My Lords, I have added my name to the objection to Clause 2 standing part of the Bill, to be moved by the noble and learned Lord, Lord Falconer, for all the reasons that he gave, supported by the noble Lord, Lord Pannick, and others. That will be addressed in more detail in group 6, later today.
As has been said, this amendment is a limited version of the removal of Clause 2, permitting the Lugano convention to be implemented. Indeed, the Lugano convention was cited at Second Reading by the Minister as a reason for taking this power to implement international conventions by regulation. He confirmed at Second Reading the Government’s intention to implement the Lugano convention.
In the Government’s response to the report of the Delegated Powers and Regulatory Reform Committee, the Minister claimed that the urgency of implementing Lugano is such that it could not be done in time for the end of the transition period. He is supported in that by the briefing of the Bar Council for this
Committee stage, which wants to see the convention implemented as part of domestic law before the end of the transition period. Indeed, it mounts a powerful argument for that. However, I am not convinced.
For my part, I would prefer to see Clause 2 removed in its entirety, because there should be no reason why the Government cannot lay primary legislation before the House before implementing Lugano. Even given the difficulties of Virtual Proceedings and the hybrid Parliament, provided that we could vote, it could be done. That would be the correct way to do it, and it would allow for proper and informed debate on the Lugano convention, which, at the moment, we are to be denied.
At Second Reading, as he has today, the noble and learned Lord, Lord Mance, stressed the importance of the English choice of jurisdiction clauses in commercial contracts of many types to the status of London as a legal centre and to the status and recognition of English commercial law, which contributes not just to London lawyers but to London’s centrality to the global commercial system. The recognition and enforcement of English jurisdiction clauses is under threat as a result of our leaving the European Union and losing the protection of the 2012 Brussels recast regulation.
As the noble and learned Lord has pointed out, the problem—along with other problems with the Lugano convention, to which he has drawn attention, both at Second Reading and today—is that that convention does not replicate Brussels recast, in a number of ways. He has drawn attention to the “Italian torpedo”, whereby a choice of court clause can be overridden by subsequent litigation commenced in defiance of an English jurisdiction clause. He has also drawn attention to the advantage of the 2019 Hague Convention, coupled with the 2019 choice of court convention, to which we could sign up. The particular relevant advantage is that, under the 2019 convention, courts may refuse to recognise a judgment given in a contracting state if that judgment breaches a choice of court clause. If we sign up to Lugano as it stands then, even if we later signed up to the 2019 Hague Convention, as the noble and learned Lord, Lord Mance, pointed out, Lugano would trump that protection.
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All things considered, there is clearly a difficult balance to be drawn between getting the immediate advantages of Lugano with its provisions on jurisdiction recognition and enforcement, and sacrificing the very important English choice of jurisdiction clauses. The very fact that there is a difficult balance to be struck is an argument for primary legislation. Giving the Government the power to make that decision without proper public debate, widespread consultation and full parliamentary consideration is dangerous. I agree with the noble Lord, Lord Pannick, that Lugano by itself is less objectionable than Clause 2 in its unlimited generality, but the fact that the clause, even as amended, deprives us of an opportunity for debate, is an example of why it is so pernicious.
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.