My Lords, we debated Clause 2 at great length at Second Reading and in Committee, and I note the further observations made by noble, and noble and learned, Lords with regard to the issue. As I have explained, the Bill is about implementing in domestic law treaties that we have already determined to join. Parliament will be afforded scrutiny under the Constitutional Reform and Governance Act 2010—CRaG—process prior to ratification. If it is not content, ratification will not occur.
While I acknowledge that there are differing views as to how effective CRaG has been to this point, it is perhaps important to recognise that, as of 28 January this year, Parliament has decided to strengthen its procedures around the CRaG process by agreeing to create a new sub-committee of the European Union Committee to focus on treaties laid under the procedure. This should provide additional opportunities for scrutiny in this area. The Government look forward to engaging with the committee on these matters. I note the point made by the noble and learned Lord, Lord Mance, but I observe that ratification will ultimately be a matter for Parliament before implementation of an international agreement could ever take place.
Furthermore, as with other powers to implement international agreements by way of secondary legislation that exist in the fields of, for example, taxation or social security, we are talking about private international law agreements that are, by their nature, quite technical in their terms. The details of any rules contained in these sorts of agreements will already have been determined at the international level and are usually, by their very nature, clear and precise. The power seeks to allow Ministers to bring forward regulations to effectively implement rules that have been agreed with our international partners and to bring them into domestic law.
It is our view that the level of scrutiny afforded to the implementation of new agreements on private international law is reasonable and proportionate. The implementation of any such agreements would require an affirmative statutory instrument. Noble Lords will be aware that affirmative SI debates in this place are often very thorough, as they should be. There is no reason to suppose that there would be anything other than rigorous debate on the issue of implementation, just as there would be regarding ratification under CRaG.
It was argued in Committee and touched on this afternoon that there was a risk, under our approach, of a statutory instrument made under Clause 2 being struck down as non-compliant with, for example, the Human Rights Act 1998. Of course, that is true of any secondary legislation that the Government bring forward. However, the risk in respect of private international law agreements is not likely to be great. Indeed, I struggle to envisage a situation where the United Kingdom and its international partners would collectively agree a private international law treaty that was not compliant with the European Convention on Human Rights.
It remains the view of the Government that, in spite of the concerns raised, this power is necessary if we are to achieve our objective of building on the United Kingdom’s leadership role in private international law
in the years to come. The noble Lord, Lord Holmes of Richmond, mentioned the importance of the choice of English law and jurisdiction, and if we are going to maintain that important role, we must ensure that we are in a position to move effectively—and that may mean rapidly—in the implementation of private international law agreements. That would allow us to make the most of the competence that will return to us at the end of the transition period.
As has been noted by noble Lords and noble and learned Lords, in the immediate term we have specific concerns about accession to the Lugano Convention 2007, and there are further issues with regard to other conventions that have been mentioned. We may not know the outcome of the United Kingdom’s application to accede to the Lugano Convention for some months, and we cannot implement this convention unless and until the terms of our accession are agreed with the existing contracting parties, including the European Union. So there is a very real concern that there will not be sufficient parliamentary time for bespoke primary legislation to be drafted and taken through Parliament before the end of the transition period. That would mean a delay in our ability to implement the Lugano Convention, with serious adverse effects on United Kingdom businesses, individuals and families with regard to cross-border disputes after the end of the transition period.
Beyond the implementation of Lugano, the power is essential also, in our view, for future private international law agreements. Mention was made of the Singapore Convention on Mediation and the 2019 Hague Convention on Recognition and Enforcement of Foreign Judgements in Civil or Commercial Matters. I acknowledge, as a number of noble and learned Lords observed, that the pace with which such conventions proceed can be relatively slow, but as and when there is the necessary conclusion and ratification, it may be necessary to find appropriate time in which to ensure implementation in domestic law. If that is not possible by way of primary legislation, we are liable to find ourselves at a distinct disadvantage in that respect.
The extension of this to the matter of arbitration was also mentioned, I believe by the noble and learned Lord, Lord Mance. The rules on recognition and enforcement of arbitral awards do of course fall within the definition of private international law. We recognise the success of the New York Convention, and that arbitration more broadly is an important matter approached by reference to that convention. The Government are not planning any change to our approach to arbitration, nor are we aware of any planned updates to the New York Convention, which is the leading international instrument in this area. We acknowledge that arbitration is a sensitive area, and that the current arrangements work well. I reassure noble Lords that, if there were any changes to the current arrangements for arbitration, that would be a matter on which we would consult extensively.
I return to the matter of precedent, which was touched on by the noble and learned Lord, Lord Falconer of Thoroton. It has been argued that taking a delegated power of this sort is unprecedented. However, we do not accept this. Our approach to Clause 2 broadly reflects
the way in which we have implemented private international law agreements in recent years as an EU member state, under Section 2(2) of the European Communities Act 1972. Delegated powers have been taken to implement international agreements on private international law and in other contexts. That has been touched on already.
Of course, there are more recent instances—for example, the noble and learned Lord, Lord Wallace, raised the Mental Capacity Act 2005, which contains extensive and important delegated powers in this area, concerning the ratification of the 2000 Hague Convention on the International Protection of Adults, and the extension and ratification of that for England and Wales.
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The 2005 Act was, of course, passed by a previous Labour Government, and was introduced at Second Reading in this House on 10 January 2005 by the noble and learned Lord, Lord Falconer, in his capacity as Lord Chancellor and Secretary of State for Constitutional Affairs at the time. This is an example of primary legislation that contains powers—Henry VIII powers—to make regulations to give further effect to a private international law agreement, in this instance Hague 2000, as well as other broad general powers to otherwise make regulations. Indeed, as Schedule 3 to the 2005 Act says:
“Regulations may make provision … otherwise about the private international law of England and Wales in relation to the protection of adults”
and
“may … make provision about countries other than Convention countries.”
I wish we had thought of such broad powers when we were drafting this Bill.
When, at Report stage of the Bill that became the 2005 Act, the then Government had the opportunity to explain the delegated powers that they required under that Act, they explained their rationale as follows:
“These regulations provide us with flexibility, allowing us to amend the Bill in the light of developments with the Hague Convention on the International Protection of Adults, once the convention has come into force”.—[Official Report, 17/3/05; col. 1551.]
That echoes observations made in Committee on behalf of this Government with regard to these delegated powers. I appreciate that they are less wide-ranging than those embraced by Schedule 3 to the 2005 Act, but they are nevertheless there to allow flexibility, so that we can keep pace with international developments in areas of law as relevant today as they were in 2005.
I appreciate that is perhaps not uncommon for some to undergo a damascene conversion on the road from government to opposition but, with respect, it appears to me that a power seen as essential for flexibility in 2005—a power that we now see would be applied consequent on the amendment tabled by the noble and learned Lord, Lord Wallace, to ratify the 2000 convention in England and Wales—is one which we can properly consider appropriate in other contexts.
In summary, while I note the concerns raised about this power, for the reasons that I have sought to set out I do not accept that it is without precedent or, indeed, disproportionate. We consider it necessary and important.
It is essential if we are to maintain our position as an appropriate jurisdiction and choice of law. I therefore urge the noble and learned Lord to withdraw his amendment.