My Lords, I begin with Amendment 2, which as the noble and learned Lord, Lord Falconer, noted, would seek to limit the scope of the Clause 2 power to implement agreements to those that relate exclusively to private international law, whereas of course in its present form of drafting it is clearly intended to extend to the implementation of private international law provisions in wider agreements. In previous correspondence, as noted by the noble and learned Lord, Lord Mance, I referred, as an example, to the jurisdiction of the provisions of the 1961 Warsaw Convention, which is concerned with international carriage by air. The point made by the noble and learned Lord, Lord Mance, was: why would you seek a power to implement such a private international law provision outwith the wider terms of the relevant international agreement? There may be some force in that point. It is one that I would like to consider further, and I will do so before we reach Report.
Amendment 6, which was just referred to by noble Lords, seeks to remove legal aid from the scope of the matters about which Clause 2 regulations can make provision. In the light of the observations of the noble Lord, Lord Thomas, perhaps I should explain that the Bill as presently drafted does not expressly include legal aid in the scope of the definition of private
international law. However, under Clause 2(5)(c), it allows for regulations that implement or apply a private international law agreement to make provision for legal aid. This would mean that, where a private international law agreement to which the UK chose to become a party included obligations in relation to legal aid, those could be given domestic effect through Clause 2 regulations.
The reason for that approach to the matter of private international law and legal aid in the Bill is that, although there is some doubt about whether legal aid is typically encompassed in the scope of what is referred to as private international law as generally understood by practitioners and academics, there are circumstances in which a private international law agreement could contain specific legal aid provisions. This normally arises, as one might expect, in the field of family law. For example, there is a requirement in the 1980 Hague Convention on international child abduction for a contracting state to apply the same legal aid rules to citizens of, and persons habitually resident in, other contracting states in matters covered by the convention as it would to its own citizens and residents. It is therefore the Government’s view that, should similar conventions arise in the future providing for critical cross-border co-operation in matters of private international law, it would be unfortunate if there were to be a delay in people benefiting from the provisions of such an important convention.
Where a private international law agreement imposes requirements relating to legal aid that go beyond the sorts of areas for which the United Kingdom Government currently provide such funding domestically, we would need to think very carefully before proceeding. However, the normal process of consultation during the development of, and before taking the international steps to join, a convention of this nature would provide an opportunity for consideration of any legal aid implications.
In short, the amendment would create unhelpful doubt around whether the Clause 2 power could be used to implement a private international law agreement that included provisions relating to legal aid, and indeed it might even render that impossible.
Amendment 9 seeks to restrict the Clause 2 power to implement in domestic law only the private international law agreements to which the UK is already a contracting party and nothing further. It will not be possible for the Government to take the final steps necessary under international law for the United Kingdom to become bound by a new agreement in this area, such as depositing an instrument of ratification, because, in order to do that, the necessary implementing legislation must already have been made and, as a result of this amendment, it would need a different legislative vehicle.
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This amendment would make it more difficult for us to remain, as it were, a player at international forums such as the Hague Conference on Private International Law because if the new conventions were adopted there, and we intended the United Kingdom to become bound by them, we would not have a ready-made legislative vehicle for their implementation in domestic law in what might be regarded as a timely
manner. More immediately, the amendment may mean that we could not use the power to implement existing private international law agreements that the United Kingdom either seeks to join or is considering joining in future; that would include the Lugano convention, subject to our application being successful. On Lugano, that is particularly problematic because there would not be time to take through bespoke primary legislation between the outcome of our application being known and the end of the transition period.
I turn to the first of what appear to be several amendments proposing to amend the definition of private international law in Clause 2(7). The first, Amendment 10, seeks to change the definition from non-exhaustive to exhaustive. That means that, for an agreement to be implemented via the delegated power in Clause 2, it must relate to rules and provisions about a matter expressly listed in the paragraphs of the definition at Clause 2(7). The reason the Bill contains a detailed but indicative, rather than exhaustive, definition of private international law is that there is no standard exhaustive definition of private international law.
It is generally recognised, however, that private international law agreements belong to a very narrow category of agreement in a specialist area of law. Our definition aims to give a detailed indication of the sort of matters typically contained in such international agreements. These are generally understood to reflect the limits of the expression “private international law”. The definition is based on examples of existing private international law agreements or instruments. We are confident that it will be generally clear whether an agreement falls under the power, which will not be able to be used to implement agreements outside the usual scope of the narrow field that is private international law.
In the case of multilateral agreements, these are likely to be agreements adopted at international forums such as the Hague Convention; we currently participate in 13 Hague Conventions. We are, of course, aware that the Hague conference has a busy programme of work on new private international law projects. This could lead to a new or updated convention or other instruments on private international law that we may wish to implement in due course. It is also possible, then, that new or updated agreements may contain provisions that fall outside an exhaustive definition of private international law, or there may be uncertainty as to whether the power in the Bill could be used to implement it if the definition is drafted exhaustively. New primary legislation would then be needed for the United Kingdom to meet its international obligations fully. Again, that has the implication of delay.
A past example of a private international law agreement that includes supplementary provisions in relation to which there could have been some doubt over whether they fell within the core concept of private international law rules is the 1980 Hague Convention on international child abduction. This convention, adopted by the Hague Conference on Private International Law, is primarily about the recognition and enforcement of decisions and cross-border administrative co-operation between relevant authorities, but it includes obligations around the prompt return of a child that may not be considered fitting within an overly restrictive definition of private
international law. That is why I believe we have taken an appropriate approach to give sufficient clarity on the scope of the Bill, while allowing us not to limit unduly its effectiveness to accommodate some margin or flexibility that will future-proof our legislative requirements in that area.
Amendment 11 seeks to remove the express reference to arbitral awards, alluded to by a number of noble Lords. It is not clear whether the intention of the amendment is to remove any agreement on private international law concerning arbitration from the scope of Clause 2, but it is at least doubtful whether in practice the amendment would have that effect. Let me be clear, as I hope I was before, that the Government recognise the importance of arbitration and the role of the New York convention on the recognition and enforcement of foreign arbitral awards. Arbitration has of course been a real success story for the United Kingdom legal services sector, with London a leading global seat for international arbitrations. Of course, we want to support this in the years to come and thus ensure that London remains a global centre for arbitration.
Perhaps I may turn for a moment to the amendment in question because what I want to be clear about is this. The Government do not intend to use the Clause 2 power to amend the current implementation in domestic law of the New York convention. There are certainly no plans to implement any specific international agreements in private international law covering aspects of arbitration. But the definition of private international law, as currently drafted, covers rules on the recognition and enforcement of various types of decisions or agreement that determine or relate to rights and obligations ranging from court judgments to private agreements, such as agreements between parents on maintenance payments, and we consider that the rules on the recognition and enforcement of arbitral awards would naturally fall within that range. By expressly including arbitral awards in the scope of the private international law definition, we ensure that we can capitalise on any developments in the years to come in private international law, including those related to arbitration, and that arbitration is not separated from—indeed, potentially left behind—other aspects of international law implementation in the future. Again, I seek to reassure noble Lords that any broader change in our approach to arbitration, including arbitral awards, would include full consultation with the sector. We have no intention of changing our approach in this area at present.
Amendment 12 also seeks to narrow the definition of private international law in Clause 2(7) by providing that, in terms of rules and provisions about co-operation between judicial and other authorities on procedural matters, only the service of documents and the taking of evidence would be expressly included in scope. It is well understood and accepted that for substantive private international law rules relating to jurisdiction-applicable law in recognition and enforcement to operate effectively, there needs to be a level of procedural co-operation between the relevant authorities in the participating countries. While I accept that the most important elements of this procedural co-operation have, at least traditionally, been the serving of documents
and the taking of evidence across borders, it is not true to say that these are the only matters on which such co-operation has existed. For example, the European Union has also had procedural rules in respect of the operation of cross-border small claims procedures and cross-border orders of payment, In my view, the inclusion of the words “and other procedures” provides helpful clarity that the power in Clause 2 could be applied should we wish in the future to implement any private international law agreements that contain similar procedural and technical co-operation alongside more traditional rules, and make that effective.
Amendment 13 seeks to narrow the definition of private international law by limiting the class of rules and provisions about co-operation between judicial or other authorities which are expressly included in the definition of private international law to those which are about service of documents, taking of evidence and other procedures, or exclusively about matters of jurisdiction, applicable law and recognition and enforcement of the types of foreign judgment and agreement listed therein.
To my eyes, the practical effect of the amendment is unclear. As I referred to earlier, the definition of private international law has deliberately been drafted to be non-exhaustive, and this amendment would not by itself change that. However, it could potentially add unhelpful confusion as to the Government’s intentions when reviewed by practitioners.
To deliver its full benefit, the power in Clause 2 must be able to be used to implement the full range of possible future private international law agreements in the years to come. Any attempt to restrict the power in the way the amendment proposes could result in primary legislation being required more often, leading again to potential delays in the implementation of relevant agreements.
Amendment 16 would remove Clause 2(8). Subsection (8) allows for the Government and devolved Administrations to implement any model law pertaining to private international law adopted by an international organisation of which the United Kingdom is a member. As has been noted, model laws on private international law have the same intent as international agreements relating to private international law—in other words, they seek to achieve uniformity and reciprocity in different jurisdictions—but rather than forming part of international law, as is the case with a treaty, model laws, as the noble and learned Lord, Lord Mance, observed, provide a template for countries to implement the same legal rules, adaptable where necessary, in a way that is suitable to their own jurisdiction. Model laws are not binding at international law. Countries can incorporate all or part of them into their domestic law in a way that accommodates diverse legal traditions. In the end, however, they have a very similar effect to international treaties: they reduce conflict between different jurisdictional laws and legal systems, and the effect is to enhance access to justice. They are often selected by international organisations as the most appropriate mechanism for co-operation because of this flexibility, and they allow for a wider number of countries to participate and co-operate in what might be regarded as shared principles and a common approach to cross-border issues.
Reference has already been made to insolvency, where the United Nations Commission on International Trade Law—UNCITRAL—model law on cross-border insolvency provides a common framework in which some 50 jurisdictions participate. I accept that the issue of model law is not subject to the CRaG process. Nevertheless, such model laws have an important role to play. They are a relatively recent phenomenon; they were not conceived when earlier legislation such as the 1920s Acts were being considered, but they are an important area of law. The power in Clause 2(8) is essentially of the same scope and subject to the same limitations as any binding international treaty implemented under the same clause. For example, such model laws will still need to fall under the definition of private international law and will be subject to consideration before they are drawn down into domestic law by reason of the affirmative procedure that I have previously referred to.
Clause 2 is therefore a reasonable and proportionate provision that delivers clear policy objectives. Of course, I understand why noble Lords have scrutinised the scope of the definition and probed our rationale for it. In a way, it is almost a shadow of the wider objection that is taken to Clause 2 as a whole, but these amendments would not add to what is carefully drafted legislation and, in some respects, would detract from its clarity. It is in these circumstances that I invite the noble and learned Lord not to withdraw his amendment.
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