Liaison Committee Report

Debate between Lord Foulkes of Cumnock and Lord Hope of Craighead

Thursday 28th March 2019 Lords Chamber

[Lord Hope of Craighead (CB)]

I assure the noble Lord, Lord Campbell-Savours, that although I am a member of the committee I am not a political member at all. When I look at the subjects, politics simply does not come into my choosing. I confess that I did my best for him to enable the subject to get some kind of an airing—in a way that he did not accept—by trying to put it into post-legislative scrutiny. It was very much second best, but I was trying my best in the atmosphere I was party to. Politics did not come into it. If you look at the successful candidates, they were of very high merit. I am afraid that the problem is that it is always a competition. There may be other ways of handling that competition but, in the end, no subject has priority over the others: they compete according to the rules set out by the Senior Deputy Speaker.

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

My Lords, it may not have escaped the notice of some Members of this House that I can be awkward from time to time. I am a member of the Liaison Committee and I ask some awkward questions sometimes, as I am sure the noble and learned Lord, Lord Hope, can confirm. However, I think that the Senior Deputy Speaker has conducted this whole exercise in an impeccable way, has always been willing to look at changes, and I am sure will be willing to consider the suggestion from the noble Lord, Lord Alton. I certainly want to look at it. We changed the system this year to allow wider consideration and more input from Members. The staff carried out a very detailed scoping exercise in a very professional and fair way to make reports to us.

My noble friend Lord Campbell-Savours knows that I, personally, support his proposal. However, the committee had 27 different proposals and they were all very good, including that from the noble Lord, Lord Alton. My noble friend Lord Williams also put forward a good proposal, which I supported. At the end of the day, we had to come down on three on them and it was a very difficult decision. If my noble friend Lord Campbell-Savours puts his proposal forward again next year, I will again support it. But I hope that he and others will understand that this is not an easy exercise and accept a view from a member of the awkward squad: that a member of the establishment, namely the Senior Deputy Speaker, did a very difficult job in an exemplary manner on this occasion.

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

Debate between Lord Foulkes of Cumnock and Lord Hope of Craighead

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?

European Union (Withdrawal) Bill

Debate between Lord Foulkes of Cumnock and Lord Hope of Craighead

Committee: 9th sitting (Hansard): House of Lords
Wednesday 21st March 2018 Lords Chamber

[Lord Hope of Craighead]

My Lords, this is the first amendment in a very much larger group, not all of which is composed of amendments in my name. Although the matter is lengthy and rather complicated, I can deal with it comparatively briefly and, I hope, in a way that is intelligible to your Lordships and in particular to the Minister.

Amendments 274 and 275 are related to paragraphs 9 and 10 in part 1 of Schedule 2, the former dealing with Scotland and the latter with Wales. I am concerned about the provision which states:

“A provision is within the devolved competence of the Scottish Ministers for the purposes of this Part if … (a) it would be within the legislative competence of the Scottish Parliament if it were contained in an Act of that Parliament (ignoring section 29(2)(d) of the Scotland Act 1998 so far as relating to EU law and retained EU law)”.


As I understand that provision, it excludes from competence provisions relating to retained EU law. That is a theme that runs through most of the amendments in this group. It is exactly the same point as we have been discussing in the earlier groups, the question being whether it can possibly be right that the devolved institutions should be prohibited from dealing with retained EU law when they work through the exercises with which part 1 of Schedule 2 is concerned. All the amendments in this group that are in my name raise that issue, except Amendment 363, which I will come back to in a moment. Some of them will require to be superseded in light of the Government’s amended version of Clause 11. I would have thought it was a fairly simple exercise for the Minister and her team to go through these various amendments, which I need not enumerate, just to be sure that the various passages to which I have drawn attention are corrected in light of the revised version of Clause 11.

Amendment 363 relates to the right of the Advocate-General to take part as a party in criminal proceedings so far as they relate to an issue as to whether legislation or an act of a Scottish Minister is incompatible with convention rights or EU law. Of course, the interest of the Advocate-General, if he wishes to enter the proceedings, is to ensure that the devolved institutions act within their competence in relation to these matters. What we have in paragraph 18 is a simple substitution of a reference to “retained EU law” for the reference that is in the statute at the moment to “EU law”. The competence restriction on EU law will of course be removed when we leave the EU, but once again I make the point that simply to substitute a reference to “retained EU law” is not the right thing to do: it is not a mirror image of EU law. Indeed, the fetter that applied to EU law should not apply to retained EU law. The amendment is simply designed to delete from the relevant section of the Criminal Procedure (Scotland) Act 1995, which would no longer have any relevance. I leave that point with the Minister to look at along with all the others.

[Lord Foulkes of Cumnock (Lab)]

I have been listening very carefully. Can the noble and learned Lord explain again, in simple terms, why retained EU law on a particular area, such as agricultural support, is different from current EU law? I do not understand why he says it is different.

[Lord Hope of Craighead]

In a sense, retained EU law is simply repeating what is to be found in EU law. The point is that the treatment of it, from the point of view of the competence of the Parliament and the Ministers, is different. Under the Scotland Act as it is, Ministers have no power to legislate or deal with EU law, because that is subject to the restriction in Section 29 of the Scotland Act, and also in Section 53, so far as Ministers are concerned. My point is that that restriction disappears because we are no longer bound by the treaty arrangements that gave rise to the restriction in the first place. I think the noble Lord is pointing out that much of retained EU law is already part of our law because it has already been built in to our legal system. The point is that I am suggesting that the Parliament and the Ministers should be able to deal with retained EU law in the same way as they can deal with any other domestic law, as long as it is not reserved.

[Lord Foulkes of Cumnock]

I understand that—these debates are very useful. However, I am getting worried: as the noble and learned Lord knows, I am a strong devolutionist and a former Member of the Scottish Parliament, but in the last hour I have come to understand and sympathise with what the UK Government are arguing, which is a bit worrying.

--- Later in debate ---

[Lord Foulkes of Cumnock]

No, it is a serious matter. Surely there are areas that are dealt with now by the European Union because we have all thought that it was right to have standards for the European Union Common Market. Are the UK Government not arguing that if we have a UK common market—which we will in certain areas—it is sensible to have the same standards throughout the United Kingdom? Is that not a valid argument?

[Lord Hope of Craighead]

If the noble Lord will forgive me, I was suggesting that we deal with that issue when we look at Clause 11 and the government amendments. The noble Lord raises a very important point, but it does not really relate to my amendments. I think it is much more fundamental and we will need to discuss it in light of the discussion of the reform of Clause 11. I hope I have answered the noble Lord’s question. There is a basic difference between the competence arrangements relating to EU law, which does not apply once we leave the Union, and retained EU law, either domestic or direct, as it comes in under Clauses 2 or 3.

Having digressed somewhat in my reply, I again thank the Minister for her helpful reply. I will be happy to withdraw the amendment in due course; however, there are others in the group that others may wish to speak to.

--- Later in debate ---

[Lord Foulkes of Cumnock]

My point is that we are all here. We have been taking part in a debate. Everyone who wants to take part in the next group is here and it seems sensible to continue. I do not understand.

[Lord Hope of Craighead]

The Chief Whip did not discuss the matter with me but I support the position he is taking because it is very obvious that, once we get into Clause 11, we will be discussing it for some considerable time. I would have thought that the sensible thing would be to break now and to come back and deal with it in one go, rather than break up the debate, which we will be forced to do otherwise.

European Union (Withdrawal) Bill

Debate between Lord Foulkes of Cumnock and Lord Hope of Craighead

Committee: 5th sitting (Hansard): House of Lords
Wednesday 7th March 2018 Lords Chamber

[Lord Hope of Craighead]

No, this is analysis. Let me explain what I would like to do.

I quite like the words of Clause 6(2) as it stands:

“A court or tribunal need not have regard to”,


a judgment or decision given by the European Court on or after the exit day because that fits very well with the way we are looking at the position before exit day. It is certainly true that it is a negative way of putting it, but I regard it as a helpful transition to the new situation. However, I do not like the remainder of Clause 6(2) for the very reasons that the noble Lord, Lord Pannick, explained. That is where I would like to bring in the passages from the latter part of his formula, which are that a court or tribunal may have regard to such judgments or decisions where it considers them relevant for the proper interpretation of retained EU law.

I would take out “appropriate” from Clause 6(2), for reasons that have been referred to already, and would leave out the early part of proposed new subsection (2A) in Amendment 56 where “must” is used. I would prefer “may” to “must”, leaving it to the court to make its own decision regarding whether the matter is relevant.

[Lord Foulkes of Cumnock]

Would Amendment 55 tabled in my name and that of my noble friend Lord Adonis not deal with the noble and learned Lord’s points?

[Lord Hope of Craighead]

I am very grateful to the noble Lord and I apologise for not having paid due regard to that formula because the wording is exactly what I am looking for, but I am trying to fit it into the opening words of Clause 6(2). However, it is certainly right; I respectfully suggest that “may” is the right word to use. It is better to add in the bit about,

“where it considers it relevant”,

which is what comes from the noble Lord, Lord Pannick. So one is putting together bits and pieces of thought from various attempts to produce a formula.

Perhaps I may read out again for Hansard’s benefit how I suggest the provision might run: “A court or tribunal need not have regard to a judgment or decision given by the European Court on or after exit day, but it may have regard to it where it considers this relevant for the proper interpretation of retained EU law”. If “may” is used—although the noble Lord, Lord Pannick, will correct me—proposed new subsection (2C) in Amendment 56 will no longer be relevant. I say nothing about subsection (2B) which may have force and value if the court requires guidance as to what to do with the agreement between the United Kingdom and the EU.

I hope that that contribution will give the Minister something else to think about. I think that we all hope that on Report he may be able to come back with a formula which we can all endorse.

European Union (Withdrawal) Bill

Debate between Lord Foulkes of Cumnock and Lord Hope of Craighead

Committee: 1st sitting (Hansard - continued): House of Lords
Wednesday 21st February 2018 Lords Chamber

[Lord Foulkes of Cumnock]

It would have no great effect either way, to be honest. I would like to think that it would have a greater effect on getting an agreement, but I do not think that it will. Other factors will have greater sway. However, no doubt the noble Lord, Lord Forsyth, will have an opportunity to make his usual spirited contribution to the debate.

It is a running sore that these government amendments to Clause 11 have not been tabled. I say to the Minister that we in this House—I hope that the whole House will agree with me on this; I certainly know that the Official Opposition agree with it—should not debate Clause 11 not just until the amendments have been tabled but until the amendments that have been tabled have been considered by the devolved Administrations. It would be entirely wrong for us to discuss Clause 11 without having the views of the devolved Administrations about the amendments that the Government will table. I hope that we will get an assurance from the Minister that we will not have a debate in Committee on the amendments until they have been considered by the Scottish Parliament, the Welsh Assembly and the Northern Irish Assembly, if it is up and running by then.

[Lord Hope of Craighead (CB)]

As it happens, I have an amendment directed to Clause 11. I would have thought that there was an advantage in debating in Committee so that we can at least engage with the Minister and explain the points that lie behind the amendment. Otherwise, if the amendment is simply not pursued in Committee, we cannot come back to it until Report. Therefore, I hope that the noble Lord will forgive me if in due course I move my amendment, which is intended to be helpful. At the end of the day, I hope that the amendment that the noble Lord is pursuing today will become completely academic because the differences between the devolved institutions and Westminster will be resolved. That surely must be the aim, not to keep this sense of tension until the Bill is passed.

[Lord Foulkes of Cumnock]

My Lords, I have great respect for the noble and learned Lord, Lord Hope, and he is right on this. I will now rethink what I just said. As long as we have not deliberated finally on Report, we need on Report to have the result of the deliberations and the views of the devolved Parliament and Assemblies. The noble and learned Lord has made a good point, which I accept, and I hope that he is right that it will make my amendment ultimately redundant. No one would be happier than me if that were the case. The Sewel convention is that the UK Parliament will not normally legislate—