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House of Commons Hansard
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Private International Law (Implementation of Agreements) Bill [Lords]
06 October 2020
Volume 681

Considered in Committee

[Dame Eleanor Laing in the Chair]

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I should explain that, in these exceptional circumstances, although the Chair of the Committee would normally sit in the Clerk’s chair during Committee stage, in order to comply with social distancing requirements, I will remain in the Speaker’s Chair, although I will be carrying out the role not of Deputy Speaker but of Chairman of the Committee. During Committee, the occupant of the Chair should be addressed as Chair of the Committee, rather than as Deputy Speaker.

Clause 1

Implementation of the 1996, 2005 and 2007 Hague Conventions

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I beg to move amendment 2, page 2, line 20, at end insert—

3F The 2007 Lugano Convention to have the force of law

(1) The 2007 Lugano Convention shall have the force of law in the United Kingdom.

(2) For the purposes of this Act the 2007 Lugano Convention is to be read together with any reservations or declarations made by the United Kingdom at the time of the approval of the Convention.

(3) For convenience of reference the English text of the 2007 Lugano Convention is set out in Schedule 3H.”

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With this it will be convenient to discuss the following:

Amendment 3, page 2, line 21, leave out “3G” and insert “3H”.

Amendment 4, page 2, line 22, leave out “4” and insert

“(Schedule to be inserted as Schedule 3H to the Civil Jurisdiction and Judgments Act 1982)”.

Amendment 1, page 2, line 24, at end insert—

“(5) The 2007 Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgements in Civil and Commercial Matters shall have the force of law in the United Kingdom, conditional upon the United Kingdom accession to such Convention.”

Clause 1 stand part.

Government amendment 5.

This amendment provides that regulations made under NC5 may make provision binding the Crown.

Clause 2 stand part.

Government amendment 6.

This amendment inserts a new subsection into Clause 3. This allows Her Majesty by Order in Council to extend to the Isle of Man NC5 (including NS4) and subsections (2) and (3) of Clause 2 inserted by Amendment 5.

Clause 3 stand part.

Government new clause 5—Implementation of other agreements on private international law (No. 3)

“(1) The appropriate national authority may make regulations for the purpose of, or in connection with, implementing any international agreement, as it has effect from time to time, so far as relating to private international law (a ‘relevant international agreement’).

(2) The appropriate national authority may make regulations for the purpose of, or in connection with, applying a relevant international agreement, with or without modifications, as between different jurisdictions within the United Kingdom.

(3) The appropriate national authority may make regulations for the purpose of, or in connection with, giving effect to any arrangements made between—

(a) Her Majesty’s government in the United Kingdom, and

(b) the government of a relevant territory,

for applying a relevant international agreement, with or without modifications, as between the United Kingdom, or a jurisdiction within the United Kingdom, and that territory.

(4) Regulations under this section may make—

(a) consequential, supplementary, incidental, transitional or saving provision;

(b) different provision for different purposes or for different parts of the United Kingdom.

(5) Regulations under this section may include provision about—

(a) enforcement of obligations arising under or by virtue of the regulations;

(b) sharing of information;

(c) legal aid.

(6) Schedule (Regulations under section (Implementation of other agreements on private international law (No. 3))) makes further provision about regulations under this section.

(7) In this section—

‘appropriate national authority’ means—

(a) in relation to England and Wales, the Secretary of State;

(b) in relation to Scotland—

(i) the Scottish Ministers, or

(ii) the Secretary of State acting with the consent of the Scottish Ministers;

(c) in relation to Northern Ireland—

(i) a Northern Ireland department, or

(ii) the Secretary of State acting with the consent of a Northern Ireland department

‘international agreement’ means a convention, treaty or other agreement to which the United Kingdom is, or is expected to become, a party;

‘private international law’ includes rules and other provisions about—

(a) jurisdiction and applicable law;

(b) recognition and enforcement in one country or territory of any of the following that originate in another country or territory—

(i) a judgment, order or arbitral award;

(ii) an agreement, decision or authentic instrument determining or otherwise relating to rights and obligations;

(c) co-operation between judicial or other authorities in different countries or territories in relation to—

(i) service of documents, taking of evidence and other procedures, or

(ii) anything within paragraph (a) or (b);

‘relevant international agreement’ has the meaning given in subsection (1);

‘relevant territory’ means—

(a) the Isle of Man;

(b) any of the Channel Islands;

(c) a British overseas territory.

(8) This section and Schedule (Regulations under section (Implementation of other agreements on private international law (No. 3))) have effect, with the following modifications, in relation to a model law adopted by an international organisation of which the United Kingdom is a member as it has effect in relation to an international agreement to which the United Kingdom is, or is expected to become, a party.

The modifications are—

(a) a reference in this section or that Schedule to implementing or applying a relevant international agreement is to be read as a reference to giving effect to the model law (with or without modifications);

(b) subsection (1) is to be read as if the words ‘as revised from time to time’ were substituted for the words ‘as it has effect from time to time’.”

This new clause contains a power to implement international agreements relating to private international law.

Amendment (a) to Government new clause 5, in subsection (1), leave out from “implementing” to “relevant ” and insert “the”.

This amendment together with amendments (c), (d) and (g) is intended to ensure the powers in Government NC5 may be used only to implement the 2007 Lugano Convention.

Amendment (b) to Government new clause 5, in subsection (1), leave out “any” and insert “an”.

This amendment with Amendment (f) is intended to ensure that order making powers are confined to the international treaties set out in clause 1 only.

Amendment (c) to Government new clause 5, in subsection (2), leave out “a” and insert “the”.

See explanatory statement for Amendment (a).

Amendment (d) to Government new clause 5, in subsection (3), leave out “a” and insert “the”.

See explanatory statement for Amendment (a).

Amendment (e) to Government new clause 5, in subsection (6), leave out

“Schedule (Regulations under section(Implementation of other agreements on private international law (Amendment3)))”

and insert

“Schedule (Regulations under section(Implementation of other Agreements on Private International Law (Amendment 2)))”.

This amendment would provide for super-affirmative procedure to be applied in accordance with NS3 to regulations made under Government NC5.

Amendment (f) to Government new clause 5, in subsection (7), after “party”, insert

“and which is set out in section 1.”

This amendment with Amendment (b) is intended to ensure that order making powers are confined to the international treaties set out in clause 1 only.

Amendment (g) to Government new clause 5, in subsection (7), leave out

“has the meaning given in subsection (1)”

and insert

“means the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters signed at Lugano on 30th October 2007 (the ‘2007 Lugano Convention’);”.

See explanatory statement for Amendment (a).

New clause 1—Implementation of other agreements on private international law

“(1) The appropriate national authority may make regulations for the purpose of, or in connection with, implementing an international agreement, as it has effect from time to time, so far as relating to private international law (a ‘relevant international agreement’).

(2) The appropriate national authority may make regulations for the purpose of, or in connection with, applying a relevant international agreement, with or without modifications, as between different jurisdictions within the United Kingdom.

(3) The appropriate national authority may make regulations for the purpose of, or in connection with, giving effect to any arrangements made between—

(a) Her Majesty’s government in the United Kingdom, and

(b) the government of a relevant territory,

for applying a relevant international agreement, with or without modifications, as between the United Kingdom, or a jurisdiction within the United Kingdom, and that territory.

(4) This section applies (subject to subsection (5)) where the United Kingdom has authenticated a relevant international agreement.

(5) This section applies only if the proposed agreement is not binding on the United Kingdom as a matter of international law unless it is ratified by the United Kingdom.

(6) Before the United Kingdom ratifies the proposed agreement, a Minister of the Crown must lay before Parliament a report which gives details of the proposed agreement.

(7) In this section a reference to authenticating a relevant international agreement is a reference to doing an act which establishes the text of the agreement as authentic and definitive as a matter of international law.

(8) This section applies where a Minister of the Crown proposes to make regulations under subsections (1), (2) or (3) for the purpose of implementing a relevant international agreement to which the United Kingdom and another signatory (or other signatories) are signatories.

(9) A draft of the statutory instrument containing the regulations may not be laid before Parliament unless, at least 10 Commons sitting days before the draft is laid, a Minister of the Crown has laid before Parliament a report which gives details of, and explains the reasons for, the relevant international agreement.

(10) In this section ‘Commons sitting day’ means a day on which the House of Commons begins to sit.

(11) Regulations under this section may make—

(a) consequential, supplementary, incidental, transitional or saving provision;

(b) different provision for different purposes or for different parts of the United Kingdom.

(12) Regulations under this section may include provision about—

(a) enforcement of obligations arising under or by virtue of the regulations;

(b) sharing of information;

(c) legal aid.

(13) No regulations may be made under subsections (1),(2) or (3) after the end of the period of 2 years beginning with the date of enactment of this Act.

(14) In this section—

‘appropriate national authority’ means—

(a) in relation to England and Wales, the Secretary of State;

(b) in relation to Scotland—

(c) in relation to Northern Ireland—

‘international agreement’ means a convention, treaty or other agreement to which the United Kingdom is, or is expected to become, a party and which is set out in section 1 of this Act;

‘private international law’ includes rules and other provisions about—

(a) jurisdiction and applicable law;

(b) recognition and enforcement in one country or territory of any of the following that originate in another country or territory—

(c) co-operation between judicial or other authorities in different countries or territories in relation to—

‘relevant international agreement’ has the meaning given in subsection (1);

‘relevant territory’ means—

(a) the Isle of Man;

(b) any of the Channel Islands;

(c) a British overseas territory.

(15) This section has effect, with the following modifications, in relation to a model law adopted by an international organisation of which the United Kingdom is a member as it has effect in relation to an international agreement to which the United Kingdom is, or is expected to become, a party.

The modifications are—

(a) a reference in this section or that Schedule to implementing or applying a relevant international agreement is to be read as a reference to giving effect to the model law (with or without modifications);

(b) subsection (1) is to be read as if the words ‘as revised from time to time’ were substituted for the words ‘as it has effect from time to time’.”

This new clause is a modified version of clause 2 removed from the Bill by the House of Lords. This new clause requires a Minister to lay a report before Parliament at least 10 Commons sitting days before regulations implementing a relevant international agreement are laid in draft under subsections (1), (2) and (3) requires a Minister to lay a report before Parliament before the UK ratifies a private international law agreement with another country and contains a sunset provision.

New clause 2—Implementation of the 2007 Lugano Convention

“(1) The Secretary of State may make regulations for the purpose of, or in connection with, implementing the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters signed at Lugano on 30th October 2007 (the ‘2007 Lugano Convention’), in the event that the United Kingdom becomes a party to the Convention in its own right.

(2) The Secretary of State must consult the Scottish Ministers, the Welsh Ministers and a Northern Ireland Department before making regulations under subsection (1).

(3) Regulations under subsection (1) are subject to super-affirmative resolution procedure (see Schedule (Super-affirmative resolution procedure)).”

This new clause would enable the Secretary of State to make regulations implementing the Lugano Convention in the UK, subject to the super-affirmative resolution procedure in NS2.

New clause 6—Report on relevant international agreement

“(1) This section applies (subject to subsection (2)) where the United Kingdom has authenticated a relevant international agreement in accordance with section (Implementation of other agreements on private international law (No. 3)).

(2) This section applies only if the proposed agreement is not binding on the United Kingdom as a matter of international law unless it is ratified by the United Kingdom.

(3) Before the United Kingdom ratifies the proposed agreement, a Minister of the Crown must lay before Parliament a report which gives details of the proposed agreement.

(4) In this section a reference to authenticating a relevant international agreement is a reference to doing an act which establishes the text of the agreement as authentic and definitive as a matter of international law.”

This new clause requires a Minister to lay a report before Parliament before the UK ratifies a private international law agreement with another country.

New clause 7—Report to be laid with regulations under section 2(1), (2) or (3)

“(1) This section applies where a Minister of the Crown proposes to make regulations under section (Implementation of other agreements on private international law (No. 3)) (1), (2) or (3) for the purpose of implementing a relevant international agreement to which the United Kingdom and another signatory (or other signatories) are signatories.

(2) A draft of the statutory instrument containing the regulations may not be laid before Parliament unless, at least 10 Commons sitting days before the draft is laid, a Minister of the Crown has laid before Parliament a report which gives details of, and explains the reasons for, the relevant international agreement.

(3) In this section, ‘Commons sitting day’ means a day on which the House of Commons begins to sit.”

This new clause requires a Minister to lay a report before Parliament at least ten Commons sitting days before regulations implementing a relevant international agreement are laid in draft under subsections (1), (2) and (3) of Government NC5.

New clause 8—Sunset Provisions

“No regulations may be made under subsections (1),(2) and (3) of section (Implementation of other agreements on private international law (No. 3)) after the end of the period of 2 years beginning with the date on which this Act is passed.”

That schedule 1 be the First schedule to the Bill.

That schedule 2 be the Second schedule to the Bill.

That schedule 3 be the Third schedule to the Bill.

That schedule 4 be the Fourth schedule to the Bill.

That schedule 5 be the Fifth schedule to the Bill.

Government new schedule 4—Regulations under section (Implementation of other agreements on private international law (No. 3)).

New schedule 1—Schedule 4A

“Schedule to be inserted as Schedule 3H to the Civil Jurisdiction and Judgments Act 1982

SCHEDULE 3H

Text of the 2007 Lugano Convention

CONVENTION ON JURISDICTION AND THE RECOGNITION AND ENFORCEMENT OF JUDGMENTS IN CIVIL AND COMMERCIAL MATTERS

(Concluded on 30 October 2007)

The High Contracting Parties to this Convention,

Determined to strengthen in their territories the legal protection of persons therein established,

Considering that it is necessary for this purpose to determine the international jurisdiction of the courts, to facilitate recognition, and to introduce an expeditious procedure for securing the enforcement of judgments, authentic instruments and court settlements,

Aware of the links between them, which have been sanctioned in the economic field by the free trade agreements concluded between the European Community and certain States members of the European Free Trade Association,

the Brussels Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, as amended by the Accession Conventions under the successive enlargements of the European Union,

the Lugano Convention of 16 September 1988 on jurisdiction and the enforcement of judgments in civil and commercial matters, which extends the application of the rules of the 1968 Brussels Convention to certain States members of the European Free Trade Association,

Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, which has replaced the abovementioned Brussels Convention,

the Agreement between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, signed at Brussels on 19 October 2005,

Persuaded that the extension of the principles laid down in Regulation (EC) No 44/2001 to the Contracting Parties to this instrument will strengthen legal and economic cooperation,

Desiring to ensure as uniform an interpretation as possible of this instrument,

Have in this spirit decided to conclude this Convention, and have agreed as follows—

TITLE I

SCOPE

Article 1

(1) This Convention shall apply in civil and commercial matters whatever the nature of the court or tribunal. It shall not extend, in particular, to revenue, customs or administrative matters.

(2) The Convention shall not apply to—

(a) the status or legal capacity of natural persons, rights in property arising out of a matrimonial relationship, wills and succession;

(b) bankruptcy, proceedings relating to the winding-up of insolvent companies or other legal persons, judicial arrangements, compositions and analogous proceedings;

(c) social security;

(d) arbitration.

(3) In this Convention, the term ‘State bound by this Convention’ shall mean any State that is a Contracting Party to this Convention or a Member State of the European Community. It may also mean the European Community.

TITLE II

JURISDICTION

SECTION 1

General provision

Article 2

(1) Subject to the provisions of this Convention, persons domiciled in a State bound by this Convention shall, whatever their nationality, be sued in the courts of that State.

(2) Persons who are not nationals of the State bound by this Convention in which they are domiciled shall be governed by the rules of jurisdiction applicable to nationals of that State.

Article 3

(1) Persons domiciled in a State bound by this Convention may be sued in the courts of another State bound by this Convention only by virtue of the rules set out in Sections 2 to 7 of this Title.

(2) In particular the rules of national jurisdiction set out in Annex I shall not be applicable as against them.

Article 4

(1) If the defendant is not domiciled in a State bound by this Convention, the jurisdiction of the courts of each State bound by this Convention shall, subject to the provisions of Articles 22 and 23, be determined by the law of that State.

(2) As against such a defendant, any person domiciled in a State bound by this Convention may, whatever his nationality, avail himself in that State of the rules of jurisdiction there in force, and in particular those specified in Annex I, in the same way as the nationals of that State.

SECTION 2

Special jurisdiction

Article 5

A person domiciled in a State bound by this Convention may, in another State bound by this Convention, be sued—

(1) (a) in matters relating to a contract, in the courts for the place of performance of the obligation in question;

(b) for the purpose of this provision and unless otherwise agreed, the place of performance of the obligation in question shall be—

in the case of the sale of goods, the place in a State bound by this Convention where, under the contract, the goods were delivered or should have been delivered;

in the case of the provision of services, the place in a State bound by this Convention where, under the contract, the services were provided or should have been provided;

(c) if (b) does not apply then subparagraph (a) applies;

in the case of the sale of goods, the place in a State bound by this Convention where, under the contract, the goods were delivered or should have been delivered;

in the case of the provision of services, the place in a State bound by this Convention where, under the contract, the services were provided or should have been provided;

(2) in matters relating to maintenance—

(a) in the courts for the place where the maintenance creditor is domiciled or habitually resident; or

(b) in the court which, according to its own law, has jurisdiction to entertain proceedings concerning the status of a person if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties; or

(c) in the court which, according to its own law, has jurisdiction to entertain proceedings concerning parental responsibility, if the matter relating to maintenance is ancillary to those proceedings, unless that jurisdiction is based solely on the nationality of one of the parties.

(3) in matters relating to tort, delict or quasi-delict, in the courts for the place where the harmful event occurred or may occur;

(4) as regards a civil claim for damages or restitution which is based on an act giving rise to criminal proceedings, in the court seized of those proceedings, to the extent that that court has jurisdiction under its own law to entertain civil proceedings;

(5) as regards a dispute arising out of the operations of a branch, agency or other establishment, in the courts for the place in which the branch, agency or other establishment is situated;

(6) as settlor, trustee or beneficiary of a trust created by the operation of a statute, or by a written instrument, or created orally and evidenced in writing, in the courts of the State bound by this Convention in which the trust is domiciled;

(7) as regards a dispute concerning the payment of remuneration claimed in respect of the salvage of a cargo or freight, in the court under the authority of which the cargo or freight in question—

(a) has been arrested to secure such payment; or

(b) could have been so arrested, but bail or other security has been given;

provided that this provision shall apply only if it is claimed that the defendant has an interest in the cargo or freight or had such an interest at the time of salvage.

Article 6

A person domiciled in a State bound by this Convention may also be sued—

(1) where he is one of a number of defendants, in the courts for the place where any one of them is domiciled, provided the claims are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings;

(2) as a third party in an action on a warranty or guarantee, or in any other third party proceedings, in the court seized of the original proceedings, unless these were instituted solely with the object of removing him from the jurisdiction of the court which would be competent in his case;

(3) on a counter-claim arising from the same contract or facts on which the original claim was based, in the court in which the original claim is pending;

(4) in matters relating to a contract, if the action may be combined with an action against the same defendant in matters relating to rights in rem in immovable property, in the court of the State bound by this Convention in which the property is situated.

Article 7

Where by virtue of this Convention a court of a State bound by this Convention has jurisdiction in actions relating to liability from the use or operation of a ship, that court, or any other court substituted for this purpose by the internal law of that State, shall also have jurisdiction over claims for limitation of such liability.

SECTION 3

Jurisdiction in matters relating to insurance

Article 8

In matters relating to insurance, jurisdiction shall be determined by this Section, without prejudice to Articles 4 and 5(5).

Article 9

(1) An insurer domiciled in a State bound by this Convention may be sued—

(a) in the courts of the State where he is domiciled; or

(b) in another State bound by this Convention, in the case of actions brought by the policyholder, the insured or a beneficiary, in the courts for the place where the plaintiff is domiciled; or

(c) if he is a co-insurer, in the courts of a State bound by this Convention in which proceedings are brought against the leading insurer.

(2) An insurer who is not domiciled in a State bound by this Convention but has a branch, agency or other establishment in one of the States bound by this Convention shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be domiciled in that State.

Article 10

In respect of liability insurance or insurance of immovable property, the insurer may in addition be sued in the courts for the place where the harmful event occurred. The same applies if movable and immovable property are covered by the same insurance policy and both are adversely affected by the same contingency.

Article 11

(1) In respect of liability insurance, the insurer may also, if the law of the court permits it, be joined in proceedings which the injured party has brought against the insured.

(2) Articles 8, 9 and 10 shall apply to actions brought by the injured party directly against the insurer, where such direct actions are permitted.

(3) If the law governing such direct actions provides that the policyholder or the insured may be joined as a party to the action, the same court shall have jurisdiction over them.

Article 12

(1) Without prejudice to Article 11(3), an insurer may bring proceedings only in the courts of the State bound by this Convention in which the defendant is domiciled, irrespective of whether he is the policyholder, the insured or a beneficiary.

(2) The provisions of this Section shall not affect the right to bring a counter-claim in the court in which, in accordance with this Section, the original claim is pending.

Article 13

The provisions of this Section may be departed from only by an agreement—

(1) which is entered into after the dispute has arisen; or

(2) which allows the policyholder, the insured or a beneficiary to bring proceedings in courts other than those indicated in this Section; or

(3) which is concluded between a policyholder and an insurer, both of whom are at the time of conclusion of the contract domiciled or habitually resident in the same State bound by this Convention, and which has the effect of conferring jurisdiction on the courts of that State even if the harmful event were to occur abroad, provided that such an agreement is not contrary to the law of that State; or

(4) which is concluded with a policyholder who is not domiciled in a State bound by this Convention, except insofar as the insurance is compulsory or relates to immovable property in a State bound by this Convention; or

(5) which relates to a contract of insurance insofar as it covers one or more of the risks set out in Article 14.

Article 14

The following are the risks referred to in Article 13(5)—

(1) any loss of or damage to—

(a) seagoing ships, installations situated offshore or on the high seas, or aircraft, arising from perils which relate to their use for commercial purposes;

(b) goods in transit, other than passengers’ baggage, where the transit consists of or includes carriage by such ships or aircraft;

(2) any liability, other than for bodily injury to passengers or loss of or damage to their baggage—

(a) arising out of the use or operation of ships, installations or aircraft as referred to in point 1(a) insofar as, in respect of the latter, the law of the State bound by this Convention in which such aircraft are registered does not prohibit agreements on jurisdiction regarding insurance of such risks;

(b) for loss or damage caused by goods in transit as described in point 1(b);

(3) any financial loss connected with the use or operation of ships, installations or aircraft as referred to in point 1(a), in particular loss of freight or charter-hire;

(4) any risk or interest connected with any of those referred to in points 1 to 3;

(5) notwithstanding points 1 to 4, all large risks.

SECTION 4

Jurisdiction over consumer contracts

Article 15

(1) In matters relating to a contract concluded by a person, the consumer, for a purpose which can be regarded as being outside his trade or profession, jurisdiction shall be determined by this Section, without prejudice to Articles 4 and 5(5), if:

(a) it is a contract for the sale of goods on instalment credit terms; or

(b) it is a contract for a loan repayable by instalments, or for any other form of credit, made to finance the sale of goods; or

(c) in all other cases, the contract has been concluded with a person who pursues commercial or professional activities in the State bound by this Convention of the consumer’s domicile or, by any means, directs such activities to that State or to several States including that State, and the contract falls within the scope of such activities.

(2) Where a consumer enters into a contract with a party who is not domiciled in the State bound by this Convention but has a branch, agency or other establishment in one of the States bound by this Convention, that party shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be domiciled in that State.

(3) This section shall not apply to a contract of transport other than a contract which, for an inclusive price, provides for a combination of travel and accommodation.

Article 16

(1) A consumer may bring proceedings against the other party to a contract either in the courts of the State bound by this Convention in which that party is domiciled or in the courts for the place where the consumer is domiciled.

(2) Proceedings may be brought against a consumer by the other party to the contract only in the courts of the State bound by this Convention in which the consumer is domiciled.

(3) This Article shall not affect the right to bring a counter-claim in the court in which, in accordance with this Section, the original claim is pending.

Article 17

The provisions of this Section may be departed from only by an agreement—

(1) which is entered into after the dispute has arisen; or

(2) which allows the consumer to bring proceedings in courts other than those indicated in this Section; or

(3) which is entered into by the consumer and the other party to the contract, both of whom are at the time of conclusion of the contract domiciled or habitually resident in the same State bound by this Convention, and which confers jurisdiction on the courts of that State, provided that such an agreement is not contrary to the law of that State.

SECTION 5

Jurisdiction over individual contracts of employment

Article 18

(1) In matters relating to individual contracts of employment, jurisdiction shall be determined by this Section, without prejudice to Articles 4 and 5(5).

(2) Where an employee enters into an individual contract of employment with an employer who is not domiciled in a State bound by this Convention but has a branch, agency or other establishment in one of the States bound by this Convention, the employer shall, in disputes arising out of the operations of the branch, agency or establishment, be deemed to be domiciled in that State.

Article 19

An employer domiciled in a State bound by this Convention may be sued—

(1) in the courts of the State where he is domiciled; or

(2) in another State bound by this Convention—

(a) in the courts for the place where the employee habitually carries out his work or in the courts for the last place where he did so; or

(b) if the employee does not or did not habitually carry out his work in any one country, in the courts for the place where the business which engaged the employee is or was situated.

Article 20

(1) An employer may bring proceedings only in the courts of the State bound by this Convention in which the employee is domiciled.

(2) The provisions of this Section shall not affect the right to bring a counter-claim in the court in which, in accordance with this Section, the original claim is pending.

Article 21

The provisions of this Section may be departed from only by an agreement on jurisdiction—

(1) which is entered into after the dispute has arisen; or

(2) which allows the employee to bring proceedings in courts other than those indicated in this Section.

SECTION 6

Exclusive jurisdiction

Article 22

The following courts shall have exclusive jurisdiction, regardless of domicile—

(1) in proceedings which have as their object rights in rem in immovable property or tenancies of immovable property, the courts of the State bound by this Convention in which the property is situated.

(a) However, in proceedings which have as their object tenancies of immovable property concluded for temporary private use for a maximum period of six consecutive months, the courts of the State bound by this Convention in which the defendant is domiciled shall also have jurisdiction, provided that the tenant is a natural person and that the landlord and the tenant are domiciled in the same State bound by this Convention;

(2) in proceedings which have as their object the validity of the constitution, the nullity or the dissolution of companies or other legal persons or associations of natural or legal persons, or of the validity of the decisions of their organs, the courts of the State bound by this Convention in which the company, legal person or association has its seat. In order to determine that seat, the court shall apply its rules of private international law;

(3) in proceedings which have as their object the validity of entries in public registers, the courts of the State bound by this Convention in which the register is kept;

(4) in proceedings concerned with the registration or validity of patents, trade marks, designs, or other similar rights required to be deposited or registered, irrespective of whether the issue is raised by way of an action or as a defence, the courts of the State bound by this Convention in which the deposit or registration has been applied for, has taken place or is, under the terms of a Community instrument or an international convention, deemed to have taken place.

(5) in proceedings concerned with the enforcement of judgments, the courts of the State bound by this Convention in which the judgment has been or is to be enforced.

SECTION 7

Prorogation of jurisdiction

Article 23

(1) If the parties, one or more of whom is domiciled in a State bound by this Convention, have agreed that a court or the courts of a State bound by this Convention are to have jurisdiction to settle any disputes which have arisen or which may arise in connection with a particular legal relationship, that court or those courts shall have jurisdiction. Such jurisdiction shall be exclusive unless the parties have agreed otherwise. Such an agreement conferring jurisdiction shall be either—

(a) in writing or evidenced in writing; or

(b) in a form which accords with practices which the parties have established between themselves; or

(c) in international trade or commerce, in a form which accords with a usage of which the parties are or ought to have been aware and which in such trade or commerce is widely known to, and regularly observed by, parties to contracts of the type involved in the particular trade or commerce concerned.

(2) Any communication by electronic means which provides a durable record of the agreement shall be equivalent to ‘writing’.

(3) Where such an agreement is concluded by parties, none of whom is domiciled in a State bound by this Convention, the courts of other States bound by this Convention shall have no jurisdiction over their disputes unless the court or courts chosen have declined jurisdiction.

(4) The court or courts of a State bound by this Convention on which a trust instrument has conferred jurisdiction shall have exclusive jurisdiction in any proceedings brought against a settlor, trustee or beneficiary, if relations between these persons or their rights or obligations under the trust are involved.

(5) Agreements or provisions of a trust instrument conferring jurisdiction shall have no legal force if they are contrary to the provisions of Articles 13, 17 or 21, or if the courts whose jurisdiction they purport to exclude have exclusive jurisdiction by virtue of Article 22.

Article 24

Apart from jurisdiction derived from other provisions of this Convention, a court of a State bound by this Convention before which a defendant enters an appearance shall have jurisdiction. This rule shall not apply where appearance was entered to contest the jurisdiction, or where another court has exclusive jurisdiction by virtue of Article 22.

SECTION 8

Examination as to jurisdiction and admissibility

Article 25

Where a court of a State bound by this Convention is seized of a claim which is principally concerned with a matter over which the courts of another State bound by this Convention have exclusive jurisdiction by virtue of Article 22, it shall declare of its own motion that it has no jurisdiction.

Article 26

(1) Where a defendant domiciled in one State bound by this Convention is sued in a court of another State bound by this Convention and does not enter an appearance, the court shall declare of its own motion that it has no jurisdiction unless its jurisdiction is derived from the provisions of this Convention.

(2) The court shall stay the proceedings so long as it is not shown that the defendant has been able to receive the document instituting the proceedings or an equivalent document in sufficient time to enable him to arrange for his defence, or that all necessary steps have been taken to this end.

(3) Instead of the provisions of paragraph 2, Article 15 of the Hague Convention of 15 November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial matters shall apply if the document instituting the proceedings or an equivalent document had to be transmitted pursuant to that Convention.

(4) Member States of the European Community bound by Council Regulation (EC) No 1348/2000 of 29 May 2000 or by the Agreement between the European Community and the Kingdom of Denmark on the service of judicial and extrajudicial documents in civil or commercial matters, signed at Brussels on 19 October 2005, shall apply in their mutual relations the provision in Article 19 of that Regulation if the document instituting the proceedings or an equivalent document had to be transmitted pursuant to that Regulation or that Agreement.

SECTION 9

Lis pendens—related actions

Article 27

(1) Where proceedings involving the same cause of action and between the same parties are brought in the courts of different States bound by this Convention, any court other than the court first seized shall of its own motion stay its proceedings until such time as the jurisdiction of the court first seized is established.

(2) Where the jurisdiction of the court first seized is established, any court other than the court first seized shall decline jurisdiction in favour of that court.

Article 28

(1) Where related actions are pending in the courts of different States bound by this Convention, any court other than the court first seized may stay its proceedings.

(2) Where these actions are pending at first instance, any court other than the court first seized may also, on the application of one of the parties, decline jurisdiction if the court first seized has jurisdiction over the actions in question and its law permits the consolidation thereof.

(3) For the purposes of this Article, actions are deemed to be related where they are so closely connected that it is expedient to hear and determine them together to avoid the risk of irreconcilable judgments resulting from separate proceedings.

Article 29

Where actions come within the exclusive jurisdiction of several courts, any court other than the court first seized shall decline jurisdiction in favour of that court.

Article 30

For the purposes of this Section, a court shall be deemed to be seized—

(1) at the time when the document instituting the proceedings or an equivalent document is lodged with the court, provided that the plaintiff has not subsequently failed to take the steps he was required to take to have service effected on the defendant; or

(2) if the document has to be served before being lodged with the court at the time when it is received by the authority responsible for service, provided that the plaintiff has not subsequently failed to take the steps he was required to take to have the document lodged with the court.

SECTION 10

Provisional, including protective, measures

Article 31

Application may be made to the courts of a State bound by this Convention for such provisional, including protective, measures as may be available under the law of that State, even if, under this Convention, the courts of another State bound by this Convention have jurisdiction as to the substance of the matter.

TITLE III

RECOGNITION AND ENFORCEMENT

Article 32

For the purposes of this Convention, ‘judgment’ means any judgment given by a court or tribunal of a State bound by this Convention, whatever the judgment may be called, including a decree, order, decision or writ of execution, as well as the determination of costs or expenses by an officer of the court.

SECTION 1

Recognition

Article 33

(1) A judgment given in a State bound by this Convention shall be recognised in the other States bound by this Convention without any special procedure being required.

(2) Any interested party who raises the recognition of a judgment as the principal issue in a dispute may, in accordance with the procedures provided for in Sections 2 and 3 of this Title, apply for a decision that the judgment be recognised.

(3) If the outcome of proceedings in a court of a State bound by this Convention depends on the determination of an incidental question of recognition that court shall have jurisdiction over that question.

Article 34

A judgment shall not be recognised—

(1) if such recognition is manifestly contrary to public policy in the State in which recognition is sought;

(2) where it was given in default of appearance, if the defendant was not served with the document which instituted the proceedings or with an equivalent document in sufficient time and in such a way as to enable him to arrange for his defence, unless the defendant failed to commence proceedings to challenge the judgment when it was possible for him to do so;

(3) if it is irreconcilable with a judgment given in a dispute between the same parties in the State in which recognition is sought;

(4) if it is irreconcilable with an earlier judgment given in another State bound by this Convention or in a third State involving the same cause of action and between the same parties, provided that the earlier judgment fulfils the conditions necessary for its recognition in the State addressed.

Article 35

(1) Moreover, a judgment shall not be recognised if it conflicts with Sections 3, 4 or 6 of Title II, or in a case provided for in Article 68. A judgment may furthermore be refused recognition in any case provided for in Article 64(3) or 67(4).

(2) In its examination of the grounds of jurisdiction referred to in the foregoing paragraph, the court or authority applied to shall be bound by the findings of fact on which the court of the State of origin based its jurisdiction.

(3) Subject to the provisions of paragraph 1, the jurisdiction of the court of the State of origin may not be reviewed. The test of public policy referred to in Article 34(1) may not be applied to the rules relating to jurisdiction.

Article 36

Under no circumstances may a foreign judgment be reviewed as to its substance.

Article 37

(1) A court of a State bound by this Convention in which recognition is sought of a judgment given in another State bound by this Convention may stay the proceedings if an ordinary appeal against the judgment has been lodged.

(2) A court of a State bound by this Convention in which recognition is sought of a judgment given in Ireland or the United Kingdom may stay the proceedings if enforcement is suspended in the State of origin, by reason of an appeal.

SECTION 2

Enforcement

Article 38

(1) A judgment given in a State bound by this Convention and enforceable in that State shall be enforced in another State bound by this Convention when, on the application of any interested party, it has been declared enforceable there.

(2) However, in the United Kingdom, such a judgment shall be enforced in England and Wales, in Scotland, or in Northern Ireland when, on the application of any interested party, it has been registered for enforcement in that part of the United Kingdom.

Article 39

(1) The application shall be submitted to the court or competent authority indicated in the list in Annex II.

(2) The local jurisdiction shall be determined by reference to the place of domicile of the party against whom enforcement is sought, or to the place of enforcement.

Article 40

(1) The procedure for making the application shall be governed by the law of the State in which enforcement is sought.

(2) The applicant must give an address for service of process within the area of jurisdiction of the court applied to. However, if the law of the State in which enforcement is sought does not provide for the furnishing of such an address, the applicant shall appoint a representative ad litem.

(3) The documents referred to in Article 53 shall be attached to the application.

Article 41

The judgment shall be declared enforceable immediately on completion of the formalities in Article 53 without any review under Articles 34 and 35. The party against whom enforcement is sought shall not at this stage of the proceedings be entitled to make any submissions on the application.

Article 42

(1) The decision on the application for a declaration of enforceability shall forthwith be brought to the notice of the applicant in accordance with the procedure laid down by the law of the State in which enforcement is sought.

(2) The declaration of enforceability shall be served on the party against whom enforcement is sought, accompanied by the judgment, if not already served on that party.

Article 43

(1) The decision on the application for a declaration of enforceability may be appealed against by either party.

(2) The appeal is to be lodged with the court indicated in the list in Annex III.

(3) The appeal shall be dealt with in accordance with the rules governing procedure in contradictory matters.

(4) If the party against whom enforcement is sought fails to appear before the appellate court in proceedings concerning an appeal brought by the applicant, Article 26(2) to (4) shall apply even where the party against whom enforcement is sought is not domiciled in any of the States bound by this Convention.

(5) An appeal against the declaration of enforceability is to be lodged within one month of service thereof. If the party against whom enforcement is sought is domiciled in a State bound by this Convention other than that in which the declaration of enforceability was given, the time for appealing shall be two months and shall run from the date of service, either on him in person or at his residence. No extension of time may be granted on account of distance.

Article 44

The judgment given on the appeal may be contested only by the appeal referred to in Annex IV.

Article 45

(1) The court with which an appeal is lodged under Article 43 or Article 44 shall refuse or revoke a declaration of enforceability only on one of the grounds specified in Articles 34 and 35. It shall give its decision without delay.

(2) Under no circumstances may the foreign judgment be reviewed as to its substance.

Article 46

(1) The court with which an appeal is lodged under Article 43 or Article 44 may, on the application of the party against whom enforcement is sought, stay the proceedings if an ordinary appeal has been lodged against the judgment in the State of origin or if the time for such an appeal has not yet expired; in the latter case, the court may specify the time within which such an appeal is to be lodged.

(2) Where the judgment was given in Ireland or the United Kingdom, any form of appeal available in the State of origin shall be treated as an ordinary appeal for the purposes of paragraph 1.

(3) The court may also make enforcement conditional on the provision of such security as it shall determine.

Article 47

(1) When a judgment must be recognised in accordance with this Convention, nothing shall prevent the applicant from availing himself of provisional, including protective, measures in accordance with the law of the State requested without a declaration of enforceability under Article 41 being required.

(2) The declaration of enforceability shall carry with it the power to proceed to any protective measures.

(3) During the time specified for an appeal pursuant to Article 43(5) against the declaration of enforceability and until any such appeal has been determined, no measures of enforcement may be taken other than protective measures against the property of the party against whom enforcement is sought.

Article 48

(1) Where a foreign judgment has been given in respect of several matters and the declaration of enforceability cannot be given for all of them, the court or competent authority shall give it for one or more of them.

(2) An applicant may request a declaration of enforceability limited to parts of a judgment.

Article 49

A foreign judgment which orders a periodic payment by way of a penalty shall be enforceable in the State in which enforcement is sought only if the amount of the payment has been finally determined by the courts of the State of origin.

Article 50

(1) An applicant who in the State of origin has benefited from complete or partial legal aid or exemption from costs or expenses shall be entitled, in the procedure provided for in this Section, to benefit from the most favourable legal aid or the most extensive exemption from costs or expenses provided for by the law of the State addressed.

(2) However, an applicant who requests the enforcement of a decision given by an administrative authority in Denmark, in Iceland or in Norway in respect of maintenance may, in the State addressed, claim the benefits referred to in paragraph 1 if he presents a statement from the Danish, Icelandic, or Norwegian Ministry of Justice to the effect that he fulfils the economic requirements to qualify for the grant of complete or partial legal aid or exemption from costs or expenses.

Article 51

No security, bond or deposit, however described, shall be required of a party who in one State bound by this Convention, applies for enforcement of a judgment given in another State bound by this Convention on the ground that he is a foreign national or that he is not domiciled or resident in the State in which enforcement is sought.

Article 52

In proceedings for the issue of a declaration of enforceability, no charge, duty or fee calculated by reference to the value of the matter at issue may be levied in the State in which enforcement is sought.

SECTION 3

Common provisions

Article 53

(1) A party seeking recognition or applying for a declaration of enforceability shall produce a copy of the judgment which satisfies the conditions necessary to establish its authenticity.

(2) A party applying for a declaration of enforceability shall also produce the certificate referred to in Article 54, without prejudice to Article 55.

Article 54

The court or competent authority of a State bound by this Convention where a judgment was given shall issue, at the request of any interested party, a certificate using the standard form in Annex V to this Convention.

Article 55

(1) If the certificate referred to in Article 54 is not produced, the court or competent authority may specify a time for its production or accept an equivalent document or, if it considers that it has sufficient information before it, dispense with its production.

(2) If the court or competent authority so requires, a translation of the documents shall be produced. The translation shall be certified by a person qualified to do so in one of the States bound by this Convention.

Article 56

No legalisation or other similar formality shall be required in respect of the documents referred to in Article 53 or Article 55(2), or in respect of a document appointing a representative ad litem.

TITLE IV

AUTHENTIC INSTRUMENTS AND COURT SETTLEMENTS

Article 57

(1) A document which has been formally drawn up or registered as an authentic instrument and is enforceable in one State bound by this Convention shall, in another State bound by this Convention, be declared enforceable there, on application made in accordance with the procedures provided for in Article 38, et seq. The court with which an appeal is lodged under Article 43 or Article 44 shall refuse or revoke a declaration of enforceability only if enforcement of the instrument is manifestly contrary to public policy in the State addressed.

(2) Arrangements relating to maintenance obligations concluded with administrative authorities or authenticated by them shall also be regarded as authentic instruments within the meaning of paragraph 1.

(3) The instrument produced must satisfy the conditions necessary to establish its authenticity in the State of origin.

(4) Section 3 of Title III shall apply as appropriate. The competent authority of a State bound by this Convention where an authentic instrument was drawn up or registered shall issue, at the request of any interested party, a certificate using the standard form in Annex VI to this Convention.

Article 58

A settlement which has been approved by a court in the course of proceedings and is enforceable in the State bound by this Convention in which it was concluded shall be enforceable in the State addressed under the same conditions as authentic instruments. The court or competent authority of a State bound by this Convention where a court settlement was approved shall issue, at the request of any interested party, a certificate using the standard form in Annex V to this Convention.

TITLE V

GENERAL PROVISIONS

Article 59

(1) In order to determine whether a party is domiciled in the State bound by this Convention whose courts are seised of a matter, the court shall apply its internal law.

(2) If a party is not domiciled in the State whose courts are seised of the matter, then, in order to determine whether the party is domiciled in another State bound by this Convention, the court shall apply the law of that State.

Article 60

(1) For the purposes of this Convention, a company or other legal person or association of natural or legal persons is domiciled at the place where it has its—

(a) statutory seat; or

(b) central administration; or

(c) principal place of business.

(2) For the purposes of the United Kingdom and Ireland ‘statutory seat’ means the registered office or, where there is no such office anywhere, the place of incorporation or, where there is no such place anywhere, the place under the law of which the formation took place.

(3) In order to determine whether a trust is domiciled in the State bound by this Convention whose courts are seized of the matter, the court shall apply its rules of private international law.

Article 61

Without prejudice to any more favourable provisions of national laws, persons domiciled in a State bound by this Convention who are being prosecuted in the criminal courts of another State bound by this Convention of which they are not nationals for an offence which was not intentionally committed may be defended by persons qualified to do so, even if they do not appear in person. However, the court seised of the matter may order appearance in person; in the case of failure to appear, a judgment given in the civil action without the person concerned having had the opportunity to arrange for his defence need not be recognised or enforced in the other States bound by this Convention.

Article 62

For the purposes of this Convention, the expression ‘court’ shall include any authorities designated by a State bound by this Convention as having jurisdiction in the matters falling within the scope of this Convention.

TITLE VI

TRANSITIONAL PROVISIONS

Article 63

(1) This Convention shall apply only to legal proceedings instituted and to documents formally drawn up or registered as authentic instruments after its entry into force in the State of origin and, where recognition or enforcement of a judgment or authentic instruments is sought, in the State addressed.

(2) However, if the proceedings in the State of origin were instituted before the entry into force of this Convention, judgments given after that date shall be recognised and enforced in accordance with Title III—

(a) if the proceedings in the State of origin were instituted after the entry into force of the Lugano Convention of 16 September 1988 both in the State of origin and in the State;

(b) in all other cases, if jurisdiction was founded upon rules which accorded with those provided for either in Title II or in a convention concluded between the State of origin and the State addressed which was in force when the proceedings were instituted.

TITLE VII

RELATIONSHIP TO COUNCIL REGULATION (EC) No 44/2001 AND OTHER INSTRUMENTS

Article 64

(1) This Convention shall not prejudice the application by the Member States of the European Community of the Council Regulation (EC) No 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, as well as any amendments thereof, of the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, signed at Brussels on 27 September 1968, and of the Protocol on interpretation of that Convention by the Court of Justice of the European Communities, signed at Luxembourg on 3 June 1971, as amended by the Conventions of Accession to the said Convention and the said Protocol by the States acceding to the European Communities, as well as of the Agreement between the European Community and the Kingdom of Denmark on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, signed at Brussels on 19 October 2005.

(2) However, this Convention shall in any event be applied—

(a) in matters of jurisdiction, where the defendant is domiciled in the territory of a State where this Convention but not an instrument referred to in paragraph 1 of this Article applies, or where Articles 22 or 23 of this Convention confer jurisdiction on the courts of such a State;

(b) in relation to lis pendens or to related actions as provided for in Articles 27 and 28, when proceedings are instituted in a State where the Convention but not an instrument referred to in paragraph 1 of this Article applies and in a State where this Convention as well as an instrument referred to in paragraph 1 of this Article apply;

(c) in matters of recognition and enforcement, where either the State of origin or the State addressed is not applying an instrument referred to in paragraph 1 of this Article.

(3) In addition to the grounds provided for in Title III, recognition or enforcement may be refused if the ground of jurisdiction on which the judgment has been based differs from that resulting from this Convention and recognition or enforcement is sought against a party who is domiciled in a State where this Convention but not an instrument referred to in paragraph 1 of this Article applies, unless the judgment may otherwise be recognised or enforced under any rule of law in the State addressed.

Article 65

Subject to the provisions of Articles 63(2), 66 and 67, this Convention shall, as between the States bound by this Convention, supersede the conventions concluded between two or more of them that cover the same matters as those to which this Convention applies. In particular, the conventions mentioned in Annex VII shall be superseded.

Article 66

(1) The conventions referred to in Article 65 shall continue to have effect in relation to matters to which this Convention does not apply.

(2) They shall continue to have effect in respect of judgments given and documents formally drawn up or registered as authentic instruments before the entry into force of this Convention.

Article 67

(1) This Convention shall not affect any conventions by which the Contracting Parties and/or the States bound by this Convention are bound and which in relation to particular matters, govern jurisdiction or the recognition or enforcement of judgments. Without prejudice to obligations resulting from other agreements between certain Contracting Parties, this Convention shall not prevent Contracting Parties from entering into such conventions.

(2) This Convention shall not prevent a court of a State bound by this Convention and by a convention on a particular matter from assuming jurisdiction in accordance with that convention, even where the defendant is domiciled in another State bound by this Convention which is not a party to that convention. The court hearing the action shall, in any event, apply Article 26 of this Convention.

(3) Judgments given in a State bound by this Convention by a court in the exercise of jurisdiction provided for in a convention on a particular matter shall be recognised and enforced in the other States bound by this Convention in accordance with Title III of this Convention.

(4) In addition to the grounds provided for in Title III, recognition or enforcement may be refused if the State addressed is not bound by the convention on a particular matter and the person against whom recognition or enforcement is sought is domiciled in that State, or, if the State addressed is a Member State of the European Community and in respect of conventions which would have to be concluded by the European Community, in any of its Member States, unless the judgment may otherwise be recognised or enforced under any rule of law in the State addressed.

(5) Where a convention on a particular matter to which both the State of origin and the State addressed are parties lays down conditions for the recognition or enforcement of judgments, those conditions shall apply. In any event, the provisions of this Convention which concern the procedures for recognition and enforcement of judgments may be applied.

Article 68

(1) This Convention shall not affect agreements by which States bound by this Convention undertook, prior to the entry into force of this Convention, not to recognise judgments given in other States bound by this Convention against defendants domiciled or habitually resident in a third State where, in cases provided for in Article 4, the judgment could only be founded on a ground of jurisdiction as specified in Article 3(2). Without prejudice to obligations resulting from other agreements between certain Contracting Parties, this Convention shall not prevent Contracting Parties from entering into such conventions.

(2) However, a Contracting Party may not assume an obligation towards a third State not to recognise a judgment given in another State bound by this Convention by a court basing its jurisdiction on the presence within that State of property belonging to the defendant, or the seizure by the plaintiff of property situated there—

(a) if the action is brought to assert or declare proprietary or possessory rights in that property, seeks to obtain authority to dispose of it, or arises from another issue relating to such property; or

(b) if the property constitutes the security for a debt which is the subject-matter of the action.

TITLE VIII

FINAL PROVISIONS

Article 69

(1) The Convention shall be open for signature by the European Community, Denmark, and States which, at the time of the opening for signature, are Members of the European Free Trade Association.

(2) This Convention shall be subject to ratification by the Signatories. The instruments of ratification shall be deposited with the Swiss Federal Council, which shall act as Depositary of this Convention.

(3) At the time of the ratification, the Contracting Parties may submit declarations in accordance with Articles I, II and III of Protocol 1.

(4) The Convention shall enter into force on the first day of the sixth month following the date on which the European Community and a Member of the European Free Trade Association deposit their instruments of ratification.

(5) The Convention shall enter into force in relation to any other Party on the first day of the third month following the deposit of its instrument of ratification.

(6) Without prejudice to Article 3(3) of Protocol 2, this Convention shall replace the Convention on jurisdiction and the enforcement of judgments in civil and commercial matters done at Lugano on 16 September 1988 as of the date of its entry into force in accordance with paragraphs 4 and 5 above. Any reference to the 1988 Lugano Convention in other instruments shall be understood as a reference to this Convention.

(7) Insofar as the relations between the Member States of the European Community and the non-European territories referred to in Article 70(1)(b) are concerned, this Convention shall replace the Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters, signed at Brussels on 27 September 1968, and of the Protocol on interpretation of that Convention by the Court of Justice of the European Communities, signed at Luxembourg on 3 June 1971, as amended by the Conventions of Accession to the said Convention and the said Protocol by the States acceding to the European Communities, as of the date of the entry into force of this Convention with respect to these territories in accordance with Article 73(2).

Article 70

(1) After entering into force this Convention shall be open for accession by—

(a) the States which, after the opening of this Convention for signature, become Members of the European Free Trade Association, under the conditions laid down in Article 71;

(b) Member States of the European Community acting on behalf of certain non-European territories that are part of the territory of that Member State or for whose external relations that Member State is responsible, under the conditions laid down in Article 71;

(c) any other State, under the conditions laid down in Article 72.

(2) States referred to in paragraph 1, which wish to become a Contracting Party to this Convention, shall address their application to the Depositary. The application, including the information referred to in Articles 71 and 72 shall be accompanied by a translation into English and French.

Article 71

(1) Any State referred to in Article 70(1)(a) and (b) wishing to become a Contracting Party to this Convention—

(a) shall communicate the information required for the application of this Convention;

(b) may submit declarations in accordance with Articles I and III of Protocol 1.

(2) The Depositary shall transmit any information received pursuant to paragraph 1 to the other Contracting Parties prior to the deposit of the instrument of accession by the State concerned.

Article 72

(1) Any State referred to in Article 70(1)(c) wishing to become a Contracting Party to this Convention—

(a) shall communicate the information required for the application of this Convention;

(b) may submit declarations in accordance with Articles I and III of Protocol 1; and

(c) shall provide the Depositary with information on, in particular—

(i) their judicial system, including information on the appointment and independence of judges;

(ii) their internal law concerning civil procedure and enforcement of judgments; and

(iii) their private international law relating to civil procedure.

(2) The Depositary shall transmit any information received pursuant to paragraph 1 to the other Contracting Parties prior to inviting the State concerned to accede in accordance with paragraph 3 of this Article.

(3) Without prejudice to paragraph 4, the Depositary shall invite the State concerned to accede only if it has obtained the unanimous agreement of the Contracting Parties. The Contracting Parties shall endeavour to give their consent at the latest within one year after the invitation by the Depositary.

(4) The Convention shall enter into force only in relations between the acceding State and the Contracting Parties which have not made any objections to the accession before the first day of the third month following the deposit of the instrument of accession.

Article 73

(1) The instruments of accession shall be deposited with the Depositary.

(2) In respect of an acceding State referred to in Article 70, the Convention shall enter into force on the first day of the third month following the deposit of its instrument of accession. As of that moment, the acceding State shall be considered a Contracting Party to the Convention.

(3) Any Contracting Party may submit to the Depositary a text of this Convention in the language or languages of the Contracting Party concerned, which shall be authentic if so agreed by the Contracting Parties in accordance with Article 4 of Protocol 2.

Article 74

(1) This Convention is concluded for an unlimited period.

(2) Any Contracting Party may, at any time, denounce the Convention by sending a notification to the Depositary.

(3) The denunciation shall take effect at the end of the calendar year following the expiry of a period of six months from the date of receipt by the Depositary of the notification of denunciation.

Article 75

The following are annexed to this Convention—

a Protocol 1, on certain questions of jurisdiction, procedure and enforcement,

a Protocol 2, on the uniform interpretation of this Convention and on the Standing Committee,

a Protocol 3, on the application of Article 67 of this Convention,

Annexes I through IV and Annex VII, with information related to the application of this Convention,

Annexes V and VI, containing the certificates referred to in Articles 54, 58 and 57 of this Convention,

Annex VIII, containing the authentic languages referred to in Article 79 of this Convention, and

Annex IX, concerning the application of Article II of Protocol 1.

These Protocols and Annexes shall form an integral part of this Convention.

Article 76

Without prejudice to Article 77, any Contracting Party may request the revision of this Convention. To that end, the Depositary shall convene the Standing Committee as laid down in Article 4 of Protocol 2.

Article 77

(1) The Contracting Parties shall communicate to the Depositary the text of any provisions of the laws which amend the lists set out in Annexes I through IV as well as any deletions in or additions to the list set out in Annex VII and the date of their entry into force. Such communication shall be made within reasonable time before the entry into force and be accompanied by a translation into English and French. The Depositary shall adapt the Annexes concerned accordingly, after having consulted the Standing Committee in accordance with Article 4 of Protocol 2. For that purpose, the Contracting Parties shall provide a translation of the adaptations into their languages.

(2) Any amendment of Annexes V through VI and VIII through IX to this Convention shall be adopted by the Standing Committee in accordance with Article 4 of Protocol 2.

Article 78

(1) The Depositary shall notify the Contracting Parties of—

(a) the deposit of each instrument of ratification or accession;

(b) the dates of entry into force of this Convention in respect of the Contracting Parties;

(c) any declaration received pursuant to Articles I to IV of Protocol 1;

(d) any communication made pursuant to Article 74(2), Article 77(1) and paragraph 4 of Protocol 3.

(2) The notifications will be accompanied by translations into English and French.

Article 79

This Convention, drawn up in a single original in the languages listed in Annex VIII, all texts being equally authentic, shall be deposited in the Swiss Federal Archives. The Swiss Federal Council shall transmit a certified copy to each Contracting Party.

In witness whereof, the undersigned Plenipotentiaries, have signed this Convention.

Done at Lugano, on 30 October 2007.”

New schedule 2—Super-affirmative resolution procedure—

“1 If the Secretary of State considers it appropriate to make regulations for the purpose of, or in connection with, implementing any international agreement, the Secretary of State Minister may lay before Parliament—

(a) draft regulations, and

(b) an explanatory document.

2 The explanatory document must introduce and give reasons for implementing the international agreement.

3 Subject as follows, if after the expiry of the 40-day period the draft regulations laid under subsection (1) are approved by a resolution of each House of Parliament, the Minister may make regulations in the terms of the draft regulations.

4 The procedure in paragraphs (5) to (8) shall apply to the draft regulations instead of the procedure in paragraph (3) if—

(a) either House of Parliament so resolves within the 30-day period, or

(b) a committee of either House charged with reporting on the draft regulations so recommends within the 30-day period and the House to which the recommendation is made does not by resolution reject the recommendation within that period.

5 The Secretary of State must have regard to—

(a) any representations,

(b) any resolution of either House of Parliament, and

(c) any recommendations of a committee of either House of Parliament charged with reporting on the draft regulations, made during the 60-day period with regard to the draft regulations.

6 If, after the expiry of the 60-day period, the draft regulations are approved by a resolution of each House of Parliament, the Secretary of State may make regulations in the terms of the draft regulations.

7 If, after the expiry of the 60-day period, the Secretary of State wishes to proceed with the draft regulations but with material changes, the Secretary of State may lay before Parliament—

(a) a revised draft of the regulations, and

(b) a statement giving a summary of the changes proposed.

8 If the revised draft regulations are approved by a resolution of each House of Parliament, the Secretary of State may make regulations in the terms of the revised draft regulations.

9 For the purposes of this Schedule regulations are made in the terms of draft regulations or revised draft regulations if they contain no material changes to their provisions.

10 In this paragraph, references to the ‘30-day’, ‘40-day’ and ‘60-day’ periods in relation to any draft regulations are to the periods of 30, 40 and 60 days beginning with the day on which the draft regulations were laid before Parliament.

11 For the purposes of paragraph 10 no account is to be taken of any time during which Parliament is dissolved or prorogued or during which either House is adjourned for more than four days.”

This new Schedule would apply the super-affirmative resolution procedure to regulations implementing the Lugano Convention in the UK (see NC2).

New schedule 3—Regulations under section (Implementation of other agreements on private international law (No. 2))

Restrictions on power to make regulations

1 (1) Regulations under section (Implementation of other agreements on private international law (No. 2)) may not include—

(a) provision that confers power to legislate by means of regulations, orders, rules or other subordinate instrument (other than rules of procedure for courts or tribunals);

(b) provision that creates an offence for which an individual who has reached the age of 18 (or, in relation to Scotland or Northern Ireland, 21) is capable of being sentenced to imprisonment for a term of more than two years (ignoring any enactment prohibiting or restricting the imprisonment of individuals who have no previous convictions).

(2) Sub-paragraph (1)(a) does not prevent the modification of a power to legislate conferred otherwise than under section (Implementation of other agreements on private international law (No. 2)), or the extension of any such power to purposes of a similar kind to those for which it was conferred.

(3) A power to give practice directions or other directions regarding matters of administration is not a power to legislate for the purposes of sub-paragraph (1)(a).

Regulations to be made by statutory instrument or statutory rule

2 The power to make regulations under section (Implementation of other agreements on private international law (No. 2))—

(a) is exercisable by statutory instrument, in the case of regulations made by the Secretary of State;

(b) is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)), in the case of regulations made by a Northern Ireland department.

Parliamentary or assembly procedure

3 (1) This paragraph applies to a statutory instrument containing regulations made by the Secretary of State under section (Implementation of other agreements on private international law (No. 2)).

(2) If the instrument contains (whether alone or with other provision)—

(a) provision made for the purpose of implementing or applying, in relation to the United Kingdom or a particular part of the United Kingdom, any relevant international agreement that has not previously been the subject of any such provision (whether made by regulations under section (Implementation of other agreements on private international law (No. 2)) or otherwise),

(b) provision made for the purpose of giving effect, in relation to the United Kingdom or a particular part of the United Kingdom, to any relevant arrangements that relate to a particular territory and have not previously been the subject of any such provision (whether made by regulations under that section or otherwise),

(c) provision that creates or extends, or increases the penalty for, a criminal offence, or

(d) provision that amends primary legislation,

it may not be made unless it has been approved under the super-affirmative procedure (see paragraph 4).

(3) In this Schedule ‘relevant arrangements’ means arrangements of the kind mentioned in section (Implementation of other agreements on private international law (No. 2)) (3).

(4) If sub-paragraph (2) does not apply to the instrument, it may not be made unless a draft of the instrument has been laid before each House of Parliament and approved by a resolution of each House.

Super-affirmative procedure

4 (1) If the Secretary of State considers it appropriate to make regulations for the purpose of, or in connection with, implementing any international agreement, the Secretary of State may lay before Parliament—

(a) draft regulations, and

(b) an explanatory document.

(2) The explanatory document must introduce and give reasons for implementing the international agreement.

(3) Subject as follows, if after the expiry of the 40-day period the draft regulations laid under sub-paragraph (1) are approved by a resolution of each House of Parliament, the Secretary of State may make regulations in the terms of the draft regulations.

(4) The procedure in sub-paragraphs (5) to (8) shall apply to the draft regulations instead of the procedure in sub-paragraph (3) if—

(a) either House of Parliament so resolves within the 30-day period, or

(b) a committee of either House charged with reporting on the draft regulations so recommends within the 30-day period and the House to which the recommendation is made does not by resolution reject the recommendation within that period.

(5) The Secretary of State must have regard to—

(a) any representations,

(b) any resolution of either House of Parliament, and

(c) any recommendations of a committee of either House of Parliament charged with reporting on the draft regulations, made during the 60-day period with regard to the draft regulations.

(6) If after the expiry of the 60-day period the draft regulations are approved by a resolution of each House of Parliament, the Secretary of State may make regulations in the terms of the draft regulations.

(7) If after the expiry of the 60-day period the Secretary of State wishes to proceed with the draft regulations but with material changes, the Secretary of State may lay before Parliament—

(a) a revised draft of the regulations, and

(b) a statement giving a summary of the changes proposed.

(8) If the revised draft regulations are approved by a resolution of each House of Parliament, the Secretary of State may make regulations in the terms of the revised draft regulations.

(9) For the purposes of this paragraph regulations are made in the terms of draft regulations or revised draft regulations if they contain no material changes to their provisions.

(10) In this paragraph, references to the ‘30-day’, ‘40-day’ and ‘60-day’ periods in relation to any draft regulations are to the periods of 30, 40 and 60 days beginning with the day on which the draft regulations were laid before Parliament.

(11) For the purposes of sub-paragraph (10) no account is to be taken of any time during which Parliament is dissolved or prorogued or during which either House is adjourned for more than four days.

Scottish affirmative procedure

5 (1) This paragraph applies to regulations made by the Scottish Ministers under section (Implementation of other agreements on private international law (No. 2)).

(2) The regulations are subject to the affirmative procedure (see section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010).

Northern Ireland affirmative procedure

6 (1) A Northern Ireland department may not make regulations under section (Implementation of other agreements on private international law (No. 2)) unless a draft of the regulations has been laid before the Northern Ireland Assembly and approved by a resolution of the Assembly.

(2) Section 41(3) of that Act applies for the purposes of sub-paragraph (1) in relation to the laying of a draft as it applies in relation to the laying of a statutory document under an enactment.

Interpretation

7 In this Schedule—

‘amend’ includes repeal or revoke;

‘primary legislation’ means any provision of—

(a) an Act of Parliament,

(b) an Act of the Scottish Parliament,

(c) an Act or Measure of Senedd Cymru, or

(d) Northern Ireland legislation;

‘relevant arrangements’ has the meaning given in paragraph 3(3);

‘relevant international agreement’ has the same meaning as in section (Implementation of other agreements on private international law (No. 2)).”

This new schedule is linked to Amendment (e) to Government NC5 and makes provision for regulations made by the Secretary of State under Government NC5 to be subject to super-affirmative procedure, and for all regulations made under that section by Scottish Ministers or Northern Ireland departments to be subject to the relevant affirmative procedure.

Government amendment 7.

Amendment 8, in title, line 1, at end add

“and the Lugano Convention of 2007;”

This amendment is consequential on either Amendment 1 or on Amendments 2 to 4 and NS1.

Amendment 9, line 1, at end add

“and to provide for the implementation of other international agreements on private international law, subject to certain conditions.”

This amendment is consequential on NC1.

Amendment 10, line 1, at end add

“and to provide, subject to a super-affirmative procedure, for the implementation of the Lugano Convention of 2007.”

This amendment is consequential on NC2 and NS2.

Amendment 11, line 1, at end add

“and the Lugano Convention of 2007; and to provide, subject to consultation and a super-affirmative procedure, for the implementation of other international agreements on private international law.”

This amendment is consequential on Amendment (e) to Government NC5 and NS3.

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The main outstanding issue with the Bill concerns parliamentary scrutiny—that is, of the UK’s accession to a private international law treaty itself and then concerning orders made pursuant to that treaty. To those Members who may have been mesmerised by the complexity of the amendments today, I should say that this was not helped by the Government tabling their amendments only late last week, which required an element of guesswork for everyone else. Having said that, this belies a high level of consistency in the approach taken with tabled amendments by those who remain concerned at the Government’s position, as I shall explain.

Following Second Reading, the Government have unfortunately decided to re-table, almost unamended, the order-making powers as new clause 5, which was so decisively rejected in the other place. Despite multiple meetings with Ministers—where, I have to say, they have only been polite and listening—I am not much the wiser about the Government’s reasons for what can only be seen as a significant proposed extension of the power of the Executive.

The Government’s hinted amendment to remove criminal sanctions of more than two years’ sentencing from the order-making powers would be a good start but would not be nearly enough. I have therefore tabled amendment 2 and others, in my and others’ names. Those amendments need to be put into the context of the Bill as a whole. That is because the Bill only deals with the UK’s entering specific existing PIL treaties. It does not look at how we approve, or scrutinise entering, other future PIL treaties in the first place. Then it goes on to give the broad order-making powers for any unnamed future PIL treaties. I would suggest that, by focusing on future order-making powers, rather than the initial treaties themselves, it is effectively putting the cart before the horse.

Let us look at the initial treaty scrutiny in more detail. What is clear—and it is between both Houses—is that there is not a demand for approval by Parliament prior to signing of PIL treaties, in the same way, for instance, as exists, and is being argued for in the Trade Bill, for free trade agreements, so it is surely even more important that we have in place a modern, efficient and fair system for scrutinising PIL treaties before their ratification. The current system for doing so is via the Constitutional Reform and Governance Act 2010—CRaG—but no fewer than three Lords Committee reports over the past two years have described that legislation, based as it is on the 1924 Ponsonby convention, as outdated, inadequate, flawed and in urgent need of reform. In practice, a system designed a century ago to debate relatively simple trade deals was hidden behind the scrutiny and legislator approval afforded by our membership of the EU. Post Brexit, we now need a modern system that equates to those being used by our negotiating partners.

Different Departments of State are giving varying support for reform of CRaG, but none seems to wish to take ownership of it. It would be really good to have the Minister say today that the CRaG legislation does need reform and that his Department will take responsibility for that reform process. The issue is important, and intrinsic to our attitude to order-making powers in the Bill; because if, as those Lords Committees have been suggesting, there were to be a specific treaty Committee, and such a Committee could insist on a debate in Government time within a set period, with specific guidelines on access to information, the scrutiny of amendments, mandates, devolved Administration consultation and calls for evidence, then attitudes to order-making under these treaties would surely be somewhat more understanding.

When pointing out our lack of scrutiny compared with other countries, Ministers have said that although, yes, they admit it is true for the United States, Japan and the European Union, it is not true for Commonwealth countries such as Australia. I took that somewhat at face value, but a month ago there was a report by Emily Jones and Anna Sands of Oxford University, and they looked at the Australian equivalent system. In some ways, technically, it is similar to that of the UK; the power to enter treaties is a prerogative power. However, in practice, in the Australian system, once a treaty has been signed it is laid before Parliament for at least 15 joint sitting days before a binding treaty action is taken—20 days for major treaties—and the Government provides a national interest analysis to inform the Committee scrutiny work. There is also a very well established Joint Standing Committee system, which was set up as far back as 1996. The point being that, yes, I have heard Ministers say that we have the same system as in Australia, and technically we could say that; but in practice, they have a very much further developed scrutiny process than we have, and actually in both Australia and Canada, there are significant demands to move to a more United States-type system.

With that in mind, and as a first step, I tabled, in new clause 1 and as a stand-alone provision in new clause 6, a requirement that a Minister should lay a report before Parliament before the UK ratifies a PIL agreement with another country. I do not suggest that as an alternative to general reform of the CRaG Act, or as a move to the superior Australian system, but I move it as a reminder that the Justice Department should be adopting better practice, whatever happens with CRaG.

As things stand, however, these order-making powers attach to any PIL treaty made at any time in the future. That is much too broad. For instance, it treats laws on signing international business contracts or international financial bond issues as bundled together with the laws dealing with international divorces or child contact, which is surely wrong. That is the purpose behind amendment 2 and subsection (13) of new clause 1. A similar approach is adopted in Opposition amendments (a) and (b) to Government new clause 5. On the one hand, clause 1 is extended to include other treaties that we want to join; I have inserted Lugano, but there may be others. On the other hand, the new clause 5 order-making powers are restricted only to those treaties mentioned in clause 1, and not all PIL treaties now or at any time in the future, as provided in Government new clause 5.

Given the Government’s possible rejection of amendments 1 and 2, I think it important that, as a fall-back alternative, those Government new clause 5 order-making powers should be subject to a sunset provision. Although I do not agree with the arguments that these broad powers are needed in every case to sort things out in the aftermath of Brexit, at least with the sunset provision we would have a prospective return to normality. That is why there is a two-year sunset provision to the order-making powers in my new clause 1 and as a stand-alone in my new clause 8. Just as an improved scrutiny process is needed for initially entering these PIL treaties, it is also important when it comes to the orders made in respect of those PIL treaties. To be frank, I am currently not satisfied that Ministers have these important processes in place.

I have mentioned the CRaG Act, but also important is how Committees of the House are given a strong and ordered scrutiny role for future PIL treaties. I note that the Justice Committee, chaired by my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), was not even mentioned on Second Reading when the Minister spoke about consulting with Committees in the other place. My hon. Friend may well wish to address that in his comments later, but to me it was a somewhat stark reminder of how our scrutiny processes here are far from what they should be.

In an attempt to help the scrutiny process, new clauses 1 and 7 contain a further proposal that orders to implement a relevant international agreement can be laid only if a report is issued at least 10 Commons sitting days before laying such regulations—less than they have in Australia, I note. Such a report would give details of, and the reasons for, the agreement.

The official Opposition and the Scottish National party have taken a slightly different approach by proposing super-affirmative procedures, which seem to me to be also a reasonable way to improve scrutiny and which deserve the Minister’s consideration. As I said initially, the various parties’ amendments today are remarkably similar despite their quantity. I hope that that has not gone unnoticed by the Government.

In conclusion, we are talking about private international treaties that normally take many years to gestate. They are important for cross-border commerce and social issues, but are very rarely party political. There is rarely, if ever, anything fast moving about their formation—that is something of an understatement, I think—and there should be plenty of time for proper scrutiny of both their adoption and orders made in relation to them.

Whatever happens here today, the Bill needs to go back to the other place. I hope that that will provide a breathing space for Ministers to take stock of the issues at hand and agree a compromise position that should, frankly, have been reached by now.

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I rise in support of the amendments in my name and that of my hon. Friend the Member for Huntingdon (Mr Djanogly). I agree with and adopt the arguments that he has made—in particular, in relation to scrutiny and the inadequacy of the current arrangements under the CRaG Act. That is not satisfactory, and we are going to have to address it sooner or later. As a consequence of leaving the European Union, we will be signing a great number of international treaties and other important international obligations, too—free trade agreements of many kinds. We do have to put in place a fit-for-purpose system, and relying on the Ponsonby convention really is not sustainable at the current time.

I had the pleasure, funnily enough, of knowing the third Lord Ponsonby of Shulbrede—now no longer with us—who was very active in London government, and it was his grandfather who was responsible for this. That is itself indicative of the passage of time. It was in 1924, at the time of the Zinoviev letter, when this convention was put in place, so we really do have to have something—with every respect to the memory of the Lords Ponsonby—that is more fit for purpose for the modern time, particularly because this deals with very important issues and because international treaties have themselves become much more complex and very frequently now have implications for domestic law, as well as international treaty law obligations. Therefore, a new system, as set out of my hon. Friend, for scrutinising these issues is something we have to do at some point.

The one issue that does need to be dealt with quickly—my hon. Friend is right about how long such treaties take—is that we should sign up to the Lugano convention as a matter of absolute urgency. It is one of the unfortunate consequences of our departing from the European Union that we will leave one of the most sophisticated and effective means of civil justice co-operation that exists. That was not probably something very much debated during the referendum, and it is perhaps collateral damage in that sense of the broader decision that was taken, which I have to respect, but it is an important potential loss for British legal services and British business.

That can be made good if we swiftly joined Lugano, and a number of other international conventions, including the various Hague conventions, that go with it. That is why our amendment would in fact place joining Lugano in the Bill, although I will not read out new schedule 1 in detail. There is a real concern among businesses, as well as among lawyers, of a lacuna. At the moment, any British company or individual contracting with someone in the EU or the European Free Trade Association for that matter would, by virtue of our membership of the EU, be part of the Brussels I and Brussels II recast conventions and also of the Rome conventions in relation to domestic family law. Those enable contracts to be recognised and enforced, and judgments of the courts on those contracts to be recognised and enforced automatically in any of the member states. We have that advantage at the moment by virtue of our membership of the EU, carried over in the transition period, but that will go.

Obviously, for any contract to be worth its weight, it has to be enforceable—there is no point in having it otherwise—and that runs across every type of business. There is the significant and highly lucrative development of derivatives and other financial instruments, in which the City of London remains a world leader, and they have to be enforceable should they ever be called upon, as do contracts for manufacturers or the supply of agricultural produce. Contracts for any type of good or service that have an international dimension have to be effectively enforceable, and the same applies for the rights of individuals.

For example, for the British tourist or business person abroad who is injured in a road accident where the defendant—the driver at fault—is resident in one of the continental states, at the moment they can pursue their action in Bromley county court if need be or in the High Court to get a judgment and then have it enforced in France, Germany or elsewhere. Without getting into Lugano, there will be a gap in that person’s ability to seek justice and redress. It would be unconscionable if we should get ourselves into that state of affairs.

There is also the position of the single parent if the father, perhaps, of a child has moved to one of the EU jurisdictions. At the moment, the mother can enforce the judgment of the British family courts for maintenance payments, access arrangements and so on. They can be enforced in the place where the father is domiciled, and she can get her money. Again, it would be unconscionable if we were to have a gap. I know that that is not what the Minister wants, and I know that the Government are striving earnestly to achieve this, but at the moment we do not have it. If I get the chance, I may say more about that on Third Reading, but that is why we think giving statutory provision for Lugano in the Bill demonstrates its importance.

As the negotiations go forward, it is obviously important that we get a deal on free trade in relation to goods and tariffs, but absolutely as important is that we get a deal on judicial co-operation—whether criminal and police co-operation, but also civil co-operation. I hope that our negotiators will be saying, “If we get a deal with the EU, part of that must include the Commission dropping its current objections to the UK joining Lugano.” I hope that that is a negotiating gambit at the moment. The EFTA members are happy for us to join. The EU members at the moment, on the advice of the Commission, are not. This may not be easy, because France and Germany, in particular, have a history of being highly protective towards their jurisdictions in matters of legal services, so it is not something that is to be a footnote for Mr Frost’s agenda—the full Frost agenda, if I can put it that way. It should be central. That is why we think it is sufficiently important to flag it up on the face of the Bill. The Minister knows that, and I think it needs to be stated and put out there, right across Government.

My other points relate to scrutiny matters and the need for us to move forward, because there will be other important treaties that we will need to sign up to. I am grateful for the briefings given by the Law Society and the Bar Council in that regard, and I ought to refer to my entries in the Register of Members’ Financial Interests. It is important, for example, that, as well as signing up to Lugano, we have a means of drawing on the choice of court convention 2005. That is critical as a supplement to Lugano. It is important that we should move to joining the Hague judgments convention 2019, which the UK was instrumental in developing. Putting those two together will be very important for the long-term future of English law clauses in many international contracts. There is a concern otherwise and some evidence already of suggestions of international contracts now having ouster clauses from English law, rather than having specific buy-in clauses to English law. That would be damaging to our position as an international commercial law centre and we want to avoid that. There has to be a means of dealing with that swiftly—there is no question of that—but there also has to be proper scrutiny, because these are complex matters.

We also need, of course, to be in Lugano as soon as possible, so that we can deal with the much vexed question of the “Italian torpedo”, which is not a piece of naval history, but is, in fact, what is sometimes described as a race to the courts. It is about going to the court where a party can claim some residence that is likely to get them the easiest and swiftest deal. It is a name from an Italian law professor, so it is not meant with any disrespect to Italians. This gets to the problem of conflicting cases being run in different jurisdictions—a case being run in Italy and a case being run in the UK, for example, on the same subject matter. It is often family work. To change Lugano, we have to be in it, so that is why, again, getting into Lugano swiftly is absolutely critical. That is all the more important in those cases, since we will not be able to rely on the Brussels regime, as it has been recast, largely—ironically—as a result of work by British Ministers and British jurists to improve the system. That is why we need a proper system for ratification.

The other important point to make at this stage is there are some significant gaps, which I hope the Minister will be able to address, in terms of how we go forward. We know, for example, that within the international conventions to which we seek to adhere, there are ousters at the moment by the EU in relation to contracts for insurance. The insurance market is very important to the United Kingdom, so we have to find a means of making sure that we will have effective recognition and enforcement of judgments in relation to insurance contracts. That is an important issue for the United Kingdom. We will need a means of dealing with what appear to be slightly inconsistent approaches—between the approach in the Bill and that in some of the regulations that were brought in under the European Union (Withdrawal) Act 2018, set in tandem with the Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019. That is essentially about how we resolve disputes after exit day. There is a distinction in the approach adopted between common law and EU law in those two separate regulations, so that needs to be ironed out as a matter of some speed. Otherwise, we run the risk of conflict.

In fact, the House of Lords European Union Committee, back in 2016-17, highlighted the risk of adverse consequences for business and the importance of having certainty with this on the choices that businesses are making as to whether or not to select English contract law as the law governing commercial relationships. Of course the same would apply, where relevant, to Scots contract law because both jurisdictions have well-developed legal processes and a good reputation in those fields, so it is important that we preserve that. But the way in which the Government are doing it, with this very broad-ranging regulation-making power, is troubling.

As a former criminal practitioner, I have a particular issue with the ability the Bill at the moment gives the Government to increase penalties and, potentially, to create new offences by statutory instrument. We all know that certain types of offence have been created over the years by SIs, and the Minister and I have both dealt with them when in practice at the Bar, but generally they are of a regulatory nature—for example, they deal with health and safety, construction or vehicles. Taking out offences that have a sentence of more than two years as a maximum penalty is a start, but I am sure the Minister will know that offences carrying less than two years’ imprisonment can have profound reputational consequences for those who may be convicted of them. Often, the fact of the conviction of the offence will destroy someone’s reputation or career, rather than, of itself, the length of the sentence. I therefore hope the Government will reflect again on whether it is appropriate to use these SIs for the creation or extension of any type of criminal offence or penalty without a much greater level of scrutiny, which one would ordinarily expect. That is why the super-affirmative procedure offers a way forward, but better still let us use these to deal with regulatory and civil law matters, not ones that touch on the liberty or reputation of the subject.

It is important that we come to a clear decision on how we go forward with the considerable detail that will need to be put together once we have left. As well as getting into Lugano, a lot of these other SIs due to come into force at the end of the transition period were brought in swiftly at the time, and the Bar Council has expressed concern at the lack of consultation with the professions on them. I hope that the Minister can now make this good by undertaking that there will be the closest possible consultation with the specialists in the profession, for example, with the Family Law Bar Association, the Law Society’s family law committee and the Lord Chancellor’s international law committee, which is headed by distinguished jurists. Let us reach out to the expertise in the legal community in the UK and not do it “in-house” within Whitehall; let us bring in the important expertise we have elsewhere.

As to what we are going to do about arbitral arrangements, we have a growing arbitration centre in the UK. Arbitration and mediation are often seen as an important way forward for international dispute resolution, and we need to have a firm framework upon which we can undertake those matters in the future. The amendments that my hon. Friend the Member for Huntingdon and I have tabled are not intended to obstruct the Bill; they would help its passage through the other place, where I fear it will otherwise have some difficulty. The Minister has seen the speeches in the other place, so there is a bit of enlightened self-interest here. I urge the Minister to listen favourably to what we say and let us see whether we can find some compromise and undertakings at least on the way forward that will meet some of those legitimate concerns.

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Let me first declare an interest, as an associate of the Chartered Institute of Arbitrators. I take a different view on this Bill from my hon. Friends the Members for Huntingdon (Mr Djanogly) and for Bromley and Chislehurst (Sir Robert Neill). When I looked at the Bill and what it does, two words came out as being necessary to preserve, the first of which was agility. The Government need to have the agility to be able to implement treaties in this way. The second word was “flexibility”, which partly comes down to the issue of speed. My hon. Friend the Member for Huntingdon was wrong when he said that these sort of treaties take forever and there is no rush to get them through. There is a rush to get them through. One example of where there is a need to get a treaty sorted out is the Singapore mediation convention. It harms absolutely no one. All it does is make the decisions that are reached in mediation in countries that have signed the convention applicable anywhere around the world. It stops the enormously artificial process of having a mediation and then changing the mediators for another set of arbitrators, who then introduce the arbitration on exactly the same lines as the mediation in order for it to be caught by the New York convention, which is applicable around the world and which we have signed.

Understanding why we need to be quick with that treaty, which, as I say, does no harm, comes back to the visit that I and colleagues from both sides of the Houses made to Singapore earlier in the year. We have heard that many people see alternative dispute resolution as the way forward, but that is a complacent way of looking at the situation in the UK. The UK is not doing very well at maintaining itself as a global hub for alternative dispute resolution. The facilities available for conducting arbitration or mediation are far inferior to those that can be found in Singapore. If we sit around for much longer thinking that we can carry on being the global hub for this, we will lose that position very quickly and it will go to somebody else.

The techniques that we need to approve a major treaty are completely different from the sort of techniques that are needed to adopt a small treaty such as the Singapore mediation convention. We are speaking not about a new Maastricht treaty, but about treaties such as the Singapore mediation convention. We do not need an Act of Parliament for that; we need Ministers to get on with signing and implementing them as quickly as possible.

The Law Society has rather missed the point. It stresses the point that the effects of a treaty can have influence on domestic law, but it totally ignores the need for speed and it falls into the trap of complacency when it looks at the situation in the UK and the global role that we play. The House of Lords, when it looked at the measure and made its recommendations, also failed to recognise those points. I say again to the Minister that he needs to judge these amendments and new clauses according to whether they increase his agility and flexibility to get treaties such as the Singapore mediation convention signed and operational as quickly as possible.

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It is a pleasure to speak under your chairmanship, Dame Eleanor. As a relatively new Member of Parliament, it really is a joy to be speaking on this Bill. I refer the House to my entry in the Register of Members’ Financial Interests. I was a practising barrister for 30 years and for many of those years, I practised in these areas.

I am truly delighted to be speaking on this Bill in Committee. The very consideration of it is evidence that the transition period of our leaving the EU is coming to an end. For me, that is very welcome news. I support the propositions put forward by my hon. Friend the Member for Henley (John Howell), who said that the Government need to be responsive, and there is a need for speed, agility and considered thought.

It is of course right that, prior to the end of the transition period, the UK takes steps to ensure continued participation in key agreements in its own right, at last as a free and independent trading nation. From 1 February, the UK has regained full competence to enter into this sort of international agreement in the field in its own right. This is wonderful progress. As the UK develops its wider trading policy with the EU and the rest of the world, PIL agreements will be key to supporting cross-border commerce, which will be particularly important going forward. They will also regulate the very foundations of our society—how we deal with international family law matters—and build confidence for consumers as to how trade and disputes will be settled, all of which are very good things.

Cross-border commerce and trade are a vital part of life and UK businesses, individuals and families need to be able swiftly to settle cross-border disputes. International agreements on PIL are designed to help us: they provide that legal framework to resolve these difficult situations. These agreements will help us, as I know from my practice, to return children who have been abducted by one of their parents. They will also help a small business that has been left out of pocket by a supplier in another country to seek redress. Without these agreements, and without them being promptly brought into our law, families and businesses will be engaged in cross-border disputes that they will struggle to resolve. There are competing jurisdictions and competing processes, and it is very important that these matters are settled swiftly.

I have direct experience in my 30 years at the English Bar of just these types of disputes—far too many cases for me to go into in this short speech. The 1996 Hague convention is a well-known multilateral treaty aimed at improving the protection of children. It provides an important framework for the resolution of issues, such as residence and contact between separated parents who live in different countries. It is essential that we move swiftly on this, and this Bill allows us to do so and to move forward. Similarly, not to repeat too much of what my learned friends have said, the 2005 Hague convention is another multilateral treaty aimed, this time, at ensuring the effectiveness in relation to court agreements.

We really need to get this matter right. This is hugely important. It will contribute to London continuing to be a major legal and commercial centre in the world. It is important that we take considered, but swift, decisions. I hope that, in my term as a Member of Parliament, this place moves forward to be more responsible and more responsive to what its citizens need, rather than looking back at some of the lesser parts of our history. It is time to move on.

The 2007 Hague convention focused on the international recovery of child support and other forms of family maintenance. These are very important treaties and they need to be dealt with promptly. Again, I have been involved in many such cases at the Bar. It is essentially a good thing. By supporting this Bill, the House will help to ensure that civil, commercial and family law judgments will continue to be recognised and enforced across borders by our international partners. These agreements are likely to reduce costs for UK businesses, individuals and families involved in cross-border disputes while decreasing legal certainty for all—those travelling, those trading, those living, and those marrying and having families abroad. We do, of course, need to be agile and fast. We need to be considered. The points made by my hon. Friend the Member for Henley were spot on. Although I have great respect for my hon. Friends the Members for Bromley and Chislehurst (Sir Robert Neill) and for Huntingdon (Mr Djanogly), I do not support the amendments that they have brought forward. There is another time for detailed consideration of CRaG. There is another time for detailed consideration of reform. We need to act now.

When preparing for this speech, I was interested to read what was said in the House of Lords in relation to clause 2. It was very interesting to listen to what the noble Lords said on 13 May 2020, I was fascinated by what Lord Falconer said. I will not repeat it all, but what I will say is that I have waited 30 years to be able to say this in this House: what a prime example of political and legal grandstanding. The main argument was that to use delegated legislation was effectively a power grab—a matter of constitutional impropriety. What utter nonsense. We must not forget that it was the Labour Government who agreed to the use of delegated powers in all sorts of manners. We cannot spend 24 hours a day, every day, going through each and every little thing because the Opposition parties want to bring forward primary legislation. I am a free marketeer, a partial libertarian, I think that we need less law. We need very well-honed, primed, proper law to deal with the situation in point.

There is nothing wrong with delegated legislation, for which we have a well-established scrutiny system. It is highly hypocritical for those opposing the Bill to object to the use of the DL in the other House when prior to our leaving the EU we had little or no say on the implementation of treaties—they were solely a matter of EU competence and as a nation we had little say. At least our own Ministers will be able to decide on these issues when exercising properly delegated legislation. I know which institution I have more trust in. It is the Ministers of this Government who are held to account in this Chamber, rather than those in the EU.

In conclusion, it is constitutionally appropriate and proportionate to use delegated powers to implement international agreements on PIL law in domestic law. Without such a power, things would be difficult. We simply are not able, and it is not appropriate, to bring in primary legislation each and every time. This is a measured, proportionate approach, and I have absolutely no hesitation in supporting the Bill and opposing the amendments.

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I cannot match the technical analysis of my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), but I hope I can bring to today’s deliberations some practical experience of the implications of new clauses 2 and 5.

The honouring of agreements has been at the heart of international trade since such trade began, but it is worth remembering that Governments have not always supported international trade. If we look back at the approach of our Government and other Governments in Europe from the 16th and 17th centuries, and even well into the 18th century, we see that we operated mercantilist policies that actively prevented international trade. Such trade was discouraged to protect domestic manufacturing. Policies such as high border tariffs were implemented, and there were even export bans on tools that could be used to improve manufacturing in third countries. Many arcane rules and requirements to use local suppliers and local trades were implemented to make it harder to undertake international trade.

There was also no support for the legal enforcement of contracts. Consequently, businesses had to make their own arrangements, which were founded primarily on personal trust and the reputation of organisations and families. I have some personal experience: I was once recruited by my brother to work in his company, eventually as the managing director. His rationale was that he had no idea whether I was competent at anything but did know that I was unlikely to steal from him. I will leave it to other people to decide whether that was ultimately good for the economy of that business. On an international basis, that approach has been disastrous: throughout the 16th, 17th and 18th centuries there was a general stultification of growth.

I am delighted to say that it was the United Kingdom that led the world away from narrow protectionism and towards free trade. That great man Adam Smith led the charge. He destroyed the argument for protectionism, demonstrating the desirability of imports—they are more efficiently produced and therefore cheaper—and stating that exports were merely the necessary cost of acquiring them. It was through this place that we led the way in the repeal of protectionist laws: first, with the Reciprocity of Duties Act back in 1823, and then much more famously with the repeal of the corn laws in 1846. What was the result? We see it if we look around us today: the explosion of world trade.

PIL agreements have been crucial to the modern support of international trade. They bring legal certainty, deal with conflicts of jurisdiction and allow for judgments to be enforced internationally. The Bill helps to achieve those aims, particularly as we transition from EU membership into the big wide world. That transition period, to which I shall come back later in my speech, is relevant because of the time constraints that it imposes on Her Majesty’s Government.

I want to return to my first-hand experience of the impact of PIL agreements. I was the managing director of a UK-based SME that was entrepreneurial in its outlook, and we were doing pretty well in the UK, so naturally I looked to international markets as a means for expansion. In my time, I negotiated joint ventures in Russia, the United States of America, Australia and South Africa, as well as undertaking preliminary discussions in a number of other jurisdictions. It was noticeable that the only two joint ventures that we progressed to fruition were those in the United States of America and Australia, and the fundamental reasons that I felt unable to progress further in those other jurisdictions were the fears over the enforceability of contracts, particularly in relation to intellectual property, and the fears over the effectiveness of the rule of law in those jurisdictions. PIL agreements affect countless such economic decisions all around the world and in this country every day, so we must not underestimate their importance for economic decisions just like the ones that I took.

There is an urgent need for more PIL agreements, particularly as we move out of the transition period. They are an integral part of our pivot towards global Britain, and there should be no unnecessary delay in the Government’s ability not only to negotiate such agreements but to bring them into force. International enforceability is key to trade growth and to London remaining the centre of dispute resolution around the world. It is also key to the continued dominance of English and Welsh law, and it is worth reminding ourselves that that law is dominant because it is predictable in its interpretation and its enforceability. That is a key advantage for this jurisdiction.

I understand well the concerns that have been raised by old clause 2 and new clause 5. As a Back Bencher, I stand here to defend the rights of Parliament, but it is also right that I should do that with a sense of proportion. PIL agreements are significant—I have done my best to explain how significant they have been to international commerce—but they are fundamentally uncontroversial. They are not major treaties in the sense of Maastricht, which was mentioned by a previous speaker, and we need to have some practical considerations weighing on our mind as we decide whether we should implement new clause 5.

The transition period is a time when we should be lifting our eyes to the wider horizons of international trade, and that is going to mean many more PIL agreements. As my hon. Friend the Member for Henley (John Howell) highlighted, the Government’s agility, and their ability to strike while the iron is hot to take advantage of this brave new world into which we are entering, are material practical considerations. We also have the legislative timetable to consider. It is already clogged up with covid-related delays, and to require multiple Acts of Parliament to be progressed through that clogged-up timetable in order to progress time-sensitive and time-critical agreements would be disproportionate. It would create negative delay for the Government’s domestic agenda as they seek to progress this stodge, and delay for the implementation of the agreements themselves.

As a businessman and as a Back Bencher defending the rights of this Parliament, I operate with that sense of proportion, and my conclusion is that it would not be proportionate to prevent the Government from using secondary legislation in this manner. Consequently, I support the Government’s new clause 5 and I am against new clause 2.

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I rise today not as a lawyer, surprisingly—like many right hon. and hon. Members across the House—but merely as someone who has taken an interest in the Bill because I want the best for my constituents. I often joke that I am bilingual, because I can speak standard English and northerner, but I do not speak legalese, so Members may have to forgive me for a bit of plain speaking on this one.

New clause 5, which has been the subject of much discussion, effectively sets out the procedure by which international agreements on legal disputes are brought into UK law. The new clause would allow Ministers to implement treaties via an affirmative statutory instrument, rather than going through the full primary legislative process.

Some of my hon. Friends have expressed concerns about the impact of the Bill on parliamentary scrutiny. I assure colleagues that I firmly and fully believe in parliamentary scrutiny; last week, I was one of the signatories to the Brady amendment on the continuation of the Coronavirus Act 2020 for that very reason. However, I will make two key points. First, mechanisms for scrutiny already exist through CRaG and the affirmative statutory instruments procedure. That means that any statutory instruments laid would have to be actively approved by both Houses before coming into force, and would also be examined by the Joint Committee on Statutory Instruments.

Secondly, there is a finite amount of time available to us to debate matters in the House. As with many things in life, it is a matter of prioritisation. When I speak to Bishop Auckland residents, they want to know that Parliament is talking about the things that matter to them. Of course, to some, PIL treaties are highly important and at the top of their mind, but a vastly larger number of my constituents want to hear us talking about healthcare, education, crime and immigration—big picture stuff that has an impact right across society. If PIL treaties were subject to the full primary legislative process, there would be less time for those hugely important issues.

My hon. Friend the Member for Huntingdon (Mr Djanogly) was quite correct in outlining the complexity of the Bill and its amendments. Despite what I have just said about our constituents’ priorities, we also need to ensure that, despite its complexity, we do not lose sight of the tangible impact that the Bill could have on our constituents. I am grateful to my hon. Friend the Member for Broadland (Jerome Mayhew) for sharing his own experiences on that. If local Bishop Auckland companies that trade internationally, such as Equus Leather and Scott Leathers, were to enter into a dispute over, for example, unpaid invoices with a company from abroad, they would need to know how that legal process would work. We need to ensure that they are not dragged through UK courts and foreign courts, incurring all that additional cost, time and stress.

That is where PIL treaties come in. I firmly believe that Ministers need the freedom to make PIL treaties, knowing that they can be implemented into UK law quickly, to provide that protection for our businesses and individuals, as outlined by my hon. Friend the Member for Henley (John Howell) when he spoke about the speed that is sometimes needed. Furthermore, we need to be able to move quickly to cement international agreements and preserve our reputation on the global stage. As my hon. Friend also said, we need to make the UK a global hub for international dispute resolution, so speed is critical.

As we leave the EU at the end of year, this is our opportunity to go out into the world and make international agreements that will make things better for our constituents. We must embrace that opportunity and strike while the iron is hot, but, as my hon. Friend the Member for Derbyshire Dales (Miss Dines) rightly said, we do not need to lay primary legislation for every PIL agreement that our Ministers make. This is a proportionate Bill that allows us to protect our constituents, while new clause 5 ensures that in this Chamber, rather than seeing half-empty Benches bogged down by legalese and technical detail, we can continue to focus on the wider priorities of the people we are elected to serve.

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I rise to speak in support of new clause 5 in the name of the Minister, which, on balance, I believe would result in proportionate scrutiny for the measures that would fall under the jurisdiction of the Bill. The general points about the need for international agreements on private international law have been well rehearsed. Without such agreements, there would be a considerable impact on British businesses, individuals and families who are engaged in cross-border litigation. Indeed, it is not inconceivable to foresee a situation where parallel judgments by different courts contradict each other, resulting in legal limbo with little hope of redress and no hope of justice.

That is perhaps particularly evident in the case of custody disputes, where a child has been abducted and taken outside the UK by one parent. Right hon. and hon. Members across the House are no doubt all too aware of examples of such cases. Sadly, that pain has been felt by families in my own constituency of Aylesbury. If we compound that heart-wrenching situation with a quagmire of legal process in different jurisdictions, with no mutual recognition of judgments, desperation becomes hopelessness, and loving parents risk permanent separation from their children.

Less emotional, but equally important, is the plight of small British businesses seeking redress from an overseas supplier or customer. Buckinghamshire has more microbusinesses than any other county in the country. There are small firms that need the law to be simple and straightforward, so that they can focus on what they do best—producing goods and services that generate wealth and taxes—safe in the knowledge that the judicial system is there to protect them.

New clause 5 seeks to use delegated legislation to ensure that any future agreements concerning international private law are speedily implemented, thus benefiting individuals, families and businesses in the ways I have described. Parliamentary scrutiny will exist through the affirmative process, and what is more, it will be prompt. That seems to be appropriate and proportionate. Insisting on primary legislation to bring such new agreements into effect is disproportionate and unnecessary, not least because of the likely challenges of finding parliamentary time for what, as other Members have said, are unlikely to be matters of huge controversy. When international private law agreements were in the competency of the European Union, they were implemented by direct effect. Once the transition period is over, Members of this House will be able to scrutinise and vote on such agreements, bringing power back to Parliament through the DL procedure.

I am rather surprised by some of the opposition to new clause 5, both from Opposition Members and from the other place, because what is proposed today is not novel. There is precedent for the Government’s proposed course of action, and precedent is not to be lightly dismissed. Indeed, in justifying the decision of one of Mr Speaker’s illustrious predecessors, Erskine May said that he had

“found what convinces the House of Commons more readily than any argument—I have found a precedent”.

Several Acts passed in this place contain delegated powers concerning international private law. The Foreign Judgments (Reciprocal Enforcement) Act 1933 contains delegated powers allowing decisions to be made by Order in Council. The same is true in family law relating to the Maintenance Orders (Reciprocal Enforcement) Act 1972 using the same mechanism. I therefore support the Government’s desire to introduce new clause 5 and hope that Members of the other place will feel able to take the opportunity afforded them of a second chance to consider the implications of their earlier action.

As we conclude the transition period from leaving the EU, I want the UK to be a country where we focus on getting deals done, where we support our businesses to trade and where we strive to protect our citizens’ rights in a way that is straightforward and fair. I have had countless emails from constituent businesses asking me to ensure that they can run as smoothly as possible after the transition period. I have not had one single email from a constituent business demanding primary legislation for every single commercial agreement that is made in future—that is not a cue to 38 Degrees to start such a campaign.

I want us to be agile in the way we respond to opportunities from our friends and partners overseas and able to follow up an agreement made in person with swift delivery of parliamentary scrutiny in proportionate form that enables us to implement a deal and reap the benefits in short order. Businesses in my constituency of Aylesbury are hungry for the opportunities that await us on the international markets. They want Parliament to pave the way for them to bring greater prosperity to our country. Let us do that with new clause 5.

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I rise to speak in support of the amendments in the name of my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry) and myself. As other Members have said, there is a degree of consistency across a number of the amendments on the selection paper.

I welcome the action to enhance transnational co-operation. For once, instead of measures that seek to breach international agreements or upset international partners, this is a step in the right direction and a move that I hope we will see reflected in other bits of legislation that the Government bring forward.

I wish that this Bill was not necessary, but, having left the European framework, it is essential that we make alternative arrangements to ensure that the three Hague conventions still apply, to prevent Scottish businesses and families from being disadvantaged. The conventions add legal certainty for parties to cross-border commercial contracts, and they help with family maintenance decisions across borders and the protection of children in disputes where parents have separated but live in different countries. These conventions may be technical, but they are very practical for those caught in difficult and tangled situations. There is therefore a clear need to replace the previous mechanisms whereby the EU reached agreements on these types of cross-border disputes on behalf of member states.

Aspects of this legislation fall within the devolved competencies, forming parts of Scots private law relating to choice of jurisdiction, recognition of judgments and enforcement of decisions. The Bill, if passed, will provide reassurances, in particular, to those affected by cross-border family support and custodial mechanisms, so we are keen to see that move forward. The Scottish Government have considered the aspects that require a legislative consent motion under section 28 of the Scotland Act 1998 and will seek consent from the Scottish Parliament to allow agreement to the Bill. The Bill has been drafted with great respect for devolution and, again, I very much welcome that. It is the proper and democratic way to proceed. It is a great pity that that is not always the case with this Government, but certainly it is very much to be welcomed in this case.

I speak in favour of the amendments proposed by myself and my hon. and learned Friend the Member for Edinburgh South West. I pay tribute and give thanks to the Law Society of Scotland, which has supported us in the drafting of them. Amendment 10 has a particular focus on the Lugano convention, and the hon. Member for Bromley and Chislehurst (Sir Robert Neill) has already told us of the significance of the need to put the mechanism in place and of having it on the face of the Bill. Given the Government’s confirmation that they are intent on continuing with the convention, putting it on the face of the Bill would be a proper and appropriate way of doing that. The convention created common rules across the EU and EFTA, avoiding multiple court cases taking place on the same subject and saving the costs of all those involved. I welcome the steps taken.

The regrettable decision not to be part of the single market may yet come back to hit us. However, we are where we are, and if the UK joining the convention in its own right is accepted by 31 December, we will need to work quickly to introduce a simple mechanism to implement the convention. That is what the amendment from me and my hon. and learned Friend the Member for Edinburgh South West seeks to achieve, and I argue that the Government should amend the Bill to provide for a regulation-making power focused specifically on the implementation of the Lugano convention. That point is not being made just by Scottish National party Members; it is reflected on all sides of the House. That, in itself, speaks volumes.

It is important to note that that move would not preclude us from reinstating the previous regulation-making powers under clause 2 that were removed from the Bill during its passage in the other place. As was said earlier, that debate raised legitimate concerns about the lack of parliamentary scrutiny of delegated legislation, and I strongly suggest that the Government strongly reflect on that when seeking to reintroduce those powers.

The Bill fulfils a commitment in the political declaration between the UK and the EU, and I recognise that. I certainly welcome the fact that in this situation at least the Government appear to be looking to keep their promise and to keep private international law clear after the transition. As a proud internationalist, I welcome any measures that will continue to help to support and facilitate cross-border co-operation.

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On Second Reading, the official Opposition made it clear that they would oppose any attempts by the Government to reintroduce clause 2, which was removed by a majority in the other place. On Second Reading, numerous Members on both the Opposition and Government Benches made very sensible suggestions on how the Government could modify clause 2 and harness cross-party support. Sunset clauses, placing Lugano on the face of the Bill, as has been suggested by Members across the House this afternoon, and limiting the power of clause 2 were all among the suggestions discussed. Very sadly, the Government did not listen. That is surprising, particularly for this Minister, who is known to be attentive and a very able lawyer indeed.

The Government did not listen to the reasonable concerns voiced by the Chair of the Justice Committee, who, in his usual manner, made a moderate, sensible and clearly legally articulate speech, or to the concerns of the country’s most pre-eminent legal minds in the other place. They did not listen to the House of Lords Constitution Committee or to members of the Delegated Powers and Regulatory Reform Committee, which considered whether the powers contained in clause 2 should stand, and was frankly unanimous that the powers should not stand. They did not listen to the concerns of the Bar Council of England and Wales, the Law Society of England and Wales or the Law Society of Scotland. It is a great shame, therefore, that the Government have sought to reintroduce the exact same clause 2 in the shape of new clause 5, and the Labour party will keep its word and vote against new clause 5 today, if it remains in its current form.

The Lord Chancellor explained on Second Reading that the rationale for clause 2 was to ensure that the 2007 Lugano convention could be implemented swiftly and before the end of the transition period. That is a perfectly reasonable ambition. As we have heard, the Lugano convention is vital to ensuring that cross-border judgments can be enforced, and there is indeed a pressing need to implement it before the end of the transition period, but there is a question as to how.

The hon. Member for Huntingdon (Mr Djanogly) made a very good speech and his amendments go to the issue of the arrangements that we should have, particularly in relation to CRaG, as have been supported by the Chair of the Justice Committee. Even though those amendments are not in my name, I endorse what has been said; we do have to have architecture that is fit for purpose in the 21st century, and certainly architecture and scrutiny powers that befit the sixth biggest economy in the world and are as good as those in countries with which we would seek to have trade deals and private international agreements. But that is not the case. No one could argue that an arrangement set up in 1924 is fit for purpose. I support those remarks.

I turn to the amendments in my name and the name of the leader of the Labour party. Amendment (a) to new clause 5 would specifically allow new clause 5 to implement the Lugano convention. Similar amendments have been tabled by the Chair of the Justice Committee and by the Scottish National party. Each of those amendments would allow the Government to carry out their stated aim of implementing the Lugano convention without granting the Government sweeping Henry VIII powers and the ability to sideline Parliament. I say to the Under-Secretary of State for Justice, the hon. Member for Cheltenham (Alex Chalk), that he does not look like Henry VIII; nor, I suspect—when I recall the history books—does he have the manner of Henry VIII. Why, then, does he need these powers, which I fear he will rise to his feet to suggest he must have?

Of course, the Government have the other option, which is to add the Lugano convention to clause 1, which would allow them to implement it in domestic law as soon as the Bill is passed. As we set out on Second Reading, we have no objection to the important international agreements in clause 1 being incorporated into domestic law in the proper way—by primary legislation that is debated on the Floor of the House. We would have no objection to the Lugano convention being added to that list. If the genuine intention behind new clause 5 is to implement the Lugano convention, I look forward to the Government accepting Labour’s amendment (a) or one of the similar amendments, although we have to ask ourselves whether that is really the Government’s intention.

That brings me to Labour’s final amendment to new clause 5, amendment (e). Labour is concerned about the inclusion of new clause 5 because it represents a hugely significant change in the balance of power away from Parliament and to the Executive. New clause 5 would erase the convention that international legal agreements that change our domestic law can only be given force by an Act of Parliament. Instead, this Parliament will allow them to be implemented without any parliamentary scrutiny at all. We on the Labour Benches agree with the Constitution Committee, when it said:

“If the balance between the executive and Parliament is to be altered in respect of international agreements, it should be in favour of greater parliamentary scrutiny and not more executive power.”

We heard from the hon. Member for Derbyshire Dales (Miss Dines), who spoke about her experience as a barrister for 30 years. There has been much debate in this Chamber about exiting the European Union, but the primary objective was to bring sovereignty back to this Parliament. That is why we did it. Why, then, are we having a debate today about taking that sovereignty away from this Parliament and giving it to the Executive? That is not the way things have traditionally worked in our country.

I am straining a bit to think of those private international law modules that I and several other Members took. It was not my favourite area of law, but I do not recall it being vaguely contentious in a partisan or political way. It was contentious sometimes for the parties involved, particularly in areas of child abduction or domestic affairs, and it can be very important economically for businesses in dispute, but I struggle to recall it being a partisan debate between political opponents.

It is rather peculiar therefore that yet again I find myself at this Dispatch Box representing the Labour party as the conservative in this Chamber—it is perhaps why I chose to wear my blue tie this afternoon—arguing for law as we have traditionally had it. I look forward to the radical speech that will follow from the Minister.

As Members of Parliament, we have a duty to exercise extreme caution when considering measures that change our constitution, particularly at times when the Executive are empowered and Parliament is weakened. As we have seen in recent months, the Government have shown a disturbing over-reliance on using secondary legislation to bypass Parliament, as well as to avoid parliamentary scrutiny. Giving effect to broad international treaties in domestic law should never be a rubber stamp exercise, and it is vital that Parliament has a say. That is why we tabled amendment (e), which would ensure that any international agreement the Government wish to implement by secondary legislation must be subject to a super-affirmative resolution procedure before Parliament.

Let me be clear on one point: the Labour party would much prefer that all international agreements were implemented by primary legislation, but we are also pragmatic. We recognise that, with the end of the transition period quickly approaching, the Government must move at pace to ensure that legislation is in place. The amendment would ensure that international agreements could be implemented by secondary legislation, but that Parliament would still be given a crucial chance to scrutinise the secondary legislation that flows and, further, to make recommendations to the Government. We believe that to be a wholly reasonable proposal that reflects the legislative difficulties posed by Brexit while also protecting the primacy of Parliament, and that is why, if the Government believe in the importance of parliamentary scrutiny, they should accept the amendment. After all, it would appear strange for a Government so keen to take back control with regard to leaving the European Union to be reluctant to allow our own Parliament to scrutinise the legislation relating to that departure.

We believe that the Labour amendments to new clause 5 provide the Government with a constructive and reasonable approach. The amendments allow the Government to achieve the objective they claim is behind new clause 5: to implement the Lugano convention while also protecting parliamentary scrutiny. Nothing in these amendments, or any of the other amendments, hinders the Government in their stated aim. Indeed, they serve no other purpose than to protect parliamentary scrutiny. If the Government vote against them, they will be voting for, as the hon. Member for Huntingdon quite rightly said, one of the largest potential power-grabs ever seen by the Executive in this Parliament. I hope that this Government do the right thing and show that they do indeed value the role of the House and the role and value of parliamentary scrutiny.

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It was a great pleasure to listen to the powerful advocacy of the right hon. Member for Tottenham (Mr Lammy). Unfortunately, on this occasion, I am unable to agree with him, but out of courtesy to him I will explain why.

It is a real pleasure to address the Committee of the Whole House on a Bill which, while technical, is of great importance. Private international law is not just an arcane and abstract legal construct. As my hon. Friends the Members for Broadland (Jerome Mayhew), for Derbyshire Dales (Miss Dines) and for Aylesbury (Rob Butler), among others, have indicated, it is a very real framework for the dispute resolution of cross-border civil and family justice matters that affect families and businesses in our country. Indeed, the hon. Member for Midlothian (Owen Thompson) made the point that every time we enter into one of these agreements we strengthen the international rules-based order. That is a point we should not lose sight of either.

I am very grateful for the quality of the debate that we have witnessed today, as well as on Second Reading. It has been, if I may say in all sincerity, a debate of conspicuous clarity and ability. I really do appreciate the interest that has been shown in these important matters. I thank colleagues from across the Committee for the time they have taken to prepare the amendments and for the explanations that they have provided. Even where the Government take a different view—which, as I say, I will come on to explain—I recognise that these are serious amendments that have been tabled in good faith in an endeavour to improve the legislation.

Let me begin, if I may, by turning to amendments 5 and 6, new clause 5, new schedule 4 and amendment 7. Taken together, these amendments, in effect, restore the implementing power that was deleted in the other place and reverse the consequential amendments that flow from their deletion. The ability to be able to implement PIL agreements in a timely and effective manner is important. One of the things that really shone out from the excellent contributions that we heard was the word “agility”, which was used by my hon. Friend the Member for Derbyshire Dales in referring to the context of family agreements, and by my hon. Friend the Member for Broadland and, indeed, by my hon. Friend the Member for Henley (John Howell) in talking about the Singapore mediation agreement. That agility is important. It is what allows the UK to be a credible negotiating counterparty, so that if British Ministers agree a PIL agreement—which, incidentally, strengthens the international rules-based order—it can be brought into effect in an agile way.

If indeed, as we all appear to accept, such agreements are good for citizens and businesses, we want to make sure that there is no undue delay in rolling out those benefits. There is a public interest in ensuring that implementation and scrutiny mechanisms are proportionate—again, a word that shone out from the contributions we have heard—in striking the important balance between timely implementation and appropriate scrutiny. If I may make one point about the contribution by the right hon. Member for Tottenham, I think it is fair to say that he did not dwell particularly on the scrutiny procedures that are in place. I will develop that a little bit, and I hope that will put his mind at rest. I do not suppose that I will be able to get him to join us on the Government Benches, but I live in hope.

The provisions are necessary and proportionate because the agreements are recognised across the House as manifestly in the public interest. If I may say respectfully to my hon. Friend the Member for Huntingdon (Mr Djanogly), one of the principal points he made actually, I suggest, undermined his argument. He said, “These are very rarely party political.” The right hon. Member for Tottenham said, “I don’t recall it being vaguely contentious.” He is absolutely right. These agreements are not contentious.

Indeed, if we look at the previous Lugano convention in 2007, or at the previous Hague conventions, which we are introducing under clause 1, nobody ever prayed against them. Equally, on the old Lugano convention—the 1988 one, which preceded the 2007 one—I think only three of their lordships spoke in the other place, there were no amendments and nothing was said here. We must ask ourselves: if my hon. Friends accept that this is non-contentious, why go for what might be perceived to be the disproportionate step?

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I intervene only because the Minister suggested that I said something. I may have said that this is not party political, but that does not mean to say that it is not important, complicated and potentially contentious—but not for party political reasons.

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But ultimately, my hon. Friend cannot have it both ways. If we accept that it is not contentious, it is important that the mechanisms that are in place are proportionate to that. Indeed, the Opposition knew this when they were in government, because of course all these rule-making powers were on the statute book and they did not repeal them. There was the Administration of Justice Act 1920, the Foreign Judgments (Reciprocal Enforcement) Act 1933, the Maintenance Orders (Reciprocal Enforcement) Act 1972—I could go on. They stayed on the statute book because they are not really offensive to the constitutional balance that we enjoy, but not only were they not repealed; they were used.

The right hon. Member for Tottenham knows that because he was the Minister at the time. He was Minister at the Department for Constitutional Affairs when the British Government used the Foreign Judgments (Reciprocal Enforcement) Act 1933 to bring into force an international agreement with who? With Israel. He knows that because he was the Minister at the time. Who was the Lord Chancellor at the time? Lord Falconer. The right hon. Gentleman cannot very well say that these are a monstrous and egregious affront to our constitution when they were used, because they were used a second time in 2007. They created a power to give effect to bilateral agreements with the United States on reciprocal enforcement of family maintenance orders.

Just to complete that point, not only were those powers used; the right hon. Gentleman, for whom I have enormous respect, created new ones of his own. In 2005—[Interruption.] He is laughing, but he knows it is true. He was the Bill Minister on the Mental Capacity Act 2005, which, incidentally, on this very rainy weekend I had a chance to re-read. That Act created a wide delegated power to introduce international agreements in that area.

I do not want to labour this point too much, but I had a chance to look at proceedings in Committee on that Bill, during which a Conservative hon. Member talked about that specific power and effectively asked the right hon. Gentleman, “Is he sure that he wants to do this?” He added:

“Those in another place get very excited about any sort of Henry VIII clause.”

The right hon. Gentleman responded, effectively, “Don’t worry,” saying that

“they are technical and necessary provisions.”––[Official Report, Mental Capacity Public Bill Committee, 4 November 2004; c. 406-407.]

Is not that precisely the point? What was technical and necessary when he was in government has now become an egregious affront to our constitution.

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The very able Minister has put his argument, but I remind him that under the previous Labour Government, we were in the European Union. This debate is about being outside it, and the best architecture for scrutiny in this House in those circumstances.

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But the point is that when we were in the European Union and the European Union had competence to enter into PIL agreements, those would be brought into effect in the United Kingdom via the doctrine of direct effect. What role did this Parliament have? None. We are seeking to introduce much more by way of parliamentary scrutiny—the points, respectfully, that the right hon. Gentleman did not advert to. First, there is the CRaG procedure, and secondly there is the affirmative procedure.

I am at pains to mention that because I talked just a few moments ago about the Israeli agreement and the United States agreement. How did those come into force? Not through the affirmative procedure, not even through the negative procedure, but through an Order in Council. In other words, normal hon. Members—mere mortals like most of the people in the Chamber—had no say at all; just Privy Counsellors. We therefore respectfully say that it does not lie in the mouth of the Opposition to raise these concerns.

My hon. Friend the Member for Bishop Auckland (Dehenna Davison) made the point powerfully that this precedent, which the Opposition understood when they were in government, recognises that there is an opportunity cost. If we start filling up the parliamentary timetable with such legislation, which everyone accepts is not controversial, there is less time and less space for schools, hospitals and transport, etc.

On the point about criminal offences, which was made powerfully by the Chairman of the Select Committee, my hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill), this is an area where it is important to move cautiously. We will continue to reflect on the range of views expressed. I agree with him that an awful lot of offences are created by statutory instruments, but we need to take care, none the less.

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I am grateful for the Minister’s observations in relation to criminal offences, and I will take him at his word as far as that is concerned. I know that he will want to take away, perhaps, how we deal with that proportionately.

The Minister refers to the value of the affirmative procedure, as is proposed. That, of course, is used when the PIL treaty first comes into force in our domestic law, but often these treaties or agreements can be modified as they go along. Can he help me with the concerns raised by the Bar Council and the Law Society about how the proposed scrutiny regime would deal with, for example, declarations that are attached to international agreements when we bring them into force? Such declarations can sometimes modify or limit their scope. Secondly, how will we deal with model laws, which are now often used in international trade negotiations?

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If I may respectfully say so, that is an excellent point. That is one of the reasons why we seek to frame things this way, because one of the points my hon. Friend made most powerfully is that there are shortcomings in the Lugano convention. He talked about the Italian torpedo, but there are others, some of which Lord Mance referred to in the other place, for example.

How are we to be expected, in an agile and proportionate way, to address those changes, supposing they are negotiated, if we effectively have to have a new Act of Parliament each time? With respect, that would be wildly disproportionate. It would clog up this place unnecessarily, because there may be very good opportunities to improve those agreements and get them on to the statute book.

Let me deal with this business about Lugano, in amendments 1 to 4, 8 and 9, new clauses 1 and 2, new schedule 1, new schedule 3, new clause 5 and amendments (a) to (g). First, it is premature to put Lugano into the Bill while our application is outstanding, even if amendment 2 specifically includes reference to this being contingent on the UK’s accession. It is also inadequate—this is the point I was adverting to—as additional provisions will be required, mostly of a procedural or consequential nature, to properly implement to Lugano convention into domestic law.

For example, the civil procedure rules might need to be changed. What if Lugano is improved, as I indicated? What, also, if our application is unsuccessful? We may then need to move quickly. With whom will we want to move quickly? As my hon. Friend well knows, Norway, Iceland and Switzerland have published statements of support for our Lugano application, and that may be a route we would want to go down.

The most important point is that we have, and indeed should have, ambitions beyond Lugano. We must stay at the forefront of developments, whether the Singapore convention on mediation, as my hon. Friend the Member for Henley (John Howell) powerfully referred to, or the Hague convention on recognition and enforcement of foreign judgments in civil or commercial matters, also known as Hague ’19.

I advert to the fact that the Bill properly complies with the devolution settlement. We take that extremely seriously. As the hon. Member for Midlothian (Owen Thompson) indicated, both the Scottish Parliament and the Northern Ireland Assembly have passed legislative consent motions for the Bill, and the Welsh Government have agreed that an LCM is not required as PIL is almost entirely reserved. There is a small exclusion for Cafcass Cymru, but that is really it.

The right hon. Member for Tottenham spoke about the super-affirmative procedure, and I accept this amendment was submitted in the spirit of trying to be helpful. I entirely acknowledge that. These proposals are contained within paragraph 4 of new schedule 3, tabled by the Opposition, and there is a similar proposal in new schedule 2, although the SNP new schedule would introduce a super-affirmative scrutiny power only for Lugano. I respectfully make the point, and I appreciate that this is to the hon. and learned Member for Edinburgh South West (Joanna Cherry), but why would we need a super-affirmative scrutiny power for Lugano, which we have been operating for years? That is not very obvious to me.

The bar for the super-affirmative scrutiny procedure has always been high. Let us look at the context. Section 85 of the Northern Ireland Act 1998 provides for a super-affirmative procedure for regulations that deal with changes to reserved matters as set out in that Act. The Human Rights Act 1998 provides for such a procedure for remedial orders that deal with legislation that has been found to be incompatible—declarations of incompatibility. Under the Public Bodies Act 2011, a super-affirmative procedure is needed for orders that abolish, merge or change the constitutional funding arrangements. I dealt with those quickly, but the point is that super-affirmative procedure is reserved for matters of key constitutional importance. We must not forget that in the case we are discussing, we have the additional CRaG brake.

If we drill into the detail of super-affirmative procedure, it creates additional stages, but I query whether it results in improvements to the proposed regulations. Instead, it simply delays. It would also create a potential discrepancy between England and Wales and the devolved jurisdictions. One could easily imagine a situation whereby two litigants lived five miles either side of the border and the cases were dealt with differently, to the disadvantage of a litigant in England, because the Scottish Parliament had got on with it and simply brought an agreement into force. That would be unsatisfactory. I do not suggest that that is what the right hon. Member for Tottenham intends, but I fear it could be a consequence.

New clauses 1, 6 and 7 deal with laying the report. New clause 6 would require a report to be laid in Parliament before the UK ratifies an agreement. New clause 7 would require the Government to lay a report in Parliament for 10 House of Commons sitting days before a draft statutory instrument was laid. I accept the need for clear and detailed explanations, but it is not immediately obvious that new clause 7 would add anything to the current process. All SIs are already accompanied by an explanatory memorandum. I dug one out to prepare for the debate. It deals with the Civil Jurisdiction and Judgments Act 1982. It runs to 18 pages and is very detailed and helpful. Other than requiring the information 10 days earlier, I cannot see that new clause 7 would make a difference. We should not forget that an SI is typically laid several weeks before the House gets to debate it. None the less, I accept the point that my hon. Friend the Member for Bromley and Chislehurst made about the need to reach out to distinguished practitioners and jurists. It is right that we should do that, and I am keen for that happen.

I am very grateful for the consideration of the Bill in Committee. I share the desire to ensure that PIL agreements that we wish to join and domestically implement are appropriately scrutinised. All Governments must balance the need for scrutiny with the need to move in a timely manner to ensure that British citizens can enjoy the benefits of PIL agreements as soon as it is properly possible to provide for them. Those benefits are significant, and if the House gets the balance wrong, our citizens will be denied them by an unnecessarily labyrinthine process.

The proposed procedures provide for scrutiny of a delegated power using an affirmative SI together with the CRaG procedure to implement the agreements. That is a balanced and proportionate approach.

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Before the Minister sits down—

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Just in the nick of time.

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Perhaps the Minister can help my hon. Friend the Member for Huntingdon (Mr Djanogly) and me. I understand what the Minister is saying, and none of us wishes to create a labyrinthine process. Does he accept that it may be necessary to learn from experience with CRaG as we go forward? Are the Government closing their mind to the idea that we could seek refinements and improvements to the CRaG process as we operate it? The answer might help us.

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I thank my hon. Friend for raising that point. There is no doubt that the CRaG process is evolving and maturing. Proper points have been made about the need to consider it and how it should evolve over time. I certainly do not want to shut my eyes or my ears to my hon. Friend’s proposals.

The Bill takes a balanced and proportionate approach. I therefore invite hon. Members to support the Government amendments and reject the remainder.

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The debate has been interesting and gone some way towards creating a more common understanding of the important issues at stake, the balance between efficient process and appropriate parliamentary scrutiny, and why, as I have argued, we need a more modern process of scrutiny for PIL treaties as much as for the ministerial orders that are derived from them.

We have had many great contributions today. My hon. Friend the Member for Bromley and Chislehurst (Sir Robert Neill) explained why these treaties, particularly Lugano, are so important to a wide variety of people, and are not just techie stuff for lawyers. He also explained very well why we need proper scrutiny provisions, and raised the important point that we need to use the best expertise that we have available when we are determining these orders.

A variety of points were made. In fact, the same points were made by my hon. Friends the Members for Henley (John Howell), for Derbyshire Dales (Miss Dines), for Broadland (Jerome Mayhew) and for Bishop Auckland (Dehenna Davison). I think they all used the same phrase—that we need agility, flexibility and speed in the way that we approach these orders.

I do not necessarily see the amendment that I tabled today affecting any of those in a negative way. Indeed, I made the point that our opposite treaty partners generally have more stringent scrutiny provisions than we do, and they are not complaining about the lack of time. I was sorry, in that regard, that it was the Government’s approach to want to bring back new clause 5 rather than amend it—I will come back to that—but I did take on board the point made by my hon. Friend the Member for Henley and others, on the importance of London as an international legal centre and the importance of these treaties for commerce.

My hon. Friend the Member for Bishop Auckland noted the tangible impact for her constituents and their concerns about clogging up; I believe I have addressed those. My hon. Friend the Member for Aylesbury (Rob Butler) said that there was a precedent for what the Government propose, and the Minister made the same point. I do not deny that, but I would say that what was used, and what was acceptable, in the 1930s—or in the 1970s, the other example given—is not necessarily best practice now, and indeed is definitely not the current practice of Japan, the US or the EU. They all have much more developed processes than we have. Even the other Commonwealth countries, which, as I said, have our constitutional position, in practice have much more developed scrutiny measures than we have.

The hon. Member for Midlothian (Owen Thompson) explained very well that the approach being taken around the House has been pretty much the same in terms of what we want to see going back to the Lords. We have heard the Minister, and unfortunately it is a case of clause 2—or new clause 5—back with no amendments. I still do not understand the Government’s approach. It would have been good if this debate had happened at the final stages in the other place. Instead there was a polarised approach there. Throughout, the other place threw the order-making clause out altogether, leaving us to pick up the pieces. Sadly, we have failed to do so today, and now the Bill goes back to the other place in a situation where we should be agreeing this stuff, frankly. In this context, amendment 2 to include the Lugano treaty is good to have, but that is not the key issue at stake here, and as such I do not intend to request a Division on amendment 2 today. The Opposition are now saying again that they want the Government’s amendment to be thrown out rather than amended; I cannot support that approach either.

I end with a plea to the Minister. I hope that, as we take the Bill back to the other place, we can move away from this polarised position and come to a deal that enables us all to move forward. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 1 ordered to stand part of the Bill.

Clause 2

CROWN APPLICATION

Amendment made: 5, page 2, line 28, insert—

“(2) Regulations under section (Implementation of other agreements on private international law) may make provision binding the Crown.

(3) The reference to the Crown in subsection (2) does not include—

(a) Her Majesty in Her private capacity,

(b) Her Majesty in right of the Duchy of Lancaster, or

(c) the Duke of Cornwall.”—(Alex Chalk.)

This amendment provides that regulations made under NC5 may make provision binding the Crown.

Clause 2, as amended, ordered to stand part of the Bill.

Clause 3

EXTENT, COMMENCEMENT AND SHORT TITLE

Amendment made: 6, page 2, line 30, at end insert—

“(2) Her Majesty may by Order in Council provide for section (Implementation of other agreements on private international law) (including Schedule (Regulations under section (Implementation of other agreements on private international law))) and section 2(2) and (3) to extend, with or without modifications, to the Isle of Man.”—(Alex Chalk.)

This amendment inserts a new subsection into Clause 3. This allows Her Majesty by Order in Council to extend to the Isle of Man NC5 (including NS4) and subsections (2) and (3) of Clause 2 inserted by Amendment 5.

Clause 3, as amended, ordered to stand part of the Bill.

New Clause 5

IMPLEMENTATION OF OTHER AGREEMENTS ON PRIVATE INTERNATIONAL LAW (NO. 3)

“(1) The appropriate national authority may make regulations for the purpose of, or in connection with, implementing any international agreement, as it has effect from time to time, so far as relating to private international law (a “relevant international agreement”).

(2) The appropriate national authority may make regulations for the purpose of, or in connection with, applying a relevant international agreement, with or without modifications, as between different jurisdictions within the United Kingdom.

(3) The appropriate national authority may make regulations for the purpose of, or in connection with, giving effect to any arrangements made between—

(a) Her Majesty’s government in the United Kingdom, and

(b) the government of a relevant territory,

for applying a relevant international agreement, with or without modifications, as between the United Kingdom, or a jurisdiction within the United Kingdom, and that territory.

(4) Regulations under this section may make—

(a) consequential, supplementary, incidental, transitional or saving provision;

(b) different provision for different purposes or for different parts of the United Kingdom.

(5) Regulations under this section may include provision about—

(a) enforcement of obligations arising under or by virtue of the regulations;

(b) sharing of information;

(c) legal aid.

(6) Schedule (Regulations under section (Implementation of other agreements on private international law (No. 3))) makes further provision about regulations under this section.

(7) In this section—

“appropriate national authority” means—

(a) in relation to England and Wales, the Secretary of State;

(b) in relation to Scotland—

(i) the Scottish Ministers, or

(ii) the Secretary of State acting with the consent of the Scottish Ministers;

(c) in relation to Northern Ireland—

(i) a Northern Ireland department, or

(ii) the Secretary of State acting with the consent of a Northern Ireland department

“international agreement” means a convention, treaty or other agreement to which the United Kingdom is, or is expected to become, a party;

“private international law” includes rules and other provisions about—

(a) jurisdiction and applicable law;

(b) recognition and enforcement in one country or territory of any of the following that originate in another country or territory—

(i) a judgment, order or arbitral award;

(ii) an agreement, decision or authentic instrument determining or otherwise relating to rights and obligations;

(c) co-operation between judicial or other authorities in different countries or territories in relation to—

(i) service of documents, taking of evidence and other procedures, or

(ii) anything within paragraph (a) or (b);

“relevant international agreement” has the meaning given in subsection (1);

“relevant territory” means—

(a) the Isle of Man;

(b) any of the Channel Islands;

(c) a British overseas territory.

(8) This section and Schedule (Regulations under section (Implementation of other agreements on private international law (No. 3))) have effect, with the following modifications, in relation to a model law adopted by an international organisation of which the United Kingdom is a member as it has effect in relation to an international agreement to which the United Kingdom is, or is expected to become, a party.

The modifications are—

(a) a reference in this section or that Schedule to implementing or applying a relevant international agreement is to be read as a reference to giving effect to the model law (with or without modifications);

(b) subsection (1) is to be read as if the words “as revised from time to time” were substituted for the words “as it has effect from time to time”.”—(Alex Chalk.)

This new clause contains a power to implement international agreements relating to private international law.

Brought up, and read the First time.

Question put, That the clause be read a Second time.

Division 126

6 October 2020

The Committee divided:

Ayes: 324
Noes: 175

Question accordingly agreed to.

View Details

New clause 5 read a Second time, and added to the Bill.

The list of Members currently certified as eligible for a proxy vote, and of the Members nominated as their proxy, is published at the end of today’s debates.

Schedules 1 to 5 agreed to.

New Schedule 4

Regulations under section (Implementation of other agreements on private international law (No. 3))

Restrictions on power to make regulations

1 (1) Regulations under section (Implementation of other agreements on private international law (No. 3)) may not include—

(a) provision that confers power to legislate by means of regulations, orders, rules or other subordinate instrument (other than rules of procedure for courts or tribunals);

(b) provision that creates an offence for which an individual who has reached the age of 18 (or, in relation to Scotland or Northern Ireland, 21) is capable of being sentenced to imprisonment for a term of more than two years (ignoring any enactment prohibiting or restricting the imprisonment of individuals who have no previous convictions).

(2) Sub-paragraph (1)(a) does not prevent the modification of a power to legislate conferred otherwise than under section (Implementation of other agreements on private international law (No. 3)), or the extension of any such power to purposes of a similar kind to those for which it was conferred.

(3) A power to give practice directions or other directions regarding matters of administration is not a power to legislate for the purposes of sub-paragraph (1)(a).

Regulations to be made by statutory instrument or statutory rule

2 The power to make regulations under section (Implementation of other agreements on private international law (No. 3))—

(a) is exercisable by statutory instrument, in the case of regulations made by the Secretary of State;

(b) is exercisable by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I. 1979/1573 (N.I. 12)), in the case of regulations made by a Northern Ireland department.

Parliamentary or assembly procedure

3 (1) This paragraph applies to a statutory instrument containing regulations made by the Secretary of State under section (Implementation of other agreements on private international law (No. 3)).

(2) If the instrument contains (whether alone or with other provision)—

(a) provision made for the purpose of implementing or applying, in relation to the United Kingdom or a particular part of the United Kingdom, any relevant international agreement that has not previously been the subject of any such provision (whether made by regulations under section (Implementation of other agreements on private international law (No. 3)) or otherwise),

(b) provision made for the purpose of giving effect, in relation to the United Kingdom or a particular part of the United Kingdom, to any relevant arrangements that relate to a particular territory and have not previously been the subject of any such provision (whether made by regulations under that section or otherwise),

(c) provision that creates or extends, or increases the penalty for, a criminal offence, or

(d) provision that amends primary legislation,

it may not be made unless a draft of the instrument has been laid before each House of Parliament and approved by a resolution of each House.

(3) In this Schedule “relevant arrangements” means arrangements of the kind mentioned in section (Implementation of other agreements on private international law (No. 3))(3).

(4) If sub-paragraph (2) does not apply to the instrument, it is subject to annulment in pursuance of a resolution of either House of Parliament.

4 (1) This paragraph applies to regulations made by the Scottish Ministers under section (Implementation of other agreements on private international law (No. 3)).

(2) The regulations are subject to the affirmative procedure (see section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010) (asp 10)) if they contain (whether alone or with other provision)—

(a) provision made for the purpose of implementing or applying, in relation to Scotland, any relevant international agreement that has not previously been the subject of any such provision (whether made by regulations under section (Implementation of other agreements on private international law (No. 3)) or otherwise),

(b) provision made for the purpose of giving effect, in relation to Scotland, to any relevant arrangements that relate to a particular territory and have not previously been the subject of any such provision (whether made by regulations under that section or otherwise),

(c) provision that creates or extends, or increases the penalty for, a criminal offence, or

(d) provision that amends primary legislation.

(3) If sub-paragraph (2) does not apply to the regulations, they are subject to the negative procedure (see section 28 of the Interpretation and Legislative Reform (Scotland) Act 2010).

5 (1) A Northern Ireland department may not make regulations under section (Implementation of other agreements on private international law (No. 3)) that contain (whether alone or with other provision)—

(a) provision made for the purpose of implementing or applying, in relation to Northern Ireland, any relevant international agreement that has not previously been the subject of any such provision (whether made by regulations under section (Implementation of other agreements on private international law (No. 3)) or otherwise),

(b) provision made for the purpose of giving effect, in relation to Northern Ireland, to any relevant arrangements that relate to a particular territory and have not previously been the subject of any such provision (whether made by regulations under that section or otherwise),

(c) provision that creates or extends, or increases the penalty for, a criminal offence, or

(d) provision that amends primary legislation,

unless a draft of the regulations has been laid before the Northern Ireland Assembly and approved by a resolution of the Assembly.

(2) Regulations under section (Implementation of other agreements on private international law (No. 3)) made by a Northern Ireland department are subject to negative resolution, within the meaning of section 41(6) of the Interpretation Act (Northern Ireland) 1954, if a draft of the regulations was not required to be laid before the Northern Ireland Assembly and approved by a resolution of the Assembly.

(3) Section 41(3) of that Act applies for the purposes of sub-paragraph (1) in relation to the laying of a draft as it applies in relation to the laying of a statutory document under an enactment.

Interpretation

6 In this Schedule—

“amend” includes repeal or revoke;

“primary legislation” means any provision of—

(a) an Act of Parliament,

(b) an Act of the Scottish Parliament,

(c) an Act or Measure of Senedd Cymru, or

(d) Northern Ireland legislation;

“relevant arrangements” has the meaning given in paragraph 3(3);

“relevant international agreement” has the same meaning as in section (Implementation of other agreements on private international law (No.3)).”—(Alex Chalk.)

This new schedule makes further provision about regulations made under NC5.

Brought up, read the First and Second time, and added to the Bill.

Amendment made: 7, in title, line 1 at end insert

“and to provide for the implementation of other international agreements on private international law.”—(Alex Chalk.)

This amendment to the long title reflects the change to the Bill made by NC5.

The Deputy Speaker resumed the Chair.

Bill, as amended, reported.

Bill, as amended in the Committee, considered.

Third Reading

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I beg to move, That the Bill be now read the Third time.

Let me start by thanking all the right hon, hon. and , in particular, learned Members from all parts of the House for their careful scrutiny of the Bill at each stage of its passage. A variety of opinions have been expressed, and I value all the contributions made on these important issues. We have been fortunate, throughout the passage of this Bill, that the debates have been genuinely enriched by the experience and expertise of the speakers, both in this House and in the other place. One thing that has been raised time and again from all involved is an acknowledgement of the importance of private international law and the real-world impact it can have on our constituents.

I have to accept that historically that acknowledgement has not always been in place. A former Lord Chancellor, Lord Hailsham, who introduced a key piece of private international law legislation, the Civil Jurisdiction and Judgments Bill, into the House of Lords in 1981 opened the Second Reading debate by saying:

“I rather feel that it should be accompanied by a Government health warning. There is nothing whatever that I can do to make my speech short, and those who expect to find it of throbbing human interest will, I fear, be wholly disappointed.”—[Official Report, House of Lords, 3 December 1981; Vol. 425, c. 1126.]

But of course we know in this House that this is extremely important. Reciprocal private international law rules provide a framework to enable UK businesses, families and individuals to resolve their difficult and challenging situations. They help to avoid confusion for all parties, by preventing multiple court cases from taking place in different countries on the same subject and reaching potentially different conclusions. Such reciprocal rules also allow for the decisions of UK courts to be recognised and enforced across borders. All of this helps to reduce costs and anxiety for the parties involved. It is therefore vital that in future our country is able not only to continue to co-operate on private international law matters with existing partners, but to implement in our domestic law new agreements that are fit for the 21st century.

The Bill underpins our ambition to deliver real and tangible benefits for the United Kingdom—for our citizens—both now and in the years to come. I reassure Members on a point that I know they realise but that can never be emphasised enough: although private international law can support and underpin cross-border trade, the Bill is not about the implementation of free trade agreements. The terms on which trade between two countries takes place are clearly outside the scope of the Bill.

Over the next few years, we face the challenge of replacing and updating the UK’s private international law framework, recognising our regained competence in this area of law. Although we have not yet agreed, as between this House and the other place, on how best to scrutinise future agreements, I am now confident that there is an eagerness to do so effectively. That eagerness recognises the overwhelming public interest of such agreements.

More broadly, I am pleased that, whatever the outcome of ping-pong, we will have in place legislation that allows the UK to realise the future opportunities in this area of law. I think all parties in this House are agreed not only that we want the UK to remain at the forefront of delivering justice internationally and to ensure that our legal services sector continues to flourish, but that we want to ensure that we are at the forefront of the international rules-based order—we want to see it strengthened and we want to play our part.

I conclude simply by thanking all Members for their contributions. I commend the Bill to the House.

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I join the Minister in thanking colleagues from all parties for their thoughtful contributions to this important debate. I especially thank the hon. Member for Bromley and Chislehurst (Sir Robert Neill), the hon. and learned Member for Edinburgh South West (Joanna Cherry), and the hon. Members for Huntingdon (Mr Djanogly) and for Midlothian (Owen Thompson) for their eminently reasonable suggestions on how the Bill could secure cross-party support.

On Second Reading, Labour made it clear that we supported the fundamental principle behind the Bill. The Opposition fully accept that as we leave the largest network of private international law agreements in the world, we must have a legislative framework in place to replace it. As we leave the European Union, we must protect our country’s proud reputation as the international forum of choice for the resolution of commercial and legal disputes.

We should also remember the human aspects of private international law. Helping parents separated by borders to come to custody agreements in the interests of their children is very important, as is allowing the safe return of a child who has been abducted. That is why the Opposition have always been fully supportive of the Government’s desire to implement the international treaties listed in clause 1, each of which has been fully scrutinised by this House and is being brought into domestic law by primary legislation. That is how the implementation of international agreements has always been done, and how we would like to see it done in future.

Unfortunately, we have seen during the Bill’s passage the Government’s desire to prise parliamentary scrutiny away from this House and these Benches. That is something we regret and something to which the other place will no doubt return in the debate ahead. Once again, we see a Government keen to do all they can to avoid proper democratic scrutiny—a Government more at ease with ruling by decree than daring to test the will of this House.

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We have had a constructive set of debates on the Bill, and I pay tribute to all Members for the approach that has been adopted. I pay particular tribute to the skill and elan with which the Minister has steered the Bill through the House: he is a credit to our mutual profession. He is certainly no Henry VIII—and I say that in a good way—but of course he and I are both proud members of the Honourable Society of the Middle Temple. The nearest Tudor connection I can find is that the first Middle Templar to be Lord Chancellor was Lord, previously Sir, Richard Rich, for those who follow “A Man for All Seasons”. I am not sure whether that is a good sign, but I do not think that the Minister is a Richard in terms of personal integrity, since he was certainly one of the most successful Lord Chancellors but also one of the most corrupt. We have moved forward a great deal, and I suspect that the legacy still entertains us in Middle Temple with the wine cellar.

The Minister has done a great job on the Bill, and I hope he will reflect on some of the comments made, none of which were aimed to obstruct or make life difficult for the Government, because we all share the objective. I welcome the tone adopted throughout by the shadow Secretary of State, the right hon. Member for Tottenham (Mr Lammy), and those on the SNP Front Bench. It is important for the country’s sake that we get this right.

It has been rightly observed that this is not just about dry technical law. When I went to the London School of Economics in the ’70s, it had an international law module, which most of us avoided. It had just introduced a European law module, and somebody said, “There’ll never be much work around that,” which shows how things can be got wrong. As we exit a period of 40 or more years during which EU law has been an increasingly important part of our domestic and international legal systems, it is all the more important that we have a proper means of getting private international law agreements on a sound footing. I think we all share the Government’s objective in that.

I suspect that this may not be the last we hear of the Bill, either in the other place or here. I hope we will find a constructive way forward that meets some of the concerns raised in the other place about how scrutiny is dealt with. I welcome the Minister’s longer-term commitment to look at those issues. I hope he will take away the criminal sanctions aspect in particular, and the need to look at how CRaG operates.

May I give the Minister a further reading list, so to speak? As well as the Mental Capacity Act 2005 and the other things for a wet Friday, perhaps he could look at the Law Society and Bar Council briefings on how we deal with the two issues that I flagged briefly in Committee in relation to our having a proportionate and effective means of scrutinising the declarations that are frequently attached to international legal agreements. International agreements are often adopted by country with a declaration that modifies or limits the extent of its application to varying degrees. The Bill provides for the affirmative procedure for the initial adherence to the treaties, but it might not, as far as we can see at the moment, cover how we would properly scrutinise the declarations, which could have a significant impact.

An example of that, if the Minister wants it, is that we are committed to seeking to join in our own right the Hague choice of court convention 2005, which is an important document. When we joined it as part of the EU, the EU opted to exclude insurance contracts from that agreement. The provisions that we made following the withdrawal agreement and the memorandum on delegated powers that accompanies this Bill suggest that we will continue to exclude insurance contracts from it.

We need to think about why that is and how we will deal with scrutiny of changes to that, because the potential effect of that is to deprive court judgments based on excluded contracts of the right to be enforced by the 2005 convention when we hopefully sign up to it. That would leave a considerable gap in a very important sector of the British economy. Insurance and reinsurance markets are of real significance to the financial world, and we need to have a means of adjusting the position if that is required and taking on board those concerns. That is precisely the area where it is suggested that we should be talking to the experts in not only private international law but the insurance sector. I have already declared my interests in relation to these matters, but it is important that we take that as an example.

A similar issue arises in relation to how we will deal with model laws. Model laws are not international conventions that impose rights and duties between contracting states, but they are what are sometimes termed agreed soft law provisions, which are often modified substantially before they are given effect in domestic law. They are important, none the less, and they are a growing area of activity, so I hope the Minister can think about the mechanism that we have to ensure that they are properly scrutinised, as well as being brought in timeously. I flag those up as examples of what we need to do. It is certainly important that we do not just stop at joining Lugano. Whether it is on the face of the Bill or not, I know that the Minister and the Government are committed to joining it, and that is an important first step, but as we all know, there are other conventions that it is most important we seek to join, some of which have already been mentioned. I hope that we will push on swiftly, for example, to implement and ratify the 1997, 2005 and 2007 Hague conventions, because between them they would provide a suite of the vital civil and family law co-operation measures that we want to see continue after the transition period.

Of course, we also hope that the Government will ratify and implement in England and Wales the 2000 Hague convention on the international protection of adults. It has already been brought into force in Scotland but not in England and Wales, and it seems bizarre that a vulnerable adult could be treated differently if they were in Gloucester as opposed to Glasgow. That implementation would, for example, enable us to deal with important issues relating to vulnerable adults such as people who are subject to powers of attorney or who are under the jurisdiction of the Court of Protection and who might have overseas assets or overseas properties. Not having continuity of legal recognition of the judgments and contracts that are entered into could make it difficult to deal with those persons’ affairs.

These are techie issues, but they affect real lives, so the technical is not insignificant or without a human dimension. I hope that, as we go forward on a constructive basis, we can ensure that, having decided to leave the EU and branch out into broader areas of economic activity, the Government will make a concerted effort, as both the Law Society and the Bar Council have called for, to take a lead in selling, maintaining and building on the UK’s position as a jurisdiction of choice. Tens of thousands of jobs depend on it, as does billions of pounds-worth of economic activity, and it is in our fundamental national, strategic, economic interest to do this. With this Bill on the statute book, I hope that that is the most important thing the Government take forward as a matter of high policy in our negotiations to, hopefully, exit the EU with a deal, and in future free trade agreements.

So far, it has been tough to get free trade agreements to deal with services, and legal services in particular, but we have a potentially strong asset in our legal system and in the integrity and standing of our judiciary, which we should never pillory. No politician should ever knock lawyers for the sake of it, because ultimately, respect for the integrity of the system is fundamental. I know that the Minister and the Lord Chancellor share that view, and I hope that the Bill will give us an opportunity to build strongly on that.

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I too welcome the contributions of all hon. and right hon. colleagues today and throughout the Bill’s previous stages. I am deeply disappointed that the amendments in the names of myself and my hon. and learned Friend the Member for Edinburgh South West (Joanna Cherry) were not supported by the Government, but I will try not to take it personally. However, we will always continue to try to do what we can to make the Government’s laws better than when they were presented. I also find myself, not for the first time, in the slightly strange position of agreeing with the hon. Member for Bromley and Chislehurst (Sir Robert Neill).

This is a largely technical Bill, but it will have important consequences for many businesses and individuals. We only have to consider the impact on an individual family, and the extra hassle they might have to go through, if we were unable to get a replacement or an agreement to continue with the Lugano convention. We cannot underestimate the impact on people if these things are not got right, so every effort needs to be made, regardless of whether it is on the face of the Bill. Obviously we will need to see what comes forward. I heard the Minister say that we should now move to replace and update the legislation on other conventions, and I would certainly encourage following the precedent set through this Bill’s process in working across the Chamber and in respecting the devolution settlement and the rule of international law.

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Let me add my gratitude to everyone who has spoken in this debate. It has been a very good debate, and I am sure that we have all learned a lot from it. I congratulate the Minister on what he has been able to do. What amazes me is that he has been able to get through the Bill without once using my skills as a mediator. That must be to his great credit.

We have here something that is in the interests of the country and that gives us a new tool in the box. From a personal point of view, I look forward to the Singapore mediation convention being signed and ratified by this country as quickly as possible. I even volunteer to sit on the statutory instrument Committee in order to do that.

Question put and agreed to.

Bill accordingly read the Third time and passed, with amendments.