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

John Howell Excerpts

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

[Robert Buckland]

I am grateful to my right hon. Friend, who will share my strong belief in the success of the legal services sector both in England and Wales, and in Scotland, as well as in the Northern Ireland jurisdiction, and the importance of maximising the advantage that we have not just in our outstanding rule of law reputation, but our reputation as an international forum for the resolution of disputes. I can think in particular of issues related to arbitration and mediation, where important international conventions are being developed, where the United Kingdom not only needs to be part of it, but to be at the heart of it when it comes to improving not just the prospects for legal services, but the opportunities for the businesses and the citizens we serve.

[John Howell (Henley) (Con)]

My right hon. and learned Friend mentioned the Council of Europe. I want to stick on that, because it works on the basis of signing international treaties to get things done. At the moment, they take forever to get through, and the UK is one of the worst signers of them. Is this going to help to speed up the process?

[Robert Buckland]

I share my hon. Friend’s enthusiasm and sense of impatience about the pace of change in fora such as the Council of Europe. I just need to caution him on this basis. When it comes to the use of the powers that we anticipate under this Bill, we are talking about a narrowly defined type of agreement—practical, detailed but important changes that will lead to the sort of improvements that I referred to in responding to my right hon. Friend the Member for Wokingham (John Redwood). I am sure that as he hears not just my contribution but the one made in winding up by the Under-Secretary of State for Justice, my hon. Friend the Member for Cheltenham (Alex Chalk), he will be even clearer about the particular role that this Bill will play in the incorporation of international law.

That is very important, because concerns were raised in the other place that somehow this was a Trojan horse or an invitation to open the floodgates, to allow for the incorporation of major swathes of international treaty law into domestic legislation with minimal scrutiny. Nothing could be further from the case.

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[Robert Buckland]

I am grateful to my hon. Friend. The Italian torpedo is not a reference to the successful naval action by the Royal Navy against the forces of fascist Italy in the second world war. This is a particular device taken by parties who issue proceedings in a jurisdiction that they know will not accept control over the particular proceedings. It is, in other words, a massive delaying tactic that can cause real obstruction to the course of justice and to the resolution of important disputes, and that is why he is right to say that Lugano would be very much a beginning when it comes to the development and refinement of that type of important co-operation.

My hon. Friend the Member for Huntingdon (Mr Djanogly) asked why we do not mention Lugano. Well, there is an obvious argument that I should have addressed, which is that, as we have not yet been able to join it, it would perhaps be premature for us to refer to it directly on the face of the Bill, as opposed to the Hague conventions, which we have joined. Regrettably, there will not be time to bring forward further primary legislation before the end of the year, should our application be approved within the next few months. Therefore, for that sad but practical reason, it would be right not to pass anticipatory legislation but rather to await the outcome of the negotiation and then to allow the use of the delegated power.

The power could also be used to implement other agreements. I have talked about mediation, and in particular the 2019 Singapore convention on mediation and 2019 Hague judgments convention. We have not yet taken a formal decision on either of those, but of course I am happy to talk more about those conventions with hon. Members during the passage of this Bill and, indeed, in the future as we decide on our final approach to these instruments.

[John Howell]

If I catch your eye, Mr Deputy Speaker, I will speak a little more about the Singapore mediation convention, because I think everyone approves of it. All it does is bring mediation settlements under UK law in the same way that arbitration settlements are included within the New York convention. I hope that my right hon. and learned Friend’s offer to speak to people who are involved with this includes me, because I would be very happy to discuss it further.

[Robert Buckland]

I am grateful to my hon. Friend and he is right to mention the New York convention. Indeed, it develops the point I made to my right hon. Friend the Member for Wokingham about our ambition on the recognition of arbitral decisions and mediation resolutions, too.

The reintroduced delegated power would allow us to strengthen our internal UK and our wider UK family relationships, including those with the Crown dependencies and the overseas territories, by allowing us to apply and to implement the terms of an international agreement between the different jurisdictions of the UK or, indeed, to apply and implement an arrangement or a memorandum of understanding based on the terms of an agreement between a self-governing territory or a dependency and the United Kingdom. Of course, this would be done only with the agreement of the relevant devolved Administration or self-governing territory or dependency, because the Government recognise that private international law, including the implementation of agreements, is indeed fully devolved to Scotland and Northern Ireland, and this will continue to be reflected in any reintroduced delegated power in the Bill.

In summary, this Bill will allow our country to capitalise on regaining full competence to enter into international agreements on private international law in our own right after our withdrawal from the EU. It simplifies the implementation of three important Hague conventions in domestic law, to which the UK will be an independent party from the end of the transition period. The reintroduction of the former delegated power will also allow us quickly to implement any new agreements we strike with our international partners, thereby remaining at the forefront of promoting global co-operation and, indeed, best practice in this area. Finally, it will also allow our citizens to harness the benefits of these agreements in a timely manner, including to assist in the resolution of cross-border disputes. I commend the Bill to the House.

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[John Howell (Henley) (Con)]

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

I welcome this Bill and the proposals to change it during its next stages. As I said during an intervention, I want to mention one thing in particular—the Singapore mediation convention. This is a treaty that we have been waiting to sign since it was first talked about in 2018. It is absolutely unconscionable that it has not been signed, ratified and brought into UK law in a much shorter period. This goes to the heart of the question asked by my right hon. Friend the Member for Wokingham (John Redwood)—what do we need to do to keep ourselves ahead of the game in this? I went to Singapore and talked to the mediation community there. We are being left out. The centre of mediation is here in London. It is being left out because there is no means of making sure that the mediated conclusion to a dispute can be brought into law in another country. In fact, the process that one has to go through is a fairly arbitrary one where, after the mediation, one has to get new proponents as arbitrators, which increases the cost enormously, to have a formal arbitration that can be caught under the New York convention. That is an utterly absurd way to go about this.

We all know that mediation has become an important part of modern business, especially as the courts are busy. When I was doing my Industry and Parliament Trust fellowship in law and sitting with judges, I was very pleased that many of them advised the people who were pleading before them that they should go away and consider mediation beforehand. Getting a mediation settlement agreed and applicable across countries seems to be a very narrow and technical thing to do. It does not affect anyone in an adverse way, and it has been welcomed by almost everybody I have spoken to.

I hope that the Minister will be able to confirm that this Bill will allow us to steam ahead in getting the Singapore mediation convention ratified and brought into UK law so that, for the future, we can maintain our position in the UK as the centre of mediation in the world.

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

John Howell 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

As to what we are going to do about arbitral arrangements, we have a growing arbitration centre in the UK. Arbitration and mediation are often seen as an important way forward for international dispute resolution, and we need to have a firm framework upon which we can undertake those matters in the future. The amendments that my hon. Friend the Member for Huntingdon and I have tabled are not intended to obstruct the Bill; they would help its passage through the other place, where I fear it will otherwise have some difficulty. The Minister has seen the speeches in the other place, so there is a bit of enlightened self-interest here. I urge the Minister to listen favourably to what we say and let us see whether we can find some compromise and undertakings at least on the way forward that will meet some of those legitimate concerns.

[John Howell (Henley) (Con)]

Let me first declare an interest, as an associate of the Chartered Institute of Arbitrators. I take a different view on this Bill from my hon. Friends the Members for Huntingdon (Mr Djanogly) and for Bromley and Chislehurst (Sir Robert Neill). When I looked at the Bill and what it does, two words came out as being necessary to preserve, the first of which was agility. The Government need to have the agility to be able to implement treaties in this way. The second word was “flexibility”, which partly comes down to the issue of speed. My hon. Friend the Member for Huntingdon was wrong when he said that these sort of treaties take forever and there is no rush to get them through. There is a rush to get them through. One example of where there is a need to get a treaty sorted out is the Singapore mediation convention. It harms absolutely no one. All it does is make the decisions that are reached in mediation in countries that have signed the convention applicable anywhere around the world. It stops the enormously artificial process of having a mediation and then changing the mediators for another set of arbitrators, who then introduce the arbitration on exactly the same lines as the mediation in order for it to be caught by the New York convention, which is applicable around the world and which we have signed.

Understanding why we need to be quick with that treaty, which, as I say, does no harm, comes back to the visit that I and colleagues from both sides of the Houses made to Singapore earlier in the year. We have heard that many people see alternative dispute resolution as the way forward, but that is a complacent way of looking at the situation in the UK. The UK is not doing very well at maintaining itself as a global hub for alternative dispute resolution. The facilities available for conducting arbitration or mediation are far inferior to those that can be found in Singapore. If we sit around for much longer thinking that we can carry on being the global hub for this, we will lose that position very quickly and it will go to somebody else.

The techniques that we need to approve a major treaty are completely different from the sort of techniques that are needed to adopt a small treaty such as the Singapore mediation convention. We are speaking not about a new Maastricht treaty, but about treaties such as the Singapore mediation convention. We do not need an Act of Parliament for that; we need Ministers to get on with signing and implementing them as quickly as possible.

The Law Society has rather missed the point. It stresses the point that the effects of a treaty can have influence on domestic law, but it totally ignores the need for speed and it falls into the trap of complacency when it looks at the situation in the UK and the global role that we play. The House of Lords, when it looked at the measure and made its recommendations, also failed to recognise those points. I say again to the Minister that he needs to judge these amendments and new clauses according to whether they increase his agility and flexibility to get treaties such as the Singapore mediation convention signed and operational as quickly as possible.

[Miss Sarah Dines (Derbyshire Dales) (Con)]

It is a pleasure to speak under your chairmanship, Dame Eleanor. As a relatively new Member of Parliament, it really is a joy to be speaking on this Bill. I refer the House to my entry in the Register of Members’ Financial Interests. I was a practising barrister for 30 years and for many of those years, I practised in these areas.

I am truly delighted to be speaking on this Bill in Committee. The very consideration of it is evidence that the transition period of our leaving the EU is coming to an end. For me, that is very welcome news. I support the propositions put forward by my hon. Friend the Member for Henley (John Howell), who said that the Government need to be responsive, and there is a need for speed, agility and considered thought.

It is of course right that, prior to the end of the transition period, the UK takes steps to ensure continued participation in key agreements in its own right, at last as a free and independent trading nation. From 1 February, the UK has regained full competence to enter into this sort of international agreement in the field in its own right. This is wonderful progress. As the UK develops its wider trading policy with the EU and the rest of the world, PIL agreements will be key to supporting cross-border commerce, which will be particularly important going forward. They will also regulate the very foundations of our society—how we deal with international family law matters—and build confidence for consumers as to how trade and disputes will be settled, all of which are very good things.

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[John Howell (Henley) (Con)]

Let me add my gratitude to everyone who has spoken in this debate. It has been a very good debate, and I am sure that we have all learned a lot from it. I congratulate the Minister on what he has been able to do. What amazes me is that he has been able to get through the Bill without once using my skills as a mediator. That must be to his great credit.

We have here something that is in the interests of the country and that gives us a new tool in the box. From a personal point of view, I look forward to the Singapore mediation convention being signed and ratified by this country as quickly as possible. I even volunteer to sit on the statutory instrument Committee in order to do that.

Question put and agreed to.

Bill accordingly read the Third time and passed, with amendments.

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

John Howell Excerpts

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

[Mr Djanogly]

The ongoing disputes over the Bill have not related to the content of private international law treaties, but rather to parliamentary scrutiny of orders made pursuant to PIL treaties and scrutiny of the PIL treaties themselves. As far as the order-making powers are concerned, we have ended up today with a welcome compromise, eked out in the other place following a significant defeat and general kickback from basically everyone for the initial proposals for a Henry VIII clause.

To that end, there were counterproposals to limit the scope for orders to specific treaties, for reports to be laid before auditors and to a stated timetable and for a super-affirmative procedure. Although none of those proposals has been accepted, others have been. I welcome the concessions offered today by the Minister, who I have to say has now listened, in terms of the exclusion of some level of criminal offences punishable by prison, the introduction of a five-year sunset clause, albeit a renewable one, and a prior duty to consult on orders, although only with such persons as the Secretary of State thinks appropriate. That is, frankly, as far as we are going to get on this and I shall support what is offered. However, I wish to make two related wider points.

First, while Government suggest that the PIL treaties are non-contentious, the sweeping scope and initially non-restricted life of order powers clearly represent a significant increase in the power of the Executive. It is also an attack on the constitutional principle that international agreements should only change domestic law if they are instituted by Act of Parliament. Here we need context, because if one looks at the range of current Government Bills, one sees time and again power being removed from this place to the Executive. That was recently described by one journalist as this Government’s Maoist tendency.

It may be that recent staff changes at Number 10 are going to reverse that tendency. The Government should keep in mind that the Executive will not always be a Conservative one, and messing with our finely tuned unwritten constitution may not be to the Conservatives’ advantage in the long run.

My final point concerns what has been persistently avoided in the Bill, which is the urgent need to reform the Constitutional Reform and Governance Act 2010 provisions for scrutinising proposed international treaties. Frankly, I have not been able to understand Ministers’ feet dragging on this issue. As things stand, it looks like CRaG reforms are more likely to come in piecemeal via the Trade Bill and the Agriculture Bill. In my view, that sectoral hotch-potch should be managed by the Justice team, to cover all international treaties. I suggest that Ministers apply their many talents to that task.

[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.