Police, Crime, Sentencing and Courts Bill

Jonathan Djanogly Excerpts

Consideration of Lords amendments
Monday 28th February 2022 Commons Chamber

[Sarah Champion]

I want to start with a positive and then I will move on. I begin by welcoming Lords amendment 98, Tony’s law, which increases the maximum sentences for causing or allowing a child or vulnerable adult to suffer serious injury or death. That change to the law follows the tireless campaigning by the parents of Tony Hudgell. As a baby, Tony suffered such serious physical abuse by his birth parents that both of his legs had to be amputated and he nearly lost his life. The sentences for cases such as Tony’s must reflect the lifelong trauma and harm that was inflicted on him.

I campaigned for that change last year, following in the wake of Tony’s parents’ MP, the hon. Member for Tonbridge and Malling (Tom Tugendhat), and I thank the Minister for listening to me, the hon. Member and to Tony’s family and others who have campaigned for the change in the law. It is so necessary and I am so grateful that that has now been adopted.

And now for the less positive part. I have to speak to Lords amendment 107, which is designed to ensure that local authorities can run secure 16 to 19 academies, either alone or in consortiums. I worked with Article 39 and the National Association for Youth Justice to table an amendment on this in the Bill Committee. I was delighted when peers voted in favour of this vital amendment in the other place, as tabled by Lord German and Lord Marks, and I ask the Minister to please keep it in place. As he knows, I have a huge amount of respect for him because he is very fair and because he listens, but as I said, local authorities are also clear that they need a very strong signal from him that they are eligible. This is not me, but the local authorities asking for that clarity. As I said, I find it illogical that he will not accept this amendment.

In December 2016, the Government committed to phasing out child prisons, young offender institutions and secure training centres and replacing them with a network of secure children’s homes and secure schools—now renamed secure 16 to 19 academies. I welcome that progress, because it is very clear that secure training centres were not fit for purpose, as the Youth Justice Board has conceded. However, when the Government looked for an organisation to run the first secure school, they barred local authorities from the tendering process. That decision was heavily criticised by many organisations that specialise on these issues. I find it illogical.

Excluding local authorities risks repeating the serious mistakes of the past, when private providers were contracted to operate secure training centres despite having no prior experience of looking after vulnerable children. There is clear, tragic evidence of what that can lead to. Two children, Gareth Myatt and Adam Rickwood, tragically died following restraint in secure training centres run by the private firms G4S and Serco, respectively, in 2004; the High Court later found that an unlawful restraint regime had persisted in the centres for at least a decade. In a 2016 BBC “Panorama” documentary, staff were filmed verbally and physically assaulting children at the Medway secure training centre, managed by G4S. One manager boasted of stabbing a child’s leg and arm with a fork; another recounted deliberately winding up a child so that he could physically assault him. No child deserves to suffer such abuse, no matter their past or present behaviour.

Local authorities are best placed to run secure 16-to-19 academies because they have experience of education, secure schools and, of course, the local social services that manage and support vulnerable young people. As I keep saying, it is entirely illogical to prevent local authorities from carrying out this work: it makes it harder to integrate services for children while they are in custody and when they return to the community.

The Minister has already argued, as Ministers in previous debates have, that nothing in the law prevents local authorities from running secure 16-to-19 academies. However, as Lord German said in the other place:

“At present, local authorities are excluded simply because there is a view that anything called an ‘academy’ in England cannot be run by a local authority, which seems to create an absolute block to the opportunity for everyone in these institutions to have the best opportunities for life and education.”—[Official Report, House of Lords, 17 November 2021; Vol. 816, c. 271.]

It must be clearly stated in the law that local authorities can establish and maintain 16-to-19 academies. I believe—I look to my hon. Friend the Member for Lewisham West and Penge (Ellie Reeves) on the Front Bench—that the Opposition will divide the House on the amendment; that is how strongly we feel about it. If Government Members vote against it, what will the chilling effect on local authorities be?

The Minister could accept the amendment this evening without pressing it to a vote. It would then be very clear to local authorities that they are eligible to apply to run 16-to-19 academies. I plead with the Minister to do so, because his actions tonight will make the difference for local authorities thinking that they can apply to run such schemes. It must be really clearly stated in the law and in this debate that local authorities can establish and maintain such academies. I urge the Minister and his MPs to support the amendment to avoid another generation of children not getting the best wraparound services they all deserve.

[Mr Jonathan Djanogly (Huntingdon) (Con)]

May I say how pleased I am to see the Government bringing forward proposals to stamp out illegal hare coursing? It is an issue that I and many other rural MPs have campaigned on for the best part of a decade, not least as a result of the extreme violence shown by coursers in Cambridgeshire and many other rural parts of the country to those who try to stop them—farmers, local people and even police. The coursers show disregard for property rights and cause huge amounts of damage to crops and hedges.

[Shailesh Vara (North West Cambridgeshire) (Con)]

rose—

[Mr Djanogly]

I give way to my Huntingdonshire colleague.

[Shailesh Vara]

As a Cambridgeshire neighbour, I am well aware of the difficulties that the Bill seeks to put right. When the matter has been raised with the police, one of the main points that they make is that until now the legislation has had no teeth. When the Bill becomes law, hopefully they will have what they have always wanted. Does my hon. Friend agree that what we really need, once the Bill is on the statute book, is for the police and the Crown Prosecution Service to ensure that the maximum penalties are inflicted on those who are found guilty, not only as punishment for them but to act as a powerful deterrent to others?

[Mr Djanogly]

I agree with my hon. Friend in every regard. He has made the important point that when legislation is on the statute book, it must be enforced. I think he will agree with me, given the experiences we have both had in talking to local police, that they seek this legislation, they are waiting for it and they will act on it, and no doubt we are both keen to see that happen.

Farmers have been complaining bitterly to me, with good cause. They have a tough enough job as it is without the worry of these coursing criminals. The basic problem is that the provisions of the Hunting Act 2004 often failed to work owing to their complexity, so prosecutors started to use the old 19th-century anti-poaching laws. While those worked evidentially, they failed to have the penalty clout that was required. Fines of tens or hundreds of pounds were pretty meaningless when there were dogs worth tens of thousands and gambling opportunities worth hundreds of thousands. I even heard that the coursing was being streamed into city pubs for gambling purposes. The problem then became worse, because the threat of intimidation was so high for farmers, versus a low penalty risk for the perpetrators, that many farmers did not want to become involved in prosecutions at all.

Now, with this legislation leading to higher levels of fines and confiscation orders, and the ability to charge for the detained dogs and their living costs, I think that we have a much better chance of significantly reducing coursing. Now, armed with these powers, rural police forces will be able to get to work against the perpetrators. I know that in Cambridgeshire they will have the support of all the county MPs, one of whom we have heard from this evening. All of them have been actively involved in this campaign. These anti-coursing measures represent a great example of the Government’s acting in the best interests of the countryside and the farming community to counter rural crime, and they have my full support.

[Dr Kieran Mullan (Crewe and Nantwich) (Con)]

I rise to support Lords amendment 1, commonly known as Harper’s Law, and to take this opportunity to welcome a number of key reforms introduced by the Bill while also highlighting areas in which I think we should go further.

Let me begin by commenting on what I consider to be the all too frequent yawning gap between what the public, on whose behalf justice is delivered, see as justice, and what the judicial system delivers. I do so conscious that the debate on sentencing has been polarised and distorted by a sort of intellectual snobbery towards anyone who makes the case for longer sentencing. Anyone who mentions this in polite circles, or to any number of think-tanks or charities involved in justice reform, will be met with variations of what is essentially the same disparaging attitude: “Oh, you must be part of the hang ’em and flog ’em brigade”—as if it were not valid or legitimate to say that justice is a social good, that it is served by punishment as well as rehabilitation, and that in some cases serving the social good is better achieved by an emphasis on punishment.

I noted with interest the comment from the family of Sarah Everard that the fact that the perpetrator was given a whole life term, rather than just a life sentence with a minimum period, was the only thing that gave them comfort. We do not often see that narrative in a documentary or a policy paper about justice. Do we really think that that was because the perpetrator was a policeman, although that was the reason in law that he was given a whole-life order—that if he had not been a policeman and had killed Sarah, her family would have been satisfied with a life sentence without a whole-life order? Of course it was not, I believe that their feelings would reflect those of most people who saw their loved one brutally murdered, whatever the circumstances, although very few of them would see a whole-life order as the outcome.

The term “life sentence” is misleading and is often misreported, and in my view it should be reformed. We must remember that the origins of our justice system were a result of our society saying, “You, as the individual and the family, cannot deliver your own justice. The courts will do it on your behalf.” The courts are therefore a servant of the public, and have a responsibility to ensure, at the very least, a broad alignment with what they would want. At present, when it comes to serious offences and hardened criminals, I do not think that they do. That is not to disparage judges; they operate largely within a framework of precedent which they cannot change, so we must recognise that it will take more intervention from us to break some of those precedents.

I would like to highlight child sex offences as another area where there is a yawning gap between what offenders are likely to receive and what the public would consider to be justice. This is not to say that rehabilitation and diversion are not important, and I welcome the measures in this Bill that will help to achieve that. Ultimately, in the longer term, that will lead to fewer victims of crime, but it will not happen overnight and we must ensure that justice is delivered to families and victims in the meantime. This Bill makes huge gains in that regard.

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

Jonathan Djanogly Excerpts

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

The second set of amendments—amendments 1A, 1B, 4C, 4D and 4E—add a five-year sunset period to the regulation-making power that is extendable on a recurring basis by affirmative statutory instrument. Essentially, this reviewable sunset requires the Government to consult on and get parliamentary approval for their private international law strategy every five years. The need to come back to Parliament every five years—if the Government still consider this a necessary power—does not just provide Parliament with additional scrutiny; the mere existence of the review process will influence how Governments approach using the power and encourage them properly to consider whether the power has met its original policy intent.

[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.

--- Later in debate ---

[Kenny MacAskill]

Absolutely. It is well known—and I have experienced it myself—that where children have been taken to, for example, some north African nations, it can be extremely problematic, if not impossible, for parents seeking their return. Although they had the right to that child, their ability to enforce it was often not recognised. If that is to be the situation we find ourselves in with countries with which we have had greater movement in recent years and greater involvement in terms of trade, the complexities will be extremely difficult indeed.

In the political context, this is the reality. It is not the delusion that we have been given about the sunny uplands of Brexit, or in the defence review about aircraft carriers steaming towards warmer climes, dispensing all sorts of social dividend. I always thought that the people who should be doing the soft diplomacy should be the British Council, as opposed to military forces. I recognise and welcome any work that they can do in that sphere, but it is not what they are trained to do, nor is it their trained function.

This is not the sunny uplands of Brexit. It is the harsh reality of what we face on rights that we have had for more than a generation, on the security of an understanding that lawyers have had about what they could do and where they could go, and the arrangements that have built up. I myself in legal practice had relationships with lawyers in London and Northern Ireland, or wherever else—it was passed around. If all that breaks down, the difficulty for individuals is damaging.

All the emphasis in the public eye has been, perhaps, on the dangers and difficulties we face with access to Europol—there are huge difficulties there—and the difficulties that we may face in terms of sharing information about criminals. We all know that more individuals in this country appear before a tribunal than before a court. We all know, in this Chamber, that more people will be affected by the civil aspects in private international law than will be affected by the far too many, but still far fewer, aspects of criminal offending by those who come here and would require those provisions.

This is the harsh reality of Brexit. We are signing up for something that is acceptable but not as good as what we had. It carries numerous risks. It leaves the danger of deficiencies—sometimes through error, perhaps, but sometimes through a failure to negotiate—that will leave each and every citizen of this country in a worse place. This is not what we were promised. We vote for these measures, but we do so with a heavy heart. It is the harsh reality of Brexit coming home. I hope that many families do not suffer as a consequence.

[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.

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

Jonathan Djanogly 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

[Mr Jonathan Djanogly (Huntingdon) (Con)]

I beg to move amendment 2, page 2, line 20, at end insert—

“3F The 2007 Lugano Convention to have the force of law

(1) The 2007 Lugano Convention shall have the force of law in the United Kingdom.

(2) For the purposes of this Act the 2007 Lugano Convention is to be read together with any reservations or declarations made by the United Kingdom at the time of the approval of the Convention.

(3) For convenience of reference the English text of the 2007 Lugano Convention is set out in Schedule 3H.”

[The Chairman]

With this it will be convenient to discuss the following:

Amendment 3, page 2, line 21, leave out “3G” and insert “3H”.

Amendment 4, page 2, line 22, leave out “4” and insert

“(Schedule to be inserted as Schedule 3H to the Civil Jurisdiction and Judgments Act 1982)”.

Amendment 1, page 2, line 24, at end insert—

“(5) The 2007 Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgements in Civil and Commercial Matters shall have the force of law in the United Kingdom, conditional upon the United Kingdom accession to such Convention.”

Clause 1 stand part.

Government amendment 5.

This amendment provides that regulations made under NC5 may make provision binding the Crown.

Clause 2 stand part.

Government amendment 6.

This amendment inserts a new subsection into Clause 3. This allows Her Majesty by Order in Council to extend to the Isle of Man NC5 (including NS4) and subsections (2) and (3) of Clause 2 inserted by Amendment 5.

Clause 3 stand part.

Government new clause 5—Implementation of other agreements on private international law (No. 3)—

“(1) The appropriate national authority may make regulations for the purpose of, or in connection with, implementing any international agreement, as it has effect from time to time, so far as relating to private international law (a ‘relevant international agreement’).

(2) The appropriate national authority may make regulations for the purpose of, or in connection with, applying a relevant international agreement, with or without modifications, as between different jurisdictions within the United Kingdom.

(3) The appropriate national authority may make regulations for the purpose of, or in connection with, giving effect to any arrangements made between—

(a) Her Majesty’s government in the United Kingdom, and

(b) the government of a relevant territory,

for applying a relevant international agreement, with or without modifications, as between the United Kingdom, or a jurisdiction within the United Kingdom, and that territory.

(4) Regulations under this section may make—

(a) consequential, supplementary, incidental, transitional or saving provision;

(b) different provision for different purposes or for different parts of the United Kingdom.

(5) Regulations under this section may include provision about—

(a) enforcement of obligations arising under or by virtue of the regulations;

(b) sharing of information;

(c) legal aid.

(6) Schedule (Regulations under section (Implementation of other agreements on private international law (No. 3))) makes further provision about regulations under this section.

(7) In this section—

‘appropriate national authority’ means—

(a) in relation to England and Wales, the Secretary of State;

(b) in relation to Scotland—

(i) the Scottish Ministers, or

(ii) the Secretary of State acting with the consent of the Scottish Ministers;

(c) in relation to Northern Ireland—

(i) a Northern Ireland department, or

(ii) the Secretary of State acting with the consent of a Northern Ireland department

‘international agreement’ means a convention, treaty or other agreement to which the United Kingdom is, or is expected to become, a party;

‘private international law’ includes rules and other provisions about—

(a) jurisdiction and applicable law;

(b) recognition and enforcement in one country or territory of any of the following that originate in another country or territory—

(i) a judgment, order or arbitral award;

(ii) an agreement, decision or authentic instrument determining or otherwise relating to rights and obligations;

(c) co-operation between judicial or other authorities in different countries or territories in relation to—

(i) service of documents, taking of evidence and other procedures, or

(ii) anything within paragraph (a) or (b);

‘relevant international agreement’ has the meaning given in subsection (1);

‘relevant territory’ means—

(a) the Isle of Man;

(b) any of the Channel Islands;

(c) a British overseas territory.

(8) This section and Schedule (Regulations under section (Implementation of other agreements on private international law (No. 3))) have effect, with the following modifications, in relation to a model law adopted by an international organisation of which the United Kingdom is a member as it has effect in relation to an international agreement to which the United Kingdom is, or is expected to become, a party.

The modifications are—

(a) a reference in this section or that Schedule to implementing or applying a relevant international agreement is to be read as a reference to giving effect to the model law (with or without modifications);

(b) subsection (1) is to be read as if the words ‘as revised from time to time’ were substituted for the words ‘as it has effect from time to time’.”

This new clause contains a power to implement international agreements relating to private international law.

Amendment (a) to Government new clause 5, in subsection (1), leave out from “implementing” to “relevant ” and insert “the”.

This amendment together with amendments (c), (d) and (g) is intended to ensure the powers in Government NC5 may be used only to implement the 2007 Lugano Convention.

Amendment (b) to Government new clause 5, in subsection (1), leave out “any” and insert “an”.

This amendment with Amendment (f) is intended to ensure that order making powers are confined to the international treaties set out in clause 1 only.

Amendment (c) to Government new clause 5, in subsection (2), leave out “a” and insert “the”.

See explanatory statement for Amendment (a).

Amendment (d) to Government new clause 5, in subsection (3), leave out “a” and insert “the”.

See explanatory statement for Amendment (a).

Amendment (e) to Government new clause 5, in subsection (6), leave out

“Schedule (Regulations under section(Implementation of other agreements on private international law (Amendment3)))”

and insert

“Schedule (Regulations under section(Implementation of other Agreements on Private International Law (Amendment 2)))”.

This amendment would provide for super-affirmative procedure to be applied in accordance with NS3 to regulations made under Government NC5.

Amendment (f) to Government new clause 5, in subsection (7), after “party”, insert

“and which is set out in section 1.”

This amendment with Amendment (b) is intended to ensure that order making powers are confined to the international treaties set out in clause 1 only.

Amendment (g) to Government new clause 5, in subsection (7), leave out

“has the meaning given in subsection (1)”

and insert

“means the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters signed at Lugano on 30th October 2007 (the ‘2007 Lugano Convention’);”.

See explanatory statement for Amendment (a).

New clause 1—Implementation of other agreements on private international law—

“(1) The appropriate national authority may make regulations for the purpose of, or in connection with, implementing an international agreement, as it has effect from time to time, so far as relating to private international law (a ‘relevant international agreement’).

(2) The appropriate national authority may make regulations for the purpose of, or in connection with, applying a relevant international agreement, with or without modifications, as between different jurisdictions within the United Kingdom.

(3) The appropriate national authority may make regulations for the purpose of, or in connection with, giving effect to any arrangements made between—

(a) Her Majesty’s government in the United Kingdom, and

(b) the government of a relevant territory,

for applying a relevant international agreement, with or without modifications, as between the United Kingdom, or a jurisdiction within the United Kingdom, and that territory.

(4) This section applies (subject to subsection (5)) where the United Kingdom has authenticated a relevant international agreement.

(5) This section applies only if the proposed agreement is not binding on the United Kingdom as a matter of international law unless it is ratified by the United Kingdom.

(6) Before the United Kingdom ratifies the proposed agreement, a Minister of the Crown must lay before Parliament a report which gives details of the proposed agreement.

(7) In this section a reference to authenticating a relevant international agreement is a reference to doing an act which establishes the text of the agreement as authentic and definitive as a matter of international law.

(8) This section applies where a Minister of the Crown proposes to make regulations under subsections (1), (2) or (3) for the purpose of implementing a relevant international agreement to which the United Kingdom and another signatory (or other signatories) are signatories.

(9) A draft of the statutory instrument containing the regulations may not be laid before Parliament unless, at least 10 Commons sitting days before the draft is laid, a Minister of the Crown has laid before Parliament a report which gives details of, and explains the reasons for, the relevant international agreement.

(10) In this section ‘Commons sitting day’ means a day on which the House of Commons begins to sit.

(11) Regulations under this section may make—

(a) consequential, supplementary, incidental, transitional or saving provision;

(b) different provision for different purposes or for different parts of the United Kingdom.

(12) Regulations under this section may include provision about—

(a) enforcement of obligations arising under or by virtue of the regulations;

(b) sharing of information;

(c) legal aid.

(13) No regulations may be made under subsections (1),(2) or (3) after the end of the period of 2 years beginning with the date of enactment of this Act.

(14) In this section—

‘appropriate national authority’ means—

(a) in relation to England and Wales, the Secretary of State;

(b) in relation to Scotland—

(c) in relation to Northern Ireland—

‘international agreement’ means a convention, treaty or other agreement to which the United Kingdom is, or is expected to become, a party and which is set out in section 1 of this Act;

‘private international law’ includes rules and other provisions about—

(a) jurisdiction and applicable law;

(b) recognition and enforcement in one country or territory of any of the following that originate in another country or territory—

(c) co-operation between judicial or other authorities in different countries or territories in relation to—

‘relevant international agreement’ has the meaning given in subsection (1);

‘relevant territory’ means—

(a) the Isle of Man;

(b) any of the Channel Islands;

(c) a British overseas territory.

(15) This section has effect, with the following modifications, in relation to a model law adopted by an international organisation of which the United Kingdom is a member as it has effect in relation to an international agreement to which the United Kingdom is, or is expected to become, a party.

The modifications are—

(a) a reference in this section or that Schedule to implementing or applying a relevant international agreement is to be read as a reference to giving effect to the model law (with or without modifications);

(b) subsection (1) is to be read as if the words ‘as revised from time to time’ were substituted for the words ‘as it has effect from time to time’.”

This new clause is a modified version of clause 2 removed from the Bill by the House of Lords. This new clause requires a Minister to lay a report before Parliament at least 10 Commons sitting days before regulations implementing a relevant international agreement are laid in draft under subsections (1), (2) and (3) requires a Minister to lay a report before Parliament before the UK ratifies a private international law agreement with another country and contains a sunset provision.

New clause 2—Implementation of the 2007 Lugano Convention—

“(1) The Secretary of State may make regulations for the purpose of, or in connection with, implementing the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters signed at Lugano on 30th October 2007 (the ‘2007 Lugano Convention’), in the event that the United Kingdom becomes a party to the Convention in its own right.

(2) The Secretary of State must consult the Scottish Ministers, the Welsh Ministers and a Northern Ireland Department before making regulations under subsection (1).

(3) Regulations under subsection (1) are subject to super-affirmative resolution procedure (see Schedule (Super-affirmative resolution procedure)).”

This new clause would enable the Secretary of State to make regulations implementing the Lugano Convention in the UK, subject to the super-affirmative resolution procedure in NS2.

New clause 6—Report on relevant international agreement—

“(1) This section applies (subject to subsection (2)) where the United Kingdom has authenticated a relevant international agreement in accordance with section (Implementation of other agreements on private international law (No. 3)).

(2) This section applies only if the proposed agreement is not binding on the United Kingdom as a matter of international law unless it is ratified by the United Kingdom.

(3) Before the United Kingdom ratifies the proposed agreement, a Minister of the Crown must lay before Parliament a report which gives details of the proposed agreement.

(4) In this section a reference to authenticating a relevant international agreement is a reference to doing an act which establishes the text of the agreement as authentic and definitive as a matter of international law.”

This new clause requires a Minister to lay a report before Parliament before the UK ratifies a private international law agreement with another country.

New clause 7—Report to be laid with regulations under section 2(1), (2) or (3)—

“(1) This section applies where a Minister of the Crown proposes to make regulations under section (Implementation of other agreements on private international law (No. 3)) (1), (2) or (3) for the purpose of implementing a relevant international agreement to which the United Kingdom and another signatory (or other signatories) are signatories.

(2) A draft of the statutory instrument containing the regulations may not be laid before Parliament unless, at least 10 Commons sitting days before the draft is laid, a Minister of the Crown has laid before Parliament a report which gives details of, and explains the reasons for, the relevant international agreement.

(3) In this section, ‘Commons sitting day’ means a day on which the House of Commons begins to sit.”

This new clause requires a Minister to lay a report before Parliament at least ten Commons sitting days before regulations implementing a relevant international agreement are laid in draft under subsections (1), (2) and (3) of Government NC5.

New clause 8—Sunset Provisions—

“No regulations may be made under subsections (1),(2) and (3) of section (Implementation of other agreements on private international law (No. 3)) after the end of the period of 2 years beginning with the date on which this Act is passed.”

That schedule 1 be the First schedule to the Bill.

That schedule 2 be the Second schedule to the Bill.

That schedule 3 be the Third schedule to the Bill.

That schedule 4 be the Fourth schedule to the Bill.

That schedule 5 be the Fifth schedule to the Bill.

Government new schedule 4—Regulations under section (Implementation of other agreements on private international law (No. 3)).

New schedule 1—Schedule 4A—

“Schedule to be inserted as Schedule 3H to the Civil Jurisdiction and Judgments Act 1982

SCHEDULE 3H

Text of the 2007 Lugano Convention

CONVENTION ON JURISDICTION AND THE RECOGNITION AND ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS

(Concluded on 30 October 2007)

The High Contracting Parties to this Convention,

Determined to strengthen in their territories the legal protection of persons therein established,

Considering that it is necessary for this purpose to determine the international jurisdiction of the courts, to facilitate recognition, and to introduce an expeditious procedure for securing the enforcement of judgments, authentic instruments and court settlements,

Aware of the links between them, which have been sanctioned in the economic field by the free trade agreements concluded between the European Community and certain States members of the European Free Trade Association,

the Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, as amended by the Accession Conventions under the successive enlargements of the European Union,

the Lugano Convention of 16 September 1988 on jurisdiction and the enforcement of judgments in civil and commercial matters, which extends the application of the rules of the 1968 Brussels Convention to certain States members of the European Free Trade Association,

Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, which has replaced the abovementioned Brussels Convention,

the Agreement between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, signed at Brussels on 19 October 2005,

Persuaded that the extension of the principles laid down in Regulation (EC) No 44/2001 to the Contracting Parties to this instrument will strengthen legal and economic cooperation,

Desiring to ensure as uniform an interpretation as possible of this instrument,

Have in this spirit decided to conclude this Convention, and have agreed as follows—

TITLE I

SCOPE

Article 1

(1) This Convention shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters.

(2) The Convention shall not apply to—

(a) the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills and succession;

(b) bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings;

(c) social security;

(d) arbitration.

(3) In this Convention, the term ‘State bound by this Convention’ shall mean any State that is a Contracting Party to this Convention or a Member State of the European Community. It may also mean the European Community.

TITLE II

JURISDICTION

SECTION 1

General provision

Article 2

(1) Subject to the provisions of this Convention, persons domiciled in a State bound by this Convention shall, whatever their nationality, be sued in the courts of that State.

(2) Persons who are not nationals of the State bound by this Convention in which they are domiciled shall be governed by the rules of jurisdiction applicable to nationals of that State.

Article 3

(1) Persons domiciled in a State bound by this Convention may be sued in the courts of another State bound by this Convention only by virtue of the rules set out in Sections 2 to 7 of this Title.

(2) In particular the rules of national jurisdiction set out in Annex I shall not be applicable as against them.

Article 4

(1) If the defendant is not domiciled in a State bound by this Convention, the jurisdiction of the courts of each State bound by this Convention shall, subject to the provisions of Articles 22 and 23, be determined by the law of that State.

(2) As against such a defendant, any person domiciled in a State bound by this Convention may, whatever his nationality, avail himself in that State of the rules of jurisdiction there in force, and in particular those specified in Annex I, in the same way as the nationals of that State.

SECTION 2

Special jurisdiction

Article 5

A person domiciled in a State bound by this Convention may, in another State bound by this Convention, be sued—

(1) (a) in matters relating to a contract, in the courts for the place of performance of the obligation in question;

(b) for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be—

in the case of the sale of goods, the place in a State bound by this Convention where, under the contract, the goods were delivered or should have been delivered;

in the case of the provision of services, the place in a State bound by this Convention where, under the contract, the services were provided or should have been provided;

(c) if (b) does not apply then subparagraph (a) applies;

in the case of the sale of goods, the place in a State bound by this Convention where, under the contract, the goods were delivered or should have been delivered;

in the case of the provision of services, the place in a State bound by this Convention where, under the contract, the services were provided or should have been provided;

(2) in matters relating to maintenance—

(a) in the courts for the place where the maintenance creditor is domiciled or habitually resident; or

(b) in the court which, according to its own law, has jurisdiction to entertain proceedings concerning the status of a person if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties; or

(c) in the court which, according to its own law, has jurisdiction to entertain proceedings concerning parental responsibility, if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties.

(3) in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur;

(4) as regards a civil claim for damages or restitution which is based on an act giving rise to criminal proceedings, in the court seized of those proceedings, to the extent that that court has jurisdiction under its own law to entertain civil proceedings;

(5) as regards a dispute arising out of the operations of a branch, agency or other establishment, in the courts for the place in which the branch, agency or other establishment is situated;

(6) as settlor, trustee or beneficiary of a trust created by the operation of a statute, or by a written instrument, or created orally and evidenced in writing, in the courts of the State bound by this Convention in which the trust is domiciled;

(7) as regards a dispute concerning the payment of remuneration claimed in respect of the salvage of a cargo or freight, in the court under the authority of which the cargo or freight in question—

(a) has been arrested to secure such payment; or

(b) could have been so arrested, but bail or other security has been given;

provided that this provision shall apply only if it is claimed that the defendant has an interest in the cargo or freight or had such an interest at the time of salvage.

Article 6

A person domiciled in a State bound by this Convention may also be sued—

(1) where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings;

(2) as a third party in an action on a warranty or guarantee, or in any other third party proceedings, in the court seized of the original proceedings, unless these were instituted solely with the object of removing him from the jurisdiction of the court which would be competent in his case;

(3) on a counter-claim arising from the same contract or facts on which the original claim was based, in the court in which the original claim is pending;

(4) in matters relating to a contract, if the action may be combined with an action against the same defendant in matters relating to rights in rem in immovable property, in the court of the State bound by this Convention in which the property is situated.

Article 7

Where by virtue of this Convention a court of a State bound by this Convention has jurisdiction in actions relating to liability from the use or operation of a ship, that court, or any other court substituted for this purpose by the internal law of that State, shall also have jurisdiction over claims for limitation of such liability.

SECTION 3

Jurisdiction in matters relating to insurance

Article 8

In matters relating to insurance, jurisdiction shall be determined by this Section, without prejudice to Articles 4 and 5(5).

Article 9

(1) An insurer domiciled in a State bound by this Convention may be sued—

(a) in the courts of the State where he is domiciled; or

(b) in another State bound by this Convention, in the case of actions brought by the policyholder, the insured or a beneficiary, in the courts for the place where the plaintiff is domiciled; or

(c) if he is a co-insurer, in the courts of a State bound by this Convention in which proceedings are brought against the leading insurer.

(2) An insurer who is not domiciled in a State bound by this Convention but has a branch, agency or other establishment in one of the States bound by this Convention shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be domiciled in that State.

Article 10

In respect of liability insurance or insurance of immovable property, the insurer may in addition be sued in the courts for the place where the harmful event occurred. The same applies if movable and immovable property are covered by the same insurance policy and both are adversely affected by the same contingency.

Article 11

(1) In respect of liability insurance, the insurer may also, if the law of the court permits it, be joined in proceedings which the injured party has brought against the insured.

(2) Articles 8, 9 and 10 shall apply to actions brought by the injured party directly against the insurer, where such direct actions are permitted.

(3) If the law governing such direct actions provides that the policyholder or the insured may be joined as a party to the action, the same court shall have jurisdiction over them.

Article 12

(1) Without prejudice to Article 11(3), an insurer may bring proceedings only in the courts of the State bound by this Convention in which the defendant is domiciled, irrespective of whether he is the policyholder, the insured or a beneficiary.

(2) The provisions of this Section shall not affect the right to bring a counter-claim in the court in which, in accordance with this Section, the original claim is pending.

Article 13

The provisions of this Section may be departed from only by an agreement—

(1) which is entered into after the dispute has arisen; or

(2) which allows the policyholder, the insured or a beneficiary to bring proceedings in courts other than those indicated in this Section; or

(3) which is concluded between a policyholder and an insurer, both of whom are at the time of conclusion of the contract domiciled or habitually resident in the same State bound by this Convention, and which has the effect of conferring jurisdiction on the courts of that State even if the harmful event were to occur abroad, provided that such an agreement is not contrary to the law of that State; or

(4) which is concluded with a policyholder who is not domiciled in a State bound by this Convention, except insofar as the insurance is compulsory or relates to immovable property in a State bound by this Convention; or

(5) which relates to a contract of insurance insofar as it covers one or more of the risks set out in Article 14.

Article 14

The following are the risks referred to in Article 13(5)—

(1) any loss of or damage to—

(a) seagoing ships, installations situated offshore or on the high seas, or aircraft, arising from perils which relate to their use for commercial purposes;

(b) goods in transit, other than passengers’ baggage, where the transit consists of or includes carriage by such ships or aircraft;

(2) any liability, other than for bodily injury to passengers or loss of or damage to their baggage—

(a) arising out of the use or operation of ships, installations or aircraft as referred to in point 1(a) insofar as, in respect of the latter, the law of the State bound by this Convention in which such aircraft are registered does not prohibit agreements on jurisdiction regarding insurance of such risks;

(b) for loss or damage caused by goods in transit as described in point 1(b);

(3) any financial loss connected with the use or operation of ships, installations or aircraft as referred to in point 1(a), in particular loss of freight or charter-hire;

(4) any risk or interest connected with any of those referred to in points 1 to 3;

(5) notwithstanding points 1 to 4, all large risks.

SECTION 4

Jurisdiction over consumer contracts

Article 15

(1) In matters relating to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession, jurisdiction shall be determined by this Section, without prejudice to Articles 4 and 5(5), if:

(a) it is a contract for the sale of goods on instalment credit terms; or

(b) it is a contract for a loan repayable by instalments, or for any other form of credit, made to finance the sale of goods; or

(c) in all other cases, the contract has been concluded with a person who pursues commercial or professional activities in the State bound by this Convention of the consumer’s domicile or, by any means, directs such activities to that State or to several States including that State, and the contract falls within the scope of such activities.

(2) Where a consumer enters into a contract with a party who is not domiciled in the State bound by this Convention but has a branch, agency or other establishment in one of the States bound by this Convention, that party shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be domiciled in that State.

(3) This section shall not apply to a contract of transport other than a contract which, for an inclusive price, provides for a combination of travel and accommodation.

Article 16

(1) A consumer may bring proceedings against the other party to a contract either in the courts of the State bound by this Convention in which that party is domiciled or in the courts for the place where the consumer is domiciled.

(2) Proceedings may be brought against a consumer by the other party to the contract only in the courts of the State bound by this Convention in which the consumer is domiciled.

(3) This Article shall not affect the right to bring a counter-claim in the court in which, in accordance with this Section, the original claim is pending.

Article 17

The provisions of this Section may be departed from only by an agreement—

(1) which is entered into after the dispute has arisen; or

(2) which allows the consumer to bring proceedings in courts other than those indicated in this Section; or

(3) which is entered into by the consumer and the other party to the contract, both of whom are at the time of conclusion of the contract domiciled or habitually resident in the same State bound by this Convention, and which confers jurisdiction on the courts of that State, provided that such an agreement is not contrary to the law of that State.

SECTION 5

Jurisdiction over individual contracts of employment

Article 18

(1) In matters relating to individual contracts of employment, jurisdiction shall be determined by this Section, without prejudice to Articles 4 and 5(5).

(2) Where an employee enters into an individual contract of employment with an employer who is not domiciled in a State bound by this Convention but has a branch, agency or other establishment in one of the States bound by this Convention, the employer shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be domiciled in that State.

Article 19

An employer domiciled in a State bound by this Convention may be sued—

(1) in the courts of the State where he is domiciled; or

(2) in another State bound by this Convention—

(a) in the courts for the place where the employee habitually carries out his work or in the courts for the last place where he did so; or

(b) if the employee does not or did not habitually carry out his work in any one country, in the courts for the place where the business which engaged the employee is or was situated.

Article 20

(1) An employer may bring proceedings only in the courts of the State bound by this Convention in which the employee is domiciled.

(2) The provisions of this Section shall not affect the right to bring a counter-claim in the court in which, in accordance with this Section, the original claim is pending.

Article 21

The provisions of this Section may be departed from only by an agreement on jurisdiction—

(1) which is entered into after the dispute has arisen; or

(2) which allows the employee to bring proceedings in courts other than those indicated in this Section.

SECTION 6

Exclusive jurisdiction

Article 22

The following courts shall have exclusive jurisdiction, regardless of domicile—

(1) in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, the courts of the State bound by this Convention in which the property is situated.

(a) However, in proceedings which have as their object tenancies of immovable property concluded for temporary private use for a maximum period of six consecutive months, the courts of the State bound by this Convention in which the defendant is domiciled shall also have jurisdiction, provided that the tenant is a natural person and that the landlord and the tenant are domiciled in the same State bound by this Convention;

(2) in proceedings which have as their object the validity of the constitution, the nullity or the dissolution of companies or other legal persons or associations of natural or legal persons, or of the validity of the decisions of their organs, the courts of the State bound by this Convention in which the company, legal person or association has its seat. In order to determine that seat, the court shall apply its rules of private international law;

(3) in proceedings which have as their object the validity of entries in public registers, the courts of the State bound by this Convention in which the register is kept;

(4) in proceedings concerned with the registration or validity of patents, trade marks, designs, or other similar rights required to be deposited or registered, irrespective of whether the issue is raised by way of an action or as a defence, the courts of the State bound by this Convention in which the deposit or registration has been applied for, has taken place or is, under the terms of a Community instrument or an international convention, deemed to have taken place.

(5) in proceedings concerned with the enforcement of judgments, the courts of the State bound by this Convention in which the judgment has been or is to be enforced.

SECTION 7

Prorogation of jurisdiction

Article 23

(1) If the parties, one or more of whom is domiciled in a State bound by this Convention, have agreed that a court or the courts of a State bound by this Convention are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. Such an agreement conferring jurisdiction shall be either—

(a) in writing or evidenced in writing; or

(b) in a form which accords with practices which the parties have established between themselves; or

(c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.

(2) Any communication by electronic means which provides a durable record of the agreement shall be equivalent to ‘writing’.

(3) Where such an agreement is concluded by parties, none of whom is domiciled in a State bound by this Convention, the courts of other States bound by this Convention shall have no jurisdiction over their disputes unless the court or courts chosen have declined jurisdiction.

(4) The court or courts of a State bound by this Convention on which a trust instrument has conferred jurisdiction shall have exclusive jurisdiction in any proceedings brought against a settlor, trustee or beneficiary, if relations between these persons or their rights or obligations under the trust are involved.

(5) Agreements or provisions of a trust instrument conferring jurisdiction shall have no legal force if they are contrary to the provisions of Articles 13, 17 or 21, or if the courts whose jurisdiction they purport to exclude have exclusive jurisdiction by virtue of Article 22.

Article 24

Apart from jurisdiction derived from other provisions of this Convention, a court of a State bound by this Convention before which a defendant enters an appearance shall have jurisdiction. This rule shall not apply where appearance was entered to contest the jurisdiction, or where another court has exclusive jurisdiction by virtue of Article 22.

SECTION 8

Examination as to jurisdiction and admissibility

Article 25

Where a court of a State bound by this Convention is seized of a claim which is principally concerned with a matter over which the courts of another State bound by this Convention have exclusive jurisdiction by virtue of Article 22, it shall declare of its own motion that it has no jurisdiction.

Article 26

(1) Where a defendant domiciled in one State bound by this Convention is sued in a court of another State bound by this Convention and does not enter an appearance, the court shall declare of its own motion that it has no jurisdiction unless its jurisdiction is derived from the provisions of this Convention.

(2) The court shall stay the proceedings so long as it is not shown that the defendant has been able to receive the document instituting the proceedings or an equivalent document in sufficient time to enable him to arrange for his defence, or that all necessary steps have been taken to this end.

(3) Instead of the provisions of paragraph 2, Article 15 of the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial matters shall apply if the document instituting the proceedings or an equivalent document had to be transmitted pursuant to that Convention.

(4) Member States of the European Community bound by Council Regulation (EC) No 1348/2000 of 29 May 2000 or by the Agreement between the European Community and the Kingdom of Denmark on the service of judicial and extrajudicial documents in civil or commercial matters, signed at Brussels on 19 October 2005, shall apply in their mutual relations the provision in Article 19 of that Regulation if the document instituting the proceedings or an equivalent document had to be transmitted pursuant to that Regulation or that Agreement.

SECTION 9

Lis pendens—related actions

Article 27

(1) Where proceedings involving the same cause of action and between the same parties are brought in the courts of different States bound by this Convention, any court other than the court first seized shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seized is established.

(2) Where the jurisdiction of the court first seized is established, any court other than the court first seized shall decline jurisdiction in favour of that court.

Article 28

(1) Where related actions are pending in the courts of different States bound by this Convention, any court other than the court first seized may stay its proceedings.

(2) Where these actions are pending at first instance, any court other than the court first seized may also, on the application of one of the parties, decline jurisdiction if the court first seized has jurisdiction over the actions in question and its law permits the consolidation thereof.

(3) For the purposes of this Article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.

Article 29

Where actions come within the exclusive jurisdiction of several courts, any court other than the court first seized shall decline jurisdiction in favour of that court.

Article 30

For the purposes of this Section, a court shall be deemed to be seized—

(1) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the plaintiff has not subsequently failed to take the steps he was required to take to have service effected on the defendant; or

(2) if the document has to be served before being lodged with the court at the time when it is received by the authority responsible for service, provided that the plaintiff has not subsequently failed to take the steps he was required to take to have the document lodged with the court.

SECTION 10

Provisional, including protective, measures

Article 31

Application may be made to the courts of a State bound by this Convention for such provisional, including protective, measures as may be available under the law of that State, even if, under this Convention, the courts of another State bound by this Convention have jurisdiction as to the substance of the matter.

TITLE III

RECOGNITION AND ENFORCEMENT

Article 32

For the purposes of this Convention, ‘judgment’ means any judgment given by a court or tribunal of a State bound by this Convention, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as the determination of costs or expenses by an officer of the court.

SECTION 1

Recognition

Article 33

(1) A judgment given in a State bound by this Convention shall be recognised in the other States bound by this Convention without any special procedure being required.

(2) Any interested party who raises the recognition of a judgment as the principal issue in a dispute may, in accordance with the procedures provided for in Sections 2 and 3 of this Title, apply for a decision that the judgment be recognised.

(3) If the outcome of proceedings in a court of a State bound by this Convention depends on the determination of an incidental question of recognition that court shall have jurisdiction over that question.

Article 34

A judgment shall not be recognised—

(1) if such recognition is manifestly contrary to public policy in the State in which recognition is sought;

(2) where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so;

(3) if it is irreconcilable with a judgment given in a dispute between the same parties in the State in which recognition is sought;

(4) if it is irreconcilable with an earlier judgment given in another State bound by this Convention or in a third State involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the State addressed.

Article 35

(1) Moreover, a judgment shall not be recognised if it conflicts with Sections 3, 4 or 6 of Title II, or in a case provided for in Article 68. A judgment may furthermore be refused recognition in any case provided for in Article 64(3) or 67(4).

(2) In its examination of the grounds of jurisdiction referred to in the foregoing paragraph, the court or authority applied to shall be bound by the findings of fact on which the court of the State of origin based its jurisdiction.

(3) Subject to the provisions of paragraph 1, the jurisdiction of the court of the State of origin may not be reviewed. The test of public policy referred to in Article 34(1) may not be applied to the rules relating to jurisdiction.

Article 36

Under no circumstances may a foreign judgment be reviewed as to its substance.

Article 37

(1) A court of a State bound by this Convention in which recognition is sought of a judgment given in another State bound by this Convention may stay the proceedings if an ordinary appeal against the judgment has been lodged.

(2) A court of a State bound by this Convention in which recognition is sought of a judgment given in Ireland or the United Kingdom may stay the proceedings if enforcement is suspended in the State of origin, by reason of an appeal.

SECTION 2

Enforcement

Article 38

(1) A judgment given in a State bound by this Convention and enforceable in that State shall be enforced in another State bound by this Convention when, on the application of any interested party, it has been declared enforceable there.

(2) However, in the United Kingdom, such a judgment shall be enforced in England and Wales, in Scotland, or in Northern Ireland when, on the application of any interested party, it has been registered for enforcement in that part of the United Kingdom.

Article 39

(1) The application shall be submitted to the court or competent authority indicated in the list in Annex II.

(2) The local jurisdiction shall be determined by reference to the place of domicile of the party against whom enforcement is sought, or to the place of enforcement.

Article 40

(1) The procedure for making the application shall be governed by the law of the State in which enforcement is sought.

(2) The applicant must give an address for service of process within the area of jurisdiction of the court applied to. However, if the law of the State in which enforcement is sought does not provide for the furnishing of such an address, the applicant shall appoint a representative ad litem.

(3) The documents referred to in Article 53 shall be attached to the application.

Article 41

The judgment shall be declared enforceable immediately on completion of the formalities in Article 53 without any review under Articles 34 and 35. The party against whom enforcement is sought shall not at this stage of the proceedings be entitled to make any submissions on the application.

Article 42

(1) The decision on the application for a declaration of enforceability shall forthwith be brought to the notice of the applicant in accordance with the procedure laid down by the law of the State in which enforcement is sought.

(2) The declaration of enforceability shall be served on the party against whom enforcement is sought, accompanied by the judgment, if not already served on that party.

Article 43

(1) The decision on the application for a declaration of enforceability may be appealed against by either party.

(2) The appeal is to be lodged with the court indicated in the list in Annex III.

(3) The appeal shall be dealt with in accordance with the rules governing procedure in contradictory matters.

(4) If the party against whom enforcement is sought fails to appear before the appellate court in proceedings concerning an appeal brought by the applicant, Article 26(2) to (4) shall apply even where the party against whom enforcement is sought is not domiciled in any of the States bound by this Convention.

(5) An appeal against the declaration of enforceability is to be lodged within one month of service thereof. If the party against whom enforcement is sought is domiciled in a State bound by this Convention other than that in which the declaration of enforceability was given, the time for appealing shall be two months and shall run from the date of service, either on him in person or at his residence. No extension of time may be granted on account of distance.

Article 44

The judgment given on the appeal may be contested only by the appeal referred to in Annex IV.

Article 45

(1) The court with which an appeal is lodged under Article 43 or Article 44 shall refuse or revoke a declaration of enforceability only on one of the grounds specified in Articles 34 and 35. It shall give its decision without delay.

(2) Under no circumstances may the foreign judgment be reviewed as to its substance.

Article 46

(1) The court with which an appeal is lodged under Article 43 or Article 44 may, on the application of the party against whom enforcement is sought, stay the proceedings if an ordinary appeal has been lodged against the judgment in the State of origin or if the time for such an appeal has not yet expired; in the latter case, the court may specify the time within which such an appeal is to be lodged.

(2) Where the judgment was given in Ireland or the United Kingdom, any form of appeal available in the State of origin shall be treated as an ordinary appeal for the purposes of paragraph 1.

(3) The court may also make enforcement conditional on the provision of such security as it shall determine.

Article 47

(1) When a judgment must be recognised in accordance with this Convention, nothing shall prevent the applicant from availing himself of provisional, including protective, measures in accordance with the law of the State requested without a declaration of enforceability under Article 41 being required.

(2) The declaration of enforceability shall carry with it the power to proceed to any protective measures.

(3) During the time specified for an appeal pursuant to Article 43(5) against the declaration of enforceability and until any such appeal has been determined, no measures of enforcement may be taken other than protective measures against the property of the party against whom enforcement is sought.

Article 48

(1) Where a foreign judgment has been given in respect of several matters and the declaration of enforceability cannot be given for all of them, the court or competent authority shall give it for one or more of them.

(2) An applicant may request a declaration of enforceability limited to parts of a judgment.

Article 49

A foreign judgment which orders a periodic payment by way of a penalty shall be enforceable in the State in which enforcement is sought only if the amount of the payment has been finally determined by the courts of the State of origin.

Article 50

(1) An applicant who in the State of origin has benefited from complete or partial legal aid or exemption from costs or expenses shall be entitled, in the procedure provided for in this Section, to benefit from the most favourable legal aid or the most extensive exemption from costs or expenses provided for by the law of the State addressed.

(2) However, an applicant who requests the enforcement of a decision given by an administrative authority in Denmark, in Iceland or in Norway in respect of maintenance may, in the State addressed, claim the benefits referred to in paragraph 1 if he presents a statement from the Danish, Icelandic, or Norwegian Ministry of Justice to the effect that he fulfils the economic requirements to qualify for the grant of complete or partial legal aid or exemption from costs or expenses.

Article 51

No security, bond or deposit, however described, shall be required of a party who in one State bound by this Convention, applies for enforcement of a judgment given in another State bound by this Convention on the ground that he is a foreign national or that he is not domiciled or resident in the State in which enforcement is sought.

Article 52

In proceedings for the issue of a declaration of enforceability, no charge, duty or fee calculated by reference to the value of the matter at issue may be levied in the State in which enforcement is sought.

SECTION 3

Common provisions

Article 53

(1) A party seeking recognition or applying for a declaration of enforceability shall produce a copy of the judgment which satisfies the conditions necessary to establish its authenticity.

(2) A party applying for a declaration of enforceability shall also produce the certificate referred to in Article 54, without prejudice to Article 55.

Article 54

The court or competent authority of a State bound by this Convention where a judgment was given shall issue, at the request of any interested party, a certificate using the standard form in Annex V to this Convention.

Article 55

(1) If the certificate referred to in Article 54 is not produced, the court or competent authority may specify a time for its production or accept an equivalent document or, if it considers that it has sufficient information before it, dispense with its production.

(2) If the court or competent authority so requires, a translation of the documents shall be produced. The translation shall be certified by a person qualified to do so in one of the States bound by this Convention.

Article 56

No legalisation or other similar formality shall be required in respect of the documents referred to in Article 53 or Article 55(2), or in respect of a document appointing a representative ad litem.

TITLE IV

AUTHENTIC INSTRUMENTS AND COURT SETTLEMENTS

Article 57

(1) A document which has been formally drawn up or registered as an authentic instrument and is enforceable in one State bound by this Convention shall, in another State bound by this Convention, be declared enforceable there, on application made in accordance with the procedures provided for in Article 38, et seq. The court with which an appeal is lodged under Article 43 or Article 44 shall refuse or revoke a declaration of enforceability only if enforcement of the instrument is manifestly contrary to public policy in the State addressed.

(2) Arrangements relating to maintenance obligations concluded with administrative authorities or authenticated by them shall also be regarded as authentic instruments within the meaning of paragraph 1.

(3) The instrument produced must satisfy the conditions necessary to establish its authenticity in the State of origin.

(4) Section 3 of Title III shall apply as appropriate. The competent authority of a State bound by this Convention where an authentic instrument was drawn up or registered shall issue, at the request of any interested party, a certificate using the standard form in Annex VI to this Convention.

Article 58

A settlement which has been approved by a court in the course of proceedings and is enforceable in the State bound by this Convention in which it was concluded shall be enforceable in the State addressed under the same conditions as authentic instruments. The court or competent authority of a State bound by this Convention where a court settlement was approved shall issue, at the request of any interested party, a certificate using the standard form in Annex V to this Convention.

TITLE V

GENERAL PROVISIONS

Article 59

(1) In order to determine whether a party is domiciled in the State bound by this Convention whose courts are seised of a matter, the court shall apply its internal law.

(2) If a party is not domiciled in the State whose courts are seised of the matter, then, in order to determine whether the party is domiciled in another State bound by this Convention, the court shall apply the law of that State.

Article 60

(1) For the purposes of this Convention, a company or other legal person or association of natural or legal persons is domiciled at the place where it has its—

(a) statutory seat; or

(b) central administration; or

(c) principal place of business.

(2) For the purposes of the United Kingdom and Ireland ‘statutory seat’ means the registered office or, where there is no such office anywhere, the place of incorporation or, where there is no such place anywhere, the place under the law of which the formation took place.

(3) In order to determine whether a trust is domiciled in the State bound by this Convention whose courts are seized of the matter, the court shall apply its rules of private international law.

Article 61

Without prejudice to any more favourable provisions of national laws, persons domiciled in a State bound by this Convention who are being prosecuted in the criminal courts of another State bound by this Convention of which they are not nationals for an offence which was not intentionally committed may be defended by persons qualified to do so, even if they do not appear in person. However, the court seised of the matter may order appearance in person; in the case of failure to appear, a judgment given in the civil action without the person concerned having had the opportunity to arrange for his defence need not be recognised or enforced in the other States bound by this Convention.

Article 62

For the purposes of this Convention, the expression ‘court’ shall include any authorities designated by a State bound by this Convention as having jurisdiction in the matters falling within the scope of this Convention.

TITLE VI

TRANSITIONAL PROVISIONS

Article 63

(1) This Convention shall apply only to legal proceedings instituted and to documents formally drawn up or registered as authentic instruments after its entry into force in the State of origin and, where recognition or enforcement of a judgment or authentic instruments is sought, in the State addressed.

(2) However, if the proceedings in the State of origin were instituted before the entry into force of this Convention, judgments given after that date shall be recognised and enforced in accordance with Title III—

(a) if the proceedings in the State of origin were instituted after the entry into force of the Lugano Convention of 16 September 1988 both in the State of origin and in the State;

(b) in all other cases, if jurisdiction was founded upon rules which accorded with those provided for either in Title II or in a convention concluded between the State of origin and the State addressed which was in force when the proceedings were instituted.

TITLE VII

RELATIONSHIP TO COUNCIL REGULATION (EC) No 44/2001 AND OTHER INSTRUMENTS

Article 64

(1) This Convention shall not prejudice the application by the Member States of the European Community of the Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, as well as any amendments thereof, of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, signed at Brussels on 27 September 1968, and of the Protocol on interpretation of that Convention by the Court of Justice of the European Communities, signed at Luxembourg on 3 June 1971, as amended by the Conventions of Accession to the said Convention and the said Protocol by the States acceding to the European Communities, as well as of the Agreement between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, signed at Brussels on 19 October 2005.

(2) However, this Convention shall in any event be applied—

(a) in matters of jurisdiction, where the defendant is domiciled in the territory of a State where this Convention but not an instrument referred to in paragraph 1 of this Article applies, or where Articles 22 or 23 of this Convention confer jurisdiction on the courts of such a State;

(b) in relation to lis pendens or to related actions as provided for in Articles 27 and 28, when proceedings are instituted in a State where the Convention but not an instrument referred to in paragraph 1 of this Article applies and in a State where this Convention as well as an instrument referred to in paragraph 1 of this Article apply;

(c) in matters of recognition and enforcement, where either the State of origin or the State addressed is not applying an instrument referred to in paragraph 1 of this Article.

(3) In addition to the grounds provided for in Title III, recognition or enforcement may be refused if the ground of jurisdiction on which the judgment has been based differs from that resulting from this Convention and recognition or enforcement is sought against a party who is domiciled in a State where this Convention but not an instrument referred to in paragraph 1 of this Article applies, unless the judgment may otherwise be recognised or enforced under any rule of law in the State addressed.

Article 65

Subject to the provisions of Articles 63(2), 66 and 67, this Convention shall, as between the States bound by this Convention, supersede the conventions concluded between two or more of them that cover the same matters as those to which this Convention applies. In particular, the conventions mentioned in Annex VII shall be superseded.

Article 66

(1) The conventions referred to in Article 65 shall continue to have effect in relation to matters to which this Convention does not apply.

(2) They shall continue to have effect in respect of judgments given and documents formally drawn up or registered as authentic instruments before the entry into force of this Convention.

Article 67

(1) This Convention shall not affect any conventions by which the Contracting Parties and/or the States bound by this Convention are bound and which in relation to particular matters, govern jurisdiction or the recognition or enforcement of judgments. Without prejudice to obligations resulting from other agreements between certain Contracting Parties, this Convention shall not prevent Contracting Parties from entering into such conventions.

(2) This Convention shall not prevent a court of a State bound by this Convention and by a convention on a particular matter from assuming jurisdiction in accordance with that convention, even where the defendant is domiciled in another State bound by this Convention which is not a party to that convention. The court hearing the action shall, in any event, apply Article 26 of this Convention.

(3) Judgments given in a State bound by this Convention by a court in the exercise of jurisdiction provided for in a convention on a particular matter shall be recognised and enforced in the other States bound by this Convention in accordance with Title III of this Convention.

(4) In addition to the grounds provided for in Title III, recognition or enforcement may be refused if the State addressed is not bound by the convention on a particular matter and the person against whom recognition or enforcement is sought is domiciled in that State, or, if the State addressed is a Member State of the European Community and in respect of conventions which would have to be concluded by the European Community, in any of its Member States, unless the judgment may otherwise be recognised or enforced under any rule of law in the State addressed.

(5) Where a convention on a particular matter to which both the State of origin and the State addressed are parties lays down conditions for the recognition or enforcement of judgments, those conditions shall apply. In any event, the provisions of this Convention which concern the procedures for recognition and enforcement of judgments may be applied.

Article 68

(1) This Convention shall not affect agreements by which States bound by this Convention undertook, prior to the entry into force of this Convention, not to recognise judgments given in other States bound by this Convention against defendants domiciled or habitually resident in a third State where, in cases provided for in Article 4, the judgment could only be founded on a ground of jurisdiction as specified in Article 3(2). Without prejudice to obligations resulting from other agreements between certain Contracting Parties, this Convention shall not prevent Contracting Parties from entering into such conventions.

(2) However, a Contracting Party may not assume an obligation towards a third State not to recognise a judgment given in another State bound by this Convention by a court basing its jurisdiction on the presence within that State of property belonging to the defendant, or the seizure by the plaintiff of property situated there—

(a) if the action is brought to assert or declare proprietary or possessory rights in that property, seeks to obtain authority to dispose of it, or arises from another issue relating to such property; or

(b) if the property constitutes the security for a debt which is the subject-matter of the action.

TITLE VIII

FINAL PROVISIONS

Article 69

(1) The Convention shall be open for signature by the European Community, Denmark, and States which, at the time of the opening for signature, are Members of the European Free Trade Association.

(2) This Convention shall be subject to ratification by the Signatories. The instruments of ratification shall be deposited with the Swiss Federal Council, which shall act as Depositary of this Convention.

(3) At the time of the ratification, the Contracting Parties may submit declarations in accordance with Articles I, II and III of Protocol 1.

(4) The Convention shall enter into force on the first day of the sixth month following the date on which the European Community and a Member of the European Free Trade Association deposit their instruments of ratification.

(5) The Convention shall enter into force in relation to any other Party on the first day of the third month following the deposit of its instrument of ratification.

(6) Without prejudice to Article 3(3) of Protocol 2, this Convention shall replace the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters done at Lugano on 16 September 1988 as of the date of its entry into force in accordance with paragraphs 4 and 5 above. Any reference to the 1988 Lugano Convention in other instruments shall be understood as a reference to this Convention.

(7) Insofar as the relations between the Member States of the European Community and the non-European territories referred to in Article 70(1)(b) are concerned, this Convention shall replace the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, signed at Brussels on 27 September 1968, and of the Protocol on interpretation of that Convention by the Court of Justice of the European Communities, signed at Luxembourg on 3 June 1971, as amended by the Conventions of Accession to the said Convention and the said Protocol by the States acceding to the European Communities, as of the date of the entry into force of this Convention with respect to these territories in accordance with Article 73(2).

Article 70

(1) After entering into force this Convention shall be open for accession by—

(a) the States which, after the opening of this Convention for signature, become Members of the European Free Trade Association, under the conditions laid down in Article 71;

(b) Member States of the European Community acting on behalf of certain non-European territories that are part of the territory of that Member State or for whose external relations that Member State is responsible, under the conditions laid down in Article 71;

(c) any other State, under the conditions laid down in Article 72.

(2) States referred to in paragraph 1, which wish to become a Contracting Party to this Convention, shall address their application to the Depositary. The application, including the information referred to in Articles 71 and 72 shall be accompanied by a translation into English and French.

Article 71

(1) Any State referred to in Article 70(1)(a) and (b) wishing to become a Contracting Party to this Convention—

(a) shall communicate the information required for the application of this Convention;

(b) may submit declarations in accordance with Articles I and III of Protocol 1.

(2) The Depositary shall transmit any information received pursuant to paragraph 1 to the other Contracting Parties prior to the deposit of the instrument of accession by the State concerned.

Article 72

(1) Any State referred to in Article 70(1)(c) wishing to become a Contracting Party to this Convention—

(a) shall communicate the information required for the application of this Convention;

(b) may submit declarations in accordance with Articles I and III of Protocol 1; and

(c) shall provide the Depositary with information on, in particular—

(i) their judicial system, including information on the appointment and independence of judges;

(ii) their internal law concerning civil procedure and enforcement of judgments; and

(iii) their private international law relating to civil procedure.

(2) The Depositary shall transmit any information received pursuant to paragraph 1 to the other Contracting Parties prior to inviting the State concerned to accede in accordance with paragraph 3 of this Article.

(3) Without prejudice to paragraph 4, the Depositary shall invite the State concerned to accede only if it has obtained the unanimous agreement of the Contracting Parties. The Contracting Parties shall endeavour to give their consent at the latest within one year after the invitation by the Depositary.

(4) The Convention shall enter into force only in relations between the acceding State and the Contracting Parties which have not made any objections to the accession before the first day of the third month following the deposit of the instrument of accession.

Article 73

(1) The instruments of accession shall be deposited with the Depositary.

(2) In respect of an acceding State referred to in Article 70, the Convention shall enter into force on the first day of the third month following the deposit of its instrument of accession. As of that moment, the acceding State shall be considered a Contracting Party to the Convention.

(3) Any Contracting Party may submit to the Depositary a text of this Convention in the language or languages of the Contracting Party concerned, which shall be authentic if so agreed by the Contracting Parties in accordance with Article 4 of Protocol 2.

Article 74

(1) This Convention is concluded for an unlimited period.

(2) Any Contracting Party may, at any time, denounce the Convention by sending a notification to the Depositary.

(3) The denunciation shall take effect at the end of the calendar year following the expiry of a period of six months from the date of receipt by the Depositary of the notification of denunciation.

Article 75

The following are annexed to this Convention—

a Protocol 1, on certain questions of jurisdiction, procedure and enforcement,

a Protocol 2, on the uniform interpretation of this Convention and on the Standing Committee,

a Protocol 3, on the application of Article 67 of this Convention,

Annexes I through IV and Annex VII, with information related to the application of this Convention,

Annexes V and VI, containing the certificates referred to in Articles 54, 58 and 57 of this Convention,

Annex VIII, containing the authentic languages referred to in Article 79 of this Convention, and

Annex IX, concerning the application of Article II of Protocol 1.

These Protocols and Annexes shall form an integral part of this Convention.

Article 76

Without prejudice to Article 77, any Contracting Party may request the revision of this Convention. To that end, the Depositary shall convene the Standing Committee as laid down in Article 4 of Protocol 2.

Article 77

(1) The Contracting Parties shall communicate to the Depositary the text of any provisions of the laws which amend the lists set out in Annexes I through IV as well as any deletions in or additions to the list set out in Annex VII and the date of their entry into force. Such communication shall be made within reasonable time before the entry into force and be accompanied by a translation into English and French. The Depositary shall adapt the Annexes concerned accordingly, after having consulted the Standing Committee in accordance with Article 4 of Protocol 2. For that purpose, the Contracting Parties shall provide a translation of the adaptations into their languages.

(2) Any amendment of Annexes V through VI and VIII through IX to this Convention shall be adopted by the Standing Committee in accordance with Article 4 of Protocol 2.

Article 78

(1) The Depositary shall notify the Contracting Parties of—

(a) the deposit of each instrument of ratification or accession;

(b) the dates of entry into force of this Convention in respect of the Contracting Parties;

(c) any declaration received pursuant to Articles I to IV of Protocol 1;

(d) any communication made pursuant to Article 74(2), Article 77(1) and paragraph 4 of Protocol 3.

(2) The notifications will be accompanied by translations into English and French.

Article 79

This Convention, drawn up in a single original in the languages listed in Annex VIII, all texts being equally authentic, shall be deposited in the Swiss Federal Archives. The Swiss Federal Council shall transmit a certified copy to each Contracting Party.

In witness whereof, the undersigned Plenipotentiaries, have signed this Convention.

Done at Lugano, on 30 October 2007.”

New schedule 2—Super-affirmative resolution procedure—

“1 If the Secretary of State considers it appropriate to make regulations for the purpose of, or in connection with, implementing any international agreement, the Secretary of State Minister may lay before Parliament—

(a) draft regulations, and

(b) an explanatory document.

2 The explanatory document must introduce and give reasons for implementing the international agreement.

3 Subject as follows, if after the expiry of the 40-day period the draft regulations laid under subsection (1) are approved by a resolution of each House of Parliament, the Minister may make regulations in the terms of the draft regulations.

4 The procedure in paragraphs (5) to (8) shall apply to the draft regulations instead of the procedure in paragraph (3) if—

(a) either House of Parliament so resolves within the 30-day period, or

(b) a committee of either House charged with reporting on the draft regulations so recommends within the 30-day period and the House to which the recommendation is made does not by resolution reject the recommendation within that period.

5 The Secretary of State must have regard to—

(a) any representations,

(b) any resolution of either House of Parliament, and

(c) any recommendations of a committee of either House of Parliament charged with reporting on the draft regulations, made during the 60-day period with regard to the draft regulations.

6 If, after the expiry of the 60-day period, the draft regulations are approved by a resolution of each House of Parliament, the Secretary of State may make regulations in the terms of the draft regulations.

7 If, after the expiry of the 60-day period, the Secretary of State wishes to proceed with the draft regulations but with material changes, the Secretary of State may lay before Parliament—

(a) a revised draft of the regulations, and

(b) a statement giving a summary of the changes proposed.

8 If the revised draft regulations are approved by a resolution of each House of Parliament, the Secretary of State may make regulations in the terms of the revised draft regulations.

9 For the purposes of this Schedule regulations are made in the terms of draft regulations or revised draft regulations if they contain no material changes to their provisions.

10 In this paragraph, references to the ‘30-day’, ‘40-day’ and ‘60-day’ periods in relation to any draft regulations are to the periods of 30, 40 and 60 days beginning with the day on which the draft regulations were laid before Parliament.

11 For the purposes of paragraph 10 no account is to be taken of any time during which Parliament is dissolved or prorogued or during which either House is adjourned for more than four days.”

This new Schedule would apply the super-affirmative resolution procedure to regulations implementing the Lugano Convention in the UK (see NC2).

New schedule 3—Regulations under section (Implementation of other agreements on private international law (No. 2))—

“Restrictions on power to make regulations

1 (1) Regulations under section (Implementation of other agreements on private international law (No. 2)) may not include—

(a) provision that confers power to legislate by means of regulations, orders, rules or other subordinate instrument (other than rules of procedure for courts or tribunals);

(b) provision that creates an offence for which an individual who has reached the age of 18 (or, in relation to Scotland or Northern Ireland, 21) is capable of being sentenced to imprisonment for a term of more than two years (ignoring any enactment prohibiting or restricting the imprisonment of individuals who have no previous convictions).

(2) Sub-paragraph (1)(a) does not prevent the modification of a power to legislate conferred otherwise than under section (Implementation of other agreements on private international law (No. 2)), or the extension of any such power to purposes of a similar kind to those for which it was conferred.

(3) A power to give practice directions or other directions regarding matters of administration is not a power to legislate for the purposes of sub-paragraph (1)(a).

Regulations to be made by statutory instrument or statutory rule

2 The power to make regulations under section (Implementation of other agreements on private international law (No. 2))—

(a) is exercisable by statutory instrument, in the case of regulations made by the Secretary of State;

(b) is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)), in the case of regulations made by a Northern Ireland department.

Parliamentary or assembly procedure

3 (1) This paragraph applies to a statutory instrument containing regulations made by the Secretary of State under section (Implementation of other agreements on private international law (No. 2)).

(2) If the instrument contains (whether alone or with other provision)—

(a) provision made for the purpose of implementing or applying, in relation to the United Kingdom or a particular part of the United Kingdom, any relevant international agreement that has not previously been the subject of any such provision (whether made by regulations under section (Implementation of other agreements on private international law (No. 2)) or otherwise),

(b) provision made for the purpose of giving effect, in relation to the United Kingdom or a particular part of the United Kingdom, to any relevant arrangements that relate to a particular territory and have not previously been the subject of any such provision (whether made by regulations under that section or otherwise),

(c) provision that creates or extends, or increases the penalty for, a criminal offence, or

(d) provision that amends primary legislation,

it may not be made unless it has been approved under the super-affirmative procedure (see paragraph 4).

(3) In this Schedule ‘relevant arrangements’ means arrangements of the kind mentioned in section (Implementation of other agreements on private international law (No. 2)) (3).

(4) If sub-paragraph (2) does not apply to the instrument, it may not be made unless a draft of the instrument has been laid before each House of Parliament and approved by a resolution of each House.

Super-affirmative procedure

4 (1) If the Secretary of State considers it appropriate to make regulations for the purpose of, or in connection with, implementing any international agreement, the Secretary of State may lay before Parliament—

(a) draft regulations, and

(b) an explanatory document.

(2) The explanatory document must introduce and give reasons for implementing the international agreement.

(3) Subject as follows, if after the expiry of the 40-day period the draft regulations laid under sub-paragraph (1) are approved by a resolution of each House of Parliament, the Secretary of State may make regulations in the terms of the draft regulations.

(4) The procedure in sub-paragraphs (5) to (8) shall apply to the draft regulations instead of the procedure in sub-paragraph (3) if—

(a) either House of Parliament so resolves within the 30-day period, or

(b) a committee of either House charged with reporting on the draft regulations so recommends within the 30-day period and the House to which the recommendation is made does not by resolution reject the recommendation within that period.

(5) The Secretary of State must have regard to—

(a) any representations,

(b) any resolution of either House of Parliament, and

(c) any recommendations of a committee of either House of Parliament charged with reporting on the draft regulations, made during the 60-day period with regard to the draft regulations.

(6) If after the expiry of the 60-day period the draft regulations are approved by a resolution of each House of Parliament, the Secretary of State may make regulations in the terms of the draft regulations.

(7) If after the expiry of the 60-day period the Secretary of State wishes to proceed with the draft regulations but with material changes, the Secretary of State may lay before Parliament—

(a) a revised draft of the regulations, and

(b) a statement giving a summary of the changes proposed.

(8) If the revised draft regulations are approved by a resolution of each House of Parliament, the Secretary of State may make regulations in the terms of the revised draft regulations.

(9) For the purposes of this paragraph regulations are made in the terms of draft regulations or revised draft regulations if they contain no material changes to their provisions.

(10) In this paragraph, references to the ‘30-day’, ‘40-day’ and ‘60-day’ periods in relation to any draft regulations are to the periods of 30, 40 and 60 days beginning with the day on which the draft regulations were laid before Parliament.

(11) For the purposes of sub-paragraph (10) no account is to be taken of any time during which Parliament is dissolved or prorogued or during which either House is adjourned for more than four days.

Scottish affirmative procedure

5 (1) This paragraph applies to regulations made by the Scottish Ministers under section (Implementation of other agreements on private international law (No. 2)).

(2) The regulations are subject to the affirmative procedure (see section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010).

Northern Ireland affirmative procedure

6 (1) A Northern Ireland department may not make regulations under section (Implementation of other agreements on private international law (No. 2)) unless a draft of the regulations has been laid before the Northern Ireland Assembly and approved by a resolution of the Assembly.

(2) Section 41(3) of that Act applies for the purposes of sub-paragraph (1) in relation to the laying of a draft as it applies in relation to the laying of a statutory document under an enactment.

Interpretation

7 In this Schedule—

‘amend’ includes repeal or revoke;

‘primary legislation’ means any provision of—

(a) an Act of Parliament,

(b) an Act of the Scottish Parliament,

(c) an Act or Measure of Senedd Cymru, or

(d) Northern Ireland legislation;

‘relevant arrangements’ has the meaning given in paragraph 3(3);

‘relevant international agreement’ has the same meaning as in section (Implementation of other agreements on private international law (No. 2)).”

This new schedule is linked to Amendment (e) to Government NC5 and makes provision for regulations made by the Secretary of State under Government NC5 to be subject to super-affirmative procedure, and for all regulations made under that section by Scottish Ministers or Northern Ireland departments to be subject to the relevant affirmative procedure.

Government amendment 7.

Amendment 8, in title, line 1, at end add

“and the Lugano Convention of 2007;”

This amendment is consequential on either Amendment 1 or on Amendments 2 to 4 and NS1.

Amendment 9, line 1, at end add

“and to provide for the implementation of other international agreements on private international law, subject to certain conditions.”

This amendment is consequential on NC1.

Amendment 10, line 1, at end add

“and to provide, subject to a super-affirmative procedure, for the implementation of the Lugano Convention of 2007.”

This amendment is consequential on NC2 and NS2.

Amendment 11, line 1, at end add

“and the Lugano Convention of 2007; and to provide, subject to consultation and a super-affirmative procedure, for the implementation of other international agreements on private international law.”

This amendment is consequential on Amendment (e) to Government NC5 and NS3.

[Mr Djanogly]

The main outstanding issue with the Bill concerns parliamentary scrutiny—that is, of the UK’s accession to a private international law treaty itself and then concerning orders made pursuant to that treaty. To those Members who may have been mesmerised by the complexity of the amendments today, I should say that this was not helped by the Government tabling their amendments only late last week, which required an element of guesswork for everyone else. Having said that, this belies a high level of consistency in the approach taken with tabled amendments by those who remain concerned at the Government’s position, as I shall explain.

Following Second Reading, the Government have unfortunately decided to re-table, almost unamended, the order-making powers as new clause 5, which was so decisively rejected in the other place. Despite multiple meetings with Ministers—where, I have to say, they have only been polite and listening—I am not much the wiser about the Government’s reasons for what can only be seen as a significant proposed extension of the power of the Executive.

The Government’s hinted amendment to remove criminal sanctions of more than two years’ sentencing from the order-making powers would be a good start but would not be nearly enough. I have therefore tabled amendment 2 and others, in my and others’ names. Those amendments need to be put into the context of the Bill as a whole. That is because the Bill only deals with the UK’s entering specific existing PIL treaties. It does not look at how we approve, or scrutinise entering, other future PIL treaties in the first place. Then it goes on to give the broad order-making powers for any unnamed future PIL treaties. I would suggest that, by focusing on future order-making powers, rather than the initial treaties themselves, it is effectively putting the cart before the horse.

--- Later in debate ---

[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.

--- Later in debate ---

[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.

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

Jonathan Djanogly Excerpts

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

[Robert Buckland]

I can assure my hon. Friend that not only do the Government place a very high premium upon the importance of accession to Lugano, but I personally have vested my own time in direct discussions with counterparts at the Commission and other member states of the EU. In fact, in Zagreb, at the final Justice and Home Affairs Council, I took the opportunity to discuss this at length with several other member states and, indeed, the then newly appointed Commissioner for Justice, and we had a very productive discussion.

My view and that of Her Majesty’s Government is very straightforward: the application for Lugano is a discrete matter. It is separate from the negotiations that are ongoing with regard to a future free trade agreement, and it should be treated as a separate matter. The time for ideology has gone. This is a time for us all to remember that the interests of the citizens that member states serve are paramount, and the interests of ensuring that civil judgments are enforced as swiftly as possible are clear. I call upon all interested parties to put those priorities first, and then hopefully we will see a swifter conclusion to the negotiations, but I welcome the warm support we have had from EFTA countries both prior and subsequent to our application.

[Mr Jonathan Djanogly (Huntingdon) (Con)]

I thank my right hon. and learned Friend for giving way on this Lugano point. I agree with everything he says: it should be treated as a discrete treaty, separate from us leaving the EU, and it is very important for our future trade. But if that is the case, why does he not mention Lugano on the face of the Bill? By doing so, he could perhaps limit the scope of the wide statutory instrument powers—the so-called Henry VIII powers—that I think he will talk about bringing back. He would then have the specific Bill that would make the other place a bit happier.

[Robert Buckland]

I am always grateful to my hon. Friend, who served with distinction as a Justice Minister, for his long interest in these matters as a member of the profession. I did indeed consider whether this Bill should be a Lugano-specific Bill, but I took the view—and I will explain it in more detail in the body of my remarks—that, because of the narrow ambit of what we are seeking to achieve here, there was a necessary flexibility in allowing the United Kingdom Parliament, by affirmative resolution and therefore by debate on the Floor of the House, to determine whether particular future treaties could be incorporated into domestic law.

I do not regard these as Henry VIII powers. I accept the point that there is a distinction to be drawn in relation to the bringing forward of primary legislation, but as a matter of strict interpretation these are not powers that would allow us unilaterally to amend primary legislation, which, of course, is what a Henry VIII power is. These are powers that will allow us to use secondary legislation, but with the necessary parliamentary scrutiny before the incorporation in domestic law of these treaties. Let’s face it, while we were members of the EU, in large measure, because of the competence of the EU in this area, many of these arrangements and agreements took direct effect in our domestic law without any debate whatever. In my view, this actually represents a qualitative improvement and creates a consistency with that flexibility to allow us to make the sort of advances—I know he shares my view on those—which I referred to in my remarks to my right hon. Friend the Member for Wokingham. I am very grateful not just to him, but to all Members in the other place who gave the Bill detailed and careful consideration. However, we believe that it is constitutionally appropriate and proportionate to deploy delegated powers to implement the type of international agreement envisaged in the Bill.

This delegated power, in my strong view, is narrow, well defined and proportionate. Indeed, private international law itself is still a very narrowly defined area of law. It is familiar in scope and content to courts, legal advisers and experts in the field. The type of international agreement which can be implemented under the delegated power relates primarily to jurisdiction: rules that determine where a dispute is heard, rules that determine which country’s law applies, and rules on the recognition and enforcement of legal decisions or judgments in cross-border cases. No agreement could be implemented that was not related to these specific sorts of issues, which arise in relation to the resolution of cross-border disputes.

On that point, we recognise that the Delegated Powers and Regulatory Reform Committee’s report on the Bill recommended the removal of the proposed delegated power, but it is our view that that is, respectfully, a misinterpretation of the breadth of the powers sought and the types of international agreements it can cover. Many of the examples given in its report that had previously been implemented by primary legislation are not actually private international law agreements in themselves. Although those agreements contain specific private international law provisions, they are wider in their overall scope and could not have been implemented using the proposed delegated power to be reintroduced into the Bill.

It was also said in the other place that the use of delegated powers to implement private international law agreements would be constitutionally unprecedented. With the greatest respect, I wholly disagree. There are delegated powers to implement new bilateral agreements on recognition and enforcement of civil judgments via Orders in Council under the Administration of Justice Act 1920, the Foreign Judgments (Reciprocal Enforcement) Act 1933, the Maintenance Orders (Facilities for Enforcement) Act 1920 and the Maintenance Orders (Reciprocal Enforcement) Act 1972. Indeed, the powers under the 1933 Act were used as recently as 2003 by the Labour Government to update a bilateral agreement with Israel relating to the recognition and enforcement of judgments, and extending that agreement to cover judgments of the Israeli magistrates courts. However, while it is important to look back at the precedents that exist, it is vital that we look forward, too. The powers contained in those Acts only allow us to implement bilateral agreements in this area. Frankly, the world has moved on significantly since the ’20s and ’30s, because most private international law agreements are now made on a multilateral basis. We need to ensure that the necessary powers exist to implement such agreements in a timely manner.

Parliamentary scrutiny procedures have moved on as well, and our proposals recognise this by requiring statutory instruments made under the delegated power to implement new agreements to be subject to the affirmative resolution procedure, which provides much more scrutiny than the Order in Council process. Any decision for our country to join a particular agreement in this area of law would also still be subject to successful completion of parliamentary scrutiny procedures under the provisions of the Constitutional Reform and Governance Act 2010—CRAG—which many of us got to know intimately in the context of last year’s machinations on Brexit.

The delegated power in the Bill would not alter the well-established approaches to parliamentary scrutiny of treaties and the process of approving ratification under CRAG. Instead, it would simply be a mechanism to draw down the resulting treaty obligations into domestic law in readiness for the ratification of the treaty. The Government recognise that Parliament has begun to strengthen the scrutiny procedures under CRAG, including, importantly, the establishment of the International Agreements Sub-Committee in April of this year under the chairmanship of Lord Goldsmith. We look forward to working with the Committee, including on the scrutiny of the private international law agreements.

[Mr Djanogly]

Does my right hon. and learned Friend appreciate that that is the exact same Committee that has constantly been attacking CRAG as totally inadequate and unfit for purpose?

[Robert Buckland]

Indeed it has made some very trenchant comments about CRAG, and that is precisely why it is important that that Committee does its work on improving and enhancing the procedure. I welcome its work and we will actively engage and ensure that that is so.

The most pressing need for the delegated power is to implement what we hope to see—namely, the Lugano convention, which we have already discussed. As I have said, we still do not know the outcome of our application. It is being considered by the contracting parties to the convention, including the EU. It currently underpins our private international law relationship with Switzerland, Norway and Iceland, but could also be used to underpin our relationship with the EU after the end of the transition period. It would provide valuable certainty on cross-border recognition and the enforcement of civil and commercial judgments, as well as clarity on which country’s courts may hear a dispute.

--- Later in debate ---

[Mr Jonathan Djanogly (Huntingdon) (Con)]

The Bill, as presented from the other place, is not in the least objectionable. As has been pointed out, the European Union (Withdrawal) Act 2018 automatically inserts directly effective treaty rights into domestic law after the end of the transition period. However, clause 1 takes a number of treaties that we all consider to be valuable and directly puts them into our own laws as though they were non-EU-signatory treaties. I agree that not only is that more transparent, but it makes a clear statement on our new post-Brexit position to the international community. So far, so good. The problem comes when we then get to discuss what Government powers should be in relation to the private international law issues that we do not currently know anything about.

Looking at this Bill, the dilemma I have, when including the Government’s stated intention to reinsert clause 2, is that we have an Administration keen to take back control when it comes to the EU, but there seems to be less of an issue with passing laws that facilitate the Executive handing out control and sovereignty to non-EU foreign powers with minimal parliamentary scrutiny. Building on one point made by my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), let me say that one confusing thing I find when looking through the Bill is working out which aspects of private international law we benefit from now through our former membership of the EU that we would wish ideally to retain. That is relevant because we still do much of our business with EU countries. We still have the most UK-owned foreign homes in France and Spain, and I would hazard a guess that UK citizens marry and have children with more European Union citizens than other foreigners.

The treaties set out in clause 1 are very limited—the protection of children, the exclusive choice of court agreements and family maintenance. They do not deal with insolvency, business law and many other key issues dealt with under European law. Could the Minister point me to some document that shows what is covered with the EU now and will be rolled over into our law, or to what extent those items feature in current EU deal negotiations? That would be helpful.

As the Lord Chancellor said, the issue with this Bill is not what is in it now, but rather what has been taken out by the other place—namely, the former clause 2 delegated powers provision. I note that no attempt was made in the other place to upset the royal prerogative and demand that PIL treaties are approved by Parliament before signature, although the weakness of the CRAG pre-ratification review process was well covered as being limited and flawed.

On looking at the debates on this Bill in the Lords, the key difference between the Government and almost everyone else who spoke was the Government’s contention that these proposed Henry VIII powers—that is what I think they are—were not a constitutional breach, as they had already been used for other laws. We heard the Lord Chancellor repeat that today. Lord Keen referred to the Mental Capacity Act 2005, which came up in an earlier intervention, but it was pointed out that that Act was the primary legislation that gave effect to an international convention, and as such, it was not the best example that the Minister might give.

It seems to me that we need to consider the Government’s suggestion that PIL is a narrow enough genre to merit its own delegated powers. That is a hard case to make, and it has not yet been made by the Government. To answer the point validly made by my right hon. Friend the Member for Wokingham (John Redwood), the processes, for instance, to enforce private contracts, international financial bonds or insolvency procedures are difficult to lump into the same basket as, say, child protection or mental health, which is what the proposal in clause 2 does.

The Government have repeatedly said that clause 2 is necessary to move ahead with the Lugano treaty, yet their wording referred to “any international agreement”, which could stretch to much more than the Lugano treaty. Furthermore, the proposed powers last without a sunset clause, so they could presumably be used in the future for not only the implementation of now unknown treaties but any changes to those unknown treaties, no matter how significant.

Other issues arise. I am concerned, for instance, about the extension of Executive power to use statutory instruments to change domestic law to give effect to model laws. I am concerned at such powers being used to make new criminal offences by order. A more general observation would be on the timing of the process. In recent weeks, Ministers have been arguing for Bills to be heard in an afternoon because of the covid emergency. International treaties, however, work on the slowest and most planned of timescales, so to say that these issues are time-constrained is not realistic. Likewise, to accuse these PIL subject areas of being only technical is unrelated to how very important they tend to be to the lives of people who actually need them. Furthermore, given how the world becomes an ever smaller place, I foresee these cross-border jurisdictional issues becoming more, not less, relevant and important, particularly with our being out of the European Union.

For all those reasons, my instinct suggests that the Government should accept the position presented to them by the Lords and simply move on. At the least, we could tie the powers to named foreseeable treaties in the Bill such as Lugano. However, if the Government are dead set on their current course, I suggest that they need to improve their offer to Parliament, and four areas comes to mind. First, they should limit the order-making powers to a period of, say, two years after each relevant treaty has been signed. Secondly, a Joint Committee should be formed to review the orders. Thirdly, a Government report should be issued to Parliament setting out the proposal, and fourthly, the report should be issued a minimum period of, say, 21 sitting days before the relevant SI Committee sits.

As things stand, the Government’s proposed reinsertion of clause 2 must represent one of the largest potential power grabs ever seen by the Executive in this Parliament. The Government should think again.

--- Later in debate ---

[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—

[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.

Divorce, Dissolution and Separation Bill [Lords]

Jonathan Djanogly Excerpts

2nd reading & 2nd reading: House of Commons & Money resolution & Money resolution: House of Commons & Programme motion & Programme motion: House of Commons
Monday 8th June 2020 Commons Chamber

[Robert Buckland]

I am grateful to my hon. Friend. I can make the assurance that I, in my position as Lord Chancellor, will do everything I can to reinforce the important messages about the values of family. As a Conservative, they are particularly important to me, but I know that Members of all parties in this House share those values and from their own experiences believe in the family.

I want to add this comment: it is because I believe in the family that I think these measures are the right approach. Some people might think that is contradictory, but I do not believe so, because I think it is our responsibility in the legal process to try to reduce conflict, because conflict leads to emotional difficulty. It can lead to damage. It can lead to serious consequences, not just for the adults in the relationship but, let us face it, the children, too. We owe it to them to minimise in our legal processes, rather than maximise, the damage that can be caused.

[Mr Jonathan Djanogly (Huntingdon) (Con)]

One of the most important things for ensuring that families, when they do sadly break up, do so in an ordered way is an ordered financial process. We are one of the few countries in the world that I know about that does not have a process for pre and post-marital contracts. Does my right hon. and learned Friend not agree that this would have been the perfect opportunity to have brought in the wording that the Law Commission has already provided? It is sitting there and could be put into the Bill. Rather than leaving the courts to dictate the issue, this place should be dictating the issue. Will he consider that?

[Robert Buckland]

I am very grateful to my hon. Friend, who served for a considerable period in the Department I now have the honour of leading. He is right to talk about the financial consequences of breakdown. It is important to note the commitment made by my noble and learned Friend Lord Keen in the other place by way of a letter dated 16 March to Baroness Deech, which has now been placed in the Library of each House, that we will consider how a review of the law governing financial remedies provision on divorce may take place. I give him that undertaking.

Leaving the EU: Legal Services

Jonathan Djanogly Excerpts

Wednesday 21st November 2018 Westminster Hall

[Mr Jonathan Djanogly (Huntingdon) (Con)]

I beg to move,

That this House has considered the provision of legal services after the UK leaves the EU.

I am pleased to have secured this timely Brexit debate on the provision of legal services. This is a key moment for our country’s wellbeing and direction, and the implication for the provision of legal services is significant. I introduce myself as a non-practising solicitor and as chair of the all-party parliamentary group on legal and constitutional affairs, which produced a report in October that noted serious issues that merit further debate. I take this opportunity to thank the APPG’s secretariat from the Law Society for its assistance with the report.

Before I launch into Brexit issues, let me explain why the legal services sector is so important to our economy. The legal services sector is a great UK success story. The UK has the second largest legal services market in the world and the largest legal services sector in the EU. In 2017, it contributed more than £26 billion to the economy—equivalent to 1.5% of GDP—and was responsible for net trade of some £4 billion. It employs and trains over 380,000 people.

The jurisdiction of England and Wales is recognised as a global centre for legal services, particularly for international, commercial and corporate transactions, and dispute resolution and arbitration. In 2015, more than 22,000 commercial and civil disputes were resolved through arbitration, mediation and adjudication in the UK. In the commercial court, which is housed in its new, modern building, nearly 1,100 claims were issued, of which two thirds involved at least one party whose address was outside England and Wales.

Our legal services sector is a great international success story, but we have no natural right to retain that business. Indeed, over the past 10 years several jurisdictions have sought to compete with England and Wales. We keep the work because of the excellence of our professional lawyers and judges and because of foreign parties’ trust in our rule of law and our reputation for judicial efficiency and fairness.

[John Howell (Henley) (Con)]

My hon. Friend makes a very valid point. Surely one of the biggest threats to the UK comes from Singapore, which is developing a good range of courts to tackle commercial issues. I have raised the subject on several occasions, but there does not appear to be a united Government front to see off the threat from Singapore.

[Mr Djanogly]

My hon. Friend makes a very important point. Other jurisdictions are also mounting challenges. We must avoid doing anything that might impair the reputation of the sector.

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

My hon. Friend talks of the reputation of the sector. It is also about hard cash. At the end of the day, the legal services sector makes a contribution of about £25.7 billion per annum to the economy. It is really significant for our economic wellbeing.

--- Later in debate ---

[Mr Djanogly]

My hon. Friend makes another very important point.

English law is the most widely used legal system in the world—27% of the world’s 320 legal jurisdictions use it. There are more than 200 foreign law firms with offices in the UK, from more than 40 jurisdictions. The UK legal services sector is forecast to produce turnover of £30.82 billion and net exports of £4.25 billion by 2025.

Brexit will be the largest ever change to the UK’s legal framework and it represents both opportunities and risks for the legal sector. The impact of Brexit on lawyers, law firms and legal practices will be significant. Negotiations around the UK’s withdrawal from the European Union and the transition period have been agreed, but questions remain, especially about the future relationship of the UK and the EU.

[Ellie Reeves (Lewisham West and Penge) (Lab)]

Legal services amount to the equivalent of 1.5% of GDP. Both the Bar Council and the Law Society have issued warnings that any form of Brexit will have a significant impact on the sector. Does the hon. Gentleman not agree that it would be better for the legal services sector if we remained in a single market?

[Mr Djanogly]

Yes, and the hon. Lady is going to hear me explain how the post-Brexit situation that I want to see is as close to that as possible.

[Mr Jonathan Lord (Woking) (Con)]

I congratulate my hon. Friend on highlighting in this place the importance of the legal services sector to our economy and our justice system. Will he indicate what he believes the direction of travel for the legal services sector is in the proposed deal? We would all be interested in his initial reaction.

[Mr Djanogly]

That is exactly what I shall be doing.

The legal sector has broadly welcomed the Government’s negotiating stance so far. However, concerns remain that withdrawal from the EU and our future relationship will not deliver in a number of key areas for legal services. There are concerns over whether the Government’s current approach will deliver sustainable market access for legal services and flexibility for services. Unlike financial services, there is no in-depth common rulebook or Europe-wide regulator in legal services. Instead, legal services remain regulated autonomously by each EU member state, while functioning on the principle that an EU law firm should be treated as equal to domestic lawyers and firms. There is therefore no great benefit for the legal sector in maintaining regulatory flexibility when pursuing trade agreements with third countries.

I would point out, from my time on the Select Committee on Exiting the European Union, that that is the view of most service industries. They have every intention of following EU rules whether they are mandated to or not, because that is what their business dictates. Certainly, from a legal services perspective, the preservation of the present system should be prioritised, so that lawyers from EU member states, European economic area states and Switzerland can practise freely across the continent.

The APPG inquiry focused on mutual market access and on how legal services will be able to operate following the UK’s withdrawal from the European Union. We accepted written evidence and held sessions in Parliament to hear oral evidence from interested parties, including law firms and chambers, individual practitioners and other stakeholders. We sought evidence on the impact of Brexit on legal practices, the workforce, business structures and client bases. We explored how lawyers currently practise across borders, looking at everything from rules on immigration and practice rights to the recognition of professional qualifications, and how that is anticipated to be affected by Brexit. We sought to understand where contingency planning was taking place and what steps firms were already taking to mitigate any effect of Brexit on the sector. We sought to understand the key concerns of the sector about the effect of Brexit, and we published the final report in October—if anyone wants a copy, I have some. It explored the concerns and comments raised in the oral and written evidence.

We made 10 recommendations. First, the Government should ensure that mutual market access is retained, as currently envisaged, in any transitional arrangements. Secondly, we urge the Government to seek to retain mutual market access as far as possible in any future relationship with the European Union. Thirdly, the Government should ensure that UK lawyers are able to continue to serve their clients post-Brexit on what is called a fly-in, fly-out basis. Fourthly, the Government should ensure that any future relationship with the EU includes a mechanism for UK lawyers to practise EU law via the mutual recognition of professional qualifications and law firm structures. Fifthly, the Government should seek to secure the rights of audience in EU courts, such as the Court of Justice of the European Union.

Sixthly, it is vital that, following Brexit, the Government provides for the ability of the legal sector to easily recruit skilled individuals from outside the UK. Seventhly, the Government should ensure that our immigration system does not block lawyers from continuing to provide services in the EU. Eighthly, the Government and the EU should agree on the draft withdrawal agreement as soon as possible to ensure a transition period that provides legal certainty—that one, hopefully, gets a tick. Ninthly, any transitional agreement should replicate the current legal framework as far as possible to ensure legal certainty and prevent businesses and individuals from having to adapt to changes in their rights and obligations twice—once during a transitional phase and once upon implementation of a new UK-EU agreement. Tenthly, a no-deal scenario should be avoided at all costs.

Let me address a few of those points, taking first the ability to practise, mutual recognition of professional qualifications and rights of audience. Of key concern to the legal sector was the ability to practise in Europe. The current framework, which allows for the mutual recognition of professional qualifications, rights of audience and the ability to practise and establish firms in EU member states, has hugely benefited the UK legal services sector, providing a large net contribution to the UK economy, as was mentioned by my hon. Friend the Member for Bromley and Chislehurst (Robert Neill). As far as possible, mutual market access should be retained.

[Ellie Reeves]

The withdrawal agreement does of course refer to mutual recognition, but only for the transition period. Does the hon. Gentleman agree that that creates further uncertainty for the legal profession, which, as has been pointed out, already contributes so much to our economy?

[Mr Djanogly]

I will be making the case that the hon. Lady has just put.

On labour mobility, the legal services sector has profited from the ability to attract talent from across the globe and the ability to work in the European Union. Frankly, many people going into the offices of a City law firm would be staggered by the number of nationalities and the depth of EU and world legal experience that we have in the UK. For instance, an American client would quite commonly run its European company acquisition strategy from London—because we speak English, yes, but also because they trust our jurisdiction and courts, and because we have European expertise here in London. We do not want to lose that. It is very important that a labour mobility framework that guarantees those abilities post-Brexit is put in place.

The legal services sector requires legal certainty throughout the UK’s withdrawal from the European Union. Law firms and their clients are already, sadly, beginning to implement contingency plans and move business elsewhere. We now have a draft of a detailed transition agreement, and the sector believes, as I do, that that agreement must be confirmed as soon as possible to ensure the sector has the legal certainty that it requires.

[Robert Neill]

Does my hon. Friend agree that having a swift and clear transition agreement is important not just, as he rightly says, to give law firms the certainty they need to continue their operations, but to ensure for their clients contractual continuity and, above all, the enforceability of contracts and judgments in commercial matters and a whole range of other matters?

[Mr Djanogly]

As ever, my hon. Friend makes a pertinent point. Avoiding a no-deal scenario and securing the right future relationship with the European Union is of the utmost importance. The APPG supports the view of the legal services sector that a no-deal scenario would be devastating to the sector and should be avoided at all costs. Of course, there have been significant recent developments. Last week, on 14 November, the Cabinet collectively agreed to the draft withdrawal agreement and the political statement on the future relationship. Following a special European Council meeting on 25 November, the Government intend to lay a final version of the agreement before Parliament for debate.

It needs to be recognised that the draft withdrawal agreement contains a number of positive elements for the legal services sector, including provisions on mutual recognition of professional qualifications and on lawyers continuing to obtain qualifications throughout the transition period, and clarity on continued recognition and enforcement of judgments and orders throughout that period. Lawyers will continue to have the right to represent a party in proceedings before the CJEU in all stages of proceedings where a case can be brought by or against the UK. The automatic transfer of an EU intellectual property right into an equivalent UK right before the end of the transition period is very welcome.

The non-legally binding declaration, however, is a work in progress. To be frank, it is worryingly brief and it is vague on services, especially legal services. The relevant part of the political declaration explains that the goal is to secure

“Ambitious, comprehensive and balanced arrangements on trade in services and investment, delivering a level of liberalisation in trade in services well beyond the Parties’ WTO commitments”.

It says that the Government will put in place

“Appropriate arrangements on professional qualifications.”

I have to say that this is pretty sketchy stuff, and so we continue to have concerns about the lack of detail contained within the political declaration between the UK and the EU.

First, it is pretty unambitious for the UK-EU agreement to say only that it will go “well beyond” the parties’ World Trade Organisation commitments, and it is likely to lead to significantly less market access for services. Secondly, like with the Government’s White Paper, there are concerns about the continued focus on regulatory flexibility, as I mentioned before. The preservation of the present system, whereby lawyers from EU member states, EEA states and Switzerland can practise freely across the continent, should be prioritised instead. Thirdly, it is good to see a reference to professional qualifications, but that only goes some way towards giving lawyers the ability to practise in the EU, and generally it is not their preferred route.

Fourthly, it is disappointing not to see a reference either to civil or commercial co-operation, unlike in the Government’s White Paper. The UK and the EU currently enjoy the gold standard in civil and judicial co-operation, which should continue. Fifthly, without an agreement on judicial co-operation, judgments made in UK courts might be unenforceable in EU countries in the cross-border settlement of trade disputes, which might result, for instance, in debts owed by EU entities to UK businesses not being recovered. It follows that uncertainty about whether judgments from UK courts would be enforced could make the UK less appealing as a jurisdiction of choice for contracts and dispute resolution, which would lead to the growth of competing jurisdictions.

[John Howell]

My hon. Friend is being very generous with his time. I am not sure that I heard him mention the family courts in his list of things that we need to establish good relationships over. The family courts are very important, because sadly the amount of work that they undertake—on both sides of the channel—is growing. There is enormous mutual responsibility for them.

[Mr Djanogly]

I agree with my hon. Friend, who makes an important point. The Brussels II regulation is a single legal instrument that helps families resolve disputes about divorce and the custody of children where they involve parties in more than one EU state. Under the regulation, EU courts automatically recognise judgments on matrimonial and parental responsibility that are delivered in other states. That will no longer apply to the UK when we have left the EU. Similarly, the maintenance regulation, which helps to ensure the payment of maintenance in cross-border situations, will no longer apply.

In a no-deal scenario, the UK and EU27’s trading relationships in legal services would be governed by the general agreement on trade in services, or GATS, which falls far short of replicating the current EU framework. UK lawyers would be subject to myriad rules and regulations in each of the 31 European Free Trade Association states rather than to a single legal framework. UK judgments are automatically recognised and enforced across the EU27, but they will not be in a no-deal scenario, unless the UK unilaterally signs The Hague convention.

At the moment, clients can receive UK law advice from UK lawyers however and wherever they want in the EU; in a no-deal scenario, clients in some jurisdictions might be limited in how they can receive UK legal advice from UK lawyers. Currently UK lawyers have the automatic right to set up practices in an EU host state with minimal bureaucracy; in a no-deal scenario, UK lawyers’ ability to set up practices in an EU27 jurisdiction will depend on local laws and regulations. If establishment is possible, permitted activities still might be limited.

Currently UK lawyers have the right to advise clients who are based in the EU27 on EU law, because their legal professional qualifications are automatically recognised. In a no-deal scenario, clients based in EU27 jurisdictions might no longer be able to receive EU law advice from UK lawyers, as UK legal professional qualifications might not be recognised. Now, law firms can set up in one EU member state and export their services across the EU by establishing branches of the same structure in other member states. In a no-deal scenario, legal entities would lose the automatic right to use their preferred business structures in certain EU27 countries, and the UK corporate form of limited liability partnerships might no longer be accepted in some jurisdictions. As can be seen, we must avoid a no-deal scenario.

Growing concern that the UK could exit the EU without a deal has led the Law Society to publish a series of papers that give solicitors guidance on how to take steps to mitigate some of the risks. Law cuts across every area of life, and often UK and EU lawyers work across borders and enforce and litigate on family, data or business disputes. The first tranche of Law Society papers gives advice on some of the potential rule changes where a deal between a business here and in the EU goes wrong, what happens in family law if a couple splits up, and how we should approach data sharing should we quit the EU without an agreement. There is another paper on providing legal services in the EU, and I understand that further papers are in production. Perhaps the Minister could take this opportunity to explain how her Department is preparing itself and the legal services sector for a no-deal scenario.

It is fair to say that services, including legal services, have not been given the same attention in the Brexit process as manufactured goods have. The sector wants a bespoke agreement that comprehensively covers legal services and is based on mutual market access, mutual recognition of regulatory frameworks, regulatory co-operation and continued mutual access to talent. I have high regard for the Minister, her understanding of this sector and her ability. I hope that she takes the opportunity provided by this debate to set out how she will champion the English legal services sector in negotiations on the future relationship with the EU, with the intention that legal services are not left behind and will be given the tools to maintain their world-leading reputation for excellence after Brexit.

--- Later in debate ---

[Mr Djanogly]

It is not often that I get the chance to respond to the Minister, because normally so many people want to speak. I am pleased to do so. I thank my hon. Friends the Members for Henley (John Howell) and for Bromley and Chislehurst (Robert Neill), and the hon. Members for Paisley and Renfrewshire North (Gavin Newlands) and for Bolton South East (Yasmin Qureshi), for their contributions, and the Minister for her response.

I did not hear a lot of difference in the approach across the piece. We know the issues and what we want to get to. Interestingly, my hon. Friend the Member for Bromley and Chislehurst spoke about a Committee report from two years ago that dealt with the same issues. Two years later, we have come to the same conclusions in this report—it is not even as though this is a new finding. We all want mutual market access, we want the importance of a labour mobility framework and we see the need for legal certainty.

Several hon. Members said that if those things are not achieved and, as a result, English law clauses are included to a lesser degree in contracts, there is potential for very lasting damage to our legal services. That must be of great concern to everyone in this Chamber. Various treaties were mentioned—Lugano and so forth—but relying on those would be second best. We want the best for our legal services sector. I hope the message has been received and that, as we go into further negotiations, the Minister will bang the drum for legal services as I am sure she will.

Question put and agreed to.

Resolved,

That this House has considered the provision of legal services after the UK leaves the EU.

Civil Liability Bill [Lords]

Jonathan Djanogly Excerpts

2nd reading: House of Commons & Money resolution: House of Commons & Programme motion: House of Commons
Tuesday 4th September 2018 Commons Chamber

[Mr Gauke]

Yes, it is a decision taken by the Lord Chancellor. I was in the Treasury at the time when the most recent change to the discount rate was made by one of my predecessors, and I can certainly assure my hon. Friend that it was very much a decision taken by the Lord Chancellor. [Laughter.] Perhaps I should leave it there.

[Mr Jonathan Djanogly (Huntingdon) (Con)]

One of the key elements of stopping whiplash claims and so forth was the banning of referral fees. There are more and more reports coming in that, perhaps for the resilience reasons that my right hon. Friend discussed, we are increasingly seeing ways of getting round the ban on referral fees. This is of great concern to many. These people are of course breaking the law. Has he considered this situation?

[Mr Gauke]

Of course we continue to look at this area. It is worth pointing out not just what we are doing in this Bill but the measures and action taken in the context of the Financial Guidance and Claims Act 2018, and it is right that we continue to do so. As I say, the Government are determined to find out whether the use of PPOs can be increased. We are very pleased that the Civil Justice Council, which is chaired by the Master of the Rolls, has agreed in principle to consider this issue.

The Civil Liability Bill is an important piece of our wider work to reform the civil justice system, including through the Financial Guidance and Claims Act, which strengthens the regulatory regime for claims management companies and bans cold calling. These reforms are needed to put personal injury payments on a fair, more certain and sustainable footing for the future. In turn, they will save the NHS and consumers money.

Criminal Legal Aid

Jonathan Djanogly Excerpts

Tuesday 8th May 2018 Commons Chamber

[Richard Burgon]

I do agree. My hon. Friend makes a powerful point from his constituent’s experience. That is why I have been forced to bring this motion before the House to revoke the statutory instrument.

[Mr Jonathan Djanogly (Huntingdon) (Con)]

Will the hon. Gentleman give way?

[Richard Burgon]

I will make some progress if that is okay.

The crisis in legal aid goes much wider than the civil sector, with criminal cases affected too. As I said, that has the gravest of consequences. We now have more people representing themselves, even in the most serious of criminal cases—those tried at the Crown court. I want to draw the House’s attention to Ministry of Justice research published last week. The summary paper —only a summary—was published only after dogged pressure from journalists like Emily Dugan. It highlights judges’ concerns about people representing themselves, referring to

“unrepresented defendants not understanding how to present evidence about their case at hearings, how to prepare defence statements, or how to ask questions in court.”

The obvious result of this is that some judges and prosecutors felt that those who appeared in court without a lawyer were more likely to be found guilty. The legal system should not be skewed towards wealthier people. Everybody who wants it should have access to proper legal representation if charged with a criminal offence. Justice should be blind. It should also not be based on the depth of people’s pockets. We now have criminal barristers forced to take co-ordinated action in refusing to take up legal aid work because of changes to the Government’s funding scheme.

Labour Members are proud to have submitted this motion to annul the legislation changing the scheme through which criminal defence advocates are paid for carrying out publicly funded work in the Crown court—the so-called advocates graduated fee scheme. The motion has now won the backing of over 130 Members of Parliament. We welcome the fact that, albeit belatedly, time was given for a parliamentary vote to annul this legislation.



I hope that Conservative Members who understand and respect our legal system and the importance to justice of proper access to criminal defence will not vote along party lines tonight. I hope they will help to forge a consensus that helps the Government to rethink this flawed scheme.

--- Later in debate ---

[Mr Jonathan Djanogly (Huntingdon) (Con)]

I declare any interests that I may have as a non-practising solicitor. The criminal justice system in England and Wales faces many significant and structural problems, but placing all the blame on the regulations and tacking the Criminal Bar’s reaction to them at face value will not solve the underlying problems with which we need to contend. Having said that, my initial reaction to the current SI proposals was that, given the barristers’ strike and Opposition party protest in relation to alleged criminal legal aid cuts, I was somewhat surprised to read the impact assessment, which suggests no cuts and an increase spend on legal aid. That aside, the plans are, in themselves, positive and rational. The Minister has given a strong defence of them today, and they shall have my support.

We are tweaking a scheme that was put in place by Labour in 2007. Since then, effective case management has become rightly more of a priority. I can understand the desirability of unbundling the tasks in fee assessment and the key need to address huge increases in the amount of data now available through discovery. The Opposition and the hon. Member for Leeds East (Richard Burgon) are protesting too much. Labour in government repeatedly proposed reform of criminal legal aid and then repeatedly pulled back, instead resorting to fee cuts.

[Alex Chalk (Cheltenham) (Con)]

Does my hon. Friend agree that the Labour party does not come to this matter with clean hands? In 2007, at a time of rising budgets for health and education, there was never more money for the Bar, even though it needed it. The Opposition’s remarks do not hold up.

[Mr Djanogly]

My hon. Friend is quite right. In fact, many, if not most, of the post-2010 coalition criminal legal aid cuts had been put in place by the losing Labour Administration. Furthermore, during debates on the Legal Aid, Sentencing and Punishment of Offenders Act 2012, I recall the Labour spokesman saying that we should make required cuts to criminal legal aid, rather than to civil legal aid. Having engaged in the blame game, we could all just leave it at that, but that would be to once again avoid the harsh reality that we all now need to face up to, namely that this country’s criminal legal aid system is not fit for purpose and needs to be totally restructured.

While consultation with legal practitioners is important, we legislators need to be reminded that no significant reform to the legal professions has ever come about from the practitioners themselves. Someone in government, or indeed in opposition, is going to have to make a move on this. I will admit that the previous Labour Government made some useful justice reforms, much of which I had the honour to oppose from the Front Bench and on which we often worked co-operatively. Why are the Opposition not doing the same on criminal legal aid? Rather than just complain about it, why can they not offer an alternative? The hon. Member for Leeds East told us what the Criminal Bar Association wants, but he did not say what he wants or what he believes, and I think he should.

The fundamental problem is that the legal market generally, and criminal law in particular, is totally fragmented, under-capitalised, technologically semi-illiterate and structurally redundant. Criminal practice is characterised by large numbers of barely profitable firms that are all too often unable to properly serve clients through lack of manpower, inability to invest in training of staff and trainees, and a lamentable lack of technology. I recall trying to persuade criminal defence solicitors to take prosecution evidence online rather than in paper bundles, but the resistance was ferocious. Why? Because large numbers of solicitors were running their small practices from their homes and could not afford to invest in the required technology. That type of inefficiency also goes to the Bar, with advocates often getting court papers late, which may have worked for the single lever arch file deposited in times gone by, but with not the online data dump that can now be sent. As has been said this evening, young barristers will often effectively work for nothing, which itself is a barrier to diversity and to poorer people entering the profession. I could go on with such examples at length, but hon. Members will get the picture.

The answer to this situation, without any doubt, will involve consolidation of this fractured nineteenth-century legal services marketplace. Although the number of small firms has slowly reduced in recent times, the most practical way to aid the process would be a larger-scale system of contracting for legal aid work. That would involve fewer but larger practices operating over a larger area, resulting in fewer firms receiving a larger slice of the remaining pie on a single-fee basis. In turn, it would create firms that have the money to invest in training and technology, and with the size and depth required properly to cover the contract areas.

Yes, we have more data than ever before, but charging to read it on a per page basis is simply outdated. Most of the extra data is useless guff from, say, social media. The answer is to have firms of lawyers that are able to invest in the technology now available to sort the wheat from the chaff. That will only come from market consolidation, and a vital aspect of that will be to treat barristers and solicitor equally. If teams of barristers wish to compete for legal aid contracts, they should be free to do so, in the same way as sole-practitioner solicitors band together with other solicitors, or indeed with barristers, to bid for contracts.

The Legal Services Act 2007, brought in by the last Labour Government with Conservative support, provides the necessary mechanism—the alternative business structures—for that to happen. Solicitors and barristers could work together, and the alternative business structures could raise capital and employ non-legal executive managers to run an effective business. We would then start to see a sustainable market taking shape.

I have some sympathy with those who complain that the criminal justice system is creaking at the seams, but rather less sympathy with those who say that the answer is more of the same. We need to face up to the need to change the rules of the game and of the marketplace. The tools and answers are certainly out there if we are prepared to take the required steps.

European Union (Withdrawal) Bill

Jonathan Djanogly Excerpts

Committee: 7th sitting: House of Commons
Wednesday 13th December 2017 Commons Chamber

[Mr Grieve]

Yes, I think I agree with my right hon. Friend that the action of Parliament in triggering article 50 would do that. But it is not, I think, the intention of the Government to do any such thing, and never has been. Indeed, if it is the intention of the Government to do such a thing, I hope very much that they will tell me as soon as possible, because I think I might be withdrawing my support from them.

[Mr Jonathan Djanogly (Huntingdon) (Con)]

Is not the point that, everything else being equal, even if nothing else happens, article 50 has been triggered so we are leaving the European Union on a set date, unless 27 other countries decide to extend the date? Therefore, this argument is about the UK’s internal process. It is not a question of the EU or anyone else holding things up.

[Mr Grieve]

There are a series of processes. I do not wish to get too diverted from my main point. We are intending, and will require, a further statute in order to achieve what the Government have set out. I hope very much that we do not leave with a no deal on anything, because we would not be able to fly off to Rome on the day after, we would have no security co-operation and we would, indeed, be mired in complete and utter chaos.

The reality is that clause 9 is incompatible with the programme that the Government have set out. At the time that clause 9 was inserted, I think that the Government had not yet fully worked out the implications of how withdrawal had to take place.

--- Later in debate ---

[Sir Oliver Letwin]

There is no possibility of precluding Parliament from making such a resolution one way or the other. That is up to Parliament, and it is up to the Government of the day at that point to respond as they choose. No Government would sensibly respond in the way the hon. Gentleman describes, so I do not think that that is a realistic possibility.

[Mr Djanogly]

rose—

[Mr Baron]

rose—

--- Later in debate ---

[Mr Djanogly]

My right hon. Friend will be aware that all parties are aiming for next October for the negotiation of the final deal, but the Secretary of State has said that he will keep negotiating until March 2019 and that, if necessary, he will go on after that into the implementation period, so there should be time one way or another.

[Sir Oliver Letwin]

I agree with my hon. Friend. There may well be time; I am not in any way denying that. The point I was trying to make is that Labour Members have alleged that it is proper for Parliament to be able to have what they have described as a meaningful vote. They have made it perfectly clear that what they mean by a meaningful vote includes the ability to tell the Government that they cannot continue to leave the European Union if the terms on which they wish to leave are not acceptable to Parliament. That is a logical fact, and people can agree with it or disagree with it. I do not in any way impugn the motives of Labour Members; it is a perfectly reasonable thing for them to think. It is just that we ought to be honest about the fact that that is the proposition they are putting forward, which is in marked contrast to the point made by my right hon. and learned Friend the Member for Beaconsfield in his amendment 7.

European Union (Withdrawal) Bill

Jonathan Djanogly Excerpts

Committee: 3rd sitting: House of Commons
Tuesday 21st November 2017 Commons Chamber

The proposals coming down the line at EU level are in step with the direction of travel that Parliament has indicated it would like to take, and Members have nothing to fear from this new clause. The family-friendly rights that come from Europe are not the bureaucratic, over-zealous red tape that some Members would have us believe. They encapsulate the idea that individuals can be employed without discrimination and treated fairly at work, and that expectant mothers can be given the right to maternity leave without fear of losing their job. At the general election in June, Members of this House stood on a manifesto that pledged to protect workplace rights, and I hope that we will consider those pledges. If I am not satisfied with the Government’s response, I will seek to divide the Committee on this issue later this evening.

[Mr Jonathan Djanogly (Huntingdon) (Con)]

I believe that, taken as a whole, the Bill works and will do what it says on the tin. Indeed, I note that no one has come up with a better plan to extricate us from the EU. Furthermore, the recent Government announcement that we should have a Bill to set out the terms of withdrawal and the implementation period will provide a good opportunity to readdress any legal complexities and tweaks that become necessary—for instance, through the proposals on human rights changing due to EU negotiations. However, the detail is what counts, and I think that this legislation is still something of an unpolished gem.

Clause 5 would change the role of the principle of the supremacy of EU law post Brexit and act as a carve-out to the concept of having retained EU law. Many of the related issues were debated on day one of our Committee proceedings in relation to clause 6. With clauses 5 and 6 in place, once the UK leaves the EU, EU law will no longer be supreme over new laws made by Parliament, and the UK courts will not need to follow European Court of Justice judgments made after exit day. However, it is time for a gripe, Mr Hanson. Ministers’ decision to speak twice on different issues within the same group has been somewhat unhelpful, because it disconnects the various parts of what we are debating. I agree the two groupings might have been preferable, but that was not on offer from the Chair. Having had my gripe, I will now move on.

Amending clause 5 to deal with the requirement of the withdrawal agreement, or even an incompatibility with it, could be activated by use of the Henry VIII powers set out in clause 9, or alternatively by delaying implementation of clauses 5 and 6 using the power in the Bill—a power that the Government currently wish to amend, but which I hope they will not—to set different exit days for different purposes.

Of course, having the position ironed out in the newly proposed implementation Bill could also be an option. This is a likely issue to be considered, as the Prime Minister did, of course, on 22 September, support a transition period, noting that

“the framework for this strictly time limited period, which can be agreed under Article 50, would be the existing structure of EU rules and regulations.”

The Government have since complained that the EU has been slow to talk about an implementation period, which is certainly concerning. It has been described as a wasting asset, but this should not reduce our urgent need to consider how we would actually implement it.

There is no doubt, from reading the views of the significant number of experts, and from what the Exiting the European Union Committee has heard in evidence, that there is some level of confusion about the meaning of clause 5(1) to (3). I hope that the Government will clarify the position, although I have to say that much of the evidence that the Select Committee received was itself conflicting as to its importance. For instance, witnesses queried the intended effect of clause 5(1): is it only a declaratory statement, or is it setting out the position for the retention of the principle in clause 5(2)?

The point is that the relationship between the supremacy of EU law and retained law is not clear to a number of people. As Professor Mark Elliott noted,

“if retained EU law is domestic law, can it inherit the ‘supremacy’ of the ‘EU law?’”

Would retained law under clauses 3 and 4 benefit from the supremacy of EU law as provided for in clause 5(2)? Professor Syrpis backed that up in his written evidence to the Committee:

“The Bill may be handled in various ways; for example Clause 5(4) excludes the Charter, Clause 6(2) states that: courts need not have any regard to anything done on or after exit day by the European Court”

and schedule 1 excludes Francovich damages.

But it remains unclear whether these exclusions relate only to the retention of EU law in UK law, in clauses 2 to 4, and the interpretation of retained EU law, in clause 6, or whether they also apply to the principle of supremacy of EU law, in clause 5. In effect, I have seen enough indecision on this to think that the Minister needs to expand on his interpretation of the supremacy principle.

Of course, if domestic courts decide on the content and meaning of law post Brexit, domestic judges are going to have to respond to the challenge, as I am sure they are very capable of doing. Clearly we should help them on their way, so far as possible, by giving clarity on such issues as scoping the supremacy of EU law, although ultimately they will have to judge—

“judges will simply have to do their best”,

as Lord Neuberger put it. Frankly, I do not see what could be put in the Bill that would make this an easy process for judges in practice. However, as Sir Stephen Laws and Dr Charlotte O’Brien told our Committee,

“there is already an existing principle whereby, when deciding on law, the courts will look at foreign judgements and treat them as persuasive but not binding”.

Professor Richard Ekins took this a stage further and thought that the provision is only there

“to make it the case that no one thinks the judges are doing anything wrong if they read them”—

meaning Court of Justice judgments—

and that

“you could delete the clause and I think the judges would, properly, do the same thing”.

Clause 5(4) exempts the charter of fundamental rights from being converted into domestic law. The first point here is that, whether or not one agrees with the provision, one could ask whether this is the right Bill to insert it into. That argument was made by the hon. Member for Sheffield Central (Paul Blomfield). The Bill is about converting EU law into UK law in order to have a functioning rule book, rather than dealing with policy issues—providing legal certainty rather than reshaping rights. We could have had a stand-alone Bill to deal with that, but I am not convinced that it would have helped the process, or indeed the outcome. In fact, to the contrary, I think that having the benefit of the clause 5 debate running contemporaneously is helpful—if only Ministers had thought the same when grouping today’s amendments.

As for the charter itself, it is a matter of fact that it contains certain extra rights other than those that exist in the Human Rights Act, such as the right to dignity and, as the right hon. Member for East Ham (Stephen Timms) elaborated, the right to protection of personal data. There is also a wider class of potential applicants, because it includes anyone with a “sufficient interest”. Also, stronger remedies are arguably available in certain circumstances, but all that still has to be within the scope of EU law, and I agree with the Government that the charter will lose its relevance after Brexit. However, in the wider context and while it is important to debate the issue, I have strong doubts that we will be losing much by removing the charter if we get the drafting of this Bill right, because many charter rights will form part of the general principles of EU law, as has been explained, and will thereby be retained by clause 6(7) and schedule 1 for the purpose of interpreting retained EU law.

Retention of the charter would also go against the principle of English courts taking control. There may be initial teething problems, but I note that the Under-Secretary of State for Exiting the European Union, my hon. Friend the Member for Wycombe (Mr Baker), told the Exiting the European Union Committee that an EU legal source exists for each charter right, such that judges will be required to look at the underlying source law or rights when considering cases post exit, rather than the charter. However, I am not sure that that is quite adequate, as it seems as though the Bill will contain no right of action in domestic law based on a failure to comply with any of the general principles of EU law and the courts will not be able to disapply any new law because it is incompatible with any of these general principles, including fundamental rights. Amendment 10, tabled by my right hon. and learned Friend the Member for Beaconsfield (Mr Grieve), would address that by allowing challenges to be brought to retained EU law—law after Brexit—on the grounds that it is in breach of the general principles of EU law.

[Sir Oliver Letwin]

Does my hon. Friend agree that a different amendment—perhaps a Government amendment on Report—could achieve the same purpose by restricting that part of schedule 1 to dealing with non-retained general principles of law, so that retained principles could form the basis for a right of action?

[Mr Djanogly]

Yes, my right hon. Friend made that fair point in an earlier intervention. I am happy to say that I am open and willing to hear what the Government have to say on that, and I look forward to the Minister’s contribution later.

The concept of amendment 10 sounds reasonable to me—not least if we are to get rid of the charter—and I shall be listening carefully. However, I agree that the charter has significantly added to the complexity of human rights applications and that in removing the charter the Bill will provide an opportunity to simplify things outside the EU. The Minister has promised to deliver to the Exiting the European Union Committee a memorandum on charter rights, and I note the idea provided by new clause 16, tabled by the hon. Member for Nottingham East (Mr Leslie), of a report to review the implications of removal of the charter. I would happily accept Ministers’ assurance on that, rather than to legislate for it, and I hope that the document to be delivered to the Committee by 5 December will cover the two issues, as I think the Minister of State, Ministry of Justice, my hon. Friend the Member for Esher and Walton (Dominic Raab), said earlier.

My underlying acceptance of the Bill’s position is premised on there remaining, as now exists, a significant and meaningful body of human rights legislation in this country. That would include common law and the Human Rights Act and would be underpinned by the European convention on human rights. I am therefore pleased that the Minister took the opportunity to accept the need for retention of the ECHR in the post-Brexit period.

[Wera Hobhouse]

I rise to discuss new clause 78 and the amendments that are designed to retain the charter. I listened carefully to what the Minister said earlier, but if the Government are not inclined to retain the whole charter, I urge him at least to look again at new clause 78, because it would protect some equality rights.

Conservative Members like to argue that, when Britain decided to join the European Economic Community in 1975, what the British people voted for was an economic union—no less, no more—and that only afterwards the EU became a political union that we should now leave. However, if one looks at the fundamental role played by the British in drafting the European convention on human rights in 1950, this is not true. The convention aimed to protect fundamental freedoms for all Europeans and was driven by British values.