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

Lord Keen of Elie Excerpts

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

Moved by

[Lord Keen of Elie]

That the Bill be now read a second time.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, this Bill underpins the Government’s ambition to deliver a new framework on private international law which has real and tangible benefits for people and businesses in the United Kingdom.

Private international law is viewed by some as a technical and specialist area of law, but it is an essential one. Without private international law agreements, UK businesses, individuals and families would struggle to resolve the challenges they face when dealing with cross-border legal disputes. For example, these agreements can help small businesses which have been left out of pocket by a supplier based in another country to seek redress, or if a family relationship breaks down and one spouse moves abroad, they make it easier to sort out arrangements in the best interests of their children. These are sometimes difficult and challenging situations to resolve, but private international law provides a framework to do that for the benefit of all parties.

Of course, leaving the European Union does not halt cross-border trade, travel or family relationships that cross boundaries. These will endure and indeed grow in the years ahead, and where disputes arise, there continues to be a need for a framework to settle them in a clear, fair and predictable way. By helping to resolve cross-border disputes quickly, international agreements on the private international law framework help to reduce costs for UK businesses, individuals and families who become involved in them. These agreements also provide legal certainty for those travelling, trading or living abroad. They help avoid confusion by preventing multiple court cases taking place in different countries on the same subject and sometimes reaching different conclusions. They ensure that the decisions of United Kingdom courts and relevant competent authorities can be recognised and enforced in other jurisdictions. The Bill will allow us to implement these important and beneficial agreements in domestic law.

During our membership of the European Union, we helped build, develop and refine an advanced framework on private international law. Now that 31 January 2020 marks the first time in over 20 years that full competence in this area of law has returned to the UK, we must address it. Our task is to lead on building such a framework on a bigger scale in a global setting. We will begin by building on and cementing our role in international fora, such as the Hague Conference on Private International Law, the United Nations Commission on International Trade Law and the International Institute for the Unification of Private International Law, with other global partners.

I turn briefly to the detail of the Bill, which has two main clauses. The first clause implements in domestic law three Hague conventions that the UK currently operates due to our previous membership of the EU. In other words, the EU is a signatory of those conventions on behalf of all its member states. We will become an independent contracting party to these conventions in our own right at the end of the current transition period. These three Hague conventions are widely supported by stakeholders in the legal and finance sectors and, I hope, by Members across this House. We need to ensure that these important conventions can continue to operate effectively in the future, so that businesses and individuals can continue to rely on their rules.

The first is the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition and Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children, which aims to improve the protection of children in cross-border disputes. It deals with issues such as residence of, and contact with, children whose parents live in different countries. The second is the 2005 Hague Convention on Choice of Court Agreements, which aims to ensure the effectiveness of exclusive choice of court agreements between parties to international commercial transactions. These clauses are common, particularly in high-value commercial contracts. Thirdly, the 2007 Hague Convention on the International Recovery of Child Support and other Forms of Family Maintenance provides rules for the international recovery of child support and spousal maintenance.

The second clause creates a delegated power which allows the Government to implement other private international law agreements in domestic law in future via secondary legislation. I confirm that the Government intend to use this power to implement the Lugano Convention 2007, if our application to accede to that convention in our own right is accepted by our international partners, including the EU. This would provide clear, reciprocal rules on cross-border judicial co-operation in civil and commercial matters between the United Kingdom and all the parties to the convention, which include the EU. That would take effect beyond the transition period. However, we also want to use this power to implement other agreements that the United Kingdom may join, both now and in the future. We are already considering joining the Singapore convention of 2019, and the Hague Judgments Convention of 2019.

This power is both well defined and, I suggest, narrow. It only allows the Government to implement agreements in the limited field of private international law, which, as the Bill states, covers areas such as jurisdiction, applicable law, and the recognition and enforcement of judgments. For example, we could not use the Bill to implement an agreement designed to do anything other than facilitate the efficient resolution of cross-border disputes. All regulations implementing a new agreement will use the draft affirmative procedure. Furthermore, where the Government are inclined to enter into an international agreement on private international law, then, at the level of international law, that will still require full compliance with the provisions of the Constitutional Reform and Governance Act 2010. There will, therefore, be parliamentary scrutiny of the international treaty itself before we seek to draw it down into domestic law by using the affirmative SI procedure.

In summary, the Bill enables us to remain at the forefront of promoting global co-operation in private international law, and it will be of significant assistance after the transition period for businesses, individuals and families. I beg to move.

--- Later in debate ---

[Lord Collins of Highbury (Lab)]

My Lords, the Bill is clearly vital to the future of UK private international law, and we on this side of the House strongly support the principle of it. My noble friend Lady Chakrabarti would normally be dealing with this Bill but unfortunately, she is self-isolating due to feeling unwell. I am sure Members of the House will join me in wishing her a speedy recovery—certainly, I hope, in time for Committee.

I too am grateful to noble Lords who have spoken. All my favourite lawyers are here, and I have to agree with the noble and learned Lord, Lord Judge, that that has made my task a lot easier, because I can simply say that I totally agree with the contribution of the noble and learned Lord, Lord Mance. However, I will come on to some specifics in that regard.

The Bar Council brief, on which I am heavily relying, highlights that we are entering a major period of decision-making—a point amplified strongly by the noble and learned Lord, Lord Mance—regarding the future of UK private international law, both nationally and internationally. It is clear that the Bill must be part of a wider government strategy, along with the ongoing negotiations at international level and the statutory instruments under the EU withdrawal Act. The noble and learned Lord, Lord Mance, has been very clear about the sequencing of some of the things we need to address.

As the noble and learned Lord, Lord Wallace, said, these matters are both highly technical and of the utmost importance in regulating the lives of individuals and businesses, and he quoted the Bar Council’s preference. I too ask the Minister to confirm that the Government intend to consult the specialists and take on board the comments about adapting a strategy.

Part of the problem with this debate is what comes next—what the Government hope to agree with the EU during and after the transition period. When does the Minister foresee the 2019 Hague judgments convention being implemented? The Law Society expressed the hope that it will become a central part of future international, civil and commercial law co-operation. What action are the Government taking to ensure faster uptake of the convention by the EU?

Again, I agree with the noble and learned Lord, Lord Mance: at the end of the transition period, the wide body of EU legislation will cease to be applicable, contingent on reciprocal treatment by member states. Despite the number of international conventions included in private international law, there is still no international convention in many areas. The Minister referred to the Government’s stated intention to apply to join the 2007 Lugano Convention on jurisdiction and the recognition and enforcement of judgments, which, as the noble and learned Lord, Lord Mance, highlighted, would require the agreement of each EU member state. As he made clear, it remains unclear whether the European Union would consent to the United Kingdom joining as a separate contracting state.

The noble and learned Lord also raised the issue of sequencing, which is very important; the default rules of private international law applicable in the United Kingdom after exit day are particularly important.

I do not wish to repeat the contributions that have been made, but the noble and learned Lord, Lord Judge, and I have spent some considerable time on Henry VIII clauses when considering previous Bills, not least the sanctions Bill that we had to deal with as a consequence of leaving the EU. That was a simple Bill —it had only two or three clauses—but it certainly gave the Government huge Henry VIII powers, particularly the ability to create and impose new criminal offences. My noble friend Lady Chakrabarti is concerned about those clauses and the power to create the offences that the Explanatory Notes appear to envisage. If that is the case, the affirmative resolution procedure does not provide sufficient parliamentary scrutiny. I understand that the Delegated Powers and Regulatory Reform Committee’s report will be published later this week. I will read it with interest, because I am sure it will make a number of recommendations that we will want to consider in Committee.

We welcome the Bill and its principal objectives but we will seek clarification of several issues, including, as the noble Baroness, Lady Shackleton, said, future family law provisions.

[Lord Keen of Elie]

I thank all noble Lords for their contributions to the debate. I will take some of those points in turn. The noble and learned Lord, Lord Wallace of Tankerness, raised Hague Convention 35. Hague, unlike Lugano, for example, can be entered into by a state, but can be ratified and applied in respect of only one jurisdiction within the state. It so happens that Hague Convention 35 was implemented in respect of Scotland, but not of England and Wales, nor, I believe, Northern Ireland. I am not able to explain why it has been in abeyance for a number of years with respect to those other jurisdictions, but I can say that since the noble and learned Lord raised the point with me I have spoken to officials who are addressing that matter. Certainly, our recommendation would be that it should be applied in respect of England and Wales as well.

The noble and learned Lord asked when we last implemented an international treaty obligation without primary legislation. My stock response was going to be that we now have CRaG 2010, but he went on to criticise that. While I understand that some observations have been made about the sufficiency of CRaG, my response is that we now have primary legislation that requires parliamentary scrutiny in circumstances where we intend to enter into an international treaty. It is in that context that we use the affirmative procedure to draw down those obligations and apply them in domestic law. I venture that that is an acceptable mechanism, because it requires parliamentary scrutiny at the stage of international law. It allows parliamentary scrutiny at the stage of drawing it down into domestic law in accordance with the duality principle.

The noble and learned Lord, Lord Judge, adopted and advanced the submissions of the noble and learned Lord, Lord Mance—which shows courage and, indeed, prescience. He also asked why we refer to arbitration. We do not intend to intrude wholesale on the New York convention or other aspects of arbitration, but it might be that there will be bilateral or multilateral jurisdictional issues where a party wishes to refer to arbitration. If, at that stage in the negotiation, we consider that appropriate, albeit in a limited circumstance, we will want to have the power to proceed with such an agreement. However, we are conscious of the need to keep a dividing line between provisions with regard to arbitration that are generally addressed by wholly different conventions, such as the New York convention, as distinct from those that apply more generally in private international law. We are not endeavouring to cross any lines there.

Schedule 6 is where it is because that is where it should be. It is not hiding. I reassure the noble and learned Lord of that. With regard to Schedule 2, my understanding is that it reflects or replicates the text of the 1996 Hague Convention on child protection and is in that form for that reason.

A question was also raised by the noble Lord, Lord Collins, and others about why we have these Henry VIII powers to amend primary legislation. There may be circumstances in which we want to insert implementation provisions into existing primary legislation. I ask noble Lords to notice that that is exactly what we are doing with Clause 1, where we are putting the three Hague Conventions into the Civil Jurisdiction and Judgments Act 1982. It might be that we will want to use existing primary legislation and implement using existing primary legislation. That is why that power has been taken.

The noble and learned Lord, Lord Mance, gave a very detailed and reasoned distinction between the merits of the Brussels regime, in which we played a very prominent part, and the perhaps deficiencies, to use one term, or the less robust regime we find in Hague and even in Lugano, which essentially reflects Brussels rather than Brussels Ia and Brussels IIa. I have to notice that there are those differences. It is a consequence of us having left the EU on 31 January 2020 —it is as simple as that, is it not? I know the noble and learned Lord recognises that. We cannot be part of the Brussels regime now we have left the EU, and the Government have made it clear that they will not be subject to the jurisdiction of the ECJ.

Of course, if and when we become a party to Lugano, we will seek to move forward the Council of the Lugano Convention to address its equivalence because Lugano originally reflected Brussels I and Brussels II and it is yet to catch up, as it were, with Brussels Ia and Brussels IIa, but certainly if we were a party to it, we can see that we could drive the direction of travel.

That said, we have to be careful about when we engage in the Lugano process. We have made an application to the Council of the Lugano Convention. We have letters of support from the three existing Lugano states, but noble Lords are quite right to point out that we require the consent of the EU to become a party to the Lugano Convention. There are also questions about the way in which that will interrelate with the provisions of the 2019 Hague Convention, and we will have to look at that. Again, my understanding is that we were a material contributor to the development of the Council provision on the 2019 Hague Convention as well, so we are familiar with it, and we see its considerable benefit, all the more so if the EU were to become a contracting state to the 2019 convention.

However, the noble and learned Lord, Lord Mance, is ahead of me. I thought only Uruguay had ratified so far, but he was able to add Ukraine.

[Lord Mance]

It has signed but not ratified.

[Lord Keen of Elie]

I apologise—it has signed but not ratified. As the noble and learned Lord will know, it takes a little time for signatures. There has to be a certain number of states signing to the convention and then ratification can take place. Clearly, we are conscious of that. The noble and learned Lord has highlighted a real issue, which is the care we must take in considering our position with regard to Lugano and with respect to the 2019 Hague Convention. If we were not conscious of that before, we are now, if I can put it that way. It may be that the Lord Chancellor’s consultative committee should have sat earlier.

I hope I have addressed the majority of the points that have been raised so far. There was one point the noble and learned Lord, Lord Wallace, raised about intra-UK powers. We will have powers to implement an agreement intra-UK but clearly we would do so only after engagement with the devolved Administrations because the implementation of private international law is a devolved competence, albeit that entry into the treaty at the level of international law is a reserved competence. I reassure the noble and learned Lord that we would not do that without full consultation with the relevant parties.

I see that the noble Baroness, Lady Shackleton, is about to rise, but before she does so I shall just say that in the absence of Brussels and in the absence of provision in international law convention under Hague for certain matters, such as jurisdiction on divorce, we will fall back on our previous common-law position, which some will regard as less than entirely satisfactory, but it is a consequence of us having left the EU. I hope that that anticipates the intervention I was going to get.

Given the hour, I will rest my further submissions there. I look forward to further detailed discussion of these matters in Committee.

Bill read a second time and committed to a Committee of the Whole House.