I reported earlier 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.
The Ministry of Justice have clarified the position. The United Kingdom has under Article 55 declared that its ratification only extends to Scotland. This is so notwithstanding the fact that section 63 of the Mental Capacity Act 2005 (the Act) specifically states that Schedule 3 of the Act gives effect in England and Wales to Convention XXXV (in so far as the Act does not otherwise do so), and makes related provision as to the private international law of England and Wales.
SI 2007/1897 makes it clear that both section 63 and Schedule 3 have taken effect from 1 October 2007 save that by paragraph 35 of the Schedule to the Act, paragraphs 8 [jurisdiction in relation to non residents], 9 [jurisdiction in relation to convention countries], 19(2) and 19(5) [protective measures made by convention countries], Part 5 [co-operation with convention countries], and paragraph 30 [Article 38 certificates given by convention countries] only come into force, when Convention XXXV itself enters into force under Article 57.
However this does not mean that England & Wales has ratified. The existing declaration under Article 55 still operates and although Convention XXXV is effective in England & Wales, England & Wales has not yet actually ratified the Convention.
Paragraphs 8, 9, 19(2) and 19(5), Part 5, and paragraph 30 however are not limited to coming into force solely when England & Wales ratifies, but only when Convention XXXV itself enters into force. Therefore these provisions will also come into force in England & Wales on January 1 2009. Convention XXXV therefore will have full effect in England & Wales from January 1 2009, but for the purposes of the law in Scotland, France or Germany, England & Wales has not ratified.
The UK Ministry of Justice has made it clear that “England & Wales is committed to extending Convention XXXV as soon as possible. The work for this is under way“.
Schedule 3 does of course now set out the private international law in England & Wales and therefore in addition to setting out the rules for jurisdiction and recognition in England & Wales Schedule 3 also sets out the applicable law and therefore the rules as to which lasting powers are or are not valid. A lasting power validly made in South Australia by a person habitually resident in South Australia is now valid whenever the power was made. An English Enduring Power of Attorney made by a person habitually resident in a state where such powers are not valid, may now be invalid, even if made at a time when Schedule 3 to the Act did not apply.
The difficulty that Schedule 3 extends Convention XXXV to the applicable law issues of Lasting Powers not only of adults subject to incapacity but also to all Lasting Powers, including those of persons not subject to incapacity remains. Other ratifying states will not recognise this extension of the Convention.
What is remarkable about the Mental Capacity Act is that it makes applicable in a domestic legal order an international treaty which is not applicable from an international perspective. Thus, in effect, the domestic law incorporates the international convention in the domestic legal order. In this case, as the UK is working on extending the application of the Convention to England and Wales, it seems close to an early entry into force.
In other instances, however, states have incorporated international conventions that they had ratified for cases beyond their scope. This was the case of Italy which decided to incorporate the Brussels Convention into Italian law to replace its common law of jurisdiction in civil and commercial matters (see art. 3 of the 1995 Italian law of international private law).
Is that acceptable for the contracting states of the relevant Convention? For the organisation which supervised the negotiation of the relevant convention such as the Hague Conference?