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

“shall have the force of law in the United Kingdom”

from the end of the transition period, instead of relying upon retained EU law for their implementation domestically beyond then. This will make their implementation clearer and more straightforward for practitioners, litigants and, indeed, our international partners.

These three conventions cover distinct areas of private international law in the fields of commercial and family law. The 2005 Hague convention increases legal certainty in disputes that relate to cross-border commercial contracts, which include an exclusive choice of court clause. It does this by ensuring that there is no dispute over where a case should be heard and enables any resulting judgment to be recognised and enforced across borders.

These types of choice of court clause are common in high-value commercial contracts, but in family law we are also reimplementing two conventions that cover sensitive and important issues for individuals and families who become engaged in cross-border disputes when a relationship unfortunately breaks down. The 1996 Hague convention improves the protection of children in cross-border disputes and helps families to resolve issues such as residence of and contact with children whose parents live in different countries. Finally, the 2007 Hague convention provides for the recovery of child support and other forms of family maintenance across borders.

The Government made a number of minor and technical amendments in the other place, which received widespread support, to provide a clearer and simpler approach to the implementation of the transitional provisions relating to the 2005 and 2007 conventions. However, the reimplementation of the Hague conventions is only a measure for the status quo. We need to ensure that we are ready for the opportunities that will arise in the future.

I firmly believe that we must now seize that opportunity of regaining full competence in this area by building on our long and proud history in private international law and cementing our role in international forums, such as the Hague Conference, the Council of Europe, the United Nations Commission on International Trade Law and the International Institute for the Unification of Private Law. We have long been a world leader in this field, and we should aspire to remain so. While being justifiably proud of our achievements in this space thus far, to really harness our potential we need a legislative vehicle to be able to implement any new agreements successfully negotiated with our international partners.

On that point, we recognise that the Delegated Powers and Regulatory Reform Committee’s report on the Bill recommended the removal of the proposed delegated power, but it is our view that that is, respectfully, a misinterpretation of the breadth of the powers sought and the types of international agreements it can cover. Many of the examples given in its report that had previously been implemented by primary legislation are not actually private international law agreements in themselves. Although those agreements contain specific private international law provisions, they are wider in their overall scope and could not have been implemented using the proposed delegated power to be reintroduced into the Bill.

It was also said in the other place that the use of delegated powers to implement private international law agreements would be constitutionally unprecedented. With the greatest respect, I wholly disagree. There are delegated powers to implement new bilateral agreements on recognition and enforcement of civil judgments via Orders in Council under the Administration of Justice Act 1920, the Foreign Judgments (Reciprocal Enforcement) Act 1933, the Maintenance Orders (Facilities for Enforcement) Act 1920 and the Maintenance Orders (Reciprocal Enforcement) Act 1972. Indeed, the powers under the 1933 Act were used as recently as 2003 by the Labour Government to update a bilateral agreement with Israel relating to the recognition and enforcement of judgments, and extending that agreement to cover judgments of the Israeli magistrates courts. However, while it is important to look back at the precedents that exist, it is vital that we look forward, too. The powers contained in those Acts only allow us to implement bilateral agreements in this area. Frankly, the world has moved on significantly since the ’20s and ’30s, because most private international law agreements are now made on a multilateral basis. We need to ensure that the necessary powers exist to implement such agreements in a timely manner.

Parliamentary scrutiny procedures have moved on as well, and our proposals recognise this by requiring statutory instruments made under the delegated power to implement new agreements to be subject to the affirmative resolution procedure, which provides much more scrutiny than the Order in Council process. Any decision for our country to join a particular agreement in this area of law would also still be subject to successful completion of parliamentary scrutiny procedures under the provisions of the Constitutional Reform and Governance Act 2010—CRaG—which many of us got to know intimately in the context of last year’s machinations on Brexit.

The delegated power in the Bill would not alter the well-established approaches to parliamentary scrutiny of treaties and the process of approving ratification under CRaG. Instead, it would simply be a mechanism to draw down the resulting treaty obligations into domestic law in readiness for the ratification of the treaty. The Government recognise that Parliament has begun to strengthen the scrutiny procedures under CRaG, including, importantly, the establishment of the International Agreements Sub-Committee in April of this year under the chairmanship of Lord Goldsmith. We look forward to working with the Committee, including on the scrutiny of the private international law agreements.