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

Lord Wallace of Tankerness Excerpts

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

[Lord Wallace of Tankerness (LD)]

My Lords, this is undoubtedly an important Bill. It may not attract much attention in your Lordships’ House but it nevertheless is important, as the Minister indicated in moving that it be read a second time. In the debate on the gracious Speech on 8 January, the Minister indicated that it is

“a Bill enabling us to operate agreements on private international law”

after the transition period following our departure from the European Union. He specifically mentioned agreements that

“can help to return home a child abducted by one of their parents, help two parents living in different countries to agree custody arrangements in the best interests of their children, or help a UK business to resolve issues with a supplier based abroad.”—[Official Report, 8/1/20; cols. 187-88.]

These are obviously vital for both family and commercial reasons. It is therefore important that we do not have any post-Brexit lacunae in our law.

I put my name on the speakers’ list to raise the specific issue of the Hague Convention 35, on the international protection of adults. It is the 11th convention listed in Annexe B to the Explanatory Notes on this Bill. I am grateful to the Minister and his Bill team for taking the time last week to discuss this with me. I will return to that.

As my noble friend Lord Marks of Henley-on-Thames is understandably unable to be with us this evening, I confirm that my party is generally supportive of the Bill. But, as with all legislation, it is important that your Lordships’ House should scrutinise it properly. I sometimes think that is especially the case when we are dealing with a Bill generally thought to be a good thing; we must still give it proper scrutiny.

In its briefing to Peers, the Bar Council very much makes this point. In its concluding paragraph, it states:

“Private international law is at once both a highly technical field and one that is extremely important in regulating the lives of individuals and businesses when they cross borders. Never has there been a greater need to consult specialists in this field to ensure rigorous scrutiny and to produce a cogent and coherent strategy in this field.”


It is important that we bear that in mind. Indeed, I ask the Minister: in the drafting of the Bill, how much consultation took place with specialists in the area?

I have no doubt that there will be detailed scrutiny in Committee. I will just highlight one or two points. As is often the case, the issue of delegated powers requires highlighting. As I understand it, it is a basic rule of constitutional law that when treaties are made by virtue of the royal prerogative, the involvement of Parliament is nevertheless required to change the law, to confer rights on individuals or, indeed, to deprive them of rights. That is invariably done by way of primary legislation.

Clause 2 confers regulation-making powers on the appropriate national authorities

“for the purpose of, or in connection with, implementing any international agreement … so far as relating to private international law”.

Clause 2(7) defines “international agreement” as

“a convention, treaty or other agreement to which the United Kingdom is, or is expected to become, a party”.

In other words, primary legislation may not be required. It may be done by regulation sometime in the future. In a non-EU context, when did we last have an international agreement or treaty implemented without primary legislation? In his speech moving this Second Reading, the Minister mentioned the Constitutional Reform and Governance Act and indicated that that would nevertheless give Parliament a locus. It is important to recall that the 20th report of Session 2017-19 by your Lordships’ Constitution Committee—of which I had the privilege of being a member and of which the noble and learned Lord, Lord Judge, was at the time a member—concluded:

“The current mechanisms available to Parliament to scrutinise treaties through CRAG are limited and flawed. Reform is required to enable Parliament to conduct effective scrutiny of the Government’s treaty actions, irrespective of the consequences of Brexit.”


I hope that when we come to scrutinise this, we will get some answers from the Government as to why they think CRaG is sufficient in circumstances where, in the past, it was all done through primary legislation. Indeed, as the noble and learned Lord, Lord Judge, will well remember from his time on the Constitution Committee, recurring themes are delegated powers and treaty making and parliamentary scrutiny, as in our report. These two come together in this Bill, and we will want to give careful attention to that.

I referred to Hague Convention 35, of 13 January 2000, on the international protection of adults. It is for the protection of vulnerable adults who, by reason of impairment or insufficiency of their personal faculties, are not in a position to protect their interests. The convention determines which court has jurisdiction to take protection measures, which law is to be applied in the circumstances and who may be a vulnerable person. It establishes a system of central authorities that should co-operate, locate vulnerable adults and give information on the status of vulnerable persons to other authorities. The smooth legal arrangements for matters covered by the Bill, which the noble and learned Lord referred to in his speech, must surely also apply to some very vulnerable people.

The convention has 17 signatories and has been ratified for 10 jurisdictions. I use the word “jurisdiction” advisedly: although the United Kingdom is a contracting party, the convention has been ratified only by the United Kingdom Government on behalf of Scotland, on 5 November 2003. That ratification followed on from Section 85 and Schedule 3 to the Adults with Incapacity (Scotland) Act 2000. I declare a personal interest, because I was the Minister responsible for taking that legislation through the Scottish Parliament.

Since then, in Northern Ireland, there has been Schedule 9 to the Mental Capacity Act (Northern Ireland) 2016, which states that the convention will have effect in Northern Ireland—although there has not yet been ratification for Northern Ireland. In England and Wales, I understand that Schedule 3 to the Mental Capacity Act 2005 makes some provision, but we have not had ratification in respect of England and Wales either. It may be argued that the procedures established by the 2005 Act mean that, in practice, courts in England and Wales, and in Northern Ireland, can recognise and enforce protective measures from other states, be they contracting parties or not. But most contracting states will recognise and enforce only protection measures from other contracting states. As an example, France, Germany or Switzerland will recognise and enforce protection measures from each other, and from Scotland, but not from England, Wales or Northern Ireland. Why should citizens in these parts of the United Kingdom not enjoy the advantages enjoyed by those habitually resident in, or closely connected to, Scotland?

I believe it is in the hands of the United Kingdom Government to rectify this. It may not require legislation if some of the procedures are already in place through the 2005 Act. However, I hope that the advantage might be taken in this Bill to move forward on this and implement the convention for England and Wales and Northern Ireland.

One final matter is the difficulty that can be experienced in relation to the recognition of protection measures within the United Kingdom. Ratification of Hague Convention 35 may not necessarily resolve that, as they remain internal matters among the jurisdictions within these islands. Schedule 6 to the Bill deals with regulations made under Clause 2 and refers to implementing or applying an international convention to a particular part of the United Kingdom. In that regard, the Bar Council said that if it were to be given effect in, say, Scotland, but not elsewhere in the United Kingdom, the question of whether to apply an international convention’s rules between parts of the United Kingdom would often be very difficult. Where it is to be applied, extensive amendments to that convention are often appropriate; an example is the provisions in the Civil Jurisdiction and Judgments Act 1982, which apply a substantially modified form of the European Union rules to instruct UK cases. The Bar Council is concerned that Schedule 6 does not provide sufficient safeguards in this respect, and considers that it should be amended to provide the requisite clarification. I would be interested if, in reply, the noble and learned Lord could say something about intra-United Kingdom recognition and indicate how some of the concerns raised by the Bar Council may be addressed.

In conclusion, some of the briefings and representations I received on notification of HC35 have highlighted numerous difficulties in the operation of the law in relation to powers of attorney and civil instruments, and more general issues on the rights of persons with disabilities. However, those are for another day. I believe that today there is an opportunity for the Government to commit themselves to taking a small step in the sphere of private international law which could be of benefit to an important section of our community.