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

Report

My Lords, a limited number of Members are here in the Chamber, respecting social distancing. If the capacity of the Chamber is exceeded, I will immediately adjourn the House. Other Members will participate remotely, but all Members will be treated equally wherever they are. For Members participating remotely, microphones will unmute shortly before they are to speak; please accept any on-screen prompt to unmute. Microphones will be muted after each speech. I ask noble Lords to be patient if there are any short delays as we switch between physical and remote participants. I remind the House that our normal courtesies in debate still very much apply in this new hybrid way of working.

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Clause 1: Implementation of the 1996, 2005 and 2007 Hague Conventions

Amendment 1

1: Clause 1, page 2, line 6, at end insert— “3CA The 2000 Hague Convention to have the force of lawThe Convention on the International Protection of Adults concluded on 13 January 2000 at The Hague shall have the force of law in England and Wales, and in Northern Ireland.”

I remind noble Lords that Members other than the mover of an amendment and the Minister may speak only once and that short questions of elucidation are discouraged. Anyone wishing to press an amendment to a Division should make that clear in the debate.

My Lords, the amendment follows on from my contribution at Second Reading on 17 March. I tabled an identical amendment in Committee but withdrew it from the Marshalled List, having been invited to a further meeting with the Minister, the noble and learned Lord, Lord Keen of Elie. At the outset, I express my thanks and appreciation to him, his officials and his Bill team for their constructive—and, I hope, productive—engagement with me since before Second Reading.

Basically, the purpose of the amendment is something akin to jurisdictional catch-up. It seeks to give force of law in England, Wales and Northern Ireland to the provisions of Hague Convention 35 of 13 January 2000 on the International Protection of Adults. Section 85 of and Schedule 3 to the Adults with Incapacity (Scotland) Act 2000, which I had the privilege to sponsor in the earliest days of the Scottish Parliament, paved the way for ratification of the Hague Convention by the UK Government in respect of Scotland in November 2003.

The convention is intended to give support to vulnerable adults who, by reason of impairment or insufficiency of personal faculties, need legal protection, specifically when there are interests in different international jurisdictions. For example, the convention can determine: which court has jurisdiction in relation to protective measures; the law to be applied in particular circumstances; and the establishment of central authorities, which can locate vulnerable adults, give information on the status of vulnerable persons to other authorities and facilitate mutual recognition of relevant orders.

In supporting ratification, the briefing from the Law Society of England and Wales states:

“Due to not being party to the convention, England and Wales does not have a central authority to issue the relevant certificates of authority for powers of attorney to act outside the jurisdiction. This gives rise to unnecessary difficulties in relation to the protection of overseas property and welfare by attorneys and deputies who have been appointed to protect potentially vulnerable people.”

My Lords, I fully support the amendment moved by my noble and learned friend Lord Wallace of Tankerness. It is plainly an anomaly that the 2000 Hague Convention does not at this stage apply throughout the United Kingdom. The inclusion of the convention in Clause 1 will achieve this. I hope that the Government will accept the amendment to achieve the end that my noble and learned friend seeks.

My Lords, the noble and learned Lord, Lord Wallace of Tankerness, makes a very strong case. It is extraordinary that this has not yet been incorporated into the law of England, Wales and Northern Ireland. I very much hope that the noble and learned Lord, the Minister, will explain why that is not the case and, at the very least, give us a timetable for it becoming part of our domestic law.

My Lords, I begin by thanking the noble and learned Lord, Lord Wallace of Tankerness, not only for his contribution to the debate but for engaging with my officials and me on this matter.

As noted, the amendment seeks to deal with the ratification of the 2000 Hague Convention on the International Protection of Adults in respect of England, Wales and Northern Ireland. Of course, the United Kingdom has ratified this convention, but the extent of this is limited to Scotland. I am pleased to confirm to the noble and learned Lord that it is our intention to extend the ratification of this convention to England and Wales. Discussions have commenced with officials in Northern Ireland to ascertain whether the Northern Ireland Executive would require the extension to apply to Northern Ireland.

The Mental Capacity Act 2005 largely implements the convention and contains powers to make any additional provision required. Schedule 3 to that Act provides for the recognition and enforcement in England and Wales of protective measures made in respect of vulnerable adults by the courts of other contracting states. Some Schedule 3 provisions are already in force and some will come into force upon ratification, at which point reciprocal recognition of domestic protective measures by other states will also come into effect. There remain some outstanding matters that require further implementation; largely, additional operational arrangements for the location or placement of vulnerable adults as between contracting states.

It is the Government’s view that the most appropriate way to implement these remaining matters is to make any additional provision required in or under the 2005 Act, using the powers provided for in that Act for this specific purpose. We will proceed with this as soon as we reasonably can, taking account of the need to take the Northern Ireland Executive with us if it is their wish that the matter be extended to Northern Ireland. In these circumstances, I invite the noble and learned Lord to withdraw this amendment.

My Lords, I thank my noble friend and the noble and learned Lords who contributed to this debate for their support for what I seek to achieve by it. I thank the noble and learned Lord the Advocate-General for Scotland for his positive response, and for his clear and unequivocal commitment to ratification. I recognise that there is already in place a substantial body of primary legislation in the 2005 Act, which will allow that to proceed. I very much hope that the engagement with the Northern Ireland Executive will continue, so that when ratification takes place it can apply to the whole of the rest of the United Kingdom. On that basis, I seek leave to withdraw my amendment.

Amendment 1 withdrawn.

We now come to the group consisting of Amendment 2. I remind noble Lords that Members other than the mover and the Minister may speak only once, and that short questions of elucidation are discouraged. Anyone wishing to press this amendment to a Division should make that clear in debate.

Clause 2: Implementation of other agreements on private international law

Amendment 2

2: Clause 2, leave out Clause 2

My Lords, this is the main amendment on Report. It seeks to leave out Clause 2, which gives the appropriate Minister, whether in the devolved Administrations or in central government, the power subsequently to introduce changes to domestic law, including changes incidental to international treaties made with foreign countries, on the basis that domestic law should be changed because that has been agreed with a foreign country. In addition, it allows the Executive to introduce by secondary legislation changes to domestic law to give effect to model laws, for example in relation to insolvency. We oppose that extension of executive power. We believe that it represents a very substantial break with past practice, which requires treaties dealing with private international law to be introduced and change our domestic law by primary legislation, and we will press this issue to a Division.

I will set out briefly the way that we put our case in relation to this. Clause 1 gives effect, as part of the domestic law of this country, to three international agreements. The first is the 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in Respect of Parental Responsibility and Measures for the Protection of Children. This convention aims to improve the protection of children in cross-border disputes. It is a thoroughly good thing; it makes significant changes, or gives effect to significant powers, in the UK family courts.

The second is the 2005 Hague Convention on Choice of Court Agreements, which aims to ensure the effectiveness of exclusive choice of court agreements between parties to international commercial transactions. These clauses are common, particularly in high-value commercial contracts. Again, this is a good convention; it makes changes to UK domestic law and we support its incorporation.

The third is the 2007 Hague Convention on the International Recovery of Child Support and other Forms of Family Maintenance, which provides for rules for the international recovery of child support and spousal maintenance. Again, it is a good thing and makes significant changes to domestic law. We support the incorporation into our law of these three conventions; it is being done in the normal way, namely by primary legislation.

Clause 2 is intended to apply to all subsequent private international law agreements, whether identified at the moment or not. It is a new clause and a new constitutional power; this has not been done before. From time to time— with, if I may say so, considerable feebleness—the noble and learned Lord the Advocate-General sought to suggest that it was not a change in the law and referred to the 1933 and 1920 Acts on the administration of justice. Those Acts allowed new countries, whether in the Commonwealth or outside it, to be joined to a convention for the enforcement of foreign judgments which had been introduced by primary legislation. He did not make his case at all. If and in so far as the Minister had other material, he could have placed it before the Constitution Committee. It rejected his argument, saying: