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

Lord Foulkes of Cumnock Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Wednesday 13th May 2020 Lords Chamber

[The Deputy Chairman of Committees]

My Lords, the following noble Lords indicated a wish to speak after the Minister: the noble Lord, Lord Foulkes of Cumnock, the noble Baroness, Lady McIntosh of Pickering, the noble and learned Lord, Lord Mance, and the noble Lord, Lord Marks of Henley-on-Thames. I shall call them in that order and ask the Minister to respond to each of them in turn.

[Lord Foulkes of Cumnock (Lab Co-op)]

I had not intended to intervene at this stage. However, since this, is or ought to be, very similar to Committee if we were sitting in the Chamber, I hope that Members will understand why I do so. It is not to deal with questions that the Minister raised about Crown dependencies and overseas territories—although he answered the question that I had intended to ask later on, on other amendments, so that will shorten the debate later—nor indeed about the different jurisdictions within the United Kingdom. Again, that will be dealt with in subsequent amendments and I can come back to that during that debate.

I want to say two things. First, I agree totally with what my noble and learned friend Lord Falconer said; that will surprise neither him nor the Minister. Secondly, the noble Lords, Lord Adonis and Lord Pannick, made important points, which the Minister just touched on. As the noble Lord, Lord Adonis, said, we should note the significance of this being the first Committee stage of a Bill that we have held virtually. It is very important that we see that it operates properly.

As it happens, two members of the Procedure Committee are in this debate: the noble and learned Lord, Lord Morris of Aberavon, and me. At the committee’s last meeting, we asked for a report on the workings of this Committee stage—that is, how it will proceed. At its next meeting, the committee will discuss the procedure for virtual voting. If my noble and learned friend Lord Falconer hopes to divide the House on Report, as he indicated—I hope that he will—that cannot be done without virtual voting. It would be improper and unconstitutional for that to take place. My noble friend Lord Adonis should be reassured by that.

Finally, I hope that the Minister will treat this Committee stage just as he treats Committee stages on the Floor of the House—that is, take account of what has been said, be prepared for a challenge on these issues on Report and bear all this is mind before bringing the Bill in its present form back on Report. I hope he takes note of that.

[Lord Keen of Elie]

My Lords, I of course am listening to the contributions made to the debate in Committee and will take account of the observations that have been made. I make no comment on the procedural issues that the noble Lord raised.

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Moved by

[Lord Foulkes of Cumnock]

7: Clause 2, page 3, line 14, leave out sub-paragraph (i)
Member’s explanatory statement
This amendment and the next in the name of Lord Foulkes are to explore whether conflict might arise as to whether it is the responsibility of Scottish Ministers or of the Secretary of State in consultation with Scottish Ministers.

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[Lord Foulkes of Cumnock]

It is appropriate that these amendments follow those we have just been discussing, 3 and 18. I am pleased that four very distinguished lawyers will participate in this debate, as well as the Minister, who is an equally distinguished lawyer. I should explain that I am not a lawyer—although, mind you, that will become blindingly obvious during the course of what I have to say. These are very much probing amendments. I, like the vast majority of members of this Committee, hope that we will not have Clause 2. However, if we have it, we will need some clarification. I will therefore confine myself just to some questions for the Minister.

On the question of the appropriate national authority, in the Bill there are two different options in relation to Scotland. First, there is approval by Scottish Ministers—it would be for the Scottish Government to decide—or approval by the Secretary of State with the consent of Scottish Ministers. Will the Minister explain the difference between the two? How is it decided which of these two is appropriate, and who decides whether it should be approved by Scottish Ministers or by the Secretary of State with their approval? Will it be clear which treaties are UK treaties, dealt with by UK legislation, or by Scottish legislation? Of course, this applies equally to Northern Ireland, although my amendments do not apply to that. Does the Minister envisage that there might be a dispute between the devolved Governments and the United Kingdom Government? We have seen a few of those recently, sadly. If so, how would the question of who would be responsible for resolving the disputes be resolved?

Secondly, are there likely to be any cross-border elements that apply both to Scotland and to England and Wales in this case, and if so, how would they be dealt with? For example, could custody of children create any difficulties? We have seen the problems regarding people moving over the border to deal with or to avoid custody being taken by one parent or the other. Could that create difficulties?

Thirdly, English law and Scots law are different with regard to issues such as power of attorney. Could power of attorney which was dealt with in one jurisdiction be different and not applicable in another jurisdiction, and would that create problems?

Fourthly, on global contract law, which, again, is one of the treaties and part of the Bill, is there an issue of which jurisdiction might settle any dispute? If so, would this go to the English or Scottish court? How would the dispute be decided, and by whom?

Finally, this Bill requires a legislative consent Motion of the Scottish Parliament. I understand that that Motion has been lodged. When does the Minister expect it to be dealt with, and does he envisage that there will be any problem? Those are my questions for the Minister. I look forward to his replies, and to the interventions of distinguished lawyers, including, in particular, two Scots lawyers of great distinction. With that, I beg to move.

[Lord Wallace of Tankerness]

My Lords, as the noble Lord, Lord Foulkes of Cumnock, has said, it is welcome that we have this opportunity to probe. In his Explanatory Statement, which appeared next to this amendment on the Marshalled List, the noble Lord said that it was

“to explore whether conflict might arise as to whether it is the responsibility of Scottish Ministers or of the Secretary of State in consultation with Scottish Ministers.”

But, as he indicated in his remarks just now, that is not actually in the Bill, which speaks of

“the Secretary of State acting with the consent of the Scottish Ministers”.

That is a crucial difference.

There is no doubt that negotiating or joining an international agreement on private international law is a reserved matter for the Government of the United Kingdom as a sovereign state. Equally, there is no doubt that private international law is a devolved matter. Section 126(4)(a) of the Scotland Act makes that expressly clear. Therefore, the implementation of these agreements is within the legislative competence of the Scottish Parliament.

It is right, therefore, that Scottish Ministers should be one of the appropriate national authorities. Equally, there will be occasions—perhaps a number of occasions —when it makes sense for the United Kingdom Secretary of State to make regulations with respect to the whole of the United Kingdom with the consent of Scottish Ministers. In paragraph 8 of their legislative consent memorandum, the Scottish Government draw attention to this fact:

“In 2018, the Scottish Ministers (with the approval of the Scottish Parliament) consented to two UK statutory instruments … including devolved material relating to the 2005 and 2007 Hague Conventions.”


So there is a very recent precedent for regulations to be made in the sphere of private international law. It has been done by a United Kingdom statutory instrument, but with consent not just in the case of Scottish Ministers but with the approval of the Scottish Parliament. These are often pragmatic matters, but the fact that it requires consent means that the UK Government cannot override the Scottish Parliament. The noble Lord, Lord Foulkes asked whether the legislative consent Motion has been passed; I checked yesterday—I do not think it has. But paragraph 19 of the Scottish Government’s memorandum says:

“The Bill is drafted to respect the devolution position: the Scottish Ministers make provision for implementation in Scotland with UK Ministers only being able to do so with the consent of the Scottish Ministers. Legislation in this area has in the past been taken forward on a UK basis and it may be convenient for it to be so in the future so the Scottish Government recommends this approach.”


There is one final matter which is not really germane to the terms and text of the amendments but I shall be grateful if the Minister is able to respond. Given that the implementation can be a matter for the Scottish Government, what engagement is he aware of with Scottish Government officials in some of the negotiations on these private international law agreements? For example, two agreements are referred to in paragraph 53 of the Explanatory Notes of the 2019 Singapore agreement and the 2019 Hague Convention. Is the Minister aware of any engagement or involvement by Scottish Government officials? Quite clearly, if the next step is implementation, it is important that Scotland is a party to these negotiations, albeit at the end of the day, as responsibility for joining these international agreements rests with the United Kingdom.

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[Lord Keen of Elie]

My Lords, I am obliged to the noble Lord, Lord Foulkes of Cumnock, for tabling what he very candidly pointed out were probing amendments. I am also obliged to the noble and learned Lord, Lord Wallace, who drew on his experience of the devolved Administrations and was able to outline the position in this matter. I will come in a moment to address the questions raised by the noble and learned Lord, Lord Hope, in the context of these provisions.

As the noble Lord, Lord Foulkes, pointed out, two authorities are identified in this part of the Bill that might proceed to implement matters of private international law in Scotland. That is consistent with legislation in other areas. The Secretary of State might decide, with the consent of the Scottish Ministers, to make UK-wide provision for implementation. That is why he is one of the identified national authorities, because there are circumstances in which the Scottish Ministers would be entirely content for there to be UK-wide provision.

Alternatively, if that is not the case, Scottish Ministers may themselves then proceed as a national authority to implement the matter in domestic law. That is because, as the noble and learned Lord, Lord Wallace, pointed out, the position is that—I am sorry, something came up on another phone and rather distracted me—the implementation of private international law is a devolved issue under the Scotland Act, so allowance is made for both provisions.

As regards this Bill, an LCM was discussed between officials. The Scottish Ministers have recommended that such an LCM should be provided, and the noble and learned Lord, Lord Wallace, pointed out the terms of the recommendation that Scottish Ministers have made to the Scottish Parliament with regard to this matter. Indeed, there was prior discussion about these proposals last year, when the Lord Chancellor, for example, was in communication with the Scottish Government on matters of the convention. Perhaps I can clarify this by reference to the points made by the noble and learned Lord, Lord Hope. The Secretary of State may be a national authority with the consent of Scottish Ministers because Scottish Ministers may, as sometimes happens, wish to see UK-wide regulations made here for implementation. Alternatively, as the national authority, they may choose to do that for themselves. The Secretary of State clearly does have the power to do that because under the Scotland Act there is the power to legislate for the entirety of the United Kingdom as regards the implementation of a matter that is otherwise within the devolved competences, so that does not raise an issue either.

With regard to the matter of whether or when it would be one national authority or the other, that is simply a matter that will be discussed, as it is in other contexts, between the United Kingdom Government and Scottish Ministers. If Scottish Ministers are content that the UK Government should legislate UK-wide on this matter, that will happen. If they are content for that to be done, then Scottish Ministers will deal with the matter. The Secretary of State cannot deal with the matter without the consent of Scottish Ministers, so I hope that that puts minds at rest in this regard.

As regards the identification of the Secretary of State as an authority and the reference, for example, in the Scotland Act to a Minister of the Crown, I accept that the reference in this Bill is more limited. Because I cannot answer immediately, I will consider why it was thought appropriate to limit it to the Secretary of State as opposed to the wider reference to a Minister of the Crown. But I will look at that to see whether there is an issue there that needs to be addressed.

As regards consultation on the implementation of international treaties, that is not an issue, but as regards entering into international treaties, that is of course a reserved matter. I recognise that it is appropriate that Scottish Ministers and others should be consulted on these matters for their interests when they arise. I do not understand that to be a difficulty in this context, nor a matter that would require express provisions in the terms of this Bill.

I thank the noble Lord, Lord Foulkes of Cumnock, for his probing amendment and I hope that I have been able to put minds at rest as regards why there are two identified national authorities for the purposes of Clause 2. In the event that Clause 2 stands, these are appropriate alternative mechanisms for the implementation of these provisions.

One final matter raised by the noble Lord, Lord Foulkes, was the issue of contract, but of course, where you have a contract, it will have a choice of jurisdiction and a choice of law. If the contract has Scotland as a choice of jurisdiction and Scots law as the choice of law, that will be binding if we have a situation in which, for instance, the Lugano provision applies. I hope that that answers the query in so far as I have understood it.

I cannot give a precise date for the provision of the LCM, but as the noble and learned Lord, Lord Wallace of Tankerness, himself indicated, Scottish Ministers have recommended the granting of an LCM, and it is not anticipated that there will be any difficulty. With that, I invite the noble Lord to withdraw the amendment.

[Lord Foulkes of Cumnock]

My Lords—

[The Deputy Chairman of Committees]

As no further speakers have indicated that they wish to intervene on this amendment, I call Lord Foulkes.

[Lord Foulkes of Cumnock]

I apologise for jumping in a little prematurely.

This has been a very useful debate and the Minister has answered a number of my questions. It is awfully useful that he is taking away the third point raised by the noble and learned Lord, Lord Hope, about Ministers of the Crown. But the debate has highlighted that there is a difference of opinion between the noble and learned Lords, Lord Wallace and Lord Hope, on the one side, and the noble and learned Lord, Lord Keen, on the other. Now, it is not unusual to find different opinions among two or three lawyers, but it highlights that there may be a problem around whether this is to be dealt with by the Secretary of State, after consultation with and the permission of Scottish Ministers, or directly by Scottish Ministers. I hope that is something that can be looked at further.

Nevertheless, in the light of the explanations given, I beg leave to withdraw my amendment.

Amendment 3 withdrawn.

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Moved by

[Lord Foulkes of Cumnock]

14: Clause 2, page 3, line 39, leave out paragraphs (a) and (b)
Member’s explanatory statement
This amendment and the next in the name of Lord Foulkes are to explore any issues regarding how this Bill might impact on the constitutional position of the Crown Dependencies and Overseas Territories in relation to the United Kingdom.

[Lord Foulkes of Cumnock]

My Lords, this brings me to another of my special interests, and one that I have been pursuing for some time. Amendments 14 and 15 concern the Isle of Man, the Channel Islands—namely Jersey, Guernsey, Alderney and Sark—and the dependent territories. I will not mention all of the dependent territories, because those such as the Falklands are not quite so relevant in this context, but they include Gibraltar, the Cayman Islands, Turks and Caicos, the British Virgin Islands and Bermuda. I mention those particularly and not by chance, because many are well known as tax havens and the offshore basis for companies whose principal trade and activities are elsewhere, and not on those islands.

My first question is this. In an earlier intervention, the Minister indicated that there has been consultation with the islands’ authorities, and that they had approved the provisions in the Bill. But with whom were these consultations? Were they with just the governor, or were they with the directly elected councils and parliaments of the various overseas territories and Crown dependencies? It is important that the elected representatives were involved in these discussions. Secondly, what response has there been? I understand from what the Minister said that the islands have all agreed, but was that agreement conditional in any way?

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[The Deputy Chairman of Committees (Baroness McIntosh of Hudnall) (Lab)]

My Lords, I am not aware that any other noble Lords have expressed a wish to speak after the Minister, so I call the noble Lord, Lord Foulkes of Cumnock.

[Lord Foulkes of Cumnock]

My Lords, I am really very grateful to the Minister for a helpful reply; he has dealt with each of the points that I raised very properly and helpfully. This is an issue that I feel strongly about generally and will need to pursue in another context in the light of that. I beg leave to withdraw my amendment.

Amendment 14 withdrawn.