My Lords, I declare an interest as a practitioner in the field of private international law and as joint chair of the Lord Chancellor’s advisory committee on private international law, to which reference has been made. I do not, of course, speak in that capacity and, as I mentioned on a previous occasion, that committee was not consulted about this Bill before its original introduction, although we have been very happy to be involved subsequently in relation to machinery under and related to the Bill.
I too welcome the Minister to his place and possibly, in succession to his predecessor the noble and learned Lord, Lord Keen of Elie, to a co-chairing of that committee with me. I would of course welcome that very much. I particularly welcome his measured and very careful consideration of the issues raised by the Bill. Described as “technical”, it has happily and rightly also been described as “important”. It is promoted as part of the United Kingdom’s preparation for the post-Brexit era—I will come back to that. It will certainly introduce into the UK’s legal systems three identified and very valuable Hague conventions, which have been mentioned, including the choice of court convention of 2005. As the noble and learned Lord, Lord Falconer of Thoroton, said, what has been controversial is the provision for the introduction by delegated legislative regulations of any number of further private international law measures which might be agreed at international level during an indefinite future.
I hope that I shall not be thought ungrateful in what follows for the mercies which have been granted. Certainly, the amendment relating to offences and the removal of the delegated power to create criminal offences punishable by imprisonment is highly welcome. So too is the Government’s agreement to limit the operation of Clause 2 to an operative period of five
years. However, that is renewable, as has been pointed out, so that is not as large a change as the House wished —and I think would still wish—to see. The five-year period is capable of being extended by regulations and, moreover, more than once. In that respect, I support what the noble and learned Lord, Lord Falconer of Thoroton, said.
If the Bill is addressing the post-Brexit era, let us truly hope that that at least will be well and truly past within 10 years. In any event, we should be under no illusion that any great volume of instruments is likely to require attention under the Bill. Again, I echo a point that the noble and learned Lord, Lord Falconer, made. We know that the Government have, for better or worse, decided, if permitted by the European Union, to sign up to membership of the Lugano Convention 2007—that paler image of the present Brussels regime, which, as I previously remarked, is well accepted and understood, and popular in the City in particular. The signing up to the Lugano Convention 2007 will, as I have also pointed out, largely undo as regards EU states the potential benefits of signing up to the Hague choice of court convention 2005. That is because Lugano trumps the choice of court convention under the internal terms providing for their priority.
Apart from that, the 2019 Hague convention is a possibility which has been mentioned. It relates to recognition of judgments and one day, but certainly not soon, it may come into play as a possibility. At the moment it has no subscriptions of any significance at all. Then there is the Singapore mediation convention, previously much loved by government speakers here and in another place—but I am glad to see that, I think realistically, it was not mentioned by the noble and learned Lord, Lord Stewart. Its significance in promoting the enforcement of agreements reached as a result of mediation is certainly commendable but hardly earth shattering, those agreements being in any case enforceable at common law.
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The reality is that as a country we do not go around the world trying to reach new ad hoc agreements regarding private international law matters, whether on jurisdiction or on recognition or enforcement of judgments. Such matters are nowadays undertaken at a regional—for example, EU—level or at an international level, such as the Hague conference level, which has produced the three conventions to which we will sign up under Clause 1. The UK is currently playing its part, and the Lord Chancellor’s advisory committee has been involved in relation to the discussions in The Hague regarding the possible supplementing of the 2019 convention by a lis pendens and/or forum conveniens convention—in other words, a convention dealing with the plague or problem of concurrent litigation in different countries. However, there never has been and there is unlikely ever to be, at least after the end of this year, any imperative to make immediate decisions about accession to or implementation of private international measures. As has been pointed out previously, they have in the past merited parliamentary consideration on the Floor of this House. Indeed, I consider that the merits or demerits of the Lugano Convention would have been such a matter. It will not get that consideration,
but future measures should. Even if Clause 2 goes through as it is, that, as has been pointed out, does not preclude Ministers from bringing matters to the House in the ordinary, traditional way.
I will not go back at length on the limited number of past measures which have allowed a limited degree of delegated legislation in this field: the Administration of Justice Act 1920, a measure covering other of Her Majesty’s jurisdictions overseas, and the Foreign Judgments (Reciprocal Enforcement) Act 1933. These Acts deal with judgments which would anyway have been enforceable by action at common law and were simply given a convenient means of enforcement by statutory delegated legislation. They did not cover jurisdiction but only recognition and enforcement of judgments. I endorse what the noble and learned Lord, Lord Falconer, said on that. I see that reference was made in another place to the Mental Capacity Act 2005, but that is a wholly unpersuasive precedent which simply enabled the bringing into force by regulations of the specific Hague Convention on the International Protection of Adults 2000. In other words, it is a parallel to Clause 1, which brings into force specific Hague conventions, and not a parallel to the present Clause 2 that we are considering.
The appropriate course in private international matters which are important is that wherever possible they should receive full parliamentary attention before international ratification. Looking back over the history of legislation, there is the Civil Jurisdiction and Judgments Act 1982, but it also occurred in relation to legislation which has been mentioned previously: the Carriage by Air Act 1961 and the Carriage of Goods by Road Act 1965, which are hybrid—they have provisions extending outside private international law.
Three committees had no doubt about the inappropriateness of the reinstated clause—two of them have been mentioned—and the Constitution Committee noted the inadequacy of CRaG as a means of scrutiny of matters proceeding at international level. One hopes that will be addressed at some point, but it is a fact at the moment. So my message would be that if Clause 2 is to stay in the Bill, we should welcome the concessions which have very helpfully been made, but we should do all we can still further to limit its presence as an intruder. I therefore support the amendment of the noble and learned Lord, Lord Falconer, in that respect.
The amendment to Amendment 4B tabled by the noble Lord, Lord Marks, which I also support, arises again from another small governmental step, for which I express gratitude. However, it is not a very large one. Under it, before making regulations, the Secretary of State must
“consult such persons as the Secretary of State thinks appropriate.”
Well, no doubt that means that he cannot simply consult his own conscience or go into the next room, but I suppose he might go out into Petty France. It is completely open, and of a generality and subjectivity which is not very helpful. Therefore, I welcome the suggestions that have been made and the assurances which the Minister has given today about actual intentions.
The background, as I have said, is that there was no consultation with the Lord Chancellor’s advisory committee about the original Bill, so any assurances
now are valuable. Those proposed by the noble Lords, Lord Marks of Henley-on-Thames and Lord Pannick, are welcome in the interests of, first, public consultation, which will generally be appropriate; it may not be appropriate in every case but it is generally important. Family and commercial issues arouse great interest around the country. Secondly, there should be an objective process, and thirdly, it should be transparent.
The amendment in the name of the noble Lord, Lord Marks, selects three persons whom he suggests—and I endorse—should be introduced as consultees, at least to identify other consultees. One could, as has been suggested and as the noble Lord, Lord Pannick, mentioned, identify the presence of the Law Society and the Bar as invaluable contributors, as well as the senior judiciary. One way or another, such persons would have the independent task of identifying relevant stakeholders, which would ensure objectivity and completeness in consultation.
The present phrase has a certain bathetic quality about it, which the Minister has done a considerable amount to dispel. I repeat my welcome for that but I ask him to give the assurances requested by the noble Lords, Lord Marks and Lord Pannick. On that basis, the Bill would be on a sounder footing and those of us who had understandable concerns about it would, I hope, find them considerably alleviated.