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

Lord Keen of Elie Excerpts

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

Before closing, I would ask the Minister to indicate to us where we are on our application to join Lugano, where we are on securing the necessary consent of the European Union to our joining Lugano, and where we are on European Union states joining Lugano. These can be added to the questions raised by the noble Baroness, Lady McIntosh, because it seems to me that it would be very difficult indeed to agree to this amendment without going down the route advocated by the noble and learned Lord, Lord Falconer, and removing Clause 2 altogether, until we have clear answers to these questions from the Minister justifying the urgency as well as justification to support the decision taken in principle to join Lugano.

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

My Lords, I thank all noble Lords for their contributions to the debate. I shall of course speak to each of the amendments, Amendments 1, 4 and 5. When taken together, as the noble and learned Lord, Lord Falconer, observed, they have the effect of restricting the power to implement international private law agreements contained in Clause 2 in the 2007 Lugano Convention. But they not only limit the power of the United Kingdom to implement private international law agreements in this way, they also restrict our ability to mirror any such arrangements as between the United Kingdom’s different legal jurisdictions, and indeed as between the United Kingdom and the Crown dependencies and overseas territories.

Of course we accept, as we have previously, that the most pressing need for the power is in relation to the Lugano convention itself. Our application to rejoin the convention as an independent contracting party was made on 8 April—

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

We appear to have lost the noble and learned Lord the Minister. Is he still with us?

[Lord Keen of Elie]

I think that I am coming back. I apologise, but something happened on the computer.

We have made the application and it is hoped that, subject to agreement, we will be able to rejoin the Lugano convention from the end of the transition period.

I will pause to notice some of the observations made by my noble friend Lady McIntosh of Pickering and the noble Lord, Lord Marks, with reference to Brussels Ia and IIa restated. My noble friend asked in a number of ways what steps we are taking with regard to what she termed the Brussels convention and what progress is being made on that matter. I think we have to remind ourselves that Brussels Ia and IIa do not form an international convention; they are internal instruments of the EU to which you may be a party only if you are a member of the EU. We of course have the transition period during which we enjoy the benefits of Brussels Ia and IIa until the end of the year, but there is no basis on which we can be members of Brussels, as was suggested, after the end of the transition period. That is why we are concerned to apply for membership of Lugano.

With regard to a number of the observations made by the noble and learned Lord, Lord Mance, of course I readily acknowledge that Lugano is not as well developed in a number of respects as the Brussels Ia and IIa restated provisions. We are well aware of that. We would hope to advance Lugano once we are a member, but we have to acknowledge that it is not on a par with Brussels Ia and IIa.

However, Lugano is not the only potential use of the power in Clause 2. For instance, Amendment 1 would prevent us joining two other private international law agreements on which the Government are currently considering their position. They are the Singapore convention on mediation and the Hague judgments convention of 2019. I will return to the latter in a moment because it has been mentioned before.

With regard to the Singapore convention, I have shared with noble Lords a copy of an exemplar statutory instrument to demonstrate the sorts of agreements that we may wish to implement under the Clause 2 power. While the final decision on joining that convention is still to be taken, I invite noble Lords to look at that exemplar statutory instrument when considering the ways this power might be used. The instrument contains what are, essentially, technical implementing regulations for a treaty agreed at the level of international law. The choice for this House and the other place at the point of implementation is about not the specific provisions of an agreement, but whether to approve the United Kingdom’s implementation of the whole agreement in domestic law.

Beyond those two examples of private international law agreements which already exist, and which the UK is considering joining, we are actively engaged in work through the Hague conference to develop rules on jurisdiction in international civil and commercial cases. The global arena of private international law is constantly developing. We have been active in it in the past, and hope and intend to take a leading role in the future.

Restricting the scope of the Clause 2 power in the way envisaged by this amendment would, I suggest, prevent the United Kingdom implementing any future agreements in a timely manner. That would in turn delay the benefit of those agreements to citizens and businesses. I regard that as an unsatisfactory position, given that in many cases there is considerable advantage to be gained from such international co-operation in the area of private international law. It would also mean that primary legislation will be needed to insert into a schedule to the Civil Jurisdiction and Judgments Act 1982 the text of the United Kingdom’s declarations and reservations in relation to the 2005 Hague Convention and the 2007 Hague Convention, in the absence of which the terms of the United Kingdom’s accession to those agreements will be far less accessible to users.

I also point out that it will mean that the definition of “relevant international agreement”, as used in subsections (2) and (3), and presently defined in subsection (7) by cross-reference back to subsection (1), will be unclear. That term is also used in Schedule 6 and defined by cross-reference back to Clause 2. In addition, the way that Amendment 1 has been drafted would not in practice allow us to make implementing regulations in advance of becoming a contracting party but only after joining. In that respect, I venture that it is defectively drafted because, essentially, one has to take these things in a particular order.

I turn to Amendment 4. As drafted, Clause 2(2) allows the terms of an international agreement, subject to suitable modifications, to be applied between United Kingdom jurisdictions: for example, between England and Scotland. Amendment 4 seeks to restrict this power to allow for only the Lugano convention to be applied in this way. International agreements on private international law would not ordinarily apply between the United Kingdom’s three jurisdictions because such agreements apply only between contracting parties and it is the United Kingdom Government, not their separate jurisdictions, who join international agreements. Although the relationship between the different parts of the union are perhaps far deeper than they are between foreign jurisdictions and ourselves, it often means that the rules between different UK jurisdictions need to be detailed and bespoke. Applying the same rules between United Kingdom jurisdictions that we apply with foreign jurisdictions will, not invariably but very often, be desirable. For example, it could reduce the number of sets of rules that courts need to apply in cases raising cross-border issues, making them more efficient and easier for courts, lawyers and litigants to understand. It would also mean that intra-UK private international law rules are at least as effective and up to date as the rules applied between the United Kingdom and foreign jurisdictions. Clause 2(2) allows for such keeping pace but would be exercised only if the relevant jurisdictions agree that it is beneficial to do so.

These sorts of arrangements are not without precedent. All three UK jurisdictions already apply rules that mirror the EU Brussels 1A regulation on jurisdiction for cross-border cases and much of the EU maintenance regulation as between themselves. The fact that, thanks to Schedule 4 to the Civil Jurisdiction and Judgments Act 1982, a modified version of the Brussels 1A rules is applied to cases between Scotland, Northern Ireland and England and Wales means that there might be limited prima facie rationale for suggesting that we replace this with the application of the rules under the Lugano convention. The rules are already substantially similar.

However, in addition, the amendment that I referred to has an altogether more significant deficiency. By limiting the intra-UK application of private international law agreements to the Lugano convention, the amendment may well result in the perverse situation in which the intra-UK rules are out of step, out of date and less effective than those governing the relationship between all three of these jurisdictions and a foreign jurisdiction. If the amendment were accepted, separate primary legislation would be needed to achieve this, potentially resulting in the intra-UK rules being less effective and less comprehensive than the rules that we apply with foreign jurisdictions until such primary legislation was passed.

Perhaps I may give an example. If the United Kingdom decided in future to join a new private international law agreement dealing with cross-border cases regarding children, the inability to implement that agreement between the UK’s jurisdictions at the same time as implementing an agreement between the UK and foreign jurisdictions could lead to families finding it more difficult to resolve disputes where parents live in, say, Northern Ireland and England than where one parent lives in the United Kingdom and the other in a foreign country. That would be a very strange outcome.

Amendment 5 has an effect similar to that of Amendment 4 in that it seeks to restrict the ability, under the Clause 2 power, for the United Kingdom to enter into arrangements with the Crown dependencies and overseas territories that mirror, subject to suitable modifications, the provisions of a private international law agreement to which the United Kingdom is a party. As I explained in relation to Amendment 4, the UK Government are the contracting party to international agreements on private international law. As such, these agreements would not ordinarily apply as between the United Kingdom and one of the Crown dependencies or overseas territories.

However, as with the relationships between the different legal jurisdictions of the UK, applying the same rules between the UK and the Crown dependencies and overseas territories that we apply with foreign jurisdictions will sometimes be desirable. It can ensure that the relationships between the various members of the wider UK family can be at least as effective and up to date as those applied between the United Kingdom and foreign jurisdictions. Clause 2(3), as presently drafted, allows for such keeping pace but only if the relevant territorial Government agree that it is beneficial to do so.

I submit that this builds on a significant body of precedent. Both the Administration of Justice Act 1920 and the Foreign Judgments (Reciprocal Enforcement) Act 1933 enable the Government, via Order in Council, to recognise and enforce civil and commercial judgments from the Crown dependencies and overseas territories where reciprocal arrangements have been entered into with them. Furthermore, Section 39 of the Civil Jurisdiction and Judgments Act 1982 enables the Government, by Order in Council, to apply a modified version of the Brussels 1968 convention between the United Kingdom and a Crown dependency or overseas territory. Indeed, an order was made in respect of Gibraltar in 1997 to do exactly that: applying a modified version of this convention to relations between the UK and Gibraltar—an arrangement that sustains to this day.

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[Lord Foulkes of Cumnock (Lab Co-op)]

I had not intended to intervene at this stage. However, since this, is or ought to be, very similar to Committee if we were sitting in the Chamber, I hope that Members will understand why I do so. It is not to deal with questions that the Minister raised about Crown dependencies and overseas territories—although he answered the question that I had intended to ask later on, on other amendments, so that will shorten the debate later—nor indeed about the different jurisdictions within the United Kingdom. Again, that will be dealt with in subsequent amendments and I can come back to that during that debate.

I want to say two things. First, I agree totally with what my noble and learned friend Lord Falconer said; that will surprise neither him nor the Minister. Secondly, the noble Lords, Lord Adonis and Lord Pannick, made important points, which the Minister just touched on. As the noble Lord, Lord Adonis, said, we should note the significance of this being the first Committee stage of a Bill that we have held virtually. It is very important that we see that it operates properly.

As it happens, two members of the Procedure Committee are in this debate: the noble and learned Lord, Lord Morris of Aberavon, and me. At the committee’s last meeting, we asked for a report on the workings of this Committee stage—that is, how it will proceed. At its next meeting, the committee will discuss the procedure for virtual voting. If my noble and learned friend Lord Falconer hopes to divide the House on Report, as he indicated—I hope that he will—that cannot be done without virtual voting. It would be improper and unconstitutional for that to take place. My noble friend Lord Adonis should be reassured by that.

Finally, I hope that the Minister will treat this Committee stage just as he treats Committee stages on the Floor of the House—that is, take account of what has been said, be prepared for a challenge on these issues on Report and bear all this is mind before bringing the Bill in its present form back on Report. I hope he takes note of that.

[Lord Keen of Elie]

My Lords, I of course am listening to the contributions made to the debate in Committee and will take account of the observations that have been made. I make no comment on the procedural issues that the noble Lord raised.

[Baroness McIntosh of Pickering]

My Lords, I thank my noble and learned friend for his full answer to the concerns that were raised. Perhaps I misunderstood his response, but I think that the thrust of the interventions of noble Lords—nearly to a man and a woman—was that it is inappropriate to seek to put into UK law by delegated secondary legislation a new treaty that the Minister and the Government seek to sign. The thrust of the remarks was that it should require primary legislation. Have I misunderstood my noble and learned friend on that point? Why are the Government resisting the usual procedure of agreeing to implement anything that has been agreed by the Government by way of international treaty through primary legislation?

[Lord Keen of Elie]

First, let me make it clear that I do not accept that it is an invariable constitutional practice that the implementation in domestic law of an international law treaty is undertaken by way of primary legislation only. Secondly, when it comes to the implementation of a treaty that has been entered into at the level of international law, the purpose of drawing it down into domestic law is either to accept it into domestic law or not to accept it into domestic law. There is no scope for amending the terms of the treaty that has already been entered into. Therefore, the use of the affirmative statutory instrument procedure is considered appropriate. It gives this House and the other place ample opportunity to debate whether they should draw down the treaty obligations into domestic law. There is, essentially, no real scope for amendment; therefore, we consider the affirmative procedure perfectly adequate for that purpose.

[Lord Mance]

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

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

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

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

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

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

[Lord Keen of Elie]

I thank the noble and learned Lord, Lord Mance, for his further observations. I simply notice this: for the last 20 years, Parliament has had no oversight of the drawing down of these obligations into domestic law because it has been an EU competence. That has not led to any dramatic constitutional issue, as far as I am aware.

In the meantime, however, we have introduced CRaG, which means that the entering into a treaty at the level of international law is now subject to scrutiny by Parliament. After that scrutiny, the Executive can enter into the relevant treaty. Then, when it is drawn down into domestic law, the affirmative statutory instrument procedure ensures that both Houses of Parliament have an opportunity to scrutinise and debate this. There is no difficulty about that; it is the outcome that matters.

However, I notice the noble and learned Lord’s observation that there is little that can be done by way of amendment at that stage. That is why we would suggest that the affirmative procedure was a perfectly adequate mechanism, as distinct from primary legislation.

[The Deputy Chairman of Committees]

My Lords, before I call the noble Lord, Lord Marks, I should say that the noble Lords, Lord Adonis and Lord Pannick, have indicated their wish to speak after the Minister. I shall call them in that order after the contribution from the noble Lord, Lord Marks of Henley-on-Thames.

[Lord Marks of Henley-on-Thames]

My Lords, I was not suggesting—and neither, I believe, was the noble Baroness, Lady McIntosh—that we can stay in Brussels recast or rejoin it after the end of the transition period. I was merely regretting the loss of the benefits of Brussels recast and pointing out that Lugano, if we joined it after the transition period ended, would not offer us comparable benefits. Apart from conceding that point, the Minister has not addressed the points made—notably by the noble and learned Lord, Lord Mance—that joining Lugano may be undesirable, and that we are deprived of the opportunity of debating that in the context of primary legislation. That, I think, is a point that he needs to address.

[Lord Keen of Elie]

On that point, of course I accept that Lugano does not go as far as Brussels Ia and IIa—Brussels restated. We are all well aware of that. As regards the interplay between Lugano and the Hague Convention 2019, one has to bear in mind that Hague has not been signed or acceded to by the EU. We do not know if or when it may intend to do so. Indeed, it is noteworthy that it took the EU 10 years to sign and accede to the Hague Convention 2005. On the other hand, Lugano is there and available as a convention. A number of noble and learned Lords have acknowledged its importance in the context of private international law. Therefore, it is appropriate that we proceed with Lugano at this stage.

[Lord Adonis]

I took the Minister’s response to my noble friend Lord Foulkes to mean that he did not recognise the constitutional doctrine that international treaties could take effect in UK law only by primary legislation. I took him to speak of “recent precedents”. Can he tell the Committee what those recent precedents are?

[Lord Keen of Elie]

I mentioned them earlier in my observations with regard to the 1920 and 1933 Acts, which, by Order in Council—not even a statutory instrument—can draw these matters down into domestic law.

[Lord Pannick]

An important part of the Minister’s argument is that an affirmative procedure suffices because all that Parliament is doing is approving, or not approving, an international agreement which cannot be amended. The noble and learned Lord, Lord Mance, has already made the point that this may involve very detailed and important policy questions. Can the Minister comment on a further point that, in any event, Clause 2 confers power on the Minister, not only to make regulations for the purpose of implementing the international agreement but in connection with implementation? He will know that implementing legislation often includes provisions which may be of some importance, which are not mandated by the international agreements but arise from them.

There may be discretionary decisions to be taken—for example, in relation to the creation of criminal offences. Therefore, I put to the Minister that it is not good enough to say that all Parliament is doing is implementing an international agreement which has already been negotiated and agreed. There are policy decisions that the statutory instrument will contain, and primary legislation is required so that Parliament can debate these policy choices in a proper, effective way and, if necessary, seek to amend the provisions, which are distinct from those contained within the agreement itself.

[Lord Keen of Elie]

There may of course be incidental policy issues that arise when we come to draw down into domestic law an obligation, or obligations, undertaken at the level of international law. Clearly, in circumstances where there were policy choices to be made, a Government would consult upon those matters to bring forward policy choices that were acceptable to stakeholders. If they were not acceptable to Parliament, even after consultation, Parliament would not pass the affirmative SI in question. I do not accept that it is necessary in each and every instance to bring forward primary legislation for this purpose. In those exceptional cases where there may be consequential issues to be addressed, clearly they will be addressed at policy level. They will be consulted upon and the matter brought forward. The Government will not bring forward a policy proposal for an incidental measure without realising that Parliament would be prepared to accept it. That would be a pointless exercise.

[Lord Falconer of Thoroton]

This very interesting debate has raised, in effect, two substantial questions: as a matter of principle should there be the Clause 2 power at all and, if not, should we nevertheless make an exception for the Lugano convention?

First of all, should there be this power at all? In a speech that might be described as a Scottish smokescreen —because it dealt primarily with drafting issues and issues about the dependent territories and, important as those are, did not really address the principle at all—the noble and learned Lord, Lord Keen of Elie, gave one line to justify this unprecedented power. He said that not having this power under Clause 2 would prevent implementation of any international treaty “in a timely manner”. I forgive the noble and learned Lord for putting it in such wide terms and assume he means private international law treaties only. With respect, what he says is plainly wrong.

The noble and learned Lord was given the opportunity on two occasions to provide evidence that it would prevent the implementation of private international law treaties in a timely manner, once before the Delegated Powers Committee of this House and once before the Constitution Committee. The Delegated Powers Committee said that the Ministry of Justice

“offers no empirical evidence that delay has been caused to stakeholders by late implementation of private international law agreements … The argument from delay, apart from involving unsubstantiated assertion, might justify dispensing with Acts of Parliament in other areas where governments need to legislate quickly.”

It rejected it on grounds of lack of evidence and on grounds of principle.

The Constitution Committee also looked at the very same assertion made to it, and said:

“However, the Government offers no evidence to support this argument. The UK has become a party to only 13 Hague Conventions over the course of nearly 60 years. In respect of some of the Conventions the UK has signed, full ratification and implementation has taken years to complete. The Hague Convention of 13 January 2000 on the International Protection of Adults … was ratified for Scotland in 2003 but has not been ratified for England and Wales or for Northern Ireland … While there may or may not be an increase in the number of PIL agreements that are made in the coming years, there is nothing to suggest that PIL agreements will be produced at a rate that would preclude implementing them via primary legislation, nor that there are exceptional circumstances so urgent that resort to a fast-track bill would be impossible. It is therefore difficult to give weight to the Government’s argument that reputational damage will result from not having the power.”


Anybody who has looked at this in detail thinks the Minister’s argument is rubbish. It is not surprising that he never mentioned it at Second Reading.

The Minister then cited occasions when it has been done before, in particular two primary Acts of Parliament: the Administration of Justice Act 1920 and the Foreign Judgments (Reciprocal Enforcement) Act 1933. Reading those is worth while. The 1920 Act refers to a provision whereby a judgment obtained in one dominion can be enforced in other dominions as long as the dominion passes a power to agree to that. The 1920 Act—the 1933 Act is the same, but not in respect of the Empire—says that if another country agrees to this convention, we can add the name of that dominion or country to the list, having approved the convention by primary legislation. The idea that those two Acts give support to the proposition that we can now import wholesale into our domestic law every international treaty we enter into is absolute nonsense. They provide no sort of precedent at all. I really hope the Minister has noted that every single person who spoke took the view that Clause 2 was inappropriate.

As far as Lugano is concerned, I thought the points made by the noble and learned Lord, Lord Mance, were powerful. I do not know whether they are right or wrong, but they illustrate that we need a proper debate about Lugano: we cannot just import Lugano into our law by secondary legislation. Our debates about Lugano today—which, as one speaker identified, were not answered by the Minister; we never debated Lugano, we simply debated the principle of whether Lugano could be an exception to the deletion of Clause 2—illustrate that this very important convention, about which two views prevail, should be the subject of primary legislation. Of course, I will come back to this on Report.

The important point that was made about procedure, and which is worth emphasising, is that we cannot change a Bill unless there is consent, or as a result of a Division which agrees to change that Bill. It means that we cannot proceed with legislation until we have the ability to divide on legislation, whether remotely or in person. We cannot get to the next stage of this Bill until we have the power to divide. With the permission of the House, I beg leave to withdraw the amendment.

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[Lord Thomas of Gresford (LD)]

My Lords, in his letter of 19 April in response to the report of the Delegated Powers Committee, the Minister said:

“The Committee’s Report implies that the power in clause 2 of the Bill would allow the Government to implement agreements on any aspect of private law with a foreign element, rather than merely agreements on the much narrower subject area of private international law, as defined by clause 2(7) of the Bill. … It will not be possible for matters outside of the areas indicated by the definition of ‘private international law’ in clause 2(7) to be implemented using the power.”


The Minister echoed what was set out in paragraph 7 of the Explanatory Notes, which state:

“PIL agreements cover a discrete area of law that is narrowly defined.”


One would therefore have expected that the interpretation of Clause 2(7) to be narrowly defined, but as the noble and learned Lord, Lord Falconer, pointed out, there is a width and uncertainty about these provisions that really do not follow the expressions being used.

For example, the definition clause for “international agreement”, which Amendment 9 deals with, includes,

“an agreement to which the UK is, or is expected to become, a party.”

What does that mean? Does that mean that legislation will be brought forward under these provisions and regulations brought forward in respect of an agreement to which we are not a party? As the noble and learned Lord, Lord Falconer, pointed out, what happens if the agreement is not ultimately made and the negotiations fall through? We would then, presumably, have regulations on the statute book dealing with an agreement to which we were not a party.

The definition of “private international law” is also contained in that same subsection, and Amendments 10, 12 and 13 demonstrate the loose wording that is used in case anything has been missed. That is rather typical of the drafting of the legislation. It is so drafted that anything can be bought in and the door is kept open. For example, it includes “rules and other provisions”, and there is to be co-operation in relation to the

“service of documents, taking of evidence and other procedures”

not defined. Paragraph (c)(ii) deals with

“anything within paragraphs (a) and (b).”

It is so loose and ill-defined.

So the purpose of the amendment moved by the noble and learned Lord, Lord Falconer, is to define the scope of regulation-making powers of the Bill so that the regulations should be confined exclusively to the field of private international law. Any provisions that trespass into any other territory could not be incorporated into domestic law by these regulations. I wholly support what he says about that.

I also support what was said by the noble and learned Lord, Lord Manse, on arbitral awards and model laws.

But I am interested in Amendment 6. Perhaps the Minister will share his thoughts about any proposed regulations concerning legal aid. What proceedings in the field of private international law does he envisage? To what is this directed? Would these be additional provisions to existing legal aid regulations? Would there be more hoops or fewer? Would there be more generous or less generous provision, and in what fields?

[Lord Keen of Elie]

My Lords, I begin with Amendment 2, which as the noble and learned Lord, Lord Falconer, noted, would seek to limit the scope of the Clause 2 power to implement agreements to those that relate exclusively to private international law, whereas of course in its present form of drafting it is clearly intended to extend to the implementation of private international law provisions in wider agreements. In previous correspondence, as noted by the noble and learned Lord, Lord Mance, I referred, as an example, to the jurisdiction of the provisions of the 1961 Warsaw Convention, which is concerned with international carriage by air. The point made by the noble and learned Lord, Lord Mance, was: why would you seek a power to implement such a private international law provision outwith the wider terms of the relevant international agreement? There may be some force in that point. It is one that I would like to consider further, and I will do so before we reach Report.

Amendment 6, which was just referred to by noble Lords, seeks to remove legal aid from the scope of the matters about which Clause 2 regulations can make provision. In the light of the observations of the noble Lord, Lord Thomas, perhaps I should explain that the Bill as presently drafted does not expressly include legal aid in the scope of the definition of private international law. However, under Clause 2(5)(c), it allows for regulations that implement or apply a private international law agreement to make provision for legal aid. This would mean that, where a private international law agreement to which the UK chose to become a party included obligations in relation to legal aid, those could be given domestic effect through Clause 2 regulations.

The reason for that approach to the matter of private international law and legal aid in the Bill is that, although there is some doubt about whether legal aid is typically encompassed in the scope of what is referred to as private international law as generally understood by practitioners and academics, there are circumstances in which a private international law agreement could contain specific legal aid provisions. This normally arises, as one might expect, in the field of family law. For example, there is a requirement in the 1980 Hague Convention on international child abduction for a contracting state to apply the same legal aid rules to citizens of, and persons habitually resident in, other contracting states in matters covered by the convention as it would to its own citizens and residents. It is therefore the Government’s view that, should similar conventions arise in the future providing for critical cross-border co-operation in matters of private international law, it would be unfortunate if there were to be a delay in people benefiting from the provisions of such an important convention.

Where a private international law agreement imposes requirements relating to legal aid that go beyond the sorts of areas for which the United Kingdom Government currently provide such funding domestically, we would need to think very carefully before proceeding. However, the normal process of consultation during the development of, and before taking the international steps to join, a convention of this nature would provide an opportunity for consideration of any legal aid implications.

In short, the amendment would create unhelpful doubt around whether the Clause 2 power could be used to implement a private international law agreement that included provisions relating to legal aid, and indeed it might even render that impossible.

Amendment 9 seeks to restrict the Clause 2 power to implement in domestic law only the private international law agreements to which the UK is already a contracting party and nothing further. It will not be possible for the Government to take the final steps necessary under international law for the United Kingdom to become bound by a new agreement in this area, such as depositing an instrument of ratification, because, in order to do that, the necessary implementing legislation must already have been made and, as a result of this amendment, it would need a different legislative vehicle.

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[Lord Marks of Henley-on-Thames]

My Lords, the question raised by my noble and learned friend Lord Wallace of Tankerness is about how legislation should be made regulating implementation between jurisdictions within the UK and between the UK and other relevant territories. It seems to me that Clause 2(2) and (3) and Schedule 6 infringe the principles of devolution, particularly in the lack of provision for consultation with Scotland and Northern Ireland, as he pointed out. They also infringe the autonomy of the other relevant territories. For those reasons it seems to me that, in addition to the general reasons about the width of Clause 2 and the points already made by the noble and learned Lord, Lord Falconer, we will support amendments such as these on Report.

[Lord Keen of Elie]

My Lords, as with the previous groups of amendments, the underlying theme is that Clause 2 should not stand part of the Bill, but we have to look at these amendments in the context that it does stand part. They would therefore limit the power conferred by that clause—that context is important.

When discussing Amendments 4 and 5, I pointed out that, in the context I have just described, they in turn would result in an unacceptable restriction of the power in Clause 2 and would mean that co-operation on private international law matters between different parts of the United Kingdom family would be significantly less well developed than it is between the United Kingdom and international partners. As a matter of policy, we see no way to justify such a position. Why, for example, should two parties in London and Edinburgh have less legal certainty about the way in which their dispute will be resolved than if the dispute was between parties based in London and Paris or New York? Of course, the point is then made that it is not a question of whether, but how. If you are able to have this regulatory-making power under Clause 2 with regard to foreign jurisdictions, why not intra-UK?

If, as suggested by the noble and learned Lord, Lord Wallace, the concern is the power being perceived as risking imposing a position on Scotland, Northern Ireland, the Crown dependencies or overseas territories without consultation or consent, I would seek to assuage those concerns. Such arrangements under the power would require the agreement of all the relevant Administrations—the United Kingdom Government and the Government of the relevant devolved Administration, Crown dependency or overseas territory. Indeed, such a measure would be considered only after the Government had consulted appropriately with relevant stakeholders, and the statutory instrument to give effect to such a “mirroring” provision—that is what it would be—would still be subject to the scrutiny of the affirmative procedure, as I noted before.

There are examples where such mirroring-type relationships already apply. We apply a modified version of the terms of the 1968 Brussels Convention, an instrument that was the forerunner to Brussels I and the recast Brussels IA regulation, between the United Kingdom and Gibraltar. That works perfectly well. Therefore, assuming Clause 2 stands part of the Bill, we do not see any reason why it should be amended in the way suggested.

I now turn to Amendment 18, which would in turn require fresh primary legislation if the UK wished to amend or revoke, at a later date, any declarations it chose to make when it first implemented a new international agreement. This would mean, for example, that if, in implementing the 2005 Hague Convention, the Government decided to replicate the current EU declaration in regard to certain insurance contracts being out of scope of the convention and then wished to review that decision later, primary legislation would be required to implement that change.

Our policy intention is to replicate the current EU declaration in relation to the exclusion of certain insurance contracts when we accede to the 2005 Hague Convention later this year, because this is how the convention rules currently apply here and, given the tight timeframe between now and the end of the transition period, it makes sense to maintain the status quo and then review in the longer term. Under the proposed amendment, if we wished to change our position following that review, we would have to wait for a primary legislative vehicle to give effect to that change. In our view, that would simply create undue delay on a matter which could be addressed through secondary legislation without losing any of the desired scrutiny. It is in these circumstances that I respectfully ask the noble and learned Lord not to press his amendments.

[The Deputy Chairman of Committees]

One speaker has indicated that they wish to come in on the amendment.

[Lord Wallace of Tankerness]

My Lords, I note what the Minister said about fears that something might be imposed on Scotland or Northern Ireland, but as I read it, Scotland or Northern Ireland could actually impose something on England. He then went on to say that there would of course be discussion, negotiation and consultation. If that is the case, why does it not say so on the face of the Bill? Would he be minded to give further thought to these provisions and how they are drafted to secure some degree of consultation, which does not, I would argue, detract in any way from the devolution settlement?

[Lord Keen of Elie]

Let me be clear: I do not accept the underlying premise of the noble and learned Lord’s argument. However, I am perfectly content to look at this before the next stage of the Bill in order that I can, again, reassure him of the position. There is no intent here to proceed to regulatory-making power without the consent of the relevant devolved Administration. That would be wholly inappropriate, and I accept the noble and learned Lord’s observation that it would conflict with the devolved settlement. However, I am perfectly willing to look at this again.

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[Lord Falconer of Thoroton]

I simply underline the points made by my noble friend Lord Foulkes and the noble and learned Lords, Lord Wallace and Lord Hope. As far as my noble friend Lord Foulkes is concerned, the purpose of these amendments is to probe; as far as I am concerned, they illustrate the lack of thought that has gone into Clause 2. They simply underline the sense that there should not be a Clause 2.

[Lord Keen of Elie]

My Lords, I am obliged to the noble Lord, Lord Foulkes of Cumnock, for tabling what he very candidly pointed out were probing amendments. I am also obliged to the noble and learned Lord, Lord Wallace, who drew on his experience of the devolved Administrations and was able to outline the position in this matter. I will come in a moment to address the questions raised by the noble and learned Lord, Lord Hope, in the context of these provisions.

As the noble Lord, Lord Foulkes, pointed out, two authorities are identified in this part of the Bill that might proceed to implement matters of private international law in Scotland. That is consistent with legislation in other areas. The Secretary of State might decide, with the consent of the Scottish Ministers, to make UK-wide provision for implementation. That is why he is one of the identified national authorities, because there are circumstances in which the Scottish Ministers would be entirely content for there to be UK-wide provision.

Alternatively, if that is not the case, Scottish Ministers may themselves then proceed as a national authority to implement the matter in domestic law. That is because, as the noble and learned Lord, Lord Wallace, pointed out, the position is that—I am sorry, something came up on another phone and rather distracted me—the implementation of private international law is a devolved issue under the Scotland Act, so allowance is made for both provisions.

As regards this Bill, an LCM was discussed between officials. The Scottish Ministers have recommended that such an LCM should be provided, and the noble and learned Lord, Lord Wallace, pointed out the terms of the recommendation that Scottish Ministers have made to the Scottish Parliament with regard to this matter. Indeed, there was prior discussion about these proposals last year, when the Lord Chancellor, for example, was in communication with the Scottish Government on matters of the convention. Perhaps I can clarify this by reference to the points made by the noble and learned Lord, Lord Hope. The Secretary of State may be a national authority with the consent of Scottish Ministers because Scottish Ministers may, as sometimes happens, wish to see UK-wide regulations made here for implementation. Alternatively, as the national authority, they may choose to do that for themselves. The Secretary of State clearly does have the power to do that because under the Scotland Act there is the power to legislate for the entirety of the United Kingdom as regards the implementation of a matter that is otherwise within the devolved competences, so that does not raise an issue either.

With regard to the matter of whether or when it would be one national authority or the other, that is simply a matter that will be discussed, as it is in other contexts, between the United Kingdom Government and Scottish Ministers. If Scottish Ministers are content that the UK Government should legislate UK-wide on this matter, that will happen. If they are content for that to be done, then Scottish Ministers will deal with the matter. The Secretary of State cannot deal with the matter without the consent of Scottish Ministers, so I hope that that puts minds at rest in this regard.

As regards the identification of the Secretary of State as an authority and the reference, for example, in the Scotland Act to a Minister of the Crown, I accept that the reference in this Bill is more limited. Because I cannot answer immediately, I will consider why it was thought appropriate to limit it to the Secretary of State as opposed to the wider reference to a Minister of the Crown. But I will look at that to see whether there is an issue there that needs to be addressed.

As regards consultation on the implementation of international treaties, that is not an issue, but as regards entering into international treaties, that is of course a reserved matter. I recognise that it is appropriate that Scottish Ministers and others should be consulted on these matters for their interests when they arise. I do not understand that to be a difficulty in this context, nor a matter that would require express provisions in the terms of this Bill.

I thank the noble Lord, Lord Foulkes of Cumnock, for his probing amendment and I hope that I have been able to put minds at rest as regards why there are two identified national authorities for the purposes of Clause 2. In the event that Clause 2 stands, these are appropriate alternative mechanisms for the implementation of these provisions.

One final matter raised by the noble Lord, Lord Foulkes, was the issue of contract, but of course, where you have a contract, it will have a choice of jurisdiction and a choice of law. If the contract has Scotland as a choice of jurisdiction and Scots law as the choice of law, that will be binding if we have a situation in which, for instance, the Lugano provision applies. I hope that that answers the query in so far as I have understood it.

I cannot give a precise date for the provision of the LCM, but as the noble and learned Lord, Lord Wallace of Tankerness, himself indicated, Scottish Ministers have recommended the granting of an LCM, and it is not anticipated that there will be any difficulty. With that, I invite the noble Lord to withdraw the amendment.

[Lord Foulkes of Cumnock]

My Lords—

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[Lord Falconer of Thoroton]

I have nothing to add.

[Lord Keen of Elie]

My Lords, I thank the noble Lord for what I understand are, again, probing amendments. As I perhaps explained, the Crown dependencies and overseas territories have a constitutional relationship with the United Kingdom whereby the United Kingdom is responsible for their foreign relations. This means that the Crown dependencies and overseas territories do not generally themselves join international agreements, including agreements in the area of private international law, which we are concerned with here. Instead, an agreement that applies in the United Kingdom can usually be extended to apply also in a Crown dependency or overseas territory. We work with those Crown dependencies and overseas territories to determine where and when they would wish to have a private international law agreement apply between them and other contracting parties. The scope of the United Kingdom’s ratification of that agreement is then extended to them. This means that multilateral agreements extended to the Crown dependencies and overseas territories apply only between those jurisdictions on the one hand and the other contracting parties on the other, but not between the Crown dependencies and overseas territories and the UK. To apply the agreement with the UK, there needs to be a separate mirroring arrangement, as it is sometimes termed. I referred to that in responding to earlier amendments.

The general power within Clause 2(3) allows the United Kingdom to maintain and develop a private international law framework with the Crown dependencies and overseas territories as well as with foreign partners. That is the intent here.

The noble Lord asked about consultation. There was consultation, not with the governors of the Crown dependencies and overseas territories, but with each attorney-general and their officials. My understanding is that they were entirely content with the way in which these provisions are extended to the benefit of the Crown dependencies and overseas territories.

The noble Lord raised the question of entrustment. It does not directly arise in this context, but entrustment is where the United Kingdom essentially consents to a Crown dependency, for example, entering into an agreement at the level of international law. That can sometimes happen where, for example, a Crown dependency wants a reciprocal agreement with a foreign partner.

The behaviour of the overseas territories is monitored by the Foreign and Commonwealth Office and there are instances in which, for the purposes of good governance, the United Kingdom will intervene in the affairs of an overseas territory. The noble Lord himself gave an example in respect of the Turks and Caicos Islands where that has been done.

As regards the choice of court or arbitration that the noble Lord referred to, in so far as I understand his point, I would respond that it is up to parties to a private contract to determine how their disputes, if any, will be resolved. For that purpose, the parties can choose a law or legal system to apply to their private contract and the jurisdiction in which their disputes will be resolved. That is an issue that arises only in the context of their private contract and in the context of what we are dealing with here, which is private international law. At the level of private international law, we are concerned with the way in which other jurisdictions respect that law, respect the choice of jurisdiction and, indeed, then respect the judgment of that jurisdiction when it comes to enforcement.

I hope that answers the points raised by the noble Lord. I thank him for the probing amendments, but I invite him to withdraw Amendment 14.

[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I am not aware that any other noble Lords have expressed a wish to speak after the Minister, so I call the noble Lord, Lord Foulkes of Cumnock.

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[Lord Marks of Henley-on-Thames]

My Lords, for some years I had the privilege of serving on the Delegated Powers and Regulatory Reform Committee under the chairmanship of my noble friend Lady Thomas of Winchester. That committee has increasingly come to stand as a crucial protector of the role of Parliament, alongside the noble and learned Lord, Lord Judge, whom I was delighted we were able to hear. The committee has acted in attempting to limit the Executive improperly taking powers for government Ministers to change the law by delegated legislation in significant ways and ways for which delegated legislation has never in the past been deemed appropriate.

The committee usually expresses itself, or certainly has until recent years, in circumspect terms and the Government have traditionally accepted its recommendations. The committee has left it to the House to implement its recommendations if the Government do not agree to do so. The clarity and decisiveness of the recommendation in paragraph 15 of the committee’s report on this occasion is anything but circumspect. The conclusion speaks for itself:

“We are of the view that clause 2 represents an inappropriate delegation of power and we recommend that it should be removed from the face of the Bill.”


The committee is forcefully supported by the report of the Constitution Committee, chaired by the noble Baroness, Lady Taylor, from whom we have heard, and includes the noble Lord, Lord Pannick, from whom we have also heard. Paragraph 19 of that report contains the kernel of its conclusion:

“We are not persuaded by the arguments the Government has made in support of this power. If the balance between the executive and Parliament is to be altered in respect of international agreements, it should be in favour of greater parliamentary scrutiny and not more executive power.”


Another important point made by the Constitution Committee, mentioned by the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Howarth, is that delegated legislation is amenable to judicial review so that future regulations implementing international treaties could be the subject of challenge. It is entirely right that delegated legislation, which involves an exercise of executive power of itself, should be capable of being challenged as unlawful.

However, it would be a highly undesirable consequence of the Bill if, when enacted, the lawfulness of conventions entered into by the United Kingdom Government as a matter of our domestic law could not be guaranteed to our international convention partners until such challenges were determined.

I also agree with the point made by the Constitution Committee, my noble friend Lord Thomas of Gresford and the noble and learned Lord, Lord Goldsmith, that the CraG procedure is at present inadequate and ineffective as an instrument of parliamentary scrutiny.

In the light of all that, can the Minister say whether, given the Constitution Committee’s report published on 4 May, he is prepared to go away and reconsider his extremely negative response, dated 17 April, to the Delegated Powers Committee’s report? I ask, because if these important committees of your Lordships’ House are going to be routinely ignored by government, parliamentary democracy is entering treacherous territory, in which the conventional boundaries between executive power and parliamentary sovereignty are roughly and unceremoniously shifted by the failure of government to adhere to well-established, valuable and principled conventions.

The central point is this. As it stands, the Bill involves moving a whole area of legislation—that of implementing private international law treaties in domestic law—from Parliament to the Executive. That is a dangerous extension and an unwelcome trend—noted by the noble Baroness, Lady Taylor—in our constitutional arrangements from parliamentary democracy to government by an overmighty Executive. If it is private international law agreements this year, what might follow next year? This House has rightly sought to resist the trend, which is dangerous and must be stopped. As parliamentarians, and respecting the traditional role of this House as a guardian of the constitution, we have a responsibility to stop it.

[Lord Keen of Elie]

My Lords, I thank noble Lords and noble and learned Lords for their contribution to this part of the debate. Since the commencement of this Committee, the matter of whether Clause 2 should stand part of the Bill has in a sense been the elephant in the virtual Chamber—or perhaps the virtual elephant in the Chamber. I therefore do not intend to rehearse or repeat the arguments that have been made repeatedly in Committee. However, I want to make it clear that the Government regard the powers in Clause 2 as essential to achieving their objective to build up the United Kingdom’s position in private international law, not only in the immediate future but in years to come.

Of course, there is one particularly pertinent example of our ambition; namely, our ambition to accede to the 2007 Lugano Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, and the desire—indeed, the need—to do that before the end of the transition period. It would be gravely unfortunate if a gap was to emerge between the end of the transition period, when we continue to look to the Brussels I and IIa regime, and the application of the 2007 Lugano Convention. We are concerned that that should be avoided.

Briefly, first, we consider that the proposal in Clause 2 is not only essential but proportionate. International law agreements are generally uncontroversial and technical in nature, and the detailed content of the private international law agreements to which the Bill will apply will already be determined at the international level; they are by their very nature clear and precise in their terms.

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[Earl of Devon (CB)]

I understood that I would get an opportunity to speak before the Minister rather than after him, as I have been on the list for the past few days, but I shall proceed none the less with what I was going to say. At the risk of flogging rather a dead horse at this stage, I wish to add that while I support the basic aims of the Bill, I do not support Clause 2.

Private international law and our membership of the Hague and other global jurisdiction and enforcement conventions are an essential part of our global standing and our ability to welcome and to home families from overseas. They are essential particularly to the professional and legal services markets in which we are world leaders. I note my interests in the register, and particularly my work as a dual-qualified, cross-border litigator, whose practice touches variously on this area.

I shall not speak at length because pretty much all the issues have been addressed in some detail. However, I thought that your Lordships might appreciate some stories from the front line. Unlike many of our eminent jurists in the Lords, I am currently active in this space and spent 10 years as a litigator in California, as a California-qualified litigator, in which capacity I advised often on jurisdiction clauses and dispute resolution provisions.

For the most part, the most popular forum for these was the courts of England and Wales, irrespective of the parties—typically, one of them was an American party, but we dealt with parties from all around the world. There were plenty of reasons for this, not least the English language, our time zones, our excellent legal services, our use of the common law and precedent, the independence of our judiciary, and the broad membership we have of cross-border conventions, such as those under consideration in the Bill.

Finally, and perhaps most important, is the rule of law—particularly the transparent, thorough and long-established legislative process by which our laws are passed. This is the reason that England and Wales is so often chosen as the preferred third-party forum for jurisdiction and dispute resolution clauses. That is directly threatened by Clause 2. Indeed, by seeking to short-circuit the long-standing practice of passing treaties by primary legislation, the Government are in danger of undermining one of the most important pillars that supports the UK’s pre-eminence in the provision of dispute resolution services in the global market.

I note that the US-UK trade negotiations started recently. Can the Minister give us any indication as to whether the subject of private international law has been raised within that forum? Is any pressure being brought to bear on the UK Government to align their cross-border enforcement and jurisdiction regime towards that of the US, which obviously takes a very particular line in these matters? We know, for example, that the current US Administration disfavour cross-border co-operation. I understand that in recent rounds of Hague conference negotiations, the US has become increasingly reluctant to engage. It is taking a back seat while burgeoning economies, such as China, are increasingly engaged.

Finally, before we reach Report on this crucial Bill, we must have either mastered virtual voting or returned to a normal practice. This is too important an issue to slip through at such a procedurally challenging time. I appreciate your Lordships’ indulgence.

[Lord Keen of Elie]

As regards the UK-US negotiations, I say only that I am not in a position to comment on how far they have gone, or on whether they have engaged the issue of private international law at all.

[Lord Adonis]

Perhaps I may add to my earlier contribution to the Committee, since it looks as if we will vote on this issue on Report. We are all agreed that it is a hugely important constitutional issue.

The House of Commons, which has been conducting its first online votes this afternoon, has descended into complete chaos on its latest vote. I can report to the Committee that on what was, I think, the third vote it held—after its Members had had an opportunity to get to know the system—there were 22 Tory rebels, including the Chancellor of the Exchequer, Rishi Sunak, who accidentally voted the wrong way. The Deputy Speaker, Eleanor Laing, pointed out that some MPs are struggling with the new electronic voting system but, she added, there was no need to rerun the vote because there was a majority of 51 for the Government.

I will point out two things for the benefit of our colleagues on the Procedure Committee. First, there is no natural government majority in the House of Lords, so how are we to know whether people have voted the wrong way accidentally? The constitution of our country could be rewritten because people did not understand the system of voting. Secondly, although I have the highest regard for all our colleagues in the House, if Members of the House of Commons are struggling with the new electronic voting system, it is fair to say that some colleagues in our House may also struggle with that new system.

I see not just a flashing orange light but a flashing red light about moving to electronic voting at any early stage in our proceeding, and certainly on a matter as grave and serious as this. If this were to be our first vote and it descended into chaos, as in the House of Commons, nobody could say that we were not warned.

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[Lord Keen of Elie]

My Lords, the noble Lord, Lord Adonis, has made a number of extremely telling and important points. We are clearly in a situation where we must ensure either that we have an entirely reliable voting system in the upper Chamber, or alternatively a clear and telling government majority. I suspect that it is more likely that we will seek to secure the former.

[The Deputy Chairman of Committees (Baroness Finlay of Llandaff) (CB)]

My Lords, I shall now put the question that Clause 2 stand part of the Bill; all microphones will be opened until I give the result. As many as are of that opinion shall say “Content”.