Marriage and Civil Partnership (Scotland) Act 2014 and Civil Partnership Act 2004 (Consequential Provisions and Modifications) Order 2014

Lord Hope of Craighead Excerpts

Monday 1st December 2014 Grand Committee

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

My Lords, in moving that the draft order laid before the House on 27 October 2014 now be considered, if it pleases your Lordships I will briefly put this Section 104 order in context before setting out what it does. The order is made under Section 104 of the Scotland Act 1998—indeed, in that respect it is similar to the first order that we debated in Committee this afternoon—which allows for necessary or expedient changes to legislation in consequence of an Act of the Scottish Parliament. The order is made in consequence of the Marriage and Civil Partnership (Scotland) Act 2014, which I shall refer to as the 2014 Act.

The order is additionally made under Section 259(1) of the Civil Partnership Act 2004. Section 259 of that Act provides for subordinate legislation to be made in the United Kingdom Parliament containing provisions in connection with civil partnerships. The order cites this power because it adds some consequential references in legislation to civil partnerships that were missed when the Civil Partnership Act was being implemented. Picking up those missed consequential references is clearly not done as a consequence of the introduction of the 2014 Act in Scotland. That is why the separate provision—namely, Section 259(1) of the Civil Partnership Act 2004—is cited.

The 2014 Act introduces same-sex marriage and religious and belief registration of civil partnerships in Scotland. It also allows transgender people who married in Scotland to stay married and obtain a full gender recognition certificate, and it makes other changes to marriage and civil partnership law in Scotland. The order updates existing United Kingdom legislation to give the 2014 Act full effect and ensures similar treatment for Scottish same-sex couples and transgender people across Great Britain. Finally, it also allows for same-sex marriages solemnised in Scotland to be recognised as civil partnerships in Northern Ireland.

The 2014 Act is broadly equivalent to the Marriage (Same Sex Couples) Act 2013, which introduced marriage of same-sex couples in England and Wales. That Act, which I shall refer to as the 2013 Act, is being implemented in phases. The first phase consisted of a number of instruments which came into force on 13 March 2014. The final phase of implementation consists of further affirmative and negative instruments primarily concerned with conversion of civil partnerships into marriage and enabling transgender people to remain married if they and their spouse wish. These will come into force on 10 December.

This Section 104 order makes very similar consequential provision for Scotland in relation to reserved matters, such as pensions, similar to that contained in both the first and second phases of implementation of the England and Wales legislation. This is because the 2013 and 2014 Acts enact similar propositions and give rise to similar consequential provision. The order makes consequential provision for same-sex marriages generally in relation to transgender people and provides for the changing of civil partnerships into marriages overseas.

The United Kingdom and Scottish Governments have worked very closely together on the implementation of the 2013 and 2014 Acts and the various subordinate legislation so that they work together as a package. For example, the orders which will implement the second phase of the 2013 Act also make certain consequential provisions for Scotland, including amendments to certain Armed Forces pension schemes, as well as the Royal Mail pension scheme and schemes relating to particular bodies carrying out functions in the area of transport.

Having set out the context and interaction with the implementation of the 2013 Act, I turn to the order itself and will say a bit more about its content. The order amends the Equality Act 2010 as it applies in Scotland to give protection to celebrants and others who do not wish to take part in same-sex marriage ceremonies and the registration of civil partnerships in a way that is appropriate for Scotland.

The order creates a statutory gloss which provides that references to “marriage” and related expressions in the reserved law of Scotland mean both opposite-sex and same-sex marriage, unless contrary provision is made. The order also disapplies that statutory gloss in certain circumstances and makes contrary provision to it.

The order makes provision for civil partnerships registered in Scotland to be changed into marriages overseas, either through UK diplomatic posts or through the Ministry of Defence and the Armed Forces. The order also makes provision so that same-sex marriages registered in Scotland are recognised as civil partnerships in Northern Ireland.

Moreover, with respect to provision relating to transgender people, the order establishes the alternative grounds for applications to the gender recognition panel by long-term transitioned people in a protected Scottish marriage or protected Scottish civil partnership who are resident in England or Wales. It makes provision so that the spouse or civil partner of a transgender person who is resident in England and Wales but who has obtained a gender recognition certificate under the 2014 Act can apply to the High Court in England and Wales or the High Court Northern Ireland to quash the decision to grant the application on the grounds that its grant was secured by fraud. It also ensures full recognition in England and Wales and Northern Ireland of transgender people who married or entered their civil partnership in Scotland and obtain a full gender recognition certificate under the 2014 Act.

The Scottish Government intend that their first conversions of civil partnerships into marriage will take place on 16 December; it is also intended that the first same-sex marriage ceremonies in Scotland will be able to take place on 31 December 2014. The order is part of the wider legislative programme to provide for the introduction of same-sex marriage in Scotland within this calendar year. In addition to the legislation taken forward in this Parliament, 11 instruments have been laid to date in the Scottish Parliament, and I understand that a possible 10 more are planned. As part of that programme, the order makes the changes to reserved law and the cross-border provision I described.

Yet again, and particularly in this case, the United Kingdom and Scottish Governments—Ministers and officials—have worked closely together to ensure that this complex programme of work has met its challenging timetable. The order demonstrates that the UK Government’s continued commitment to working with the Scottish Government to make the devolution settlement work is bearing fruit. I hope that your Lordships will agree that the practical result of this continued collaboration is to be welcomed. The other place considered the order on 25 November. I commend the order to the Committee. I beg to move.

[Lord Hope of Craighead (CB)]

My Lords, I am very grateful to the Minister for his explanation. It is a very welcome measure, if I may say so, and I entirely endorse the point that the noble and learned Lord made about the degree of co-operation between those responsible for legislation north of the border and those responsible for legislation in the wider context of the United Kingdom. It struck me that the drafting, particularly of schedule 1, is of considerable interest—I think that part 1 has been very carefully crafted to make it clear that it deals with reserved matters only, in appropriate language, and does not encroach on matters that are the province of the Scottish Parliament. No doubt that is an example of the degree of co-operation between the two Administrations.

I also found it helpful to see the provisions in paragraph 3 of part 2 of schedule 1, which contains a set of definitions, particularly of the expressions “husband”, “wife”, “widower” and “widow” in the context of the measure. I think that the words as defined are now in quite common use, but it is helpful to see them set out in statutory form. I would be interested to know whether that has been done equally north of the border, but to see it in this measure, at least, is encouraging to those who wondered exactly how these expressions might properly be used.

For the main part, this is an excellent example of co-operation. I was going to ask whether the Scottish Government had been kept fully informed, but I take it from what the noble and learned Lord said that there is simply no question about it: they are well aware of this measure, and if further steps need to be taken by the Scottish Parliament or the Scottish Government to match what has been done here, they will certainly be taken.

Scotland: Devolution

Lord Hope of Craighead Excerpts

Wednesday 29th October 2014 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, it is a very real privilege to follow the noble Lord, Lord Steel of Aikwood, who has done so much to inform the debates in this House. I am sure that many noble Lords will be grateful for the note of optimism which he has sounded.

When I spoke near the end of the debate at the end of the summer, when we were still wondering what the result of the referendum would be, I spent a little time trying to inject a note of caution. It seemed to me that there was a real danger that, if the vote had gone the other way, things would have moved extremely fast, to the timetable that Mr Salmond was going to set for us, and we would not be in a position to resist whatever demands he was going to make. Of course, the vote has gone in the other way—to preserve the United Kingdom—but I still feel a sense of unease about the commitment that was made in the closing days of the campaign. In a way, that is playing into the same trap where we find ourselves with a commitment to achieve a great deal within a very limited period of time.

I am sure that the noble Baroness the Leader of the House was right to underline the commitment that was given, because it would be quite unthinkable, as the noble Lord, Lord Tyler, said, to withdraw from that now. We have some reasons for comfort, some of which were mentioned by the noble Lord, Lord Steel—in particular, the commission which the noble Lord, Lord Smith of Kelvin, is chairing. We can have absolute confidence in the ability of the noble Lord, Lord Smith, to chair that commission. He has made it clear that we should leave the commission to get on with it. He is assuring everybody that the essential is that each of the participants around the table should have the authority to agree what can be agreed.

There is a reason for unease about that, however. Not everything that everybody is asking for can be agreed, and there will certainly be things left lying around which the Scottish National Party will be asking for. I urge caution again that we do not move too fast in giving way to whatever it is suggesting. The whole point of the commission is to assume, as indeed the voters told us, that Scotland remains part of the United Kingdom. That is one of the essential principles. We can draw comfort from that. But there we are; we have to hold firm to whatever the noble Lord recommends at the end of his discussions.

There is another reason for comfort, and that is that we have in existence a framework within which the result of the commitment can be delivered—that is, the Scotland Act 1998. It is a well tried system, which at least has the advantage of a system within which things can be adapted, according to some adjustments of the Schedules that set out the reserve powers and so on.

That is under the overall supervision of the Supreme Court, and perhaps I might just say a word about that. An essential part of keeping the devolved systems within the United Kingdom was that, ultimately, should there be an issue about the compatibility of legislative measures, it would be decided by the United Kingdom Supreme Court. I notice that one of the points being made by the Scottish National Party is that it wants to abolish all appeals to the Supreme Court—all appeals, not only civil appeals but also appeals under the devolved system. There is a great danger in that. I hope the Minister will assure us that the position of the Supreme Court as the ultimate court for deciding these issues will remain, as it is part of the United Kingdom structure.

This morning the Deputy First Minister was quoted as saying that the United Kingdom is just,

“a family of nations, not a unitary state”.

There is something in what she said, but it is certainly not the whole truth. The whole truth is that the UK is to a very large degree a unitary state because of the structures that hold it together: Parliament—these Houses—the Supreme Court and the other institutions that exist. No doubt the Scottish National Party wishes to separate them, which is why the proposals about the Supreme Court are there, but we must hang on to the idea that the UK is united in various essentials; it is not just a family of nations, as we are being led to believe.

As for the future, I feel, as others have been saying, that we have to move forward with some kind of commission to decide how the structures throughout the entire United Kingdom have to be designed. Again, I see the Supreme Court as having a vital position at the end of whatever package may be designed, but we have a framework that could be borrowed and used for England as well as the other parts of the UK. The devolved systems give some kind of sign as to the kind of framework that might be used. Mention was made by, I think, the noble Lord, Lord Tyler, of other countries that have systems of this kind. The South African constitution is another where you see a schedule with various powers that are devolved to the provinces, of which I think there are nine. So these structures can be used. It is not my position as a non-politician to say whether or not that is the right way forward, but we have some advantages on which we can build.

We may find as a result of the 2016 elections in Scotland that the SNP once again moves back with an overwhelming majority, and that will almost certainly result in a demand for another referendum. I hope that we do not go down the line of the Edinburgh agreement and the Section 63 order that followed it. If there is to be any discussion of a further referendum, surely that must be done in both Houses by means of primary legislation so that it can be fully debated in the interests of everyone—above all, people in England, Wales and Northern Ireland, who have a very clear interest in what goes on in Scotland.

Scotland: Independence

Lord Hope of Craighead Excerpts

Tuesday 24th June 2014 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I come very near the end of a long and fascinating debate, in which we have had excellent contributions from so many parts of the United Kingdom, right down that lovely banana that lies on the Celtic fringe of our islands, from the Western Isles down to and including Cornwall. And we have had a marvellous contribution from pure Englishmen as well.

In the time available to me, I should like to concentrate on the report of the Select Committee. I was one of those who was privileged to give evidence before the committee, and I was very impressed by the quality of the questions that were put to me, and by the expert and effective chairmanship of the noble Baroness, Lady Jay. We were being asked to consider an event which we all wished would not happen. However, as an intellectual exercise, it was a very stimulating experience. I pay tribute to what I think is an excellent report and to the masterly way in which it was introduced for us this afternoon by the noble Lord, Lord Lang of Monkton.

Although it contemplates the implications of a vote for independence for the rest of the United Kingdom, it has some very important things to say about what that vote would mean for Scotland, too. It seemed to me to be clear, when I was giving evidence, that Scotland could not take this step without a great deal of assistance in that direction from Westminster. I took the orthodox view; there are reserved matters. The union of the kingdoms of Scotland and England and the Parliament of the United Kingdom are reserved; so also is the power to repeal the two Acts that gave effect to the Treaty of Union—the Union with Scotland Act 1706 and the Union with England Act 1707—of the Scottish Parliament. So the recommendations that legislation would be needed in this Parliament to set the process in train, as described in paragraphs 37 to 44, seemed to me to be entirely appropriate, with legislation going through this Parliament to make the necessary changes to enable the process.

As the noble Lord, Lord Shipley, said, the recommendations were cogent and persuasive, but that is not how the matter was seen north of the border. The scales were lifted from my eyes when, on 16 June, the Scottish Government published the draft Scottish Independence Referendum Bill. I rather regret that it has not been made available for all of us in the Printed Paper Office, because it really has to be seen to be appreciated. One may ask how it could be that the Scottish Government should devote time and money to something that is outside their competence, but it seems that we are far beyond niceties of that kind. It is quite plain from this document that the SNP Government take a quite different approach. In effect, that draft independence Bill is their response to the committee’s report. Far from being, or seeing itself, as a “successor” state deriving its independence by a grant of independence from the rest of the UK—a gracious grant, as someone said this afternoon—independence is something that they wish to assert as their constitutional right on their own terms. That is what this document is all about.

Mr Salmond is not looking for a Scottish independence Bill passed in this Parliament. What he is doing in this draft Bill is making a draft declaration of independence on his own terms. As I see it, that is a warning for all of us. It changes the flavour of the debate from that which I think the Select Committee, with great respect to it, was contemplating in its discussions. I think that it will lead to a demand by Mr Salmond for a Section 30 order removing all the obstacles to his Bill, so as to allow him to put the measure before his Parliament within days of his obtaining a yes vote. He will claim to have the backing of the Edinburgh agreement, about which the noble Lord, Lord Kerr of Kinlochard, made some very persuasive comments. It may be very difficult to see how we can escape from its terms. I hope that the Minister will say whether the Edinburgh agreement will survive a change of government if in 2015 the Government change and the Opposition become the Government. As far as Mr Salmond is concerned, speed is essential. His target is to achieve independence during the lifetime of his present Government in Edinburgh while he can still control events, and the rest of the United Kingdom must face up to that.

I think it is right to say that the launch of the Bill was a propaganda exercise. “We can give you something that London cannot give you—your own constitution”, it is saying. It is, at first sight, a simple and compelling document, as the noble Lord, Lord Elis-Thomas, said. It is brilliantly drafted, readable by everyone, including primary schoolchildren, and is something that anyone who cares to read it will at once understand. All the bits that one would expect to find are there: the nature of the state; an outline of the machinery of government; citizenship; protection of rights and freedoms; equality; the environment and, of course, the repeal of the Act of Union. Anyone who dares to criticise it does so at his peril. However, there certainly are things to criticise. Like the noble Earl, Lord Caithness, I suggest that the Government need to look at the document’s terms very carefully and point out where the flaws lie. One of the most important is the matter to which the noble Lord, Lord Robertson of Port Ellen, drew attention— namely, the declaration in Section 23 about nuclear disarmament and the removal of nuclear weapons from Scotland. This, of course, is a subject of debate in Scotland, and many people disagree with what is being proposed. However, as I understand it, the provision is there to tie the hands of the successor Government. That is why it is so important to Mr Salmond to get this through while he maintains a majority. That is another reason for being cautious about the making of a Section 30 order. One would need to be very clear about the implications if this constitution, and its effect on the nuclear weapons policy, gave the independence Bill a free hand in setting out what it intends to do.

There are other things to be concerned about. The provision about the head of state is, at first sight, very reassuring. The Queen and all her heirs and successors are to be head of state. However, there are already signs of great unrest among the nationalists who want independence. The problem with putting a provision like that in a Bill of this kind is that it attracts debate and creates instability.

There is the repeal of the Act of Union. Only one Act is mentioned given the inward-looking nature of this document. However, this was a treaty: there are two Acts, but the other Act is simply not mentioned. After all, what is the constitution really trying to do? One of the things it starts off with is claiming that the people are sovereign. Many countries in the world have written constitutions. All the countries in the Soviet empire proclaimed that the people were sovereign but, of course, we know that was simply not true. It is a charade in a way, a clever piece of propaganda, but one has to recognise the dangers there and what the Government will be faced with when they are presented again with the Edinburgh agreement and a demand for a Section 30 order. That is the challenge for the Minister, to which I invite him to reply.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, there is such a thing as the European Court of Justice, and anyone who attempted to fly in the face of what most people would think of as accepted European Union law may find that the law caught up with them.

My noble friend Lord Cormack and the noble Baroness, Lady Adams, talked about their grandchildren and how they do not wish to see opportunities cut off and cannot understand why we would want to build barriers. That has been reflected in many schools, where there have been substantial no votes. It shows that in an era when young people can communicate so easily, when the communication barriers have been broken down because of modern technology, the idea that you would start erecting barriers is something that many of them just cannot comprehend. That is a great strength for our union as we look forward.

My noble friend Lord Caithness asked about the draft Bill. I confess that we have not yet done any analysis of it. My noble friend Lord Lester of Herne Hill, however, was telling me the other day that he has already identified two or three inconsistencies with the European Convention on Human Rights, and if my noble friend has identified them, that probably means that they are right. It is not a very good start for a constitution if it seems to fall foul of the European Convention on Human Rights.

The noble and learned Lord, Lord Hope of Craighead, raised the question about whether it could be a Section 30 order. It is clear that independence cannot just be asserted. The terms of an agreement reached between the representative of an independent Scotland and a continuing UK would have to be that: an agreement. I have already indicated what the position would be with regard to the period between the date of a referendum if there were to be a yes vote and the date of independence, and all the responsibilities that the United Kingdom Government would have. The quote that I gave was a direct quote from the statement given jointly by both Governments to the Electoral Commission, so the Scottish Government themselves have signed up to that.

The noble and learned Lord, Lord Cullen, made a point about how long it took to get that agreement, and that was just an agreement to make a statement. That might put into context how long it might take to negotiate an independence settlement. If Scotland chooses to leave the United Kingdom, it must be prepared to do so whatever the terms, because the terms cannot be known in advance.

As the report of the Constitution Committee indicates, there could be possible difficulties with a Section 30 order if it was challenged in the courts that the use of the Section 30 order had gone beyond what Parliament intended an order to do—if it were bringing in independence when in fact that was clearly never the intention of Parliament.

[Lord Hope of Craighead]

To be clear, is the Minister saying that what is contemplated, at least by the Government, is that there would have to be legislation through both Houses of Parliament in order to facilitate the independence Bill that is now on the table?

[Lord Wallace of Tankerness]

I think I said in my evidence to the committee that there was a possibility of a Section 30 order but that there are difficulties with that. I indicated that there might have to be very limited legislation, if only to allow the Scottish Government to put together a negotiating team and enter into negotiations. As the noble and learned Lord probably knows better than anyone in the House, along with the noble and learned Lord, Lord Cullen, the propensity for some people to litigate in areas like this could be very great. If that were the situation that we were in, although we sincerely hope that it will not be, it would be important to put the negotiations on a proper legal footing so that they could not be subject to some further challenge.

--- Later in debate ---

[Lord Wallace of Tankerness]

My Lords, we certainly shall look at it, although whether we can have a debate between now and the House rising I just do not know. However, I hope we are not confusing two things. Of course, a constitution would be a matter for the independent Scotland. It would post-date independence. I think the noble and learned Lord, Lord Hope, talked about an interim Bill, and that was what was being discussed.

[Lord Hope of Craighead]

I simply adopted the language of the Scottish Government. They produced this draft Bill to carry the matter forward as from independence day on an interim basis until the new constitution forecast at the end of the Bill was passed. It is incredibly important to know what we are to make of the interim Bill. Among other things, it proclaims that every Scots person is to be a citizen of the European Union as from independence day, although we all know that Scotland will not be a member of the European Union. It is full of flaws of that kind and we simply cannot give them carte blanche to pass it through without discussion.

[Lord Wallace of Tankerness]

My Lords, what an independent Scotland does after independence day would be a matter for an independent Scotland. I think that is common ground. If it wants to legislate nonsense then it can. That would be the decision of an independent Scotland.

Immigration Bill

Lord Hope of Craighead Excerpts

Tuesday 1st April 2014 Lords Chamber

[Baroness Benjamin (LD)]

My Lords, I congratulate the Government on accepting the noble Earl’s amendment, Amendment 58, as it addresses the unfortunate and desperate situation that many young people find themselves in. With regard to the other amendments in the group, let us not forget that childhood lasts a lifetime, and that we need to try to give children a happy early passage in life however, wherever and whenever we can.

I take this opportunity to follow up briefly on a few of the concerns that I raised in Committee about young people who find themselves with non-immigration status. Worryingly, every year more and more are finding themselves in that position. I ask my noble and learned friend the Minister for clarification on two points. First, will he confirm that young people who had irregular status before they reached 18 will fall within the local authority’s duty to “former relevant children” under Section 23C of the Children Act 1989 until their status is regularised? Secondly, do local authority duties regarding homelessness apply to this group and, if they have been living in foster care, does the extension contained in Section 98 of the recent Children and Families Act apply to enable them to remain in the family?

[Lord Hope of Craighead (CB)]

My Lords, I want to add just a word or two with reference to Amendment 16, in the name of the noble Lord, Lord Watson of Invergowrie, which would insert a new provision dealing with “the best interests of children”. In supplement to what he said, the Supreme Court has paid a lot of attention over the four years of its existence to the UN Convention on the Rights of the Child, to which this country is a signatory. Almost at every opportunity where the issue has arisen, it has stressed the need to promote the best interests of children in dealing with immigration issues, so the point is of some general importance.

The point I wish to draw to the Minister’s attention concerns proposed new Section 117A(2), inserted by Clause 18, which contains the phrase:

“In considering the public interest question, the court or tribunal must … have regard”—

to the provisions that follow. Those words remind one of the words in Section 2 of the Human Rights Act 1998. The noble and learned Lord may recall that there is some debate going on as to the extent to which the courts in this country must feel themselves bound by decisions of the Strasbourg court or whether in performing the Section 2 duty of having regard to—I think the wording of the Act is “take into account”—they can rate what they see and weigh it up but not necessarily feel themselves bound to follow it. The question is: which of these two alternative lines is the Minister contemplating by the use of the phrase “must have regard to”? Is this something that is in the form of a duty, which gives no leeway to the court and therefore it must follow the language precisely as it finds it in the succeeding subsections, or is it, as some people would say about the Strasbourg court, that one can see what is said but there is room for manoeuvre at the same time?

The noble Lord, Lord Watson, explained the point very clearly. When one is considering any public interest considerations that involve children, one will have regard to the existing jurisprudence, the convention rights and so on. The fact that children are not mentioned expressly, except in the very helpful new clause coming in via Amendment 58, does not mean that the court cannot have regard to their best interests. If the Minister would confirm that, that would be extremely helpful, given the nature of the language in proposed new Section 117A(2).

As I hope the noble and learned Lord will appreciate, there will be some read-across from the way the jurisprudence has developed with reference to the Human Rights Act to how one starts the whole exercise that this new clause is dealing with. It is really very important to be clear about how one approaches the entire package in understanding the various criticisms that have been made.

[The Advocate-General for Scotland (Lord Wallace of Tankerness) (LD)]

My Lords, first, I thank not only the noble Earl, Lord Sandwich, but others who have spoken to amendments in this group, because it is of considerable importance that in dealing with these important immigration matters, the interests of children are kept very much in our minds and that we give proper consideration to them.

The noble Earl, Lord Sandwich, raised a point about the withdrawal of assisted voluntary return for immigration detainees. In the short time since he spoke, the information I have received is that the Government prefer illegal migrants to depart voluntarily and go to considerable effort to help them to do so. Those who refuse to go voluntarily may well have to be detained and have removal enforced. Until 31 March, detainees could apply for an assisted voluntary return package. However, the evidence was that that increased delays and costs. I do not think that anyone believes that it is in anyone’s interest to have a drawn out removal process. I confirm that there remains the opportunity to depart voluntarily with assistance, but those who do not co-operate will not fall within that and will be removed. I appreciate that that is perhaps a sketchy answer, but I think that the best thing is to give further chapter and verse by writing to the noble Earl to explain in more detail precisely what are the policy considerations that have led to that provision.

The amendments raise important issues about the best interests of children and the proportionality of decisions under the qualified right to respect for private and family life under Article 8 of the European Convention on Human Rights. I turn first to the amendment in the name of the noble Earl, Lord Sandwich. It is right that the best interests of the child in the United Kingdom should be a primary consideration in the certification process. The noble Earl, Lord Listowel, asked me to confirm that. There will no doubt be cases in which deportation appeals are not certified because of the risk that serious irreversible harm may be caused to a child, but the amendment would make the best interests of the child a trump card over any other consideration, including the strong public interest in seeing foreign criminals deported quickly. Under the amendment, a foreign criminal or deportee would be able to use a child who may have been in the UK for a matter of only days or weeks—there is no definition of a qualifying child—to avoid certification of their appeal and an early departure from the United Kingdom.

The noble Earl asked about parents who will be deported before appeal. The test will be whether serious irreversible harm is likely to result from a temporary separation, pending an appeal on the particular facts of the case. The best interests of children in the United Kingdom will, as I said, be a primary consideration. The courts have reflected that in many cases. It is a primary consideration—not the overriding, trump-all-else consideration, but a primary consideration which they are obliged to take into account. That will be taken into account in the decision whether to certify as well as in making the original decision.

The other effect of the noble Earl’s amendment would be to rely on the presence of the child, even if the parent—the person subject to deportation—did not care for the child or had no relationship with the child. We do not think that that can be right. The certification power will be used only where an individual’s own conduct, such as criminality, leads the Secretary of State to consider that their presence is not conducive to the public good. The power is tightly defined to ensure that only those who have caused or are trying to cause us harm are deported from the country quickly. Its operation should not be impaired by the impact of the amendment.

I turn to Amendments 16 and 18, spoken to by the noble Lord, Lord Watson of Invergowrie. I readily understand the concerns that he raised about the best interests of children affected by immigration decisions. Amendment 16, to which the noble and learned Lord, Lord Hope of Craighead, also referred, would insert the words:

“The promotion of the best interests of children”,

as a public interest consideration applicable in all cases. I appreciate what lies behind the amendment and welcome the opportunity to reconfirm to the House how the best interests of children are and will remain a primary consideration in all cases concerning the ECHR Article 8 right to respect for private and family life. I believe that the Bill is consistent with our obligations towards children under the United Nations Convention on the Rights of the Child and Section 55 of the Borders, Citizenship and Immigration Act 2009, usually referred to as the children duty. These provisions, as interpreted in particular by the Supreme Court in ZH (Tanzania), establish the best interests of a child in the UK as a primary consideration in considering proportionality under Article 8. This means that the Secretary of State must have regard to the best interests of the child as a primary consideration and ask whether any other considerations outweigh it. Clause 18 is compatible with these obligations and has been designed to take proper account of children’s best interests. It does not require the statement added by Amendment 16, which would also expand the extent of the consideration required by Section 55 to include children outside the United Kingdom.

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[Lord Pannick]

My Lords, Amendments 17, 18 and 19 are in my name and that of my noble and learned friend Lord Hope of Craighead. I thank the noble Lord, Lord Taylor, the noble Earl, Lord Attlee, the Immigration Minister, Mr James Brokenshire, and members of the Bill team for the helpful—to me, at least—meeting that we had last week.

Your Lordships had a wide-ranging debate on Clause 18 in Committee. These amendments have a narrow focus. Amendments 17 and 18 address the parts of Clause 18 that tell courts and tribunals to give little weight to private life in defined circumstances—for example, where a relationship with a British citizen was established in this country at a time when the claimant was here unlawfully. Amendment 19 addresses the provision that says that the public interest requires deportation in defined circumstances.

These amendments would modify the absolute nature of the relevant parts of Clause 18. My understanding from the debates that we had in Committee is that there is no dispute from the Government about two propositions; I would welcome assurances on this. The first proposition, which I understand to be uncontroversial, is that there may be compassionate cases—it may be unusual, but there may be cases—where, on the particular facts, Article 8 requires more than little weight to be given to the relevant factors; or where Article 8 requires no deportation despite the terms of new Section 117C. Such cases may be unusual or out of the ordinary, but they are at least conceivable.

The second proposition, which I understand to be uncontroversial—again, I would welcome assurance on that—is that the Government, I think, accept that if the court or the tribunal concludes that Article 8 requires more than little weight to be attached to the factors in a particular unusual case, or Article 8 requires no deportation, the domestic court or tribunal must apply Article 8. That clause is not intended in any way to amend the obligations of the courts or the tribunal under the Human Rights Act. My understanding—I urge the Minister to correct me if I am wrong—is that Clause 18 is not intended in any way to override the principle stated by Lord Bingham of Cornhill for the Appellate Committee in 2008 in the case of EB (Kosovo) at paragraph 12, that,

“the appellate immigration authority must make its own judgment and that judgment will be strongly influenced by the particular facts and circumstances of the particular case … there is in general no alternative to making a careful and informed evaluation of the facts of the particular case. The search for a hard-edged or bright-line rule to be applied to the generality of cases is incompatible with the difficult evaluative exercise which article 8 requires”.

These amendments seek to ensure that there is consistency between the wording of Clause 18 and the obligations of courts and tribunals. The helpful letter dated 28 March from the noble Lord, Lord Taylor, pointed out, accurately, that it is far from unique for legislation to identify matters for courts to take into account, and the noble Lord gave a number of examples. However, in each of those examples Parliament told courts and tribunals to have regard to particular principles or factors. In none of those examples did Parliament tell courts and tribunals what conclusion to reach. My concern remains the absence of any recognition in the clause as drafted that they may be cases where the Government’s preferred result is not consistent with Article 8. My concern is the suggestion in the legislation that the court or tribunal should arrive at a particular result even though the Government, as I understand it, recognise that the court or tribunal will be required to enforce Article 8.

A long time ago, AP Herbert wrote the very entertaining Misleading Cases. My concern is that Clause 18 is misleading legislation, and we ought to do something about it. I beg to move.

[Lord Hope of Craighead]

My Lords, I added my name to the noble Lord’s amendment because I, too, find it difficult to know quite how the court will deal with a particular case where it feels that more than little weight should be attached to the various matters referred to in the various paragraphs that are under consideration. It is quite striking when you look back—as I invited the noble and learned Lord to do a moment ago—to the earlier part of new Section 117A, that there is no attempt to modify, appeal or amend Section 6 of the Human Rights Act itself. If you go to Section 6, of course it takes you back to Section 2, which tells the court that, in considering whether there is a breach of the duty under Section 6, it must take into account decisions of the Strasbourg court.

It is not inconceivable, although it may be unusual, there could be a real problem for a court which is following the Human Rights Act directions and is trying to take account of what one finds in new Section 117A, bearing in mind the point that the noble and learned Lord made to me not very long ago about the purpose of setting this out in the Bill. I think that I entirely understood him to say that the purpose of this was to lay down clear guidance to the court, which the court is expected to follow. I absolutely understand the reasons why the Minister says that, but that makes it all the more important, I respectfully suggest, for the Government to avoid the temptation to be too prescriptive about the conclusions that must be reached.

The problem that comes up so often when one thinks about this sort of thing is that legislation is a fairly blunt instrument. Last week, we debated the IPP legislation; the previous Administration set out tests that the judges were required to apply in sentencing prisoners to indefinite terms of imprisonment, but it turned out that in practice the judges had to sentence people to draconian sentences more often than they would have done if left to themselves, which created a very real administrative problem for the Government. That is an example of how a blunt instrument can be too blunt and can avoid dealing with a case in the way that Lord Bingham of Cornhill explained in the case of EB (Kosovo), to which I was also a party.

It really is important to avoid being too prescriptive. Use of the word “normally” gives us that little bit of leeway. If it is not there, the court is driven to finding another way round the problem and, if it finds the prescriptive language in the various subsections that we are looking at, it will have another look at the way in which the whole chapter was introduced by the phrase to which I drew attention earlier: “must have regard to”. Then it will say, “All right, it’s a rule, but it’s not something that we must follow because we have only to have regard to it”. That takes us back to the debate about the Strasbourg court that I was talking about; those who do not particularly like to be told what to do by Strasbourg would rather not have regard to it, because they do not feel that they are obliged to.

If the Minister would like, as I think he would, to have courts regard these as principles or rules to which they should always have regard in the interests of the public at large, I suggest that we should avoid the trap that has been created, otherwise the courts in these unusual cases will feel that they have to find another solution. That may, in the longer run, be more damaging to the overall package that has been put forward in the interests of trying to solve this problem. Once you undermine the basic philosophy that the Minister is putting across, which I understand, by creating this trap for the courts in these particular cases by telling them what the conclusion must be, you begin to devalue the whole package. I think the Minister would rather not do that. That is why I felt that I should support the noble Lord, Lord Pannick, and his amendment.

[Baroness Lister of Burtersett]

I speak briefly in support of the amendment. The noble Lord, Lord Pannick, referred to the letter from the Minister, which said that this is not a novelty and then gave various examples. However, it seems to me that the examples are rather different in kind. They said “particular weight” rather than “little”. I refer back to the report from the Joint Committee on Human Rights, which acknowledged that,

“Parliament often establishes statutory presumptions to be applied by courts and tribunals when they are determining individual cases, and occasionally directs that ‘particular weight’ is to be given to a particular consideration in a judicial weighing exercise. Nevertheless”—

this is emphasised—

“we are uneasy about a statutory provision which purports to tell courts and tribunals that ‘little weight’ should be given to a particular consideration in such a judicial balancing exercise. That appears to us to be a significant legislative trespass into the judicial function”.

The amendment offers the Government a way out of that “trespass”, and I hope that the Minister will feel able to take it.

Scotland: Independence Referendum

Lord Hope of Craighead Excerpts

Thursday 30th January 2014 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, I, too, pay tribute to the noble Lord, Lord Lang, for initiating this debate. He has done a valuable service to the House by raising the profile of this issue at a critical time in our national affairs.

I would like to say just a few words about our legal systems and what the Treaty of Union, to which the noble Lord, Lord Forsyth, referred, had to say about them. In 1606, King James I and VI said of the English system, perhaps rather to the surprise of the Scots, of which he was one, that it was the best law in all the world. His vision was for the English law system to be the system throughout Great Britain. One hundred years later, that was not how the commissioners saw matters when the Treaty of Union was formulated. What was provided there, with great care, was that Scotland would be able to keep its own legal system, which by then had developed, in all time coming. In Article XIX, it was provided that no causes in Scotland were to be heard in any of the English courts sitting in Westminster Hall. At first sight, the idea was that the two systems would be kept entirely separate, standing on their own two feet. The two would never meet: one country, two systems.

However, that is not how the union worked in practice, and it is typical of what happened in so many aspects of the way in which the union has worked. It did not take very long for canny Scots lawyers to spot that the House of Lords did not sit in Westminster Hall, and that led them to bringing appeals before this House. In 1709, the House held that it had jurisdiction to hear appeals from Scotland. That gave rise to an increasingly close association between the English and Scottish legal systems which has lasted for more than 300 years—woven into the fabric, as the noble Lord, Lord Lang, put it. That is reflected today by the fact that the United Kingdom Supreme Court hears appeals from all parts of the United Kingdom, as this House did in this very Chamber for so many years before the Supreme Court was created, and by the fact that the court now has justices from Scotland and Northern Ireland among its membership.

There is a very important question as to what is to happen in Scotland if the referendum were to result in a vote for separation. Typically, the White Paper does not say a word about that, but I am not going to say a word about it either, because our concentration today is on the United Kingdom, not what is to happen in Scotland alone. For that purpose, I want to say just a little more about how that has developed since 1707.

It took a little time before the Scots judges began to sit in this House—the first was in 1867, as it happened—but a few years later, the Appellate Jurisdiction Act was passed, which provided for permanent Lords of Appeal in Ordinary and, more or less, since then there have always been two Scots Law Lords, and now two Scots Justices of the Supreme Court. The total has reached 21 over that period, but merely to mention the figure is only part of the story. It has always been understood that the Scots Law Lords could sit on appeals from other parts of the United Kingdom—as, indeed, those from England and Northern Ireland could on Scots appeals—and this has been greatly to the advantage of all three jurisdictions.

It could perhaps be said that the Scots have pulled somewhat above their weight in contributing to the development of law elsewhere in the United Kingdom. One has only to mention the name of Lord Reid, who sat as a Law Lord in this House for 26 years, from 1948 to 1975, the longest serving Law Lord of them all, to make the point. It is not only his long service that marks him out as one of the outstanding lawyers of his generation: the quality of his judgments, the perception of the issues that they raised and their clarity were all outstanding, and are cited every day in the courts up and down this country. There is no time to go over the contribution that others have made. My part is perhaps enshrined in the fact that I am shown in a portrait in Committee Room 1 delivering the House of Lords’ last judgment in an English appeal. Earlier this month, I was referred to in a case which came from Northern Ireland and, just yesterday evening, a decision by Lord Reid in an English case was referred to in the Supreme Court. The fact is that our contributions have been built into the entire system as part of its fabric.

This brings me to the consequences for the United Kingdom if that tradition is broken. The process of cross-fertilisation of ideas across the border will cease. The tendency to prefer principle to precedent, which is one of the characteristics of the Scottish approach, is also at risk of being lost. So, too, will be the breadth of experience which has always marked Scots judges out in comparison with the specialists from England. Of course, the loss of the two Scots justices, if and when this has to happen, can be made good, but the breadth of vision which comes from having what is at present a court for the entire United Kingdom that draws its ideas from a broad canvas, cannot.

As I said at the start, it was not anticipated at the outset of the union that these two legal systems should grow together as they have, but that is what has happened, as it has been appreciated on both sides of the border that their systems draw strength from working together with each other while respecting their differences, rather than working separately. Both sides have a lot to lose if that relationship is broken—jettisoned, as the noble Lord, Lord Steel, said earlier—as it is bound to be if the right of appeal is to be ended and Scottish justices are no longer present. I, for one, would very much regret that development.

[Earl Attlee (Con)]

My Lords, your Lordships are doing extraordinarily well at keeping to time, but timings are quite tight. If noble Lords speak when the indicator shows seven, they are in the eighth minute. If too many noble Lords do that, we will run out of time.