Safety of Rwanda (Asylum and Immigration) Bill

Earl of Kinnoull Excerpts

Committee stage
Monday 12th February 2024 Lords Chamber

[Baroness Butler-Sloss (CB)]

My Lords, it is a great pleasure to follow the right reverend Prelate, with his fascinating and personal knowledge of Rwanda, and the very useful advice he has given us this evening. I have put my name to the seven amendments set out by the noble Lord, Lord Anderson of Ipswich, and I do not intend to refer in great detail to any of them, particularly at this time, because I would like to get home before midnight, if that is possible, and I am in the last group.

Shortly, the points I wanted to make are these: it is obvious that Clause 1(2)(b) is out of kilter with Clause 1(3). You only have to read Clause 1(3) to see that the Government of the Republic of Rwanda has “agreed to fulfil”—that seems to me to be partly in the present, but almost certainly partly in the future. In the treaty, which we pored over in the debate that I listened to and did not speak in—I thought enough people had spoken—the 10 requirements that we discussed are clearly not all fulfilled. The right reverend Prelate points out—and he knows; he has been there—that the structures are not all yet in place.

The noble and learned Lord the Minister made a brave effort to say that Rwanda is safe and, following discussions, will be safer. That is splendid wording, but it does not really work in this House, when we look at the fact that the Government want this House to say, despite our vote on the treaty debate, that Rwanda is safe when it patently is not. Speaking as a former lawyer as well as a fairly long-term Member of this House, I cannot believe that any Government are asking us to say that something is what it may well be—and for the sake of Rwanda, if it really wants our refugees, I hope it will be —when, quite simply, it is not there yet. Right around the Committee, we have all been saying that from the first few words, so how on earth can the Government expect the House to agree to a phrase that the,

“Act gives effect to the judgement of Parliament”—

Parliament including us—that Rwanda is safe?

I very strongly support what has been said by my noble and learned friend Lord Hope of Craighead. It seems to me that to some extent, subject to issues of modern slavery to which we will come in another group, the Bill could be partially redeemed by two points. One has been set out by the noble and learned Lord in Amendment 6, and the second is set out in the various amendments headed by my noble friend Lord Anderson of Ipswich about an independent reviewer. If you had the twin of “will be” when it is ready, and an independent reviewer to assist the Government to say that at least the requirements in Clause 1(3) and the 10 requirements in the treaty have been met, then I have no doubt that the Government could say, “Now we can send people to Rwanda”. However, I plead with the Government: I cannot believe that they are really expecting us to say that that which is not safe is safe at this stage.

[The Earl of Kinnoull (CB)]

My Lords, I am not sure that my noble and learned friend should call herself an ex-lawyer. That was very good indeed.

At Second Reading, I said that we live in a constitution that is akin to a three-legged stool, with Parliament, the Government and the judiciary in a balance between those legs. I think it is very important to realise how key to our constitution that stool really is. Clause 1(2)(b) represents grit in the relationship between those legs: the requirement that this House enters into a judgment that many in the House feel is very wrong, a judgment which is everlasting. At Second Reading, my noble friend Lord McDonald of Salford very eloquently spoke about the political risk within Rwanda at the moment. The judgment is largely in a vacuum, because a number of questions have been fired at the Minister about where we are with safety. That is very difficult for our House to do and is grit. That represents further grit because of course it will be something that the judiciary has to take account of when it comes to determine anything under the Bill.

That is why I find the amendment package that my noble and learned friend Lord Hope has put together so very attractive. I hope the Government will look at it for the reason of logic alone and for a second reason, because the second half of my submissions at Second Reading were to do with the Salisbury/Addison convention. That is a convention about creating a smooth relationship between two of the legs of that stool. Indeed, we are here tonight because of that convention: we are working late, sitting extra late tonight, in order to speed things through because part of that convention deals with speed of consideration.

I do hope the Government will think of the convention in relation to how the noble and learned Lord, Lord Hope, has expressed the amendments and the provisions in the Bill that represent grit in the relationship. We have a convention that is all about promoting a relationship, and we have a Bill before us that is all about putting grit in the relationship. This has to be thought of in terms of the convention.

Scottish Referendum Legislation: Supreme Court Judgement

Earl of Kinnoull Excerpts

Thursday 24th November 2022 Lords Chamber

[Lord Offord of Garvel (Con)]

The noble Lord, another eminent Scottish politician, is well aware of the circumstances in which they are operating. There is no need to be talking about another referendum. The Supreme Court has made it very clear that there is no avenue for that within the Scottish Government. More importantly, there is no appetite now. When the referendum was held in 2014, there was consensus across both Parliaments, all parties and civil society that the referendum should be held. Some 3.6 million Scots voted, 2 million of whom voted to stay in the UK while 1.6 million voted to leave. That is a decisive result and, given that since that time the SNP has consistently polled only in the region of 1.3 million to 1.4 million votes, it has no more than one-third of the population who want to pursue a separatist agenda, in which case there is no need for us to consider another referendum.

[The Earl of Kinnoull (CB)]

My Lords, at home, on the register in Perthshire, there are four voters. I have kept the election communications from the May 2021 election. These communications from the SNP and from the Scottish Green Party are extremely smart. They are brimming with reasons why you should vote for either the Scottish Greens or for the SNP, but nowhere do they mention the idea of a referendum or independence. How does the Minister feel that chimes with the claimed mandate of the SNP Scottish Government for a referendum?

[Lord Offord of Garvel (Con)]

The Scottish Government have been dominated by the Scottish National Party for eight elections in a row. They have done that on the basis of 1.3 million to 1.4 million votes, and under that they have a legitimate mandate to govern the UK—sorry, I mean within the Scottish Government. [Laughter] In the other place, we know that UK Governments can effectively govern on a mandate of 35% to 40% of the vote. No one is disputing that that is a mandate to govern, but it is not a mandate to break up a country. Where there continues to be no more than one-third of popular support to break up the UK, there is no need for us to pursue the case.

On my travels abroad, I was recently in Iceland and met the Icelandic Prime Minister. She had just had a meeting with Angus Robertson, who I think was passing himself off as the Foreign Secretary of Scotland. She said to me, rolling her eyes, “The poor people of Scotland are so oppressed, not being allowed to leave. There is obviously majority support for independence. Why won’t the UK Government allow the Scottish people to have their freedom?” I said, “Prime Minister, I believe you had your independence from Denmark in 1944.” She said yes. I said, “I believe you had a vote.” She said yes. I asked, “What was the vote in favour of independence?” She said it was 96%. I said, “The SNP currently has 37%.” She smiled and said, “Let’s talk about energy.”

Northern Ireland Protocol Bill

Earl of Kinnoull Excerpts

2nd reading
Tuesday 11th October 2022 Lords Chamber

[The Earl of Kinnoull (CB)]

My Lords, recently, the work of the European Affairs Committee has been heavily overshadowed by the Northern Ireland protocol. While work on the protocol itself is carried out by our sister Northern Ireland protocol committee, we concentrate on the many other matters that remain open in the large and complex relationship between the United Kingdom and the European Union.

Many things are in the deep freeze. To name a few examples, there is the unresolved position on the Horizon programme, the unresolved agreement for regulatory co-operation in financial services and the issues relating to the movement of both creative professionals and people in education. The 32 committees set up under the withdrawal agreement and the trade and co-operation agreement are not operating at full pace to adjust matters to the benefit of all concerned because of the protocol impasse.

The circumstances where a Bill along the lines of the one before us might be warranted would be, I feel, very dire. I do not believe that we are even close to such circumstances today. I note with optimism the recent warm words from many of the parties involved in discussing the protocol and the restarting of discussions between the principals. However, this Bill is before the House and I will briefly comment on three areas that I feel need amendment.

The first concerns the sanctity of treaty. We have recently discussed in this Chamber a number of times recently the importance of living up to treaty obligations and obligations under international agreements in general; it has been a strong theme this afternoon. In my regular interactions with my opposite numbers as chairs of the European affairs committees of other European countries—and that goes a lot wider than just members of the European Union—in particular as the UK has assumed such a leadership position in the current war in Ukraine, the most common comment made to me is of the importance of the UK especially showing leadership in living up to the spirit and letter of international agreements.

In the Ukraine/Russia context, there are many international agreements that all depend on: the NATO treaty, agreements over sanctions and agreements relating to energy, for instance. The rules-based order within the western liberal democracy world depends on the leading players showing example. This point has been made to me by pretty well every country’s representative I have met in recent times. We meet formally as chairs of European affairs committees face to face four times a year; thus I feel it is important in these circumstances to underline the UK’s commitment to the sanctity of treaty and to living up to the letter and spirit of international agreements, including in this Bill.

The second area concerns the involvement of Parliament in the making of, or the variation of, international agreements and treaties. In the period before Brexit, the UK citizen in the street had the benefit of parliamentary representatives being able to scrutinise international agreements at the European Parliament level and, through the operation of the scrutiny reserve resolutions, the Westminster Parliament level—both from the start of the negotiating process and throughout it. Indeed, many here today will have served on the European Union committee structure and will have engaged in the scrutiny of international agreements. In addition to those meaty scrutiny arrangements, the CRaG arrangements allow for limited scrutiny processes right at the end of the agreeing of a new treaty. Following Brexit, this scrutiny structure has fallen away, and we are left only with the highly unsatisfactory CRaG processes.

The European Union Committee scrutinised the many new trade deals concluded by the United Kingdom during the Brexit period—I think there were just under 100—and in June 2019 we wrote a report, Scrutiny of International Agreements: Lessons Learned, in which we laid out a firm recommendation as to how international agreements could and should be looked at by both Houses of Parliament. This Bill would see major changes to an international agreement being made simply by decision of a Minister without any reference to Parliament. For the reasons in our report of June 2019, I do not believe that is right. Something akin to what we then recommended should be instituted and the Bill amended accordingly.

Thirdly, and finally, I come to the importance of dealing with the various traditions and groupings in Northern Ireland in an even-handed way with good consultative approaches. As we have heard from many speakers today, this approach is the secret of the great success of the Belfast/Good Friday agreements, which use this approach consistently in their mechanisms. The very first report of the EU Committee after the Brexit vote in December 2016 was Brexit: UK-Irish Relations. We commented on the importance of that dynamic very heavily in that report. I reread the report over the weekend and I have to say that it is as fresh today as it was in December 2016.

I do not feel that the Bill today makes this simple and effective approach a commitment for a Minister. In his opening speech, the noble Lord, Lord Ahmad, made it clear that there was a considerable consultative process but this is another instance where the face of the Bill must have the comfort that even-handedness and consultation will remain at the heart of any changes. Perhaps the Minister could comment.

Scottish Parliament: Independence Referendum

Earl of Kinnoull Excerpts

Wednesday 20th July 2022 Lords Chamber

[Lord Offord of Garvel (Con)]

I thank the noble Lord and take his point that this is as much about tone as it is about content. My observation is that the Scots have been happiest in this union when we demonstrably punch above our weight: we have 8% of the population and 33% of the geography of the UK, but as Scots we have a duty to ensure that whatever we do is more than 8% and heading towards 33%. In recent times, the Scots would perhaps feel that their voices have not been heard; sometimes they look at Westminster with some consternation. The next Prime Minister has an opportunity to change this perception and show that we really do care by creating a positive narrative for Scotland inside the union.

[The Earl of Kinnoull (CB)]

My Lords, there are four voters on the register at home in Perthshire and I kept the election communications that came through the door in May last year: two booklets from the SNP and one booklet from the Scottish Greens. There are many reasons that those booklets list for voting for the SNP and Scottish Greens, respectively, but not once is there any mention in them of an independence referendum. Does the Minister feel that this too is a relevant factor?

[Lord Offord of Garvel (Con)]

Yes, I do, and I agree with the noble Earl. This might be recognised in the 2021 election for Holyrood: the First Minister was trying to persuade Scots to vote for her on her Covid record, but the minute she got into power, her campaign went back to being a mandate for a referendum.

I agree that we have a lot of weeping, wailing and gnashing of teeth the whole time, but we must look at what this is actually based on. The population of Scotland is 5.3 million, of whom 4.3 million are eligible to vote. In the 2014 independence referendum, 3.6 million Scots voted—an extraordinary percentage of 84%, the highest in any country other than Australia, where it is mandatory to vote. Noble Lords should compare this with the 2.6 million Scots who voted in the EU referendum; so 1 million more Scots voted for the UK union than for the European Union. The point is that, in the 2019 general election, 1.3 million Scots voted for the nationalists, against the 1.6 million who voted in the referendum. As they are in territory of around 1.3 million or 1.4 million votes out of an electorate of 4.3 million, I do not believe that this is a mandate for independence.

Nationality and Borders Bill

Earl of Kinnoull Excerpts

Lords Hansard - Part 1 & Committee stage
Thursday 10th February 2022 Lords Chamber

[Lord Coaker (Lab)]

My Lords, before I start my remarks on this group of amendments, I want to say in answer to the question asked earlier by the noble Lord, Lord Deben, that the problem the Minister has—and he has it all the way through this part of the Bill—is that what the Government do not like saying is that the reason they are doing this is not really to do with modern slavery. They are trying to sort out what they see as an immigration mess and the problem they have with everybody moaning about immigration, asylum and so on, and this has ended up in a Bill it should not be in. That is the problem. The noble Lord, Lord Deben, asked why we were doing this. The answer is, “because we think the modern slavery system is being abused and lots of people who shouldn’t be applying to it are applying to it, and they’re immigration offenders and not victims of modern slavery”.

What this Committee is saying is that it should not be in this Bill. Victims of modern slavery are being conflated with immigration offenders, and it will lead to the undermining of the Modern Slavery Act and the principles on which it is based, and to potential victims not receiving the support and help they need. That is the motivation for the Government in doing this. I do not think that it is the motivation for this Minister, which is why it is sometimes particularly difficult for him to answer the specific questions asked by the noble Lord, Lord Deben, as a one-nation Conservative—I think that is a compliment to him. The noble Lord has been trying to say to him that it was that brand of conservatism which drove the Modern Slavery Act. Perhaps the current Government—I can say this not as a lifelong Conservative—could learn from that. But that is a matter for internal grief and beyond the scope of this Bill.

I want to draw the Committee’s attention to the titles of these clauses. I will say something on Clause 61, “No entitlement to additional recovery period etc”, but there is a particular difficulty with Clause 62, “Identified potential victims etc: disqualification from protection”, which goes to the heart of the problem. Essentially, it is another way for the Government to say that potential victims of slavery are abusing the system to get round it because they are really immigration offenders. The Government are saying, “The system is being abused and we are going to stop it, and this is the way we’re going to do it”. The problem is that they are going to undermine the Modern Slavery Act and the modern slavery system that they have put in place, of which they should be proud, and indeed of which people—including all of us—are proud. It is that contradiction that goes to the heart of Part 5 in every single utterance, whether it is made from the Government Front Bench, the Opposition Front Bench or others in this Chamber.

I point out that Clause 62 does not even say “potential victims”; it talks about “identified potential victims”. No wonder there is such disquiet, upset and anger about this clause, which I will come on to in a minute. There are very real problems with Clause 61, but particularly with Clause 62, hence the amendments that I and other noble Lords have tabled, and the clause stand part notice.

Again, I come back to this question on Clause 61: what problem are the Government actually trying to fix that requires primary legislation? Again and again that has been asked by noble Lords across the Chamber without the Government really being able to answer—apart the noble Lord, Lord Wolfson, intimating the explanation I gave in his remarks on an earlier group.

The Explanatory Notes state that Clause 61 is there:

“In order to prevent the recovery period being misused by those wishing to extend their stay in the UK and to remove unnecessary support and barriers to removal”.


Again, that goes to the heart of it. The Government are seeking to change an immigration offence using a modern slavery context. It is a contradiction. It is not supposed to be like that. The whole point of the Modern Slavery Act was to take this out of the immigration context of the Home Office. That perennial battle between immigration and modern slavery is unresolved and requires parts of the Government to stand up and say, “You’re wrong and we’re not going to do that”.

What evidence is there of recovery periods being abused? That is of interest, I think, as evidence for the proposed change before us. What evidence is there of us providing “unnecessary support” to a person using the NRM? Re-trafficking has increasingly become part of the traffickers’ operating model, including where people return to their enslavers for fear of repercussions for their families, which we touched on earlier. How does Clause 61 respond to or break that model? Does not the refusal of a further recovery period simply strengthen the perpetrators? I think that is a real risk.

As the noble and learned Baroness, Lady Butler-Sloss, has asked on a number of occasions, will children be subject to the restrictions under Clause 61? Every single part of this Bill makes no distinction at all between adults and children. The Minister has experience of the legislative system, which, as a basis, divides children and adults on the grounds of good justice. Why is that not the case here? This is what Amendment 158 seeks to probe. Does the Minister have any figures for the number of children who go missing and are re-trafficked? Does he agree—again, the noble and learned Baroness, Lady Butler-Sloss, also asked this—that a missing child at risk of exploitation is a safeguarding issue, not an immigration or enforcement issue?

On Clause 62, the key question is what action, if any, the Secretary of State intends to take on the comments made by the Independent Anti-slavery Commissioner, who has written a scathing article in the Times today—note the word “independent” in the commissioner’s title. The headline says:

“Fears about bill that would take support away from some modern slavery victims”.

She has concerns about the way Clause 62 will operate and the wide way in which certain phrases in it could be drawn. Is it the Government’s intention to ignore the Independent Anti-slavery Commissioner, including where she says that Clause 62 will empower and embolden people traffickers and criminal gangs? Why is something that the anti-slavery commissioner says is harmful included in the Bill? Can the Minister also give further detail on how Clause 62 will operate in relation to children who are victims of criminal exploitation?

The lead signatory of Amendment 169 is the noble Lord, Lord Randall, but he cannot be with us today and has sent his apologies. The noble Baroness, Lady Hamwee, and the noble and learned Baroness, Lady Butler-Sloss, have also signed it. Amendment 169 suggests to the Government that, if they are going to have Clause 62, which many would say should not be part of the Bill, this is a way they could redraft it to try to address some concerns. I personally would not keep Clause 62 but, instead of just a vague reference to a “threat to public order”, whatever that means, the amendment’s proposed new subsection (2)(a) inserts the words

“is prevented from doing so as a result of an immediate, genuine, present and serious threat to public order”,

rather than a wider definition.

Similarly, under

“Identified potential victims etc: disqualification from protection”,

we have put the words:

“in exceptional circumstances … following an assessment of all the circumstances of the case.”

Then there is the importance of international co-operation and the fact that we have also not included children. These specific points seek to address some of the concerns that have been raised by many groups and other noble Lords.

My Amendment 164A is to probe a specific question: where a person is covered by Clause 62, is it the Government’s intention that that person will still be entitled to and receive a conclusive grounds decision, as they do at present, or do the Government consider that the duty to investigate trafficking and exploitation no longer applies?

The criticism of Clause 61 and particularly Clause 62 is that, in the Government’s efforts to deal with what they perceive is an immigration problem, they are undermining the protection that the Modern Slavery Act gives victims. That view is held by many noble Lords in this Committee, many Members in the other place and the various NGOs that seek to inform our debates. I beg to move.

[The Principal Deputy Chairman of Committees (The Earl of Kinnoull) (CB)]

My Lords, I must inform the Committee that, if Amendment 160A is agreed to, I will not be able to call Amendments 161 to 163, by reason of pre-emption.

Queen’s Speech

Earl of Kinnoull Excerpts

Thursday 13th May 2021 Lords Chamber

[The Earl of Kinnoull (Non-Afl)]

My Lords, what a pleasure it is to follow such an excellent maiden speech from the noble Baroness. I particularly resonate with her point about the self-harm of the SNP refusing to take up seats in this House, which I feel is greatly not to the advantage of all people in Scotland.

The noble Baroness hid her light under a pretty thick bushel, I am afraid. Craigmaddie means “great rock of the wolf” and is in Stirlingshire. She is the product of the Glasgow Academy—as noble Lords know, it is a star school—and Cambridge, which is the second-best university. Before going back, she stopped off briefly in London, where she enjoyed the delights of the advertising world, to which I will return in a second. She danced, I suppose, back to Scotland and to her roots.

Today, apart from being the chief executive of Cerebral Palsy Scotland, she also chairs the Scottish Government’s National Advisory Committee for Neurological Conditions and is, among other things, a board member of Creative Scotland—our version of the Arts Council—and OSCR, which is the charity regulator in Scotland. Her energy and fairness of approach are recognised by all north of the border. I for one am thankful that she employs her skills in Scotland—now, to some extent, in this House too—and not with J. Walter Thompson in London on a diet of Go-Cat, Timotei and Listerine mouthwash. Anyway, I very much look forward to her future contributions in this Chamber.

The trade and co-operation agreement and the withdrawal agreement represent the cornerstones of the most wide-ranging arrangements that the UK has had with any international partner. The mechanics of these arrangements are hugely complex. The competencies covered by the agreements range from those reserved to Westminster, through those that are shared with the devolved nations and the UK, to those that are wholly devolved. Yet the 32 committees that currently exist under these agreements contain seats only for EU Commission and UK Government representatives. The agreements are silent as to how the devolved nations interact. That is right because it is not a matter for the EU, but it is therefore a matter for the UK Government to lead on, explain and make happen.

The 24 committees of the trade and co-operation agreement were not operational until the TCA’s ratification at the end of last month. As the European Affairs Committee well knows, they are now cranking up. I note how many will involve devolved matters. Take the Specialised Committee on Fisheries. This is a wholly devolved competence. How are the devolved nations to be involved?

The Dunlop review of November 2019, which was finally published on 24 March this year, is wonderfully clear on this area, with common-sense principles that should apply. Where intergovernmental relations are concerned, it underlines that we must have a new system and that that system must be transparent. The Chancellor of the Duchy of Lancaster wrote a response of the same date that appears positive but lacks a firm commitment to implementing the totality of the Dunlop recommendations of 16 months before. The third document of that day was the Progress Update on the Review of Intergovernmental Relations. It reveals how much important detail still needs to be agreed in the review that started in March 2018.

The Government appear to be bogged down. The Dunlop review is now 18 months old. The key elements are not being acted on. The review of intergovernmental relations is more than three years old, with an ending not even on the radar, let alone in sight. Failing to address devolved Administration interaction with the relevant TCA committees will inevitably give rise to more energy and time-sapping arguments, which do no one any good. At the very least, it is vital that the Government complete and implement the review of intergovernmental relations, and rapidly.

My thoughts on the trade and co-operation agreement and the withdrawal agreement stand on top of all the other reasons for urgent action on the mechanics of our union that have been advanced today, not least in the excellent opening speeches of the noble Baroness, Lady Hayter, the noble Lord, Lord Bruce, and my noble and learned friend Lord Judge. I very much wish that we could have had more than five minutes of him. Does the Minister agree with my analysis so far?

In closing, I note that the fact that the devolved Administrations have involvement in the trade and co-operation agreement committees means, of course, that the devolved Assemblies will have commensurate scrutiny duties. Does the Minister recognise this, and can he confirm that the Government will support reasonable scrutiny by those Assemblies?

Private International Law (Implementation of Agreements) Bill [HL]

Earl of Kinnoull Excerpts

Consideration of Commons amendments & Ping Pong (Hansard) & Ping Pong (Hansard): House of Lords
Thursday 19th November 2020 Lords Chamber

I am satisfied that this approach strikes the right balance between ensuring that the Government take account of the views of the relevant experts while allowing for a flexible approach to engage with the most appropriate interested parties in each specific case. I hope that your Lordships will agree that it demonstrates that the Government are sincere in their intent to engage Parliament and other stakeholders in the process. In my view, when taken as a whole, these three amendments represent a significant amount of extra scrutiny for Parliament. I hope that the House will consider them a compromise sensitive to the aims of both sides. I beg to move.

[The Deputy Speaker (The Earl of Kinnoull) (Non-Afl)]

The question is that the House do agree with the Commons in their Amendment 1 and do propose Amendments 1A and 1B as amendments thereto. On Amendment 1C, I call the noble and learned Lord, Lord Falconer of Thoroton.

Amendment 1C (as an amendment to Amendment 1A)

Moved by

--- Later in debate ---

[Lord Marks of Henley-on-Thames (LD)]

My Lords, I add my welcome of the noble and learned Lord, Lord Stewart of Dirleton, to his place in taking over this technical but difficult Bill, one that raises issues of principle.

I welcome the government amendments, which have the power to act as safeguards on the power reinserted into the Bill by the Commons amendments. I agree with the summary by the noble Lord, Lord Pannick, of the Government’s amendments as sensible and constructive. But I share the disappointment of the noble and learned Lord, Lord Falconer of Thoroton, that the Commons amendments reinstate the delegated power that this House so comprehensively rejected.

I also agree with the noble and learned Lord, Lord Stewart, that outlawing the power to create offences punishable by imprisonment is of particular importance. I welcome the fact that the principle of a sunset clause has been accepted, although, for all the reasons mentioned by the noble and learned Lord, Lord Falconer, it should be meaningful and not liable to be endlessly renewed. It is also important that the Government have introduced a requirement for consultation before regulations are made. On that, in particular, I am grateful to the noble and learned Lord for the time he and the Bill team have spent with me and others discussing the government amendments to the Commons amendments and considering suggested changes.

For my part, I support the amendment on the sunset clause in the name of the noble and learned Lord, Lord Falconer, for all the reasons he gave. I understand the Government’s concern to ensure that there is sufficient time to bring new private international law agreements into UK law, and I accept that there may possibly, on occasion, be a need for more than five years to achieve that. However, I simply cannot see the need for further extensions beyond 10 years. It is in the nature of these international agreements that they take a long time to be finalised. However, the point about the first five years is that there are a number of international agreements, notably the Lugano Convention 2007, to which the Government wish to accede, which may need to be brought into law in the reasonably short term, and there are others on the horizon that may need more than five years. The problem with allowing for extensions beyond 10 years—that is, more than one extension—is that such a long sunset period may involve permitting the Government to implement in the UK international agreements that are currently unforeseen and unforeseeable. It was partly to address that issue that this House took the view that primary legislation should be required before implementing such agreements in domestic law.

I appreciate that this issue is addressed, in part at least, by the requirement for consultation before regulations are made implementing further private international law agreements. That requirement is, indeed, a welcome safeguard. My amendment to government Amendment 4B is designed to ensure that such consultations are both objective and impartial and seen to be so. The shortcoming of the present proposal is that the choice of those to be consulted lies entirely, in England and Wales, with the Secretary of State and, in Scotland and Northern Ireland, with Scottish Ministers, the relevant Northern Ireland department or the Secretary of State acting with their consent. That means that the power to choose who is to be consulted lies entirely with the Executive.

Of course, we accept that many Ministers can be confidently relied on to exercise that power dispassionately, but that confidence cannot always be assumed, and it has not always been justified by Secretaries of State. The change in the role of the Lord Chancellor may also have had an impact. I understand the Government’s concern to ensure that there is flexibility in the choice of those to be consulted. It goes without saying that, for example, a convention concerned with family law matters may call for different experts to be consulted than would a convention concerned with commercial law or contractual matters. That is why my amendment does not seek to impose on the Secretary of State a list of those who must be consulted. It lies behind what the noble and learned Lord said about the Government’s reasons for not setting out such a list, but I and others are also concerned to ensure not only that the choice of those to be consulted is clearly objective, impartial and apolitical but that the organisation, management and follow-up of the consultations are thorough and meaningful.

Accordingly, I understood the noble and learned Lord to be offering, on behalf of the Government, assurances to the House in that connection. I invite him to confirm, first, that consultation on the implementation of a private international law agreement will generally be in public, and that the Government will announce their intention to consult and invite people to offer their views. Secondly, will he confirm that if the Government decide that such a consultation will not be in public they will publicly explain that decision and the reasons behind it? Thirdly, will he confirm that the Government will report on the outcome of such consultations, if not in a separate report, then, as he envisaged, in or in a document accompanying the Explanatory Memorandum that comes with any proposed regulations made under the powers in the Bill? Finally, I understood the Minister to be offering an undertaking, which I ask him to confirm, to ensure that the explanations in or accompanying such explanatory memoranda will be thorough and detailed, setting out whom the Government have consulted and a fair and balanced summary of the views expressed in any such consultation.

Such assurances and undertakings, if confirmed in the terms I have set out, would offer reassurance to those of us who are concerned that all such consultations will be the genuine safeguards we need them to be. I beg to move.

[The Deputy Speaker (The Earl of Kinnoull) (Non-Afl)]

The following Members in the Chamber have indicated that they wish to speak: the noble Lords, Lord Pannick and Lord Berkeley. I therefore call the noble Lord, Lord Pannick.

[Lord Pannick (CB)]

My Lords, I echo the words of the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Marks, in welcoming the Advocate-General for Scotland, the noble and learned Lord, Lord Stewart, to his post. I thank him and the Minister in the Commons, Alex Chalk, and their officials for taking the time to discuss with me and many other Members of this House our concerns, the House’s concerns and the concerns of the Constitution Committee about the delegated powers in the Bill and how those concerns can be accommodated by amendments. The noble and learned Lord has taken a very welcome constructive approach to these issues and I thank him sincerely for that. He has tabled amendments that go a significant way, in my view, to meeting those concerns.

Like the noble and learned Lord, Lord Falconer, and the noble Lord, Lord Marks, I would have liked, ideally, to see greater restrictions on the use of delegated powers in this context, but the theme tune that often—not always, but often—accompanies Lords’ consideration of Commons amendments is the Rolling Stones song “You Can’t Always Get What You Want”, and since we will not get exactly what we want today, the next best thing is for the Minister to assure noble Lords of the Government’s intentions in this context. Again, he has very helpfully gone a long way to do that this afternoon. I ask him to confirm my understanding on three topics that are raised by paragraph 1A, on consultation, as introduced by government Amendment 4B.

The first of these topics is the purpose of the consultation. There is a mandatory obligation to consult. It is not a discretion; there is a duty to consult. The amendment does not expressly say what the purpose is, but does the Minister agree that it is implicit that one of the purposes of the consultation will be to assist the Secretary of State in deciding whether it is appropriate to implement a particular international agreement by regulations, or whether primary legislation is needed?

Can the Minister confirm that the Government recognise that some international agreements, even when they are in the scope of this Bill, as explained by the Minister, may require changes that are so significant that it would not be appropriate to implement the international agreement other than by primary legislation? I suppose, also, the consultation might assist on whether the international agreement would alter substantive law, albeit incidentally, which I understood the Minister to accept would not be an appropriate subject for delegated legislation. That is the first matter: the purpose of consultation.

--- Later in debate ---

[Lord Berkeley (Lab)]

My Lords, I am grateful to be able to participate in this debate. I join other noble Lords in welcoming the noble and learned Lord, Lord Stewart. I am grateful for the time he spent with me and the Commons Minister Alex Chalk MP discussing what I am about to talk about. I also congratulate my noble and learned friend Lord Falconer of Thoroton on his birthday today.

My interest is in something called the Luxembourg Rail Protocol, which we have all agreed is an item of private international law. The protocol is sponsored, along with the Cape Town convention, by the organisation UNIDROIT—I hope I have the right pronunciation. The UK is a full member of this organisation. The purpose of this rail protocol is very similar to a successful one that has existed for the air sector for many years. It is to do with moveable equipment: the financing, recognition, protection and enforcement of creditor rights in relation to equipment that can move. I spoke briefly about this in Committee on the Trade Bill, which I shall return to, but obviously, if investors want to financially support equipment that can be moved anywhere around the world, they want to have some comfort that they know where it is and will get their due money back or whatever.

I recall, from my experience in the railway industry about 20 or 30 years ago, that there was a time when rail wagons got as far as Italy and sometimes never came back. It is not like that today, but it might be like that in other parts of the world. It is really important for UK businesses—not only those that operate or own the relevant bits of equipment but also the export business that will come. I am advised that this needs to be done before the end of the year to provide continuity.

There has been quite a lot of debate here—and in our discussions with Ministers—as to whether this needs primary or secondary legislation. Other noble Lords with much greater experience than I have been discussing it this afternoon. I originally put down an amendment in Committee on the Trade Bill, and the Minister, the noble Viscount, Lord Younger, said he was very supportive of fitting the Luxembourg Rail Protocol into UK law, but thought that the Trade Bill was not really the right place for it. He said it would be much better if it were done as a statutory instrument under the scope of this Bill, assuming that the text of this Bill allows it to happen. I know that there have been planned discussions between Ministers here and Ministers in the Department for Transport, because obviously they will have to promote some secondary legislation, but the important thing now is for the Minister, when he comes to wind up, to give the strongest assurance that the Government are empowered under this Bill—or Act, as it will be—to adopt the Luxembourg Rail Protocol through secondary legislation, and that he will do all he can to encourage the Department for Transport to get this moving so that we have a statutory instrument by the end of the year. I know there is a big queue of legislation, but it would be really good if that could happen. Given that so many Ministers have said to me that they want this to happen and that it is good for businesses—I have not heard anyone saying that it should not happen—I hope that the Minister will be able to give me the strongest assurance that he can.

[The Deputy Speaker (The Earl of Kinnoull) (Non-Afl)]

Does anybody else in the Chamber wish to speak? I call the noble Lord, Lord Mance.

[Lord Mance (CB) [V]]

My Lords, I declare an interest as a practitioner in the field of private international law and as joint chair of the Lord Chancellor’s advisory committee on private international law, to which reference has been made. I do not, of course, speak in that capacity and, as I mentioned on a previous occasion, that committee was not consulted about this Bill before its original introduction, although we have been very happy to be involved subsequently in relation to machinery under and related to the Bill.

I too welcome the Minister to his place and possibly, in succession to his predecessor the noble and learned Lord, Lord Keen of Elie, to a co-chairing of that committee with me. I would of course welcome that very much. I particularly welcome his measured and very careful consideration of the issues raised by the Bill. Described as “technical”, it has happily and rightly also been described as “important”. It is promoted as part of the United Kingdom’s preparation for the post-Brexit era—I will come back to that. It will certainly introduce into the UK’s legal systems three identified and very valuable Hague conventions, which have been mentioned, including the choice of court convention of 2005. As the noble and learned Lord, Lord Falconer of Thoroton, said, what has been controversial is the provision for the introduction by delegated legislative regulations of any number of further private international law measures which might be agreed at international level during an indefinite future.

I hope that I shall not be thought ungrateful in what follows for the mercies which have been granted. Certainly, the amendment relating to offences and the removal of the delegated power to create criminal offences punishable by imprisonment is highly welcome. So too is the Government’s agreement to limit the operation of Clause 2 to an operative period of five years. However, that is renewable, as has been pointed out, so that is not as large a change as the House wished —and I think would still wish—to see. The five-year period is capable of being extended by regulations and, moreover, more than once. In that respect, I support what the noble and learned Lord, Lord Falconer of Thoroton, said.

If the Bill is addressing the post-Brexit era, let us truly hope that that at least will be well and truly past within 10 years. In any event, we should be under no illusion that any great volume of instruments is likely to require attention under the Bill. Again, I echo a point that the noble and learned Lord, Lord Falconer, made. We know that the Government have, for better or worse, decided, if permitted by the European Union, to sign up to membership of the Lugano Convention 2007—that paler image of the present Brussels regime, which, as I previously remarked, is well accepted and understood, and popular in the City in particular. The signing up to the Lugano Convention 2007 will, as I have also pointed out, largely undo as regards EU states the potential benefits of signing up to the Hague choice of court convention 2005. That is because Lugano trumps the choice of court convention under the internal terms providing for their priority.

Apart from that, the 2019 Hague convention is a possibility which has been mentioned. It relates to recognition of judgments and one day, but certainly not soon, it may come into play as a possibility. At the moment it has no subscriptions of any significance at all. Then there is the Singapore mediation convention, previously much loved by government speakers here and in another place—but I am glad to see that, I think realistically, it was not mentioned by the noble and learned Lord, Lord Stewart. Its significance in promoting the enforcement of agreements reached as a result of mediation is certainly commendable but hardly earth shattering, those agreements being in any case enforceable at common law.

Parliament: Freedom of Speech and the Rule of Law

Earl of Kinnoull Excerpts

Thursday 23rd May 2019 Lords Chamber

[The Earl of Kinnoull (CB)]

My Lords, it is a pleasure to follow the noble Baroness, Lady Warwick, and I add my congratulations to the noble and learned Lord, Lord Brown of Eaton-under-Heywood, on securing a debate on such an important topic. I am legally qualified; however, I have spent my career in international business, which has included spells in New York, Zurich and Bermuda, as well as 20 years or so in the City itself. Underpinning all international business are written agreements, which all have provisions to determine the governing law and jurisdiction arrangements concerned in whatever that agreement is. The winner by choice in so many of these things—I do not mean just with UK entities as parties, but generally—is English law and English jurisdictional methods, which may include arbitration or mediation as well. This leadership positioning of English law is a key component, I submit, of the great success of the City of London and the huge legal businesses there now: the magic circle firms are world leading and exceptionally large.

In preparing for this debate, I rang up an Austrian lawyer who I knew used English law in some of his arrangements. I asked him why he did that and he said, “It is the prestige”. When I tried to analyse with him what he meant, he said, “The first thing is that you have a structure—a structure which is presidential, predictable and fair. The second thing you have is the people, in that the quality of the judiciary is exceptionally high and they understand what you’re talking about, because they have the knowledge and experience of arcane financial services instruments or other things as well”. He also pointed out, and I agree, that those things are comprehensively intertwined. I therefore feel strongly that any damage to this happy leadership position is greatly against the national interest.

A business principle that I have always abided by is “Everything communicates”. If your brand is trying to be a premium brand, you cannot send out a letter to all your clients full of spelling mistakes. If you were Gerald Ratner, you would understand this point as well because he criticised his own brand and his business simply disappeared. We have our own principles of comity, which are incredibly important as the boundaries between Parliament and the court. They were clearly laid out in principle—or relaid—by our Lord Speaker in his Written Statement of October last year. Although I agree with the noble and learned Lord, Lord Brown, that they could do with some strengthening, they are clearly laid out procedurally as well in our Companion to the Standing Orders. If we ignore those things, we therefore communicate something negative about our precious legal system.

I am not suggesting that this is a death-by-one-cut thing at all, as in the point made by the noble Lord, Lord Empey. But if we serially ignore our courts—ignore the hard work of the Court of Appeal, which heard for several days on this matter—we will find other jurisdictions snapping at our heels. Other governing law matters will come and people will choose them, which would be damaging to us. We will find it damaging to our efforts, which have already been damaged recently by such things as pension arrangements, to recruit really good judges. So “Everything communicates” is why this debate is important, because I hope we are communicating that we thoroughly support our judges and that we have a method of comity, set out in the Statement of our Lord Speaker and in our Companion. We should stick to that method.

Forestry and Land Management (Scotland) Act 2018 (Consequential Provisions and Modifications) Order 2019

Earl of Kinnoull Excerpts

Thursday 28th March 2019 Lords Chamber

[Lord Addington (LD)]

My Lords, I will ask the Minister a few brief questions. First, what would be an example of practical co-operation on cross-border matters such as plant health or infection? What would be the practical steps? The Minister mentioned that steps would be taken for administrative connection—I think this was covered in the Commons. Could the Minister provide a little more clarity on the powers on electricity generation? There was also some discussion of this in the Commons, but exactly what sort of wood production or forestry by-products will be used in this generation? There was discussion about biomass; a little bit of clarification there would not hurt. Other than that, there is not much else to be said. The Commons took 21 minutes on this—let us see whether we can shave a moment off that.

[The Earl of Kinnoull (CB)]

My Lords, I thank the Minister for his clear explanation, and I declare my interests as set out on the register. In particular, I am chairman of the UK Squirrel Accord, a body of 35 entities—the four Governments, the four nature agencies and the principal voluntary and private sector bodies—that are trying to deal with the problem of grey squirrels killing broad-leaved trees. The problem is extremely serious and is preventing commercial forestry planting such trees at the moment in large tracts of our country.

I have two questions for the Minister, arising from the Explanatory Memorandum. First, to follow on from the noble Lord, Lord Addington, I note that paragraph 7.1 says:

“Selected functions continue to operate across Great Britain including functions relating to forestry science and research, tree health and common codes and standards”.


Where squirrels and tree diseases are concerned, a line in an atlas makes no difference at all to the problems; it is vital that things continue to be co-ordinated across the border. I think that sentence means, “Great Britain and Northern Ireland”, not just “Great Britain”. Could the Minister confirm that? Also, does it mean that various functions will remain at the UK level? That would be very helpful, given the necessity of moving forward on a co-ordinated basis, particularly in science.

My second question is on paragraph 7.3, which refers to Articles 3 and 4. It talks about maintaining,

“a coordinated approach to issues such as the management of plant-based pests and diseases”.

Does the Minister agree it is vital to make sure that takes place? No individual bit of Great Britain has all of the intellectual power or money—or even necessarily a research institute—to do these vital things. It is so important that things remain co-ordinated. There is pretty much chaos at the moment, and staff morale is not good in some of the new bodies which will replace the current arrangements. If I have a fear, it is this: if the ball is dropped, the net result will be a big problem in plant health and broad-leaved trees.

Brexit: Withdrawal Agreement and Political Declaration

Earl of Kinnoull Excerpts

Monday 14th January 2019 Lords Chamber

[The Earl of Kinnoull (CB)]

My Lords, it is a great pleasure to follow my titular neighbour, the noble Baroness, Lady Young of Old Scone.

As someone with no dietary requirements, on any cafe or restaurant menu there is invariably for me more than one right answer. On the Brexit menu before us today, however, there is less than one right answer. Thus I find myself in that same maze that my noble and learned friend Lord Hope of Craighead described in his speech of 5 December, which has been referred to many times in our five days of debate. Other than accepting the deal on offer, I agree with him that there are three ways out of the maze: no deal, go back to the people or seek to renegotiate. Having spent a career assessing risk, I naturally look at each of these three routes through those spectacles.

The EU Select Committee examined the no-deal option in exhaustive detail and published a report in December 2017. Our report was unanimous and concluded that the outlook following a no-deal Brexit was full of risk. I do not have time to develop the point as others have done in our five days of debate, but, to me, this route looks to represent an unacceptably high risk of significant economic damage, particularly for the trade-in-goods part of our economy. In saying that, I accept there is a line of logic that suggests that mini deals would be done in a no-deal situation to ameliorate matters. That can, and does, reduce some risk, and I feel I have taken account of it in reaching my conclusions.

The second way out of the maze is to go back to the people. As a Scot, I am a veteran of two recent referenda. They are deeply divisive of our community and fraught with bad behaviour on the part of the campaigns themselves and their supporters too. In the Scottish referendum, there was much low-level criminal damage, intimidation and dreadful cyberactivity, to finger only some of the unsavoury elements. In the EU referendum, feelings also ran very high, with many families and friendships riven.

In his speech on 5 December, the most reverend Primate talked of the importance of healing, and last week spoke of the need for reconciliation. In both instances the whole House agreed with him. I fear that another referendum stands a substantial chance of seeing considerable unrest and the opening and reopening of many awful wounds—Anna Soubry MP got a personal gypsy’s warning of this, which reached the front page of the Times last week. In any event, I agree with the many noble Lords who have suggested that such a referendum is unlikely to settle the issue permanently.

The third way out of the maze is to seek to renegotiate. At the start of November, the Select Committee visited Brussels for two days, immediately before the announcement of the potential deal. As ever, we met substantially all the various interlocutors whom we had got to know through the process. I had the strong impression that both sides were at their limits and that the appetite for further negotiations was very low. In addition, the apparatus that the EU negotiates through is very clunky. Behind Monsieur Barnier is a committee structure which involves all the EU 27. We sat through a lengthy meeting with that committee’s secretariat and learned through practical examples of the great difficulties and sheer length of time it takes to achieve consensus on even small issues among the EU 27. We are, therefore, out of both negotiating time and negotiating appetite. Accordingly, there is a strong likelihood that an attempt at a substantial renegotiation will make little, if any, significant change and push us towards no deal.

However, during that same Brussels trip I was much encouraged by our lengthy visit to the Canadian embassy. They told us how they were already making small incremental and mutually beneficial changes to their brand new treaty agreed only in 2017. We had a similar report from a very senior Swiss official at an informal meeting in London the following week. Both commented that concluding a treaty was not the end of the matter but the start of a conversation. I fear the backstop less than many because of those two sessions. Thus, at the start of December I felt that the correct route was to accept this pretty unpalatable deal. It represented the lowest risk to the UK, our fellow citizens’ lives and jobs and the 3.5 million EU citizens living among us. But the Prime Minister seems likely to face defeat tomorrow so, accordingly, I will comment briefly on how one might conduct a renegotiation which stood some chance of succeeding.

It seemed to me in early December, and still today, that there would have to be a strong body of agreement among MPs on the ask—and that that ask must be simple. In cricket, or at least junior cricket, the wicket-keeper is covered by the backstop. The backstop is covered by a longstop, the date after which the backstop would fall. I am sure a winning, simple ask might be found in that thought. In this, I am encouraging the Prime Minister to have another go following today’s exchange of letters. I would also say, just out of interest, that most insurance policies that I have ever been involved in have had a cancellation provision.

On a serious point, I would submit to the EU that in a no-deal situation the economy of the island of Ireland would have a very high risk of significant damage; that would itself threaten the Good Friday arrangements; and that, accordingly, such a longstop was thus more consistent with the Good Friday arrangements. Going into any negotiation, however, is still jettisoning the bird in the hand, and from the menu with less than one right answer I think we should take this deal.