that are choosing mediation as a means of settling their disputes. Secondly, it ends the farce we have at the moment with the system that is in place whereby if one has a mediation, one then has to agree an arbitration, however short that may be, in order to take advantage of the New York convention. That is a nonsense that we do not want to continue with. We must implement the Singapore mediation convention, which allows the results of a mediation to be recognised in the countries that have signed up to this.

The Minister was kind enough to say that I am a great champion of the Singapore mediation convention, and he is quite right, because I have seen that it does a tremendous amount of good for this country. It is also because, as the hon. Member for Stockton North (Alex Cunningham) said, a tremendous amount of alternative dispute resolution takes place in this country. We are world leaders in this, but we will not remain so for very long unless we sign up to the Singapore mediation convention and get stuck into what the rest of the world is getting involved in. All I can do is recommend to the Minister that he gets on with introducing the statutory instrument to get the Singapore mediation convention up and running in this country. To repeat what I said on Third Reading, I am very happy to serve on the SI Committee that introduces the Singapore mediation convention and to see a great dream come true.

[Alex Chalk]

Let me begin, a little sooner than I had planned, by saying that I am absolutely delighted that this Bill is now going to be supported across the House. It is worth reflecting on the journey that we have made, because, as the hon. Member for Stockton North (Alex Cunningham) rightly said, concerns were raised, first on Second Reading but also in the other place, but we have now got to the point where the Labour and Lib Dem amendments were withdrawn in the other place and this Bill will now receive cross-party support. In getting to this point, their lordships recognised, in the words of Lord Pannick, that “substantial and constructive” amendments had been made by the Government. We did so because we recognise that the issues we are addressing here, when it comes to the constitutional balance in our country, are ones that merit proper and careful consideration. But the imperative for this was in fact laid bare in the points made by the hon. Member for City of Chester (Christian Matheson), who is no longer in his place—[Interruption.] He is back, as if by magic. He asked whether there would be different treatment for British citizens in different parts of the world. That is precisely what the Bill is all about. It is to try to reduce those differences. If we had no private international law agreements, that is exactly the situation we would increasingly find ourselves in. Because we are now better able to implement them, we are better able to provide that certainty and clarity which are in the interests of our constituents and their businesses, whether they manufacture widgets or any other products.