Policy background Provisions for a delegated power to implement international agreements on private international law
As outlined above, the Government continues to believe that international co-operation to establish agreed rules on PIL can lead to significant benefits for individuals, families and businesses. The Government anticipates the UK playing a full role in the negotiation of future PIL agreements in the Hague Conference and elsewhere; and will decide to participate in them where that would be advantageous.
	Any international agreements which the UK joins are likely to require implementing legislation in order to have legal effect in domestic law. The Act gives the UK Government and the Devolved Administrations in Scotland and Northern Ireland a power to do this for 5 years. This 5 year sunset period can be extended, on a recurring basis, by regulations (which are made by statutory instrument (SI) subject to the affirmative procedure). There is existing legislation providing powers for the implementation of some types of international agreements on PIL. The Administration of Justice Act 1920 and the Foreign Judgments (Reciprocal Enforcement) Act 1933 enable the Government to implement bilateral agreements on recognition and enforcement of civil judgments, which conform to the requirements of the Acts. However, they are now very outdated and modern agreements (such as those adopted by the Hague Conference) cannot be implemented using these nearly 100-year-old powers.
	The power allows international agreements on PIL to be implemented by regulations. Use of the power, including extension of the sunset period, by the Secretary of State, carries a requirement to consult as set out in Schedule 6. For clarity the Act provides a definition of PIL setting out a non-exhaustive list of the sorts of things such agreements may cover, which includes, in summary, rules on:
	Jurisdiction and applicable law
	recognition and enforcement of:
judgments, orders and arbitral awards
agreements and decisions determining or otherwise relating to rights and obligations
	co-operation between judicial or other authorities in different countries.
	See section 2(12) for the full text of the definition of PIL.
	The Act requires that regulations made under the power should always be subject to the affirmative procedure, and therefore always be subject to debate in and approval by both Houses of Parliament, if:
	the regulations implement a PIL agreement for the first time;
	the regulations create or extend, or increase the penalty for, a criminal offence;
	the regulations amend primary legislation; or
	the regulations extend the sunset period for another 5 years.
	It is anticipated that the majority of regulations made under the section 2 power will trigger the affirmative procedure because they will be implementing an agreement on PIL for the first time and there are likely to be consequential amendments to primary legislation that need to be made, or the implementing provisions will be inserted into primary legislation, such as the Civil Jurisdiction and Judgments Act 1982. However, it is possible that technical changes to the implementation of PIL agreements, which have previously been implemented in domestic law (by affirmative procedure regulations under the power or under other legislation), could follow the negative procedure. The Government does not anticipate using the power to create, extend or increase the penalty for a criminal offence very often, however it may be needed in order to implement effective enforcement provisions for future PIL agreements in some areas. For example if the UK were to enter into a future agreement on reciprocal recognition and enforcement of protection measures (such as non-molestation orders in England and Wales under Part 4 of the Family Law Act 1996 or breaches of injunctions under section 3 of the Protection from Harassment Act 1997) the power to extend criminal penalties for breach of such orders may need to be extended to cover breach of a foreign order. Paragraph 1 of Schedule 6 means that it will not be possible to make regulations which create an offence punishable by imprisonment.
	The power to implement international agreements on PIL extends to the implementation of "model laws" on PIL adopted by an international organisation. Such model laws represent "legislative best practice" with regard to an aspect of PIL, so the UK may wish to adopt them, in order to remain at the forefront of such cooperation. An example of an existing PIL model law, which the UK has implemented, is the 1997 UNCITRAL Model Law on Cross-Border Insolvency.
	Furthermore, the UK may enter into arrangements with the Crown Dependencies and Overseas Territories in the future to apply the terms of an international agreement on PIL between the UK and that territory or dependency (subject to necessary modifications). The Government believes that such arrangements could be mutually beneficial and would only be set up where a self-governing dependency or territory was content to do so. The power allows the UK to implement any such arrangements in domestic law in the UK. The domestic implementation in a Crown Dependency or Overseas Territory of any such arrangement with the UK would remain the responsibility of the Government of the territory in question. Such arrangements would likely take the form of Memoranda of Understanding (MoUs). There is a precedent for the Government agreeing such arrangements in section 39 of the Civil Jurisdiction and Judgments Act 1982 which enables provisions corresponding to the 1968 Brussels Convention on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters (an early precursor to the EU’s internal set of PIL rules) to be applied between the UK and the Crown Dependencies and Overseas Territories. However, in practice the UK has only used that power in relation to Gibraltar.
	The delegated power to implement international agreements on PIL could enable efficient implementation in domestic law of, for example:
	The 2007 Lugano Convention: The UK submitted its application to accede to this convention as an independent contracting party in April 2020 and the power in this Act will be used to implement it in UK domestic law in a timely manner, if this application is agreed by all of the contracting parties. The convention deals with jurisdiction and the recognition and enforcement of judgments in civil and commercial matters. It provides certainty on where a relevant case involving a cross-border element should be heard and that the resulting judgment can be recognised and enforced across borders. This helps prevent multiple court cases taking place on the same subject matter and reduces the costs and expenses for the parties involved. This important convention currently underpins the UK’s PIL relationship with Norway, Iceland and Switzerland. As explained in paragraph 8, this convention has continued to apply to the UK during the transition period.
	The 2019 Singapore Convention: This is a new convention on the enforcement of mediated settlement agreements. Mediation is an important alternative dispute resolution (ADR) mechanism. It involves a neutral third-party assisting disputing parties to work towards a negotiated settlement of their dispute, with the parties retaining control of the decision on whether or not they settle and on what terms. This new convention allows for settlement agreements in commercial disputes, which have been reached through mediation, to be enforceable in contracting states. China, the US and 51 other countries have now signed the Convention and it came into force on 12 September 2020.
	2019 Hague Convention: In 2019, the Hague Conference adopted a new international agreement on the recognition and enforcement of civil and commercial judgments (known as ‘the Hague Judgments Convention 2019’). Where countries join this new convention, it will make it easier to recognise and enforce each other’s judgments.
	Future Hague Conventions: The Hague Conference continues to consider the development of new conventions and protocols on a range of PIL topics. If the UK wished to join these in the future, they would likely also require implementation in domestic law.
	Historical Bilateral Agreements – The Government may also need to revisit, update or replace some existing historical bilateral agreements on PIL which the UK has entered into with other countries including some Commonwealth countries (e.g. Australia and Canada). Some of these agreements are no longer entirely fit for purpose. Therefore, the power in the Act could be used to implement a more modern PIL framework with these countries than is currently possible under existing legislation in this area (see paragraphs 5 and 22 for further information).
	Any new agreements on PIL which the Government considers the UK should join, and which require ratification (which is normally the case), will be subject to Parliamentary scrutiny separately under the Constitutional Reform and Governance (‘CRAG’) Act 2010. Under the CRAG Act, the Government is required to lay copies of signed treaties before Parliament before they are ratified, providing Parliament with the opportunity at that stage to give its view on the detailed contents of the treaty and whether it should become binding in the UK. Regulations made under this Act will relate purely to the implementation in domestic law of international agreements on PIL which, where it applies, will have been scrutinised by Parliament under the CRAG Act. Therefore, the Government would only use the delegated power to implement an international agreement on PIL which Parliament had already agreed the UK should join.
	There is one further delegated power in section 4 of the Act, which is a Permissive Extent Clause (PEC) which will enable the power to implement PIL agreements to be extended to the Isle of Man (IoM) by Order in (the Privy) Council. This will give the IoM Government the ability to implement, in their own jurisdiction, those PIL agreements which the UK has extended to them, and secondly any ‘arrangements’ which are agreed between the UK and the Isle of Man to apply the terms of an international agreement (subject to necessary modifications) as between them both.