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

Debate between Lord Foulkes of Cumnock and Lord Wallace of Tankerness

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

[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.