Cookies on Legislation.gov.uk

The cookies on legislation.gov.uk do two things: they remember any settings you've chosen so you don't have to choose them on every page, and they help us understand how people browse our website, so we can make improvements and fix problems. We need your consent to use some of these cookies.

Search Legislation

Advanced Search

Private International Law (Implementation Of Agreements) Act 2020

Contents

Commentary on provisions of Act

Implementation of international agreements

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

  1. This section amends the Civil Jurisdiction and Judgments Act 1982 ("the 1982 Act").
  2. Section 1(1) inserts a definition of the 1996 Hague Convention into section 1(1) of the 1982 Act, which is the section dealing with interpretation of references to Conventions in that Act. The 1982 Act already contains definitions of the 2005 and 2007 Hague Conventions.
  3. Section 1(2) inserts new sections 3C, 3D and 3E into the 1982 Act, providing for the 1996, 2005 and 2007 Hague Conventions respectively to have the force of law in the UK, subject to any reservations and declarations made by the UK. The UK made the declarations to the 1996 Hague Convention which are referred to in new section 3C(2) when it joined that Convention in 2012. The UK acceded to the 2005 Hague Convention, and ratified the 2007 Hague Convention, in September 2020 and made declarations and a reservation to those Conventions in the form already approved by Parliament when those Conventions were laid in Parliament for scrutiny under the CRAG Act 2010 in 2018 (see paragraph 15 above).
  4. Section 1(3) inserts into the 1982 Act the Schedules set out in Schedules 1 to 4 to this Act, which comprise the text of the three Hague Conventions, and of the declarations which the UK made in 2012 in relation to the 1996 Hague Convention. The Government intends to use the power in section 2 of the Act to amend the 1982 Act to insert Schedules containing the text of the reservation and declarations the UK made in September 2020 in relation to the 2005 and 2007 Hague Conventions.
  5. Section 1(4) introduces Schedule 5 which contains provisions consequential on section 1 of the Act and makes transitional provision.
  6. Paragraph 1 of Schedule 5 adds the 1996 Hague Convention to the list of Conventions in relation to which the existing rule-making power in section 48 of the 1982 Act may be exercised, as a consequence of the 1982 Act being amended by the Act to insert provisions implementing that Convention. This power already applies in relation to the 2005 and 2007 Hague Conventions.
  7. Paragraph 2 provides for section 4 of the European Union (Withdrawal) Act 2018 to cease to apply to directly effective rights derived from the 1996, 2005 and 2007 Hague Conventions. It will not be necessary to rely on these directly effective rights, saved by section 4 of the 2018 Act, once the provisions of section 1(2) of the Act have provided for those Conventions to have the force of law.
  8. Paragraphs 3 and 4 make consequential amendments to the EU Exit Regulations made in exercise of the powers in section 8 of the European Union (Withdrawal) Act 2018 in relation to the directly effective treaty rights derived from the 2005 and 2007 Hague Conventions. In particular, the amendments revoke the savings provisions in the EU Exit Regulations, and the transitional provisions in the Conventions (which are given legal force by section 1 of the Act) will apply subject to the provisions in Part 2 of Schedule 5 (paragraphs 7 and 8).
  9. Paragraph 5 makes minor amendments to headings in the 1982 Act.
  10. Paragraph 6 revokes the Council Decision, adopted by the EU, authorising Member States to join the 1996 Hague Convention. This Council Decision will otherwise be saved in domestic law by section 3 of the European Union (Withdrawal) Act 2018, but is redundant.
  11. Paragraphs 7 and 8 provide that the 2005 and 2007 Hague Conventions should be treated as coming into force for the UK on the dates when the UK originally became bound by the Conventions as a result of the EU’s accession to them, and as having continued in force since then without interruption. This will ensure, in particular, that in proceedings that take place after the end of the transition period, UK courts will, in accordance with Article 16 of the 2005 Hague Convention, apply the Convention rules to all relevant exclusive choice of court agreements made from 1st October 2015, which designate UK courts as the chosen court. Paragraph 8 ensures that, in maintenance proceedings taking place after the end of the transition period, UK courts will treat the 2007 Hague Convention as having come into force for the UK on 1st August 2014 for the purposes of Article 56 of that Convention.
  12. Paragraph 9 contains definitions of the 2005 and 2007 Hague Conventions for purposes of Part 2 of Schedule 5.

Section 2: Implementation of other agreements on private international law

  1. Section 2(1) gives an "appropriate national authority" (as defined in subsection (12)) the power to make regulations (secondary legislation) to implement international agreements on PIL. The power can also be used to amend existing domestic provisions implementing a PIL agreement if any changes to its implementation are required.
  2. Section 2(2) provides that regulations may also be made to implement an international agreement on PIL for application between England & Wales, Scotland and Northern Ireland, so the same rules can be applied in cases raising cross-border issues between the three different legal jurisdictions in the UK, even if that is not a requirement of the international agreement itself.
  3. Section 2(3) provides that regulations may be made to give effect in UK domestic law to any arrangements for applying a relevant international agreement on PIL (with or without modifications), entered into by the Government and the Crown Dependencies and Overseas Territories. The term "relevant territory" is defined in section 2(12).
  4. Section 2(4) is a sunset provision which provides that regulations to implement an international agreement on PIL, made under subsections (1) to (3), may only be made during the operative period.
  5. Section 2(5) sets out that the operative period is the period of five years beginning with the day on which this Act is passed.
  6. Section 2(6) sets out that the appropriate national authority in relation to a part of the United Kingdom may by regulations extend the operative period for that part of the United Kingdom by a period of five years. Section 2(7) provides that the power under subsection (6) may be exercised more than once. However, Section 2(8) provides that the operative period may not be extended for any part of the United Kingdom after it has expired in relation to that part of the United Kingdom.
  7. Sections 2(9) and (10) make further provision about the sorts of provisions regulations made under section 2 may include. In particular, section 2(10) makes clear that regulations may implement obligations in a PIL agreement which relate to the provision of legal aid or provisions which concern the sharing of information between courts or competent authorities dealing with cross border disputes. Section 2(10) also makes clear that regulations may include enforcement provisions, but these will be subject to the restrictions in paragraph 1 of Schedule 6.
  8. Section 2(11) introduces Schedule 6.
  9. Section 2(12) provides definitions of various terms used in section 2.
  10. The effect of the definition of "appropriate national authority" is that the powers in section 2 could be exercised by a Secretary of State in relation to England and Wales, the Scottish Ministers in relation to Scotland, and a Northern Ireland department in relation to Northern Ireland. The Secretary of State may also make regulations in relation to Scotland and Northern Ireland but only with the consent of the relevant devolved administrations.
  11. The definition of "international agreement" covers a convention, treaty or agreement to which the UK has already become a contracting party or to which it intends to become a contracting party (for example, it may have signed but not ratified the agreement). This ensures that it will be possible to exercise the power in section 2(1) to make implementing regulations before an agreement is ratified. It is normal practice to ensure that domestic implementing legislation is in place before the UK formally becomes bound by an international obligation, so that it is able to comply with it immediately.
  12. The definition of "private international law" provides examples of the sorts of issues typically covered by international agreements in this field of law. The definition means that the power could be used, for example, to implement the 2007 Lugano Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters, the 2019 Singapore Agreement on Enforcement of Mediated Settlement Agreements, and the 2019 Hague Convention on Recognition and Enforcement of Judgments in Civil and Commercial Matters, should the Government decide to join these in future.
  13. Section 2(13) provides for the implementation of model laws relating to PIL adopted by an international organisation of which the UK is a member. It provides that the regulation making power in section 2(1) may be used to "give effect to" – rather than "implement" – a model law, because the text of a model law is not binding in the way that an international agreement is, and states may adapt a model law when giving effect to it.
  14. As stated above Section 2(11) introduces Schedule 6 which sets out restrictions on the use of the power in section 2 and the legislative procedure to be followed when making regulations under section 2.
  15. Paragraph 1(1)(a) of Schedule 6 provides that regulations made under section 2 may not themselves confer a new power to legislate, other than a power to make procedural rules for courts or tribunals, but can modify or extend an existing power. Paragraph 1(1)(b) prevents regulations being made under the power which create an offence which is punishable by imprisonment.
  16. Paragraph 2 establishes a consultation requirement for the Secretary of State, namely that before the Secretary of State makes regulations under section 2 the Secretary of State must consult such persons as the Secretary of State thinks appropriate. The consultation requirement applies both to the power to implement PIL agreements and the power in section 2(6) to extend the operative period during which the implementing power may be exercised. The consultation obligation only applies to the Secretary of State and does not bind Ministers in the Devolved Administrations when making regulations which are subject to the procedural requirements applicable in relation to the Scottish Parliament or Northern Ireland Assembly.
  17. Paragraphs 3 to 7 deal with the procedure and Parliamentary scrutiny for making regulations under section 2. Paragraph 3 provides that the power to make regulations is exercisable by statutory instrument, or in relation to Northern Ireland, by statutory rules. For regulations made by the Scottish Ministers, see section 27 of the Interpretation and Legislative Reform (Scotland) Act 2010. Paragraph 4 deals with the procedure for regulations made by the Secretary of State. Paragraph 5 deals with the procedure for regulations made by the Scottish Ministers. Paragraph 6 deals with the procedure for statutory rules made by a Northern Ireland department. In each case, the affirmative procedure will be triggered if the regulations:
  • are implementing a new international agreement on PIL for the first time in domestic law, or a new arrangement entered into between different jurisdictions in the UK, or between the UK and an Overseas Territory or Crown Dependency to apply an arrangement based on an international agreement (suitably modified) between them;
  • create, extend or increase the penalty for a criminal offence; or
  • amend primary legislation (defined by paragraph 6 to include an Act of the Scottish Parliament, and Act or Measure of the Welsh Assembly or any Northern Ireland legislation).
  • extend the operative period for that part of the United Kingdom by a period of five years.
  1. It is anticipated that most regulations made under the power will trigger the affirmative procedure because they will be implementing new agreements which the UK has decided to join. However, it is possible that regulations may need to be made subsequently to make adjustments to technical or procedural aspects of the approach to implementation originally adopted when an agreement was first implemented. For example, an update to forms to be used, or as indicated above, to schedule the text of the declarations and reservation which will be made when the UK joins the 2005 and 2007 Hague Conventions as a contracting party in its own right after the end of the transition period. However, in the latter case it is also likely that the affirmative procedure will anyway be triggered because primary legislation is being amended.
  2. International agreements on PIL rarely contain provisions about criminal offences, but it may be necessary when implementing some agreements, for example in the field of family law, to create enforcement provisions involving criminal offences. This is likely to be the case where there is already an equivalent domestic enforcement provision involving criminal offences. For example, breaches of "protection measures" such as non-molestation orders in England and Wales under Part 4 of the Family Law Act 1996 or injunctions under section 3 of the Protection from Harassment Act 1997, may be punishable as criminal offences. Paragraph 1 of Schedule 6 restricts national authorities from making regulations which create criminal offences imposing sentences of imprisonment.

General

Section 3: Crown Application

  1. Section 3(1) provides that the amendments made by the Act to the Civil Jurisdiction and Judgments Act 1982 bind the Crown in accordance with section 51 of that Act which provides that the 1982 Act binds the Crown, subject to certain exceptions. Regulations made under section 2 of the Act may also contain provisions binding the Crown, subject to the same exceptions.

Section 4: Extent, commencement and short title

  1. Section 4(1) provides that the Act extends to England and Wales, Scotland and Northern Ireland.
  2. Section 4(2) is a "permissive extent clause" which enables the power to implement PIL agreements - section 2 (including Schedule 6) and section 3(2) and (3) of the Act - to be extended by Order in Council to the Isle of Man subject to any appropriate modifications.
  3. Section 4(3) provides that Sections 1 and 3 and Schedules 1 to 5, which are the provisions relating to the implementation of the 1996, 2005 and 2007 Hague Convention, come into force at the end of the transition period.
  4. Section 4 (4) provides that the rest of this Act, which comprises the provisions relating to the power to implement PIL agreements, comes into force on Royal Assent.
  5. Section 4(5) sets out the short title of the Act.

Schedules 1 to 6

  1. See paragraphs 37-45 and 58-63.

Back to top