Equalities, Human Rights and Civil Justice Committee
Cabinet Secretary for Justice and Veterans on the Civil Jurisdiction And Judgements (2005 Hague Convention And 2007 Hague Convention) Regulations 2022
Letter from the Cabinet Secretary for Justice and Veterans to the Convener, 26 October 2021
Dear Convener
I am writing in relation to the protocol on obtaining the approval of the Scottish Parliament to proposals by the Scottish Ministers to consent to the making of UK secondary legislation affecting devolved areas arising from EU Exit.
That protocol, as agreed between the Scottish Government and then Parliament, accompanied the letter from the then Cabinet Secretary for Government Business and Constitutional Relations, Michael Russell MSP, to the Conveners of the Finance & Constitution and Delegated Powers and Law Reform Committees on 4 November 2020 and replaced the previous protocol that was put in place in 2018.
I attach a Type 2 notification which sets out the details of the SI which the UK Government propose to make and the reasons why I am content that Scottish devolved matters are to be included in this SI. Please note, we are yet to have sight of the final SI and it is not available in the public domain at this stage. We will, in accordance with the protocol, advise you when the final SI is laid and advise you as to whether the final SI is in keeping with the terms of this notification.
I am copying this letter to the Convener of the Delegated Powers and Law Reform Committee. Grateful if the Committee could note the notification accompanying this letter.
Keith Brown
Annexe
Name of the SI(s) (if known) or a title describing the policy area
The Civil Jurisdiction And Judgments (2005 Hague Convention And 2007 Hague Convention) Regulations 2022.
Is the notification Type 1 or Type 2
This is a Type 2 notification. The SIs provisions meet the Type 2 criteria in the following ways: The provisions are purely technical and involve no policy choice on the part of the UK Government or the Scottish Government, with the purpose of the regulations being to make the policy position clearer for users by including the detail of the UK declarations and reservations in domestic legislation.
Summary of the proposals
This SI brings into domestic legislation the text of the UK’s declarations and reservations to the Hague Convention on Choice of Court Agreements 2005 (2005 Hague Convention) and the Hague Convention on the International Recovery of Child Support and Other Forms of Family Maintenance 2007 (2007 Hague Convention) (together “the Conventions”). Both Conventions are implemented in the UK under the Private International Law (Implementation of Agreements) Act (PIL Act) 2020, which ensures the declarations and reservations made at the time of approval of the Convention are to be read alongside the Conventions. For ease of reference the UK Government wishes to bring the full text of the reservations and declarations into new schedules to the Civil Jurisdiction and Judgments Act 1982.
On 28 September 2020, the United Kingdom deposited the instrument of accession to 2005 Hague Convention and its instrument of ratification to 2007 Hague Convention. The UK was previously bound by both Conventions by virtue of its EU membership from 2015 and 2014 respectively. This status continued to apply during the transition period, in accordance with the Withdrawal Agreement. The Conventions then entered into force for the United Kingdom (as an independent party) on 1 January 2021
The PIL Act amended the Civil Jurisdiction and Judgments Act 1982 to implement the Conventions, and ensures they are read alongside the declarations and reservations which the UK deposited with its instruments of accession/ratification. For convenience of reference and to ensure the relevant texts are easily accessible in domestic legislation, the UK Government now propose using the section 2 power in the PIL Act to make this SI to set out the UK’s reservations and declarations alongside the texts of the Conventions. This SI would bring the full text of those reservations and declarations into new schedules to the Civil Jurisdiction and Judgments Act 1982.
Does the SI relate to a common framework or other scheme?
No.
Summary of stakeholder engagement/consultation
The UK Government carried out a consultation with key stakeholders in England and Wales, Scotland and Northern Ireland prior to the drafting of this instrument. This was in accordance with the requirement in Schedule 6 of the Private International Law (Implementation of Agreements) Act 2020 for the Secretary of State to do so before making regulations under section 2.
The main professional bodies for the legal profession were consulted - the Law Societies of England and Wales, Scotland and Northern Ireland; the Bar Councils of England and Wales and Northern Ireland and the Faculty of Advocates. In addition, legal practitioners, academics and judges who are members of groups and committees which specialise in Private International Law with whom the Ministry of Justice regularly works were also consulted. The Association of British Insurers were also invited to provide comments.
A summary of the purpose of the proposed instrument was provided and no objections were made to the proposals.
A note of other impact assessments, (if available)
No impact assessments have been prepared by the UK Government for this SI as it does not change how the Conventions are implemented.
Summary of reasons for Scottish Ministers’ proposing to consent to UK Ministers legislation
This SI will not alter how the Conventions are enacted within the UK, as the reservations and declarations are already implemented via the PIL Act. Putting the full text of these reservations and declarations, alongside the text of the Conventions, into domestic legislation is intended to provide clarity on the UK’s implementation of both Conventions.
The reservations and declarations for these Conventions remain the same as those made by the UK as an EU member state. No amendments were made when the UK rejoined as an independent party. This SI does not propose any updates, although it does not prevent amendments being made in the future if required.
As there is no policy impact of this SI and delivery through a UK SI is consistent with the approach taken to implementing the Conventions the Scottish Ministers have given their consent to the provisions.
Intended laying date (if known) of instruments likely to arise
15 November 2021.
If the Scottish Parliament does not have 28 days to scrutinise Scottish Minister’s proposal to consent, why not?
As this is a Type 2 SI the 28 days period is not applicable.
Information about any time dependency associated with the proposal
No time dependency associated with the proposal.
Are there any broader governance issues in relation to this proposal, and how will these be regulated and monitored post-withdrawal?
There are no broader governance issues in relation to this proposal.
Any significant financial implications?
No significant financial implications as the SI places on a legislative basis the declarations and reservations which are already in place for the Conventions.