Comments on: Incorporation of 2000 Hague Convention in English Law http://conflictoflaws.net/2008/incorporation-of-2000-hague-convention-in-england-and-wales/ News and Views in Private International Law Wed, 10 Mar 2010 23:33:28 -0800 http://wordpress.org/?v=2.9.2 hourly 1 By: Bail outs or bail out? « Insitelaw magazine http://conflictoflaws.net/2008/incorporation-of-2000-hague-convention-in-england-and-wales/comment-page-1/#comment-95662 Bail outs or bail out? « Insitelaw magazine Tue, 30 Sep 2008 08:49:50 +0000 http://www.conflictoflaws.net/?p=1161#comment-95662 [...] Conflict of Laws.net writes: Incorporation of 2000 Hague Convention in English Law on the entry into force of the 2000 Hague Convention on the International Protection of Adults. An interesting issue is the application of the Convention in England and Wales. The United Kingdom ratified the Convention, but only for Scotland. However, in the English Mental Capacity Act 2005, it is provided that the Convention applies in England and Wales…. [...] [...] Conflict of Laws.net writes: Incorporation of 2000 Hague Convention in English Law on the entry into force of the 2000 Hague Convention on the International Protection of Adults. An interesting issue is the application of the Convention in England and Wales. The United Kingdom ratified the Convention, but only for Scotland. However, in the English Mental Capacity Act 2005, it is provided that the Convention applies in England and Wales…. [...]

]]> By: Gilles Cuniberti http://conflictoflaws.net/2008/incorporation-of-2000-hague-convention-in-england-and-wales/comment-page-1/#comment-95048 Gilles Cuniberti Mon, 29 Sep 2008 10:44:22 +0000 http://www.conflictoflaws.net/?p=1161#comment-95048 I think that, in principle, any state is free to give application to a convention unilaterally. What it does is not apply the convention as an international instrument, but rather incorporate it in its own legal system as a domestic norm. In other words, it is much like copying the content of a convention into the provisions of an act. The fact that similar provisions can be found in an international convention does not prevent any state from copying them, or unilaterally deciding to incorporate them in domestic law. Only issue, contracting states might find this strange, and the organisation might be unhappy. But I cannot see what legal consequence that would trigger. I think that, in principle, any state is free to give application to a convention unilaterally. What it does is not apply the convention as an international instrument, but rather incorporate it in its own legal system as a domestic norm. In other words, it is much like copying the content of a convention into the provisions of an act. The fact that similar provisions can be found in an international convention does not prevent any state from copying them, or unilaterally deciding to incorporate them in domestic law.

Only issue, contracting states might find this strange, and the organisation might be unhappy. But I cannot see what legal consequence that would trigger.

]]> By: M S de Bruin http://conflictoflaws.net/2008/incorporation-of-2000-hague-convention-in-england-and-wales/comment-page-1/#comment-95016 M S de Bruin Mon, 29 Sep 2008 09:45:04 +0000 http://www.conflictoflaws.net/?p=1161#comment-95016 Thanks to Richard for this clarification. It appears that the provisions of the Act which purport to ‘give effect to’ the Convention may be open to challenge on foot of any decision taken up to the date of entry into force of the Convention in 2009. I am currently involved in a judicial review in Ireland and one of the grounds of appeal is that submissions were made to the Court that the applicable law was a particular Irish Act, which gave force of law to a Hague Convention (I cannot be more specific at the moment). In reality, the commencement order for the Act was never signed, which meant that the Hague Convention had no force of law in Ireland. Does that invalidate the decision of the Judge at first instance? That is not yet decided. It begs the question, though, if a court in England or Wales makes an order under the Mental Capacity Act (under one of the provisions which is inserted to give effect to the Hague Convention) before the Convention is in force, is that decision open to challenge? It can clearly be distinguished from my own case, in that the Mental Capacity Act clearly has force of law. But, can the provisions of the Act giving effect to the Convention have force of law before the Convention itself comes into effect? I wonder. Thanks to Richard for this clarification. It appears that the provisions of the Act which purport to ‘give effect to’ the Convention may be open to challenge on foot of any decision taken up to the date of entry into force of the Convention in 2009.
I am currently involved in a judicial review in Ireland and one of the grounds of appeal is that submissions were made to the Court that the applicable law was a particular Irish Act, which gave force of law to a Hague Convention (I cannot be more specific at the moment). In reality, the commencement order for the Act was never signed, which meant that the Hague Convention had no force of law in Ireland. Does that invalidate the decision of the Judge at first instance? That is not yet decided.
It begs the question, though, if a court in England or Wales makes an order under the Mental Capacity Act (under one of the provisions which is inserted to give effect to the Hague Convention) before the Convention is in force, is that decision open to challenge?
It can clearly be distinguished from my own case, in that the Mental Capacity Act clearly has force of law. But, can the provisions of the Act giving effect to the Convention have force of law before the Convention itself comes into effect? I wonder.

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