New Schedule 4 - Regulations under section (Implementation of other agreements on private international law (No. 3))

Private International Law (Implementation of Agreements) Bill [Lords] – in the House of Commons at 4:15 pm on 6th October 2020.

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Restrictions on power to make regulations

1 (1) Regulations under section (Implementation of other agreements on private international law (No. 3)) may not include—

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

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

(2) Sub-paragraph (1)(a) does not prevent the modification of a power to legislate conferred otherwise than under section (Implementation of other agreements on private international law (No. 3)), or the extension of any such power to purposes of a similar kind to those for which it was conferred.

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

Regulations to be made by statutory instrument or statutory rule

2 The power to make regulations under section (Implementation of other agreements on private international law (No. 3))—

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

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

Parliamentary or assembly procedure

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

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

(a) provision made for the purpose of implementing or applying, in relation to the United Kingdom or a particular part of the United Kingdom, any relevant international agreement that has not previously been the subject of any such provision (whether made by regulations under section (Implementation of other agreements on private international law (No. 3)) or otherwise),

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

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

(d) provision that amends primary legislation,

it may not be made unless a draft of the instrument has been laid before each House of Parliament and approved by a resolution of each House.

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

(4) If sub-paragraph (2) does not apply to the instrument, it is subject to annulment in pursuance of a resolution of either House of Parliament.

4 (1) This paragraph applies to regulations made by the Scottish Ministers under section (Implementation of other agreements on private international law (No. 3)).

(2) The regulations are subject to the affirmative procedure (see section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010) (asp 10)) if they contain (whether alone or with other provision)—

(a) provision made for the purpose of implementing or applying, in relation to Scotland, any relevant international agreement that has not previously been the subject of any such provision (whether made by regulations under section (Implementation of other agreements on private international law (No. 3)) or otherwise),

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

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

(d) provision that amends primary legislation.

(3) If sub-paragraph (2) does not apply to the regulations, they are subject to the negative procedure (see section 28 of the Interpretation and Legislative Reform (Scotland) Act 2010).

5 (1) A Northern Ireland department may not make regulations under section (Implementation of other agreements on private international law (No. 3)) that contain (whether alone or with other provision)—

(a) provision made for the purpose of implementing or applying, in relation to Northern Ireland, any relevant international agreement that has not previously been the subject of any such provision (whether made by regulations under section (Implementation of other agreements on private international law (No. 3)) or otherwise),

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

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

(d) provision that amends primary legislation,

unless a draft of the regulations has been laid before the Northern Ireland Assembly and approved by a resolution of the Assembly.

(2) Regulations under section (Implementation of other agreements on private international law (No. 3)) made by a Northern Ireland department are subject to negative resolution, within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954, if a draft of the regulations was not required to be laid before the Northern Ireland Assembly and approved by a resolution of the Assembly.

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

Interpretation

6 In this Schedule—

“amend” includes repeal or revoke;

“primary legislation” means any provision of—

(a) an Act of Parliament,

(b) an Act of the Scottish Parliament,

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

(d) Northern Ireland legislation;

“relevant arrangements” has the meaning given in paragraph 3(3);

“relevant international agreement” has the same meaning as in section (Implementation of other agreements on private international law (No.3)).”—(Alex Chalk.)

This new schedule makes further provision about regulations made under NC5.

Brought up, read the First and Second time, and added to the Bill.

Amendment made: 7, in title, line 1 at end insert

“and to provide for the implementation of other international agreements on private international law.”—(Alex Chalk.)

This amendment to the long title reflects the change to the Bill made by NC5.

The Deputy Speaker resumed the Chair.

Bill, as amended, reported.

Bill, as amended in the Committee, considered.

Third Reading

Photo of Alex Chalk Alex Chalk Assistant Whip, The Parliamentary Under-Secretary of State for Justice 4:37 pm, 6th October 2020

I beg to move, That the Bill be now read the Third time.

Let me start by thanking all the right hon, hon. and , in particular, learned Members from all parts of the House for their careful scrutiny of the Bill at each stage of its passage. A variety of opinions have been expressed, and I value all the contributions made on these important issues. We have been fortunate, throughout the passage of this Bill, that the debates have been genuinely enriched by the experience and expertise of the speakers, both in this House and in the other place. One thing that has been raised time and again from all involved is an acknowledgement of the importance of private international law and the real-world impact it can have on our constituents.

I have to accept that historically that acknowledgement has not always been in place. A former Lord Chancellor, Lord Hailsham, who introduced a key piece of private international law legislation, the Civil Jurisdiction and Judgments Bill, into the House of Lords in 1981 opened the Second Reading debate by saying:

“I rather feel that it should be accompanied by a Government health warning. There is nothing whatever that I can do to make my speech short, and those who expect to find it of throbbing human interest will, I fear, be wholly disappointed.”—[Official Report, House of Lords, 3 December 1981;
Vol. 425, c. 1126.]

But of course we know in this House that this is extremely important. Reciprocal private international law rules provide a framework to enable UK businesses, families and individuals to resolve their difficult and challenging situations. They help to avoid confusion for all parties, by preventing multiple court cases from taking place in different countries on the same subject and reaching potentially different conclusions. Such reciprocal rules also allow for the decisions of UK courts to be recognised and enforced across borders. All of this helps to reduce costs and anxiety for the parties involved. It is therefore vital that in future our country is able not only to continue to co-operate on private international law matters with existing partners, but to implement in our domestic law new agreements that are fit for the 21st century.

The Bill underpins our ambition to deliver real and tangible benefits for the United Kingdom—for our citizens—both now and in the years to come. I reassure Members on a point that I know they realise but that can never be emphasised enough: although private international law can support and underpin cross-border trade, the Bill is not about the implementation of free trade agreements. The terms on which trade between two countries takes place are clearly outside the scope of the Bill.

Over the next few years, we face the challenge of replacing and updating the UK’s private international law framework, recognising our regained competence in this area of law. Although we have not yet agreed, as between this House and the other place, on how best to scrutinise future agreements, I am now confident that there is an eagerness to do so effectively. That eagerness recognises the overwhelming public interest of such agreements.

More broadly, I am pleased that, whatever the outcome of ping-pong, we will have in place legislation that allows the UK to realise the future opportunities in this area of law. I think all parties in this House are agreed not only that we want the UK to remain at the forefront of delivering justice internationally and to ensure that our legal services sector continues to flourish, but that we want to ensure that we are at the forefront of the international rules-based order—we want to see it strengthened and we want to play our part.

I conclude simply by thanking all Members for their contributions. I commend the Bill to the House.

Photo of David Lammy David Lammy Shadow Lord Chancellor and Shadow Secretary of State for Justice 4:41 pm, 6th October 2020

I join the Minister in thanking colleagues from all parties for their thoughtful contributions to this important debate. I especially thank Sir Robert Neill, Joanna Cherry, and the hon. Members for Huntingdon (Mr Djanogly) and for Midlothian (Owen Thompson) for their eminently reasonable suggestions on how the Bill could secure cross-party support.

On Second Reading, Labour made it clear that we supported the fundamental principle behind the Bill. The Opposition fully accept that as we leave the largest network of private international law agreements in the world, we must have a legislative framework in place to replace it. As we leave the European Union, we must protect our country’s proud reputation as the international forum of choice for the resolution of commercial and legal disputes.

We should also remember the human aspects of private international law. Helping parents separated by borders to come to custody agreements in the interests of their children is very important, as is allowing the safe return of a child who has been abducted. That is why the Opposition have always been fully supportive of the Government’s desire to implement the international treaties listed in clause 1, each of which has been fully scrutinised by this House and is being brought into domestic law by primary legislation. That is how the implementation of international agreements has always been done, and how we would like to see it done in future.

Unfortunately, we have seen during the Bill’s passage the Government’s desire to prise parliamentary scrutiny away from this House and these Benches. That is something we regret and something to which the other place will no doubt return in the debate ahead. Once again, we see a Government keen to do all they can to avoid proper democratic scrutiny—a Government more at ease with ruling by decree than daring to test the will of this House.

Photo of Bob Neill Bob Neill Chair, Justice Committee, Chair, Justice Committee 4:43 pm, 6th October 2020

We have had a constructive set of debates on the Bill, and I pay tribute to all Members for the approach that has been adopted. I pay particular tribute to the skill and elan with which the Minister has steered the Bill through the House: he is a credit to our mutual profession. He is certainly no Henry VIII—and I say that in a good way—but of course he and I are both proud members of the Honourable Society of the Middle Temple. The nearest Tudor connection I can find is that the first Middle Templar to be Lord Chancellor was Lord, previously Sir, Richard Rich, for those who follow “A Man for All Seasons”. I am not sure whether that is a good sign, but I do not think that the Minister is a Richard in terms of personal integrity, since he was certainly one of the most successful Lord Chancellors but also one of the most corrupt. We have moved forward a great deal, and I suspect that the legacy still entertains us in Middle Temple with the wine cellar.

The Minister has done a great job on the Bill, and I hope he will reflect on some of the comments made, none of which were aimed to obstruct or make life difficult for the Government, because we all share the objective. I welcome the tone adopted throughout by the shadow Secretary of State, Mr Lammy, and those on the SNP Front Bench. It is important for the country’s sake that we get this right.

It has been rightly observed that this is not just about dry technical law. When I went to the London School of Economics in the ’70s, it had an international law module, which most of us avoided. It had just introduced a European law module, and somebody said, “There’ll never be much work around that,” which shows how things can be got wrong. As we exit a period of 40 or more years during which EU law has been an increasingly important part of our domestic and international legal systems, it is all the more important that we have a proper means of getting private international law agreements on a sound footing. I think we all share the Government’s objective in that.

I suspect that this may not be the last we hear of the Bill, either in the other place or here. I hope we will find a constructive way forward that meets some of the concerns raised in the other place about how scrutiny is dealt with. I welcome the Minister’s longer-term commitment to look at those issues. I hope he will take away the criminal sanctions aspect in particular, and the need to look at how CRaG operates.

May I give the Minister a further reading list, so to speak? As well as the Mental Capacity Act 2005 and the other things for a wet Friday, perhaps he could look at the Law Society and Bar Council briefings on how we deal with the two issues that I flagged briefly in Committee in relation to our having a proportionate and effective means of scrutinising the declarations that are frequently attached to international legal agreements. International agreements are often adopted by country with a declaration that modifies or limits the extent of its application to varying degrees. The Bill provides for the affirmative procedure for the initial adherence to the treaties, but it might not, as far as we can see at the moment, cover how we would properly scrutinise the declarations, which could have a significant impact.

An example of that, if the Minister wants it, is that we are committed to seeking to join in our own right the Hague choice of court convention 2005, which is an important document. When we joined it as part of the EU, the EU opted to exclude insurance contracts from that agreement. The provisions that we made following the withdrawal agreement and the memorandum on delegated powers that accompanies this Bill suggest that we will continue to exclude insurance contracts from it.

We need to think about why that is and how we will deal with scrutiny of changes to that, because the potential effect of that is to deprive court judgments based on excluded contracts of the right to be enforced by the 2005 convention when we hopefully sign up to it. That would leave a considerable gap in a very important sector of the British economy. Insurance and reinsurance markets are of real significance to the financial world, and we need to have a means of adjusting the position if that is required and taking on board those concerns. That is precisely the area where it is suggested that we should be talking to the experts in not only private international law but the insurance sector. I have already declared my interests in relation to these matters, but it is important that we take that as an example.

A similar issue arises in relation to how we will deal with model laws. Model laws are not international conventions that impose rights and duties between contracting states, but they are what are sometimes termed agreed soft law provisions, which are often modified substantially before they are given effect in domestic law. They are important, none the less, and they are a growing area of activity, so I hope the Minister can think about the mechanism that we have to ensure that they are properly scrutinised, as well as being brought in timeously. I flag those up as examples of what we need to do. It is certainly important that we do not just stop at joining Lugano. Whether it is on the face of the Bill or not, I know that the Minister and the Government are committed to joining it, and that is an important first step, but as we all know, there are other conventions that it is most important we seek to join, some of which have already been mentioned. I hope that we will push on swiftly, for example, to implement and ratify the 1997, 2005 and 2007 Hague conventions, because between them they would provide a suite of the vital civil and family law co-operation measures that we want to see continue after the transition period.

Of course, we also hope that the Government will ratify and implement in England and Wales the 2000 Hague convention on the international protection of adults. It has already been brought into force in Scotland but not in England and Wales, and it seems bizarre that a vulnerable adult could be treated differently if they were in Gloucester as opposed to Glasgow. That implementation would, for example, enable us to deal with important issues relating to vulnerable adults such as people who are subject to powers of attorney or who are under the jurisdiction of the Court of Protection and who might have overseas assets or overseas properties. Not having continuity of legal recognition of the judgments and contracts that are entered into could make it difficult to deal with those persons’ affairs.

These are techie issues, but they affect real lives, so the technical is not insignificant or without a human dimension. I hope that, as we go forward on a constructive basis, we can ensure that, having decided to leave the EU and branch out into broader areas of economic activity, the Government will make a concerted effort, as both the Law Society and the Bar Council have called for, to take a lead in selling, maintaining and building on the UK’s position as a jurisdiction of choice. Tens of thousands of jobs depend on it, as does billions of pounds-worth of economic activity, and it is in our fundamental national, strategic, economic interest to do this. With this Bill on the statute book, I hope that that is the most important thing the Government take forward as a matter of high policy in our negotiations to, hopefully, exit the EU with a deal, and in future free trade agreements.

So far, it has been tough to get free trade agreements to deal with services, and legal services in particular, but we have a potentially strong asset in our legal system and in the integrity and standing of our judiciary, which we should never pillory. No politician should ever knock lawyers for the sake of it, because ultimately, respect for the integrity of the system is fundamental. I know that the Minister and the Lord Chancellor share that view, and I hope that the Bill will give us an opportunity to build strongly on that.

Photo of Owen Thompson Owen Thompson SNP Whip 4:52 pm, 6th October 2020

I too welcome the contributions of all hon. and right hon. colleagues today and throughout the Bill’s previous stages. I am deeply disappointed that the amendments in the names of myself and my hon. and learned Friend Joanna Cherry were not supported by the Government, but I will try not to take it personally. However, we will always continue to try to do what we can to make the Government’s laws better than when they were presented. I also find myself, not for the first time, in the slightly strange position of agreeing with Sir Robert Neill.

This is a largely technical Bill, but it will have important consequences for many businesses and individuals. We only have to consider the impact on an individual family, and the extra hassle they might have to go through, if we were unable to get a replacement or an agreement to continue with the Lugano convention. We cannot underestimate the impact on people if these things are not got right, so every effort needs to be made, regardless of whether it is on the face of the Bill. Obviously we will need to see what comes forward. I heard the Minister say that we should now move to replace and update the legislation on other conventions, and I would certainly encourage following the precedent set through this Bill’s process in working across the Chamber and in respecting the devolution settlement and the rule of international law.

Photo of John Howell John Howell Conservative, Henley 4:54 pm, 6th October 2020

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

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

Question put and agreed to.

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