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.

Vagrancy Act 1824

Lord Foulkes of Cumnock Excerpts

Thursday 23rd April 2020 Lords Chamber

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

Can the Minister confirm that the provisions of this ancient Act as they apply to Scotland were repealed in Westminster by the Civic Government (Scotland) Act 1982? The kind of things he has talked about, such as persistent or aggressive begging, are being dealt with in Scotland using other legal provisions. Why cannot that be done in England, and why cannot the Government move quickly to bring England and Wales in line with the excellent situation in Scotland?

[Lord Keen of Elie]

My Lords, the provisions of Section 4, but not Section 3, of the Vagrancy Act 1824 were extended to Scotland by Section 15 of the Prevention of Crimes Act 1871. Section 4 was of course concerned with rough sleeping and Section 3 with begging. The noble Lord is quite right that the extension of Section 4 to Scotland was repealed by the Civic Government (Scotland) Act 1982. It should be noted that Part 4 of the 1982 Act brought in a series of very specific offences of what was termed

“annoying, offensive, obstructive or dangerous behaviour”—

essentially public order offences. In that regard, the law was brought up to date in Scotland. Indeed, it has been amended in England as well in some instances, for example by virtue of the Anti-Social Behaviour, Crime and Policing Act 2014.

Serco

Lord Foulkes of Cumnock Excerpts

Thursday 4th July 2019 Lords Chamber

[Lord Keen of Elie]

My Lords, I entirely concur with the observations of my noble and learned friend. The underlying purpose of deferred prosecution agreements is as he has set out, and the consequences are as he has referred to. It would have been wholly inappropriate to see the jobs of many employees put in jeopardy because of the nefarious activities of some in management, who have now been removed.

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

My Lords, with the Carillion scandal, the Capita scandal and the Serco scandal, do the Government not see a pattern? Will they not learn a lesson and realise that these services—particularly in the NHS—are better in public ownership?

[Lord Keen of Elie]

My Lords, there is no pattern indicated by the parties to which the noble Lord referred.

Northern Ireland: Historical Institutional Abuse Inquiry

Lord Foulkes of Cumnock Excerpts

Thursday 13th June 2019 Lords Chamber

[Lord Duncan of Springbank]

I can give the noble Lord that assurance. We will do just that.

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

Is the Minister telling us that the only reason we are not able to consider this is because of a delay in drafting the legislation? The Minister knows that I have a great respect for him. Could he not go back to the officials to say that this House, indeed the whole Parliament, is ready to consider this legislation and put a rocket under them so that it comes here as quickly as possible?

[Lord Duncan of Springbank]

I will be very happy to put a rocket under them.

Parliament: Freedom of Speech and the Rule of Law

Lord Foulkes of Cumnock Excerpts

Thursday 23rd May 2019 Lords Chamber

[Lord Brown of Eaton-under-Heywood (CB)]

My Lords, it will be obvious to all that the impetus for this debate, its essential backdrop, was the statement made by the noble Lord, Lord Hain, in the Chamber on 25 October last year, naming Philip Green under parliamentary privilege as the subject of an anonymity order issued by the court two days earlier.

I should make plain at the outset that my central objective in this debate is not to criticise the noble Lord, Lord Hain—although inevitably I will need to persuade your Lordships that he acted wrongly before I can hope to ask the House to change its procedures. To that end, I will have to spell out why I regard his statement as a misuse—indeed, I would suggest, a clear abuse—of privilege.

Still less do I seek to have the noble Lord, Lord Hain, disciplined. Indeed, as to that, while several complaints were made against him by members of the public, as well as by Philip Green’s solicitors, the Commissioner for Standards rightly recognised that the only complaint within her jurisdiction was an alleged breach of the noble Lord’s obligation to declare his role as global and governmental adviser to the law firm Gordon Dadds, which was acting for the Daily Telegraph in the litigation. Against that complaint, the noble Lord had a complete defence: he had no idea that Gordon Dadds was involved in the litigation. He would have known had he looked at the court judgment, because the solicitors’ name was prominently shown there—but he did not. Whether, overall, that is to his credit I leave to others. To set oneself up as a one-person or one-Peer court of final appeal over a fully considered Court of Appeal judgment without even reading the judgment might be thought a touch presumptuous. Indeed, the noble Lord in his evidence to the commissioner went further and said that he did not think it would have made any difference even if he had read the judgment—a judgment that had granted a short interim injunction pending a speedy trial of the issue so as not to pre-empt the final decision on the merits of anonymity.

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

Would the noble and learned Lord give way?

[Lord Brown of Eaton-under-Heywood]

I am terribly sorry, I am not proposing to take interventions. This is a strictly time-limited debate and I need my 15 minutes.

The noble Lord, Lord Hain, does not suggest that the court’s judgment was in any way wrong, but rather that, whatever the legal position, he thought it his moral duty to name Green. He said that he believed he was acting honourably in naming him and:

“The sovereignty of judges is vital but should never override the sovereignty of parliament”.


Of course I accept that the noble Lord is an honourable man, but I reject utterly his suggestion that his own subjective view of what is right must always prevail over a court order.

My central concern is for the future. Indeed, the very fact that, as I understand it, the noble Lord, Lord Hain, does not accept that he was guilty even of a misjudgment in his use of the privilege increases that concern. Why would he and perhaps others of like mind, if there be such, not act similarly in the future unless the House now clarifies and, as I suggest, modifies the position? Doing what we now can to guard against any such egregious exercise of parliamentary privilege is essential to protect both the rule of law and the reputation of this House. Here I should declare an interest as a member of the House’s Privileges and Conduct Committee and as the chair of its Sub-Committee on Lords’ Conduct until these were recently restructured.

My essential concern is for the House’s loss of reputation if its Members breach the rule of law. Of course I recognise the fundamental importance of a Member’s right to speak freely in Parliament. Parliamentary privilege is enshrined in Article 9 of the Bill of Rights. It is of foundational significance in our constitution and I am certainly not proposing any legislative change to its scope. But I cannot accept that parliamentary privilege must always prevail over all competing interests. Are Members invariably to be free to breach court orders protecting, say, the identity of children, sometimes even the safety of children? Take the notorious Thompson and Venables case: could a Member have decided off his own bat to reveal their whereabouts and thus imperil their lives—or, say, trade secrets or intelligence material?

Essentially, the privilege is to prevent Members being vulnerable to claims of defamation, breach of privacy and so forth—indeed, to any other risks inhibiting the discharge of their duty to speak fearlessly on an issue in the House. But surely it is one thing to say that the privilege should not be whittled down, and quite another to claim for it so exorbitant a reach as is asserted here—namely the right, with total impunity, to breach any court order that the Member dislikes.

I advocate two distinct steps. First, the Companion, our guide to proceedings in the House, should be tightened up on this point. It is 250 pages long but there is not a word about disobeying court orders. All there is is our resolution some years back on the sub judice rule, which I can summarise simply: the privilege of freedom of speech in Parliament should be used responsibly. It requires both Houses to,

“abstain from discussing the merits of disputes about to be tried and decided in the courts of law”.

Essentially the rule requires Members in most proceedings before the House not to refer to active court proceedings, except where the Lord Speaker, in his discretion, allows it, and the Lord Speaker must be given at least 24 hours’ notice of any proposal to refer to a matter which is sub judice. Civil proceedings cease to be “active” on judgment.

I have three comments. First, the rule contemplates the issue arising in the context of,

“any motion, debate or question”.

I suggest that it does not envisage doing what the noble Lord, Lord Hain, did here—rising unannounced before the House after the conclusion of one unrelated, busy debate, and before the start of the next, to make a “personal statement”.

Secondly, in his evidence to the commissioner, the noble Lord asserted not only that he did not consult the Lord Speaker before making his statement but that he consulted no one. He merely notified the Deputy Speaker on the Woolsack at the time that he would say something once the ongoing debate had ended.

Thirdly, the noble Lord’s statement was contrary to the sub judice rule, but only because the court’s order was for an interim injunction. Had it been a final court order at the conclusion of proceedings, it would not have been covered by the rule. I suggest that the very least the House should do now is revise the Companion to make plain that in addition to the sub judice rule—indeed, more important than the sub judice rule—there is an obligation on Members to respect the independence of the courts and the rule of law, as the Lord Speaker said in his brief, well-judged Statement four days after the noble Lord’s statement, so that,

“we do not set ourselves in conflict with the courts or seek to supplant them”.

The sub judice rule is, after all, intended merely to discourage Members without good reason from discussing the merits of a case, so that their views will not risk prejudicing the court in deciding it. Intentionally flouting an actual court order after it has decided the case is surely altogether more extreme, and clashes directly with the rule of law.

I might add that the action of the noble Lord, Lord Hain, in the Green case had the effect of preventing the court ever deciding the important final question that the interim injunction was intended to leave for decision—namely, the correct approach to non-disclosure agreements in this context. The court’s open judgment, a full and measured judgment, expressly recognised the conflicting interests and arguments in play. The Court of Appeal took account of a recent House of Commons report by its Women and Equalities Committee on sexual harassment in the workplace, which recognised a legitimate role for NDAs, not least—as in the Green case—in settling employment tribunal claims. Two of the five employees supported Green’s application for an injunction. All five had been separately and independently legally advised, and each agreement expressly allowed disclosure to people such as the police and any regulatory and statutory bodies.

Unsurprisingly, Green discontinued his action after the statement of the noble Lord, Lord Hain, had pre-empted the result. Anonymity, of course, was lost for ever—but surely even unpopular people such as Philip Green are entitled to the protection of the courts. Shortly after the statement the noble Lord, Lord Pannick, described it in his Times column as,

“a clear abuse of parliamentary privilege”,

and suggested that the House should,

“amend its procedures to deter such conduct in future cases”.

He advocated Standing Orders in both Houses forbidding disclosure of information,

“without first seeking and then complying with a ruling by the Speaker”—

a failure to comply with that being a breach of the Code of Conduct. Whether that approach would put too heavy a responsibility on the Speaker is for consideration, but it is difficult to think of many cases where the Speaker would support the proposed breach of a considered court order.

Moreover, there is another important factor to have in mind here, which is the European Convention on Human Rights. In 2002 Strasbourg, in A v UK, accepted by a majority that the rule of absolute parliamentary immunity was justified even when it operates to defeat convention rights. The court’s reasoning, however, included that:

“General control is exercised over debates by the Speaker of each House of Parliament”,


and that,

“the immunity attaches only to statements made in the course of parliamentary debates on the floor of the House”.

The privilege there had been used to prevent a defamation claim—not, as in the case of the noble Lord, Lord Hain, a statement wholly outwith the control of the Speaker and unrelated to any debate on the Floor of the House, simply oversetting a court order. As Erskine May tells us on pages 222 and 301, even in A’s case,

“the judges were not uncritical of the exercise of privilege without recognition of … human rights”.

They expressed the view that a national Parliament should incorporate into its procedures,

“some system of redress for citizens”.

For my part, I seriously doubt whether the case of the noble Lord, Lord Hain, would survive a Strasbourg challenge today.

As the admirable Library note makes plain, there have been a number of relevant committee reports down the years. In the context of super-injunctions, a 2012 Joint Committee on Privacy and Injunctions concluded that the use of privilege to defeat them, as in the Ryan Giggs and Fred Goodwin cases, had not yet reached the point where Parliament needed to act; a high threshold for taking action had not yet been crossed. I suggest that it now has been and that we should not kick this can further down the road.

We all of course enjoy our privileges and it is understandable that we should cherish them and wish to guard them jealously. But it is my contention that the time has come when we should recognise an abuse for what it is and try to limit its recurrence in future. I greatly look forward to hearing what the noble Lord, Lord Hain, and all others have to say in this debate—the non-lawyers at least as much as the lawyers. I beg to move.

Devolved Administrations: 20th Anniversary

Lord Foulkes of Cumnock Excerpts

Wednesday 22nd May 2019 Lords Chamber

[Lord Wigley (PC)]

My Lords, I am delighted to follow the noble Baroness, Lady Harris of Richmond. I am in a unique position in this Chamber tonight—

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

As always.

[Lord Wigley]

I thank the noble Lord, Lord Foulkes, for his constructive comments.

I am unique in that I am the only Member who has been a Member of both Chambers here and of the National Assembly for Wales. I immediately acknowledge that the noble Lord, Lord Foulkes, can boast the same in relation to Scotland. There are three Members in their places who were elected to the National Assembly for Wales on that day in May 1999: the noble Baroness, Lady Humphreys, the noble Baroness, Lady Randerson, who has already spoken, and who played a distinguished part as a Minister in Cardiff Bay and in this place, and the noble Lord, Lord Bourne. I, too, want to put on record our thanks for the way he steered and led the Conservative Party in Wales to take a positive attitude towards devolution, which was still in some doubt 20 years ago, but now is fairly clear-cut. I also thank him for his kind words today. I also thank the noble Lord, Lord Hain, not only for his words today but for the decisive role he played in 2006 in steering the Government of Wales Bill to the statute book and for persuading the Cabinet to find time for it. That is not perhaps totally appreciated.

I served as leader of the Opposition during that first year of devolution. At one point during the election count, I thought, with some trepidation, that I was heading to be First Minister, but when the final count was complete, although Plaid Cymru had 30% of the vote and 17 seats—a commendable achievement—it was not quite enough to form a Government. In fact, all five Administrations in the National Assembly have been Labour-led, and that is one of the problems of which Welsh voters have become aware. For any democratic system of government to work, it is essential for voters to feel that they can change the political complexion of the Administration. After 20 years, with some of the same Ministers in post in Cardiff Bay today as served in 1999, this is becoming a problem not just for Wales, which needs to feel that we have meaningful democracy, but, I suggest, equally for Labour. It might need a period in opposition to renew itself, to hone fresh policies and to bring in fresh blood.

However, some things have changed. The Assembly elected under the provisions of the Government of Wales Act 1998 was in many ways little more than a glorified county council. It had no primary law-making powers or tax-varying powers, or even control over all aspects of its own Administration. That most inane term—the Welsh Assembly Government—was devised, but it has now, rightly, long since been jettisoned into the dustbin of history.

Much has now changed. The National Assembly now has primary law-making powers over devolved matters. It also has the recently transferred tax-varying powers, and we wait to see the creative way in which these might be used. It is worth noting that, unlike the 1997 referendum, when the vote was very narrow, as the noble Lord, Lord Hain, mentioned a moment ago, in the 2011 referendum there was a landslide in favour of enhanced powers for the National Assembly, reflecting the extent to which the devolved system of government has been accepted by Welsh voters.

Successive opinion polls show that fewer than 20% of the voters would now opt to abolish the Assembly, and when they are asked whether they really want to revert to being governed by a Secretary of State like Mr Redwood, that figure rapidly shrinks. Of course, the Assembly has made mistakes over the years, one such being the disbanding of the Welsh Development Agency, which undertook excellent work. The noble Lord, Lord Rowe-Beddoe, who was in his place a moment ago, played a vital part in the development of the WDA’s work.

Of course people are critical, but nothing like as critical as they currently are of Westminster. That, no doubt, is the background to the independence rally, which attracted thousands of people to Cardiff earlier this month. The demand for independence is not as great in Wales as it clearly is in Scotland, but it is increasing, and the Brexit debacle is undoubtedly a driving force for many people to look afresh at the independence question. If a hard Brexit comes about, the present trickle could well become a surge, and if Scotland becomes independent and Ireland is quite possibly reunited, leaving Wales as a very junior partner in a rump UK, the demand for independence in Wales will also rapidly grow. The prospect of a hard Brexit and an isolationist UK is a major driving force in that direction.

As the powers of the National Assembly have increased, the pressure on the 60-Member Chamber has become ever more acute. The need to scrutinise primary legislation, the need to hold the Executive more rigorously to account, and the need to engage with the implications of the new post-Brexit order, about which we heard a few moments ago, mean that a 60-Member Assembly is just too small. It compares with, I think, 108 Members of the Northern Ireland Assembly and 129 Members of the Scottish Parliament. The National Assembly is smaller than some county councils. Its needs to be increased for the next election to between 80 and 90 Members, who, to my mind, should be elected by the STV system of proportional representation. The additional list system currently used is seriously defective. It provides two classes of Member—one with intense constituency work and the other without the necessary focus that serving a constituency rightly imposes on AMs, as it does on MPs.

Fortunately, the design of the Senedd Chamber provides for such an increase at little cost. Incidentally, it is worth reminding the House that the cost of the Wales Senedd building—at around £60 million—compares rather favourably with that of the new Scottish Parliament building, but I will not follow that any further. In considering such electoral reform, I suggest that the Assembly would do well to enable young people aged 16 and 17 to become participant members of Welsh democracy.

Whatever criticism we might have of the Welsh Government in policy terms, they have overall been generally prudent in their use of resources, and, incredibly, were punished by the Westminster Government for being so. A decade ago, the Labour-Plaid coalition Government rightly decided to aggregate moneys which at the year end, for whatever reason, were not spent and to pool them into a fund for capital projects. The first such fund of some £400 million was used to invest in hospital and school buildings; the second fund, when it had reached some £300 million, was appropriated by the Treasury under the Conservative Government. That, frankly, was an absolute disgrace. What a way to reward financial probity.

While in theory the new constitutional settlement under which the National Assembly works, with a reserved power model replacing the conferred power model of the 1998 Act, is much more acceptable, as has been mentioned by a number of noble Lords, in practice the extent of exceptions and split authority renders it open to the same criticisms of opaqueness and uncertainty as was previously the case. You go around the square but in the opposite direction and sometimes arrive at the same point.

We get the impression in Wales that civil servants in Whitehall are still reluctant to recognise that in most devolved matters there should be a clean break to facilitate clear lines of responsibility and answerability. Within the framework of a British state, which may or may not survive, there is a clear logic in having a federal model, with the clear-cut delineation of responsibility that that implies. This will become even more pressing if we leave the European Union, and powers—for example, over the UK single market or state aid—currently exercised in Brussels will in practice thereafter be centralised in London. That, frankly, is just not acceptable. It is as though EU responsibilities for the single market were put exclusively into the hands of Germany. Unless Westminster wakes up to this danger, it will become another driving force towards the break-up of Britain as we know it.

We need such a level playing field for a purpose: to trigger self-regenerative and sustainable economic growth in Wales that can at long last raise average incomes in Wales to an acceptable level. This has been one of the greatest disappointments of the economic failure of successive Governments both in Cardiff and in London. The ONS figures published today for gross disposable household income per head show that Wales is at the bottom of the UK table, both of nations and of regions. Our figure of under £16,000 per head compares with London standing at over £27,000 per head—an astounding 77% higher.

That is the pattern that we suffered before devolution and it persists. We desperately need a change of Government in Cardiff Bay to deliver economic regeneration for our country. In securing this, we need to see not just worthy plans, blueprints and initiatives, which the Assembly would be very good at; we need to ensure that these are turned into reality, which is sometimes more of a challenge.

Then there is the issue of which government functions are devolved and which, within the framework of the current devolution settlement, are best undertaken on a UK basis. This matter was addressed a few years ago by the Silk commission, of which the noble Lord, Lord Bourne, was a distinguished member. The commission recommended the devolution of police responsibilities to the National Assembly, and it did so after considering compelling reasons, including the fact that many responsibilities which impact on police work, such as highways, social work, community cohesion, mental health and local government, are all already devolved. Police and home affairs are devolved to Scotland and Northern Ireland, and I ask the Minister, in responding, to give some commitment that the Government might look again at this matter.

Finally, perhaps I may address an issue that is a challenge to the National Assembly: the erosion over the past 20 years of the media in Wales, as indeed elsewhere. The financial pressure on newspapers has led to a staggering reduction in the coverage of political and civic matters, and now we have the centralisation of commercial radio, with implicit uniformity of news coverage and the elimination of proper reporting of the National Assembly’s work. The result is that the voting public are just not given in-depth analysis of the decisions and debates undertaken in the Assembly. Consequently, it is hardly surprising that turnout in elections has steadily reduced. This has to be addressed for the sake of effective democratic government.

The real test of the devolved system of government in Wales will come at the next election, when, for the first time since those heady days of 1999, there is a real possibility of the National Assembly not being governed by a Labour-led regime. Plaid Cymru and its new leader, Adam Price, in forming such a Government, will play a responsible part in improving the government of Wales within the present settlement, while of course seeking greater powers for the Assembly and seeking to retain Wales’s essential links with Europe, which are so vital for our manufacturing and farming sectors, as well as for our cultural identity. This will inevitably lead to greater independence, but that should not frighten the citizens of our fellow nations in the UK. It is a matter of taking responsibility, and of mutual respect. It is a journey that we have already started, and it will go just as far and as fast as the people of Wales wish. It will be completed when we reach a stable, ongoing, harmonious relationship with our British neighbours and with the nations of the European mainland to which we belong.

Wales could do so much more to help itself, given a stable union of European nations within which to grow and flourish; given the powers to do everything we can to help ourselves; and given an appropriate voice within wider contexts, where decisions are taken further afield that influence our well-being and prospects. The step taken 20 years ago was in the right direction, but we have so much more to do. My party looks to an opportunity at the next election to lead Wales towards the self-fulfilment that is within our reach and thereby to contribute to our continent and to a wider world.

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[Lord Foulkes of Cumnock]

My Lords, it is a great pleasure to follow the noble Baroness, Lady Humphreys. This has been a good, friendly and respectful debate— until now, anyway, and after me is the noble Lord, Lord Cormack. I know that the noble Lord, Lord Steel, the noble and learned Lord, Lord Wallace, and my noble friend Lord McConnell would have liked to be here to take part, but unfortunately this debate coincides with a celebration in Holyrood of the 20 years of Scottish devolution, which is a pity. However, devolution in Scotland did not start 20 years ago. As the noble and learned Lord, Lord Hope, will remind us, after the Act of Union in 1707, because there was a recognition that Scotland had a separate legal system—something that has been maintained ever since—a Secretary for Scotland was created in 1707. Indeed, it was the Earl of Mar. It is a great pity that his descendant, the noble Countess, is not here today—it would show the whole lineage, all the way down.

In fact, there were Scottish Secretaries on and off for a while until, in 1885, the position of Scottish Secretary was recreated, becoming Secretary of State in the Cabinet in 1926. From then on, the functions of the Secretary of State—the functions now exercised by the Scottish Parliament—were carried out by one Secretary of State and three junior Ministers. That is astonishing. It was okay when it was Willie Ross in charge—he managed it well. There is the story of Frank McElhone, who, when he became Under-Secretary of State eventually got an audience with Willie Ross, great man that he was, and said, “Secretary of State, what do you want me to do?” to which Willie said, “You’ll do as you’re told”. And he did. I was going to say, “Ye’ll dae as yer telt”, but I thought I would say it in English so that others would understand.

There was no proper democratic accountability at that time. Those of us who were in the House of Commons will know that there was no real time for Scottish legislation—or indeed Welsh legislation when it was necessary, but particularly Scottish legislation. That is why some of us—Donald Dewar, Jim Boyack, my noble friends Lady Ramsay and Lady Adams, the noble Lord, Lord Elder, and many others—fought in the Labour campaign for a Scottish Assembly, as we called it. Eventually it became the campaign for a Scottish Parliament, of course.

Then we had the 1979 referendum, which we won, as my noble and learned friend on the Front Bench brilliantly said, by exactly the majority by which the leave campaign won. Of course, that was not considered a mandate for constitutional change and a Scottish Parliament, but now it seems that it is acceptable—to some. That was because of the George Cunningham 40% threshold. So devolution was strongly supported by Labour and the Liberal Democrats, by the trade unions and lots of others in civil society, but interestingly not at that time by the Conservatives, although the noble Lord, Lord Bourne, the noble Baroness, Lady Goldie, and others got behind it eventually, and it was not supported initially by the SNP.

From the 1997 referendum, of course, we got the first democratically elected Parliament in Scotland. I take issue with Winifred Ewing, a wonderful woman whom I greatly respect. She has done a lot for Scotland but when she said, as she took the Chair at Holyrood, “I declare Parliament reconvened”, it was not. It was the first democratically elected Scottish Parliament and to compare it with 1707, with all the Lairds who were in there and the undemocratic nature of that Parliament, was unfortunate. It was the first directly elected Scottish Parliament. Just at that time Salmond, wily old fish that he is, saw the opportunity of using devolution as a stepping stone or a slippery slope towards separation. My good friend the noble Lord, Lord Robertson, who was here earlier, thought devolution was a bulwark against separation: the jury is not completely finished yet on the outcome of that, because we do not yet have separation.

My first point is that devolution and separation are completely different concepts. Some people confuse them accidentally, others confuse them deliberately, to confuse people. They are fundamentally different. Devolution implies remaining part of the United Kingdom. I will come back to that. Separation, with no disrespect to my good friend the noble Lord, Lord Wigley, means being separate. There is an argument for that. I never argue that Scotland is too small, too wee or too poor to be separate, if you want to do that, but, like others, I want to remain part of the United Kingdom. Devolution implies remaining part of the United Kingdom and separation implies breaking up.

We have had devolution for 20 years and I think that in Scotland there have been two phases. In the first, we co-operated very much with the Liberal Democrats. I see that the noble and learned Lord, Lord Wallace, and my noble friend Lord McConnell have recently been quoted talking about how they worked together in a coalition. That was an effective coalition: some Liberal Democrats might know that not all coalitions are quite as constructive and effective. We saw the smoking ban, which I campaigned for strongly as a member of Action on Smoking and Health, and we saw free care for the elderly—at least some on aspects of care—and a lot of advances in services because of devolution.

Then, in 2007, there was a change in how the Parliament operated. Salmond and Sturgeon have clearly and unashamedly made the Scottish Parliament their platform for separation. They are using it as a campaign tool to get separation. Remember I told noble Lords about Willie Ross and his three Under-Secretaries of State running the Scotland Office? They now have 12 Cabinet Ministers and 14 other Ministers—26 Ministers in the Scottish Parliament out of only 62 SNP MSPs. When you think that some of the others are PPSs, you realise the grip that the SNP now has. Then there are dozens of special advisers. Millions of pounds are being spent. I say to my good friend the noble and learned Lord, Lord Hope, that some people in Scotland do not fully realise what is happening in Scotland at the moment. They are travelling around Scotland pursuing their case for independence, using everybody’s money, because it is not just Scottish taxpayers’ money. We pay more tax in Scotland now, but it is everybody’s money being spent to promote that case.

I want to deal with one or two other points that have come up. A number of Members have mentioned the electoral systems in Wales and in Scotland. There was supposed to be a review of the electoral system. My noble friends Lord Elder and Lady Ramsay will remember that that was one of the recommendations of the Scottish Constitutional Convention. No review has been undertaken and it is long overdue. I agree that to have two different kinds of elected Member is unfair. You have constituency Members working hard and list Members taking it easy. There is something else wrong with it as well. I was elected as a list Member doing very little—I was going to swear but I am not allowed to say “bugger all” in this place—and spending nothing, not a penny, in that campaign. That is how crazy the system is. I was top of the list in Lothian and the reason I got elected was that Labour lost two constituency seats and I just managed to scrape in at the bottom. I will say that I worked hard for the four years I was in the Scottish Parliament, but I could have got away with doing very little indeed.

Secondly, I am concerned that there is no revising procedure. We all thought—my noble friend Lady Ramsay will remember this—in the Scottish Constitutional Convention that the committee system, once we set it up, would act as a second look at legislation. It is just not working, and we need to review it. I am not suggesting that they should have a “House of Lairds” up there, but there needs to be some arrangement for scrutiny and we need to use it.

I will also mention the call for more powers. How many times do we hear that? Sturgeon and her lieutenants are saying it all the time, but they are unable to use the devolved powers for social security that they already have. They have headed the matter back to Westminster. That therefore needs very careful consideration. As someone else said, what we have seen in Scotland is not devolution but centralisation of not just the police force and fire brigade but many other things as well. Local government is also really suffering.

Others will touch on this, but we will regret moving out of the European Union. We could see the break-up of the United Kingdom. The case for an independent Scotland will grow and the case for a united Ireland will grow. It will be a terrible legacy for Cameron and May—Conservatives and, I am led to believe, unionists—to leave: architects of the break-up of the United Kingdom.

Last among this miscellany is the question of the British Transport Police, which I address to my really good friend, the noble Lord, Lord Duncan of Springbank. How are we doing on that? It shows how devolution can be done in two different ways: a right way and a wrong way. The wrong way was to break up the British Transport Police, which the SNP was proposing. The right way was what I, the noble Lord and others here today strongly advocated: keeping the British Transport Police operating effectively and efficiently, as it is at the moment, but responsible to Holyrood for operations in Scotland and to Westminster for operations in the rest of the United Kingdom.

How do we explain the SNP success in Scotland? I am told that confession is good for the soul—I have not found that yet, but maybe I will get it eventually—and in this case it is because of the Labour Party’s failure on the constitution. We have not followed up devolution in the way that it should have been followed up. In particular, we have not understood what needs to be done for England and encouraged English people like the noble Lord, Lord Cormack, to look at England and find ways of giving power to its regions. I am not saying that it should be broken up, and there may be other ways of doing it. It is probably right that legislation be made on an all-English basis.

[Baroness Adams of Craigielea (Lab)]

On that point about England not dealing with its own home affairs separately, when we had devolution the home affairs of everyone else were devolved to their institutions. England’s home affairs are still decided within a United Kingdom Cabinet. The argument should always have been that it is up to England how it settles its own home affairs.

[Lord Foulkes of Cumnock]

My noble friend is absolutely right. She has put her finger on it and I agree with her 100%. This supposed solution of English votes for English laws is entirely unworkable. We have already seen that.

What we need is proper devolution to the regions of England. To be fair, the Government are doing it for the cities, but what about the rural parts of England that are as important as London or Manchester? What about Lincolnshire, to take a random example? It may be asymmetric—I am not suggesting a uniform system—but it is not up to me anyway. It is up to English people, and we need to encourage them to have a mechanism for looking at it just as we did in Scotland with the Scottish Constitutional Convention. People tend to forget that the Scottish Constitutional Convention was set up by Labour, the Liberal Democrats and civic society in opposition; my noble friend Lady Ramsay was one of its joint chairs. It was not the Government who set it up, but when we came into government we used it as a blueprint. I have been asking the leader of the Labour Party and others for the last four years why we cannot do it for England as part of a settlement for the United Kingdom. That really needs to be done.

I want to see the kind of empowerment that we have seen in Scotland, Wales and Northern Ireland come to the people of England. Once we do that, devolution will have been concluded and will be successful.

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

Lord Foulkes of Cumnock Excerpts

Thursday 28th March 2019 Lords Chamber

[The Parliamentary Under-Secretary of State, Northern Ireland Office and Scotland Office (Lord Duncan of Springbank) (Con)]

My Lords, this order is necessary as a consequence of the Forestry and Land Management (Scotland) Act 2018, which received Royal Assent on 1 May 2018, having been passed by the Scottish Parliament on 20 March 2018. I will refer to this as the 2018 Act. Section 104 of the Scotland Act 1998 allows for “necessary or expedient” legislative provision in consequence of an Act of the Scottish Parliament. In this case, a Section 104 order is required in consequence of the 2018 Act. Both the UK and Scottish Governments have agreed to this order being taken forward, following an initial request from the Scottish Government.

The 2018 Act is the final stage in a programme of work to devolve responsibility for the management of forestry, which started with the Scotland Act 1998. The 2018 Act, which will commence on 1 April, provides for the powers and duties that are held by the forestry commissioners, in so far as they relate to Scotland, to be transferred to Scottish Ministers. Two orders must be laid by the Government following the 2018 Act to transfer the relevant powers. One order is subject to the negative procedure, and was made under Sections 90 and 93 of the Scotland Act 1998. The order we discuss today has been made under Section 104 of the Scotland Act 1998 and is subject to the affirmative procedure.

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

As the Minister knows, we have devolved other powers to the Scottish Government and Parliament, particularly over welfare. Having demanded these powers, and we having spent time considering and delegating them, they are not exercising them. They have said, “No, we cannot do it; we cannot carry out these powers because we just do not have the facilities or the ability to do it”. They have wasted our time, disillusioned the Scottish people and created tremendous problems. Can the Minister give us an assurance that the Scottish Parliament and Government are ready to deal with these forestry powers, because they certainly were not ready to deal with the welfare powers that we devolved to them?

[Lord Duncan of Springbank]

The noble Lord makes a point of some interest regarding the Scottish Government. One might almost say they could not see the wood for the trees—sorry, it has been a long day. I will come back to some related points once I have completed my opening speech.

Some functions will continue to operate across Great Britain in relation to forestry science and research, tree health, and common codes and standards. When the 2018 Act comes into force, the forestry commissioners will no longer have a role in Scotland. Management of forestry will instead become the sole responsibility of the Scottish Government. This order enables the 2018 Act to be implemented in full. It provides new powers to Scottish Ministers and makes several consequential amendments to UK legislation, with a particular focus on the Forestry Act 1967.

Articles 3 and 4, along with similar provision in the Section 90 order, will enable cross-border arrangements to be entered into between the Scottish Ministers, the forestry commissioners and various other bodies. While forestry functions and management of the national forest estate will be fully devolved, the order will allow Scottish Ministers to enter into arrangements with the other bodies so that each may deliver certain functions on the other’s behalf.

Article 5 will confer powers upon Scottish Ministers to promote, develop, construct and operate installations for or in connection with the generation, transmission, distribution and supply of electricity produced from renewable sources and to use electricity produced by virtue of those powers. These powers are currently exercisable by the Forestry Commission in Scotland. When the Forestry Act 1967 is repealed as it relates to Scotland, it will be necessary to transfer these functions to the Scottish Ministers to ensure they have the same powers as the forestry commissioners have under the current arrangements.

Finally, the order makes a number of consequential amendments to the Forestry Act 1967, related statutory instruments and other primary legislation to reflect the removal of the forestry commissioners’ functions in or as regards Scotland.

We have worked closely with the Scottish Government at all levels to ensure that this order makes the necessary amendments to relevant UK legislation in consequence of the 2018 Act. It represents the final stage of devolving forestry to the Scottish Government. I commend the order to the House, and I beg to move.

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[Lord Duncan of Springbank]

My Lords, I am very grateful for the detailed questions that have been asked today, and I will do my best to do justice to them.

I will start with the noble Lord, Lord Addington. On the question of what practical co-operation and co-ordination will look like—this also touches on the comments made by the noble Earl, Lord Kinnoull—the purpose here is not to undo established relationships, particularly at the research level and where the co-operation is based on intellectual engagement with the various challenges facing either the health of the forest or indeed the welfare of the forest inhabitants. There are established relationships, and it is not anticipated that these will be interrupted or disturbed. They will reach not just between—to be frank—the current commissioners and Scotland but also where information can be shared between Wales, Scotland and England. The noble Earl, Lord Kinnoull, asked whether this applies to Northern Ireland, and I have been told that the answer is no, it does not. It focuses only on Great Britain in that context.

The issue around renewables is important. The current powers exercised by the commissioners will transfer as they are. The noble and learned Lord, Lord Davidson, asked about guidance, particularly with reference to mature trees. I believe that he and I share exactly the same view—that we should not in any way be looking at mature trees for renewable electricity generation. Again, I hope that the current guidance will be operated in exactly the same fashion: namely, that mature trees should not form the basis of wood chips or wood pellets to create renewable electricity. That would defeat the purpose of the overall ambition. The guidance exists, and I hope that it will continue to be applied in that wider context.

The noble Earl, Lord Kinnoull, asked an important question about squirrels. I know that he is a passionate advocate of the red squirrel—I am fully aware that I come from a part of the country, in Perthshire, around Alyth, which has a well-established red squirrel population. The noble and learned Lord, Lord Hope of Craighead, knows what I am talking about—he knows the squirrels of Perthshire. Again, it is important that we recognise that we have established information about the squirrel communities, and we cannot lose that simply because we create different separations of powers. There needs to be a sharing of our understanding around squirrel movements, and we need to do that at the level of the island of Great Britain as a whole: that will remain absolutely essential to moving forward here.

We must be cautious—this touches on the points raised by the noble Lord, Lord Foulkes—that, as we move toward a new arrangement, it cannot be a diminution of where we are now: it must be an improvement, or certainly no worse. We must be cognisant of and attentive to each aspect, particularly where sharing relates to plant or tree health and where we have pests and various types of wood-borne disease. We cannot take any chances: our forestry estate is too important. Noble Lords will be fully aware of the challenges experienced just now with regard to ash trees, and the wider issue of contamination—how quickly it can spread if we are not careful. We must continue to co-ordinate and collaborate at a UK-wide level, because our forestry estate is too important not to.

The noble and learned Lord, Lord Davidson, touched on the issue of the rural road network. That is integral and the Scottish Government have the responsibility to take this matter forward sensitively and carefully. I hope that they will continue to do that, because it is critical to the well-being of often remote areas.

There is one block of forestry which straddles the border. It is currently managed as a block by Forest Enterprise England on behalf of Forest Enterprise Scotland, and it has been agreed that this block will continue to be managed by Forest Enterprise England on behalf of Forestry and Land Scotland—so the current arrangements will roll forward.

[Lord Foulkes of Cumnock]

Before the Minister concludes, I wonder whether he can help me. I should know the answer to this and apologise if it has been made public and I have missed it. What is happening to the staff in the Forestry Commission building in Corstophine and what is happening to the building itself? As I understand it, it has been the headquarters of the Forestry Commission for the whole of the United Kingdom, run from Corstophine in Edinburgh by some excellent staff. As I said, perhaps I should have known this or asked about it earlier, but I want to make sure that they are being looked after and that something sensible is being done with the building.

[Lord Duncan of Springbank]

The noble Lord speaks of Silvan House. He is absolutely right about the value of the work undertaken by the staff of the Forestry Commission in Scotland, and I understand that this will have no material effect on their well-being or conditions. I do not know about the building itself, but if the noble Lord will permit, I shall write to him once I have an answer, because I am not familiar with the situation there.

Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019

Lord Foulkes of Cumnock Excerpts

Tuesday 29th January 2019 Grand Committee

[Lord Hope of Craighead (CB)]

My Lords, could the Minister say something about the effect of what is being provided for here on the common-law principle of forum non conveniens? I am sure he knows very well that the doctrine of forum non conveniens was eclipsed, as regards membership of the EU, by the reciprocity principle and the rules that apply throughout the EU.

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

I am grateful to the noble and learned Lord, who is far more polite than someone else—I gather the Minister did not give way earlier on. Could he explain to non-lawyers exactly what he is talking about?

[Lord Hope of Craighead]

Yes, certainly. There is a principle, which originated in Scotland, by which a court can decline jurisdiction in a case brought in, let us say, Scotland, on the ground that it is not convenient because there is a better place for the case to be tried. It originated particularly in Scotland out of attempts to raise matrimonial proceedings in Scotland that had a far closer connection with England. The argument developed that if it had a closer connection, it was more convenient, and so the court would decline jurisdiction and you would be transferred to England. That principle is of long standing and has been regarded as very useful in our jurisdiction. However, one of the effects of joining the EU and being subject to the jurisdiction of the European Court of Justice arises from the particular case of Owusu, which the Minister may know about, which has laid down very strict rules that the forum non conveniens principle cannot apply.

Am I right in thinking that, because it is common law and not the subject of any statutory measure, it will be for the courts to work out whether the principle applies without the restrictions that currently apply so long as we are a member of the EU?

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[Lord Adonis]

My Lords, that is a completely inappropriate intervention. My noble friend was not present at the beginning of the debate because he was in the Chamber debating no-deal regulations. It is the Government’s fault that no-deal regulations were being debated in the Grand Committee and in the Chamber at the same time.

[Lord Foulkes of Cumnock]

I am most grateful to my noble friend. I take great exception to what the noble Baroness said. I am surprised that she knows a lot about convention, as she has not been here very long, but obviously she has picked it up from somewhere. Conventions are conventions, not rules that need to be and must be obeyed. I understand that one of the conventions is that when Ministers are explaining something and are asked a question, they normally give way and answer it. In all the Grand Committees that I have been in, throughout the years—I have been in a number—the Minister has given way. Of course, we are getting used to the noble and learned Lord, Lord Keen, by now.

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

My Lords, it is not often that I confess to feeling sorry for the noble and learned Lord, Lord Keen, but on this occasion I do, and in the presence of a number of other distinguished lawyers, who have considerable experience of commercial litigation involving cross-border and cross-European border disputes. It is almost impossible to overestimate the importance of the regime that we have built up across the European Union for the resolution of issues of jurisdiction, recognition and enforcement in civil and commercial disputes. We have been promised so many times, in debate after debate on the Brexit issue, that we would not be in this position. The Government were going to get a deal, and one of the first things they would insist on in getting it is that we would preserve the cross-border jurisdiction, recognition and enforcement issues, or rules that we have built up with Brussels Ia.

We are in this position now; I entirely accept that the Minister opened this debate on these regulations on the basis that the Government are still hoping for a deal and that if there is a deal, we will continue along the course of resolving this issue. But it was with horror that many of us heard the noble Lord, Lord Callanan, last night refuse to accede to the Motion of the noble Baroness, Lady Smith, because it ruled out no deal—which it did not—and for him and the Government to be so prepared to countenance no deal.

In our view and that of almost every commercial lawyer with whom I speak, the issues surrounding cross-border litigation are being given far too little prominence and importance. What we are losing is clearly defined in the Explanatory Memorandum as,

“a system of uniform jurisdictional rules to identify the appropriate court in which to bring a civil law or commercial claim”—

that is the first bullet point on page 2—and,

“a simplified mechanism to recognise and enforce the judgment EU Member State/EFTA state courts in civil and commercial cases, with a view to reducing costs for litigants and increasing efficiency. The possibility for such simplified and almost automatic treatment of the judgment of one such state in another is based on the ‘mutual trust’ that each state will have applied the uniform rules of jurisdiction”.

This statutory instrument, subject to some relatively minor exceptions, effectively revokes Brussels Ia, which is at the heart of the Brussels regime. It is also significant that it abandons the European Judicial Network, which has been a forum for judicial co-operation of great use throughout the European Union, and does so with no replacement. The very limited exceptions that I mentioned were mentioned by the Minister: some consumer and employment cases—in British courts, of course—transitional cases and the choice of courts arrangements under the Hague Convention. That is, to coin a phrase used by some Brexiteers in the past, thin gruel indeed compared with the widespread benefits that we get from the system of judicial co-operation and our current arrangements.

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[Lord Garnier (Con)]

My Lords, I seek your Lordships’ indulgence. I was a little late to this sitting of the Committee because I was detained listening to the wonderful oration of the noble Lord, Lord Foulkes, in the Chamber. He made a number of interventions.

[Lord Foulkes of Cumnock]

With the permission of the noble Baroness, Lady Vere, I intervene merely to apologise to her, because I realise that she will be as upset as I am about what we are doing at the moment. She was a very good director of ConservativesIN and campaigned very hard for us to stay in Europe, so I realise she must be deeply hurt by what her Government are undertaking at the moment. I apologise.

--- Later in debate ---

We are clearly going to be in for a lot more of this. I have just been in the Gallery of the House of Commons watching the Prime Minister’s dismal performance in the debates. She is still refusing to rule out a no-deal Brexit, even at this late hour, even though she had no answer to the repeated interventions from Members of Parliament on all sides of the Chamber about the sheer impossibility of conducting a no-deal Brexit at the end of March with a statute book and a set of regulations in a shape that would make it possible.

[Lord Foulkes of Cumnock]

I am grateful to my noble friend for what he said. I was participating in a debate on the other statutory instruments we are dealing with, as was confirmed by the Bench opposite.

Until I heard the excellent speeches from noble Lords on the Liberal Democrat Front Bench and the noble and learned Lord, Lord Hope, I had not realised what a vital issue we are dealing with. As my noble friend Lord Adonis said, we are not dealing with it line by line in the detailed way that we would normally deal with something so important. Even worse, there has not been proper consultation. We have not heard the views of a widespread group of lawyers: only a few have been consulted. If we had had a wider consultation, the lawyers might have been able to point out some of the difficulties that might arise. We could end up with some unintended consequences because of a lack of scrutiny not just in here but outside. Does my noble friend agree?

[Lord Adonis]

My noble friend makes a very powerful point. Paragraph 10 of the Explanatory Memorandum says on consultation:

“A formal consultation on these legislative amendments has not been carried out”.


I do not know why the relevant Delegated Powers Committee did not highlight that as an issue before the House. The noble and learned Lord, Lord Hope, in a very telling intervention—as a former head of the Supreme Court—talked about the wider impact of leaving the European Union on our legal system and on the recourse that individuals and bodies corporate have as a result of losing all the benefits of EU membership. Given the scale of those concerns and losses, I would have thought that a formal consultation should have been the first thing to be carried out in respect of this statutory instrument.

Although my noble friend Lord Foulkes and I lack expertise in many of these areas, we can see the common themes because we have been present for the statutory instrument debates on all these subjects. One common theme is that of the Government seeking to hustle through these regulations with minimal debate; the other is very inadequate consultation. The consultation has been so inadequate because it simply would not have been possible to conduct a consultation according to the normal Cabinet Office rules of publishing draft instruments, which require: 12 weeks of formal consultation; assessment of the consultation responses; their publication; and the Government response to the consultation, all within the timescales available. The normal standards of good government, which my noble friend and I remember in the far distant days when we had Governments that sought to improve the country and not wreck it—as we have at the moment—simply do not apply any more.

Indeed, it is not just that there was no formal consultation, which we read in paragraph 10.1. Paragraph 10.2, which is suspiciously familiar to Members of the Grand Committee because we have had variants of it time and again too, states:

“The Government’s basic approach … has been discussed with a number of members of the legal profession”.


Which members? Perhaps the noble and learned Lord will tell us when he responds, if he intends to respond to any of the points raised in the debate. On what basis did the Government choose those members? Why has the list of those consulted not been published? Lastly, I put a fair question to the Delegated Powers and Deregulation Committee, which examined these regulations: why did it not seek to bring before the Grand Committee a statement about the consultation processes that were actually undertaken?

My noble friend and I remember that in other cases, we have seen in Explanatory Memoranda that the Government consulted “selected” and—what was the phrase?—“trusted” members of the relevant industry. Members of the Grand Committee who were present for that debate will recall that we had a long discussion about what “selected and trusted” means. We did not think that the phrase included my noble friend Lord Foulkes and myself because, clearly, we are not trusted by the Government to engage in scrutiny or else the noble and learned Lord, Lord Keen, would have allowed us to intervene on his remarks. However, it is important that the Grand Committee understands who the Government are consulting so that we can also understand who they have been listening to, as well as on what basis they have made any changes to the drafts. Those who were consulted as set out in paragraph 10.2 is therefore important.

I want to make a few remarks on the statutory instrument. I was struck by the remarks of the noble and learned Lord, Lord Hope, about the wider context. I hope that the Minister might tell us more about that in terms of what rights will be lost and what the losses will be to the country as a result of not having reciprocal arrangements. As a complete layman, what I do not understand from reading the document in its entirety as regards the Brussels regime is that looking at the dates, the Brussels regime predates British membership of the European Community. I believe that the document dates from the 1960s and is known as Brussels Ia. We have a number of different variants in the Brussels regime that go back to 1968, which of course was five years before the United Kingdom joined the European Community. That raises a big issue.

Unless someone can correct me, as I understand it, the Government are proposing to withdraw from the Brussels regime. The noble Lord, Lord Marks, made a point that ought to be brought out more; indeed, it was mentioned by the noble Lord, Lord Beith, too. It appears that a very important policy decision has been taken in this statutory instrument: not to leave retained EU law static on departing from the European Union, which is the default procedure under the European Union (Withdrawal) Act, but to make changes. I am not technically competent enough to understand the changes fully, but the Government have glossed over changes in paragraph 12.1 covering the difference in quantifiable terms between making no changes to retained EU law and changing it.

The question that I would like to put to the noble and learned Lord is: if we were part of the Brussels regime before we joined the European Community—he is going to correct me, which is good, because this is exactly the kind of knowledge that the Grand Committee needs—why do we not simply revert to the position before 1973 rather than go to the new position that the Government are establishing under this statutory instrument? Perhaps he could explain the benefits of the new position. Looking at all the lawyers nodding their heads in the Grand Committee, I may have misunderstood the position. All I can say is that, if I have misunderstood it, I suspect that many members of the general public will have misunderstood it, too, so I look forward to the House doing what it is supposed to do on these occasions and elucidating the real state of play.

The other fundamental point, which was mentioned by the noble Lords, Lord Beith and Lord Marks, is the highly contradictory and misleading impact statement in paragraph 12.1. It seeks to minimise the impact by relating it simply to the difference between making no changes to retained EU law, if we crash out with no deal, and making the changes that are set out in the statutory instrument, rather than relating it to the much wider context of the impact on reciprocal rights, the ability to enforce those rights and so on that arises from leaving the European Union without a deal. Even during this debate, because I have been so restrained in my interventions, I have not been able to understand fully what has been said. The noble Lord, Lord Marks, referred several times to satellite litigation. I do not understand what satellite litigation is. Could the noble Lord explain?

Services of Lawyers and Lawyer’s Practice (Revocation etc.) (EU Exit) Regulations 2019

Lord Foulkes of Cumnock Excerpts

Tuesday 15th January 2019 Lords Chamber

[Lord Keen of Elie]

Clearly, over time we will address the ability of the United Kingdom to agree with the EU the possibility of reciprocal rights for United Kingdom lawyers in Europe, but it is not something that we can dictate by our legislation. What we can do, however, is facilitate the position of EU-registered lawyers who are already in the United Kingdom and contributing to the legal services in the United Kingdom so that they can be secure in the knowledge of what their position will be in the event that we exit without any agreed deal.

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

The Minister may have said this before I came in. I apologise: I was held up at a meeting outside. He mentions the United Kingdom, but paragraph 2.1 of the Explanatory Memorandum says:

“The purpose of this instrument is to end the preferential practising rights of EU and EFTA lawyers in England and Wales and Northern Ireland”.


What is the position in relation to Scotland?

[Lord Keen of Elie]

The noble Lord is quite right: he was not here when I began. I said that with regard to Scotland, this is a devolved issue and the Scottish Government are addressing that matter. However, in taking forward negotiations with regard to reciprocal rights in the future, we would have in mind the interests of all lawyers within the United Kingdom, wherever they qualified. But for the purposes of determining the rights of registered European lawyers in the United Kingdom, we will deal with it by way of this instrument for England and Wales and for Northern Ireland, and the Scottish Government are undertaking to address it in the context of that jurisdiction. That is where we stand. As the noble Lord is aware, this is a devolved competence.

[Lord Foulkes of Cumnock]

The Minister has been particularly helpful in relation to that. I know that he knows Scots law very well, as do a number of other noble Members present. What is the current state of play in relation to this being dealt with in the Scottish Parliament? Is it running parallel with us? Is it ahead of us? Is it behind us? Will it be able to get it done in time? I know they are not very keen on no deal—in fact, they are not very keen on coming out of Europe at all—in the Scottish Parliament so I wondered what the state of play was in relation to dealing with this in the Scottish Parliament.

[Lord Keen of Elie]

In relation to this particular instrument, I am not in a position to say where the Scottish Government are in processing such a proposal. That is a matter for them and it is not a matter that they would, as a matter of course, disclose to me. But, as I say, I have confidence that they are aware of the issue and they have decided that they will take it forward. If they had wanted to utilise the provisions of the Scotland Act to have the UK Parliament legislate for them in regard to this matter, they would of course have said so. The very fact that they have not is indicative that they are making progress to legislate for this on their own behalf. That is where we stand.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, I shall begin with the observation from the noble Lord, Lord Beith, because I omitted to identify the location of the suicide pill. I am advised that the intention is that, in the event of an agreement, it will be incorporated in the withdrawal agreement Bill, and that is the mechanism that it intend to employ’s for those purposes. I apologise for not having appreciated that when the question was first raised.

[Lord Foulkes of Cumnock]

Will that apply to all several hundred SIs? Will they all be incorporated in the withdrawal agreement Bill?

[Lord Keen of Elie]

My understanding is that that is the mechanism that will be employed.

A number of noble Lords raised the question about the access of UK lawyers to the EU 27 and EFTA. That is not the purpose of this instrument, but I do not wish to ignore it. Clearly, we would like to see a withdrawal agreement that leads on, pursuant to that, to negotiations that can ensure that we have as wide a form of access to the EU 27 and EFTA countries for legal services, like other services.

The noble Lord, Lord Thomas, made a number of perfectly good and valid points about where we are without a deal and the impact it will have upon the provision of legal services. This is a matter over which I have been in discourse with the legal profession for the past two years, and I have visited with a number of firms in jurisdictions outside the United Kingdom to discuss with them where they stand with regard to these matters, in particular in Paris. Of course, as the noble Lord, Lord Beecham, has observed, this is not for the larger firms. It tends to be the very large firms—generally City-based—who are engaged in practice outside the United Kingdom, particularly in Europe.

The noble Lord, Lord Adonis, asked about small firms and the impact on them. To a very large extent, it is the City firms who are employing European lawyers for a particular form of expertise. One has to bear in mind that small firms do not tend to have non-UK qualified European lawyers practising.

It is perhaps worth noticing—lawyers will appreciate this, but others may not—that, in England and Wales any natural person may deliver legal services for pay, except in the defined, reserved areas, of which there are six. They cannot call themselves solicitors or barristers, but they are only prohibited from practising in the reserved areas, unless they are subject to appropriate regulation. In the event, EU lawyers who have not requalified—and I will come back to this point—tend only to be here in order to show expertise within the law of their own particular jurisdiction. To try to put it in context, this applies not only to EU lawyers but also, for example, to American lawyers, so that, when they are doing international transactions they have available to them expertise in another jurisdiction’s law.

In addition, we have to bear in mind the mutual recognition of professional qualifications. After three years in the United Kingdom, an EU lawyer is in a position to apply to become a lawyer under the host state’s regulation—in other words, a solicitor or barrister. Generally speaking—and this is a point emphasised in the Bar’s briefing—those who intend to be engaged in reserved matters will take that qualification. That is why, when engaging with the profession on this matter, we have allowed for a transition period so that, by 2020, people who are intent on remaining in the United Kingdom to practise in reserved areas will have had the opportunity to move over under the three-year rule in order to have the host qualification to continue. The Bar’s briefing said that, in the experience of the Bar Council, most EU practitioners who are interested in delivering reserved legal activities, obtain one of the home titles in order to be more successful in our legal market. I hope that addresses this point.

On the issue of consultation and negotiation, the question of professional legal qualifications was raised with the EU at a very early stage on the basis that it was an adjunct to citizen rights. At that stage, the EU was not prepared to negotiate on that issue as distinct from what they regarded as citizen rights. It was, therefore, not taken forward in the context of the withdrawal agreement. In the context of the political declaration, it is directed principally to goods, although others elsewhere will discuss the distinction between goods and services. At the present time, it is our present intention to engage, if we have an agreement with the EU, on the question of reciprocity and recognition going forward. We understand the importance of this.

I might add that we have discussed the matter with those firms that generally operate in the EU and outside the United Kingdom. They have been aware of these issues for some time and very many of the lawyers whom they engage in their offices—for example in Paris and Hamburg—are now locally qualified or are qualified nationals of the host state. That is the way in which these practices are carried on.

I take the point made by the noble Lord, Lord Adonis, that some restructuring has been required to allow for this, and that has to be accepted. It is restructuring that would not otherwise have been engaged in, but these firms have undertaken it in preparation for the possibility of a no-deal Brexit. However, these tend to be the major City firms. You do not get the high street conveyancing lawyer trying to open offices in Paris—if they do, I suspect it is not terribly successful.

I recognise the development of courts in other jurisdictions and, in particular, the point made with regard to potential developments in Ireland. I am well aware of many of my fellow barristers who have checked their ancestry just to ensure that they can secure an Irish passport. Lacking that, they have sought to secure a place at the Bar of Ireland. It may be apocryphal, but I understand that the fee for registration as a solicitor in Dublin went up rapidly from €300 to about €3,000. I may be doing the solicitors’ branch of the profession a disservice in relying on that story, but these developments are taking place. Let us remember that, at the level of international litigation, the real competitors are Singapore, Hong Kong and New York, which are all places outwith the EU, albeit that there are specialist centres—Stockholm being one, in the context of shipping and arbitration; and Hamburg being another. We recognise that as well.

I come back to the instrument itself. We are required to pass it because, otherwise, we will be in breach of our international law obligations under the WTO and, in particular, the GATTs. So it is necessary for this purpose. I hope that it will not be required. I express this view without qualification. It is only appropriate and sensible that the Government make provision for what could be an eventuality. I am not going to revisit ground that the House has already covered in the context of earlier statutory instruments which were before it. I hope that it will not be required, but it is only proper and appropriate that we should engage with the profession in order to ensure that we are prepared for any foreseeable eventuality, however unpleasant and unrewarding it may be. I beg to move.

Scotland: Transport Policing

Lord Foulkes of Cumnock Excerpts

Tuesday 18th December 2018 Lords Chamber

[Lord Duncan of Springbank]

The Scottish Government will not progress with their initial plans; that is the first thing to emphasise. The important thing, which I stressed the last time I commented on this matter, is: if it ain’t broke, don’t fix it.

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

I thank the Minister for his positive action on this issue since I first raised it in the Grand Committee on the statutory instrument. I am most grateful to him. Does he not agree, however, that out of this debacle something positive could come if it is seen as a model for devolution? British Transport Police and other UK organisations could remain intact operationally but report for all their operations in Scotland to the Scottish Government and the Scottish Parliament. That would be a model for many UK institutions and organisations.

[Lord Duncan of Springbank]

The noble Lord has been dogged in his pursuit of this matter and I am obliged to him for continuing to be so. He is absolutely correct in emphasising again that this could well be a model that could work across a whole range of devolved areas.