This is a revised version to correct an error in paragraph 33

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

Explanatory Notes

Commentary on provisions of Bill

Implementation of international agreement

Clause 1: Implementation of the 1996, 2005 and 2007 Hague Conventions

35 This clause amends the Civil Jurisdiction and Judgments Act 1982 ("the 1982 Act").

36 Clause 1(1) inserts a definition of the 1996 Hague Convention into section 1(1) of the 1982 Act, which is the section dealing with interpretation of references to Conventions in that Act. The 1982 Act already contains definitions of the 2005 and 2007 Hague Conventions.

37 Clause 1(2) inserts new sections 3C, 3D and 3E into the 1982 Act, providing for the 1996, 2005 and 2007 Hague Conventions respectively to have the force of law in the UK, subject to any reservations and declarations made by the UK. The UK made the declarations to the 1996 Hague Convention which are referred to in new section 3C (2) when it joined that Convention in 2012. The UK intends to accede to the 2005 Hague Convention, and ratify the 2007 Hague Convention, during Autumn 2020 and will make declarations and a reservation to those Conventions in the form already approved by Parliament when those Conventions were laid in Parliament for scrutiny under the CRAG Act 2010 in 2018 (see paragraph 15 above).

38 Clause 1(3) inserts into the 1982 Act the Schedules set out in Schedules 1 to 4 to this Bill, which comprise the text of the three Hague Conventions, and of the declarations which the UK made in 2012 in relation to the 1996 Hague Convention. The Government intends to use the power in clause 2 of the Bill to amend the 1982 Act to insert Schedules containing the text of the reservation and declarations the UK will make for the 2005 and 2007 Hague Conventions, once it has submitted its instruments of accession and ratification to those Conventions, in Autumn 2020.

39 Clause 1(4) introduces Schedule 5 which contains provisions consequential on clause 1 of the Bill.

40 Paragraph 1 of Schedule 5 adds the 1996 Hague Convention to the list of Conventions in relation to which the existing rule-making power in section 48 of the 1982 Act may be exercised, as a consequence of the 1982 Act being amended by the Bill to insert provisions implementing that Convention. This power already applies in relation to the 2005 and 2007 Hague Conventions.

41 Paragraph 2 provides for section 4 of the European Union (Withdrawal) Act 2018 to cease to apply to directly effective rights derived from the 1996, 2005 and 2007 Hague Conventions.
It will not be necessary to rely on these directly effective rights, saved by section 4 of the 2018 Act, once the provisions of clause 1(2) of the Bill have provided for those Conventions to have the force of law. This is subject to the savings for "section 4 rights" in the EU Exit Regulations referred to in subparagraph (2).

42 Paragraphs 3 and 4 make consequential amendments to the EU Exit Regulations made in exercise of the powers in section 8 of the European Union (Withdrawal) Act 2018 in relation to the directly effective treaty rights derived from the 2005 and 2007 Hague Conventions.

43 Paragraph 5 makes minor amendments to headings in the 1982 Act.

44 Paragraph 6 revokes the Council Decision, adopted by the EU, authorising Member States to join the 1996 Hague Convention. This Council Decision will otherwise be saved in domestic law by section 3 of the European Union (Withdrawal) Act 2018, but is redundant.

Clause 2: Implementation of other agreements on private international law

45 Clause 2(1) gives an "appropriate national authority" the power to make regulations (secondary legislation) to implement international agreements on PIL. The power can also be used to amend existing domestic provisions implementing a PIL agreement if any changes to its implementation are required.

46 Clause 2(2) provides that regulations may also be made to implement an international agreement on PIL for application between England & Wales, Scotland and Northern Ireland, so the same rules can be applied in cases raising cross-border issues between the three different legal jurisdictions in the UK, even if that is not a requirement of the international agreement itself.

47 Clause 2(3) provides that regulations may be made to give effect in UK domestic law to any arrangements for applying a relevant international agreement on PIL (with or without modifications), entered into by the Government and the Crown Dependencies and Overseas Territories. The term "relevant territory" is defined in clause 2(7).

48 Clause 2(4) and (5) make further provisions about the sorts of provisions regulations made under clause 2(1) may include. Clause 2(5) makes clear that regulations may implement obligations in a PIL agreement which relate to the provision of legal aid or provisions which concern the sharing of information between courts or competent authorities dealing with cross border disputes. Clause 2(5) also makes clear that regulations may include enforcement provisions, but these will be subject to the restrictions in paragraph 1 of Schedule 6.

49 Clause 2(6) introduces Schedule 6.

50 Clause 2(7) provides definitions of various terms used in clause 2.

51 The effect of the definition of "appropriate national authority" is that the power in clause 2(1) could be exercised by a Secretary of State in relation to England and Wales, the Scottish Ministers in relation to Scotland, and a Northern Ireland department in relation to Northern Ireland. The Secretary of State may also make regulations in relation to Scotland and Northern Ireland but only with the consent of the relevant devolved administrations.

52 The definition of "international agreement" covers a convention, treaty or agreement to which the UK has already become a contracting party or to which it intends to become a contracting party (for example, it may have signed but not ratified the agreement). This ensures that it will be possible to exercise the power in clause 2(1) to make implementing regulations before an agreement is ratified. It is normal practice to ensure that domestic implementing legislation is in place before the UK formally becomes bound by an international obligation, so that it is able to comply with it immediately.

53 The definition of "private international law" provides examples of the sorts of issues typically covered by international agreements in this field of law. The definition means that the power could be used, for example, to implement the 2007 Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, the 2019 Singapore Agreement on Enforcement of Mediated Settlement Agreements, and the 2019 Hague Convention on Recognition and Enforcement of Judgments in Civil and Commercial Matters, should the Government decide to join these in future.

54 Clause 2(8) provides for the implementation of model laws relating to PIL adopted by an international organisation of which the UK is a member. It provides that the regulation making power in clause 2(1) may be used to "give effect to" – rather than "implement" – a model law, because the text of a model law is not binding in the way that an international agreement is, and states may adapt a model law when giving effect to it.

55 Clause 2(6) introduces Schedule 6 which sets out restrictions on the use of the power in clause 2 and the legislative procedure to be followed when making regulations under clause 2.

56 Paragraph 1(1)(a) of Schedule 6 provides that regulations made under clause 2 may not themselves confer a new power to legislate, other than a power to make procedural rules for courts or tribunals, but can modify or extend an existing power. Paragraph 1(1)(b) imposes limits on making regulations which create an offence subject to a term of imprisonment.

57 Paragraphs 2 to 6 deal with the procedure and Parliamentary scrutiny for making regulations under clause 2. Paragraph 2 provides that the power to make regulations is exercisable by statutory instrument, or in relation to Northern Ireland, by statutory rules. For regulations made by the Scottish Ministers, see section 27 of the Interpretation and Legislative Reform (Scotland) Act 2010. Paragraph 3 deals with the procedure for regulations made by the Secretary of State. Paragraph 4 deals with the procedure for regulations made by the Scottish Ministers. Paragraph 5 deals with the procedure for statutory rules made by a Northern Ireland department. In each case, the affirmative procedure will be triggered if the regulations:

are implementing a new international agreement on PIL for the first time in domestic law, or a new arrangement entered into between different jurisdictions in the UK, or between the UK and an Overseas Territory or Crown Dependency to apply an arrangement based on an international agreement (suitably modified) between them;

create, extend or increase the penalty for a criminal offence; or

amend primary legislation (defined by paragraph 6 to include an Act of the Scottish Parliament, and Act or Measure of the Welsh Assembly or any Northern Ireland legislation).

58 It is anticipated that most regulations made under the power will trigger the affirmative procedure because they will be implementing new agreements which the UK has decided to join. However, it is possible that regulations may need to be made subsequently to make adjustments to technical or procedural aspects of the approach to implementation originally adopted when an agreement was first implemented. For example, an update to forms to be used, or as indicated above, to schedule the text of the declarations and reservation which will be made when the UK joins the 2005 and 2007 Hague Conventions as a contracting party in its own right after the end of the transition period. However, in the latter case it is also likely that the affirmative procedure will anyway be triggered because primary legislation is being amended.

59 International agreements on PIL rarely contain provisions about criminal offences, but it may be necessary when implementing some agreements, for example in the field of family law, to create enforcement provisions involving criminal offences. This is likely to be the case where there is already an equivalent domestic enforcement provision involving criminal offences. For example, breaches of "protection measures" such as non-molestation orders in England and Wales under Part 4 of the Family Law Act 1996 or injunctions under section 3 of the Protection from Harassment Act 1997, may be punishable as criminal offences. Paragraph 1 of Schedule 6 restricts national authorities from making regulations which create criminal offences imposing sentences of imprisonment of more than two years.

General

Clause 3: Crown Application

60 Clause 3 provides that the amendments made by the Bill to the Civil Jurisdiction and Judgments Act 1982 bind the Crown in accordance with section 51 of that Act which provides that the 1982 Act binds the Crown, subject to certain exceptions. Regulations made under clause 2 of the Bill may also contain provisions binding the Crown, subject to the same exceptions.

Clause 4: Extent, commencement and short title

61 Clause 4(1) provides that the Bill extends to England and Wales, Scotland and Northern Ireland.

Schedules 1 to 6

62 See paragraphs 38-44 and 55-59.

 

27th February 2020