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

Debate between Lord Hope of Craighead 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 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.

[Lord Hope of Craighead (CB)]

My Lords, the noble Lord, Lord Foulkes, explained in his introduction that these are probing amendments, and I hope that the Minister will understand my remarks in that context. I would like to speak to both amendments but my main focus is on Amendment 8, which seeks to leave out sub-paragraph (ii) in Clause 2(7)(b)—that is, the reference to the Secretary of State acting with the consent of Scottish Ministers. However, anything that I might say now is without prejudice to my support for the notice given by the noble and learned Lord, Lord Falconer of Thoroton, and others of their opposition to the clause standing part of the Bill at all.

I have three points to make. The first reinforces what others have already said. It is important to know which of these authorities is expected to exercise the powers referred to in this clause. That is because if it is the Scottish Ministers, paragraph 4 of Schedule 6 applies and the regulation has to be laid before the Scottish Parliament as a Scottish statutory instrument under Section 29 of the Interpretation and Legislative Reform (Scotland) Act 2010. If it is the Secretary of State, it comes under paragraph 2 of Schedule 6 as a statutory instrument in this Parliament and the Scottish Parliament will have no say in the matter at all. The word “or”, which lies between those two alternatives, gives no guidance as to which of them, or in what circumstances, it is to be. My first question, following what others have said is: why is that?

This clause is about implementation and application—implementation in Clause 2(1) and application as between the relevant jurisdictions in Clause 2(2). I think that I could understand the position if the Bill said that implementation in Clause 2(1) was a matter for Scottish Ministers and application as between the jurisdictions was a matter for the Secretary of State with the consent of Scottish Ministers, but that is not how the Bill stands at the moment.

For example, on implementation, if one were considering the UK acceding to the Lugano convention, about which so much has already been said, it would seem that nothing more is needed to implement it into Scots law as an instrument as the instance of Scottish Ministers. One can look again at the illustrative statutory instrument—the Singapore convention, which the Minister attached to his helpful letter of 5 May. It gives the force of law to that convention in England and Wales. If the same were to be done for Scotland, surely that would be a matter for the Scottish Ministers alone. Therefore, in the context of implementation, what part has the Secretary of State to play at all?

My second point concerns whether the reference to the Secretary of State is consistent with the Scotland Act 1998. Paragraph 7 of Schedule 5 to that Act provides that international relations are reserved matters, but paragraph 7(2) states that paragraph 7(1) does not apply to

“observing and implementing international obligations”

or

“assisting Ministers of the Crown in relation to any matter to which”

paragraph 7(1) applies. Therefore, the matters dealt with in paragraph 7(2) are devolved, as indeed is private international law itself, as the noble and learned Lord, Lord Wallace, has pointed out.

This clause is about implementation and application, and it would seem to fall squarely within paragraph 7(2). I should have thought that that reinforces the point that these should be matters for Scottish Ministers only. Section 53 of the Scotland Act provides for a general transfer of functions exercisable by a Minister of the Crown to the Scottish Ministers. That reinforces my query as to what function the Secretary of State has in this matter at all.

Victims and Witnesses (Scotland) Act 2014 (Consequential Modification) Order 2019

Debate between Lord Hope of Craighead and Lord Wallace of Tankerness

Wednesday 26th June 2019 Lords Chamber

[Lord Hope of Craighead (CB)]

My Lords, looking at the matter from the point of view of a sheriff sitting in a court in Scotland, I think that the order is much to be welcomed. The fact is that people move about, and some offenders coming to Scotland from England or Wales disappear back to England or Wales after they have been sentenced. It is necessary that this measure be passed so that the order that the sheriff would like to make can be properly put into effect.

[Lord Wallace of Tankerness (LD)]

My Lords, we also support the order, but I have one or two questions for the Minister. We heard in the previous debate about legislation that came into effect in 2012 and we were only now getting around to considering the order. My understanding is that the Victims and Witnesses (Scotland) Act was passed by the Scottish Parliament in late 2013 and received Royal Assent in January 2014. Here we are, more than five years after Royal Assent, considering this order.

Paragraph 7.1 of the Explanatory Memorandum states: “Included in these measures”—that is, the measures in the 2014 Act—

“is the victim surcharge, a new financial penalty to be imposed on offenders in certain cases as will be set out in the Victim Surcharge (Scotland) Regulations 2019”.

Is it right that we do not yet have these regulations, so we do not know what will be in them, what the circumstances would be nor the measure of the penalties? I think that there is reference somewhere to a sliding scale, but has the Minister seen any draft regulations? In inviting the House to approve this measure, it might have been reasonable to give us some idea as to what precisely the Scottish Government had in mind. I know the Scottish Parliament will be able to look at this order, but it would have been helpful to have had a bit of colour: if he has that information, it will be very welcome.

I emphasise that it has been a very long journey to get here. On a visit to Victim Support Scotland in August 2014, the then Justice Secretary in the Scottish Government, Mr Kenny MacAskill, met victims who had been helped by the existing fund, run by that very important organisation. Mr MacAskill indicated that they were the kind of victims who would be helped by the victim surcharge fund. Indeed, the Scottish Government’s press release accompanying Mr MacAskill’s visit said:

“A new fund providing more than a million pounds a year of practical help for victims of crime is set to be introduced in the coming months as part of the Scottish Government’s package of measures to improve the support for victims and witnesses in Scotland … The Victim Surcharge Fund will be established in the next few months and is likely to be administered by Victim Support Scotland”.


That press release was dated 13 August 2014.

A series of questions have been asked in the Scottish Parliament about when we are actually going to get these regulations. My Liberal Democrat colleague Alison McInnes, then Member for North East Scotland, asked in July 2015,

“what (a) criminal offences, (b) circumstances and (c) descriptions of offender can cause a victim surcharge to be imposed”.

She was told by Mr Michael Matheson, who by that time had taken over from Mr MacAskill as Scottish Justice Secretary:

“The victim surcharge is not yet operational, nor have the relevant provisions in the Victims and Witnesses (Scotland) Act 2014 been brought into force. Therefore, no surcharges have been imposed or payments made. The victim surcharge is due to be introduced later in 2015, ensuring that offenders contribute towards a fund specifically to support victims of crime. Preparatory work for the establishment and administration of the fund is ongoing … details of how it will operate, including the circumstances in which a surcharge is to be imposed, will be set out in subordinate legislation and will be subject to parliamentary approval in due course”.


Fast forward—or not-so-fast forward—to February 2016, when Ms McInnes was given a further answer from Michael Matheson:

“Preparatory work for the establishment and administration of the victim surcharge fund is on-going. The timetable for the introduction of the fund has been influenced by a number of factors, including further detailed consideration of viable options for delivery and the potential role of third sector or other organisations in this process”.


Then we get to an answer given to my colleague, Member of the Scottish Parliament for Orkney, Mr Liam McArthur, who asked in December 2016 what progress had been made in establishing the victim surcharge fund and when it was expected to be operational and issue its first payments. To this, he got the reply:

“It is the Scottish Government’s intention to establish the fund in 2017 and to initially impose the surcharge on offenders given a court fine. Further details of how the fund will operate will be set out in subordinate legislation, which will be subject to parliamentary approval in due course”.


So here we are at the beginning of 2017, three years after Royal Assent, and we are still talking about it being done “in due course”.

There were further questions of a similar kind. Mr Humza Yousaf, who had by this time taken over from Mr Michael Matheson, said on 17 July last year:

“Our intention is to announce further details on the VSF, following the summer Parliamentary recess”.


The then Conservative Member for North East Scotland, Liam Kerr, asked in October 2018 on what date the fund would become operational. Mr Yousaf, replying on 7 November 2018 said:

“In order to ensure effective operation of the victim surcharge in Scotland, an Order under section 104 of the Scotland Act 1998 … is required to amend section 24 of the Criminal Justice Act 1991 … which is reserved”.


That is the very point we are debating in relation to this order, but one notes that not until November 2018 did the Scottish Government ever say that there was any issue about trying to get a Section 104 order. Will the Minister tell us when the Scotland Office was first approached by the Scottish Government with regard to identifying the necessity for such an order? Mr Yousaf went on to describe the order and said:

“The UK Government have agreed in principle to this Order and have estimated that, once all the necessary steps are completed, it will come into force in summer 2019, subject to UK Parliamentary timescales. The Victim Surcharge (Scotland) Regulations, which will implement the surcharge, will be laid before the Scottish Parliament, as soon as practicable after the section 104 Order comes into force”.


In all fairness to the United Kingdom Government, they have held to summer 2019 reasonably well. In a reply to a parliamentary question from Liam McArthur last month, that timescale was repeated by Mr Yousaf in very similar terms.

It is widely agreed that this is an important provision. It is one that will actually give support to victims from the fund created, and it is a matter of considerable regret that it has taken the Scottish Government five years after legislating to even come up with a proposal on how their flagship policy might work. That is not a responsibility of the United Kingdom Government, but it would be very helpful for us to have some colour as to the detail of the proposal. For example, while it is important that we look at the position of victims, we also need to consider those who might have this sanction applied to them. What are the guidelines to ensure that they do not have so much taken out of their benefits that they then struggle to make ends meet, which might actually drive them, in some circumstances, to further crime? That is a detail we do not know and if the Minister has any information on that, it would be very welcome.

As I say, my Liberal Democrat colleagues in the Scottish Parliament have been pushing the Scottish Government hard to make progress on this and it is important that we have this order tonight. We very much welcome it and will certainly give it our support.

European Union (Withdrawal) Bill

Debate between Lord Hope of Craighead and Lord Wallace of Tankerness

3rd reading (Hansard): House of Lords
Wednesday 16th May 2018 Lords Chamber

[Lord Wallace of Tankerness (LD)]

My Lords, I will speak to Amendment 9 in my name. The Bill was substantially amended on Report with regard to the devolution dimension. Among other things, what one might describe as confidence-building measures were put in to ensure that Ministers, having given certain undertakings with regard to how they would exercise their powers to make regulations, would do that and would regularly report to Parliament to ensure that it was being done in good faith.

The reports have to be done on a three-monthly basis: the first report certainly has to be done three months after the date when the Act is passed and:

“Each successive period of three months after the first reporting period is a reporting period”.


That report must explain how,

“principles …agreed between Her Majesty’s Government and any of the appropriate authorities, and … relating to implementing any arrangements which are to replace any relevant powers or retained EU law restrictions, have been taken into account during the reporting period”.

That is fair enough as far as it goes, but it does not give much colour or substance as to what these principles are.

My concern, which I raised on Report, was that there was insufficient detail as to the principles. However, I asked whether the principles referred to were those agreed at the Joint Ministerial Committee,

“back in October or November, which have certainly been discussed before. However, it is slightly odd to have reference to ‘principles’ which, as far as I can see, will not actually appear in the Bill. Because we have debated this often enough, we perhaps know what the principles are, or at least know where they can be found, but to anyone coming to this fresh it would not necessarily indicate where these principles are”.—[Official Report, 2/5/18; col. 2141.]

I asked the Minister if he would confirm that the principles were indeed those agreed in the communique of the Joint Ministerial Committee.

The noble and learned Lord the Advocate-General for Scotland said in his response:

“Noble Lords will recollect that, at the Joint Ministerial Committee in October last year, the principles to be applied were agreed by all those attending: the Welsh Government, the Scottish Government and the United Kingdom Government. I just add in response to a point raised by the noble and learned Lord, Lord Wallace, that where he finds reference in the amendments to ‘principles’, that refers to the principles that were agreed at that stage and are carried over in the agreements”.—[Official Report, 2/5/18; col. 2164.]


I hope we have established common ground that the principles referred to are indeed those agreed and set out in the communique of 16 October 2017 from the Joint Ministerial Committee on European Negotiations. I am very grateful that the Printed Paper Office has made available copies of that communique for noble Lords to read.

I will not read it all out ad longum but it is worth noting that they are principles that relate to where common frameworks need to be established. They have to do so to,

“enable the functioning of the UK internal market, while acknowledging policy divergence … ensure compliance with international obligations … ensure the UK can negotiate, enter into and implement new trade agreements and international treaties … enable the management of common resources … administer and provide access to justice in cases with a cross-border element”,

and

“safeguard the security of the UK”.

It also says that when frameworks are to be established they,

“will respect the devolution settlements and the democratic accountability of the devolved legislatures, and will therefore … be based on established conventions and practices … maintain as a minimum, equivalent flexibility for tailoring policies to the specific needs of each territory as is afforded by current EU rules … lead to a significant increase in decision-making powers for the devolved administrations”.

In addition, and this has occupied many hours of debate in your Lordships’ House as this Bill has gone through:

“Frameworks will ensure recognition of the economic and social linkages between Northern Ireland and Ireland and that Northern Ireland will be the only part of the UK that shares a land frontier with the EU. They will also adhere to the Belfast Agreement”.


These are not insignificant principles. In fact, I think they are very important. If the Bill is going to be complete —people coming to the Bill should not necessarily have to try to work out where these principles are to be found—in the interests of having a tidy statute book these principles should at least be there by reference. I cannot readily see an objection to that, given that there is an understanding what these principles are. They are not to the exclusion of other things that might be agreed by the UK Government and the devolved Governments but at least they are a starting point. I hope the amendment will commend itself to the Government because it is entirely consistent with their policy.

In passing, I refer to the amendment moved by my noble friend Lord Thomas of Gresford and wonder if that were accepted for Wales, it would help find an agreement in Scotland, if it was also applied to Scotland. I suspect it might not go as far as the Scottish Government want because it does not give them the requirement for consent. It says:

“A Minister of the Crown will not normally lay a draft,”


unless such consent had been given. Perhaps the noble and learned Lord will respond to this. Unlike Section 28(8) of the Scotland Act 1998 and the equivalent provision in the Government of Wales Act which says that Parliament will not normally legislate in primary legislation, here we are dealing with Ministers. I assume that if Ministers are laying regulations, they could be subject to judicial review in a way in which a decision of Parliament would not be. That might give further encouragement to the Scottish Parliament that its concerns have been listened to. In responding, the Minister might also just take the opportunity to indicate the Government’s position in relation to the vote of the Scottish Parliament yesterday.

[Lord Hope of Craighead (CB)]

My Lords, to follow what the noble and learned Lord, Lord Wallace of Tankerness, has just said, the Minister may remember that I raised how to deal with the Sewel convention in relation to delegated legislation on several occasions in Committee, in dealing with what is now to be found in Clauses 9 and 11 of the Bill as it is printed for this stage of the proceedings. My recollection is that my points were dealt with by assurances from Ministers that the Sewel convention principles would apply to the making of delegated legislation in the context of both Clauses 9 and 11.

I do not have down an amendment in the same terms as that proposed by the noble Lord, Lord Thomas of Gresford, in relation to Wales because I can assume, I think, that the same principle would apply to the corresponding provision for Scotland earlier in the same clause, and no doubt to Northern Ireland as well. For my part, I would be content if an assurance could be given specifically in relation to the mechanism in this clause that means the Sewel convention would be respected in the way the amendment describes. That would be consistent with the assurances I have had in relation to the earlier provisions and would avoid writing the Sewel convention into the Bill, which I understand Ministers are anxious not to do because, in the case of Miller, it was described as merely a convention—important though it may be. I would be grateful if the Minister, when he comes to reply, would give an assurance in relation to both Wales—which has been sought—and Scotland, and no doubt to Northern Ireland as well, although it is not represented here today.

European Union (Withdrawal) Bill

Debate between Lord Hope of Craighead and Lord Wallace of Tankerness

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

[Lord Hope of Craighead (CB)]

My Lords, Amendment 266, which is in my name, is in a series of groups dealing with devolution. It is in the first of five groups dealing with rather technical points arising out of Schedules 2 and 8. They precede a lot of government amendments which are in the group following my groups. I suggest that the main discussion about devolution and its consequences is best reserved for the government amendments which are focused on Clause 11 and other clauses. I am afraid my groups are rather boring, because I am dealing with a whole series of little technical points which need adjustment to some extent in the light of progress that is being made in discussions with the devolved authorities, among other points.

The theme that runs through all my amendments is the need to respect the devolution settlements in Scotland and Wales. I am confident that the Government share that sentiment. It is all a question of how the matter is worked out in points of detail. The basic rule following our withdrawal from the EU, I suggest, is that returned EU competencies in the devolved areas should be distributed among the devolved authorities in accordance with the devolution statutes. That means that what falls within devolved competence should be treated as devolved, with all that that means, and what falls within reserved matters should be treated as reserved, with all that that means.

The statutes that form the foundation for the devolution settlements—the Scotland Act 1998 and Government of Wales Acts, the latest of which was in 2017—were all built on the foundation of our membership of the EU. In each of these statutes, it was taken as accepted that it would not be within the competence of the devolved Administrations to legislate on matters relating to EU law or indeed to take executive action in relation to these matters either.

What we have in the Bill, in place of EU law, is a new creature called “retained” EU law, which is the law that comes back to us either because it is already present in the United Kingdom or is direct EU law that is coming back to us and is not yet built into our laws but requires being built in using the mechanisms described in the Bill. In the original drafting of the Bill, retained EU law is treated as simply a mirror image of EU law, so that in that original drafting—which can be seen in Clauses 11(1) and (2)—the same restriction on competence which applied in relation to EU law is applied to retained EU law. I am delighted to see that, in developing their thinking on this matter, the Government recognise that this really is not acceptable within the devolved arrangements. A much more nuanced approach to that topic can be seen in the government amendments that we will come to later this afternoon.

What I seek to do in the preliminary groups is to draw attention to various other passages in the Bill that need to be corrected in order to be compatible with the devolution settlements. In some of the groups—but not in the first—it is already clear from the government amendments that they are in almost the same position as I am as to what needs to be done.

I turn to Amendment 266, in the first of these groups, and also mention amendments 278 and 292, which raise exactly the same point in relation to different parts of the Bill. Amendment 266 deals with the power to deal by regulation with deficiencies arising from the withdrawal from the EU, which is the subject of Clause 7. It appears in Part 1 of Schedule 2 in the form that is appropriate for the activities of the devolved institutions in carrying out the exercise to which Clause 7 refers.

Amendment 278 deals with the power by regulation to prevent breaches of international obligations, which is the subject of Clause 8. The devolution mechanism for this is dealt with in paragraph 13 of Schedule 2. Amendment 292 relates to the power by regulation to implement the withdrawal agreement and the mechanism for the devolved Administrations is set out in paragraph 21 of Schedule 2.

The point to which these three amendments draw attention is a qualification that is to be found in each of these contexts on the power of the devolved authority to make provision by regulations regarding these three matters. The particular provision that I am concerned about is found in paragraph 1(4) of Schedule 2:

“Regulations under this Part, so far as made by a devolved authority … (b) may not confer a power to legislate (other than a power to make rules of procedure for a court or tribunal)”.


At first sight that qualification cuts across the concept of devolution, the effect of which is that if a matter is within devolved competence, it is for the devolved authority to take its own decisions as to how to deal with that matter, in whatever way it regards as appropriate. Under the devolution statutes, the qualification that we find in this provision and its equivalents in paragraphs 13 and 21 is new: in my experience it has not been encountered before. To an extent, therefore, these three amendments are probing, to enable the Minister to explain why this qualification has been inserted in these paragraphs and, if no reasonable explanation is given, to suggest to her that maybe the qualification should be removed, on the ground that when it comes to exercising powers within the devolved area, it should not be there.

It is right to add that Part 1 of Schedule 2, for perfectly understandable reasons, contains qualifications. For example, paragraph 2 states that:

“No regulations may be made under this Part by a devolved authority unless every provision of them is within the devolved competence of the devolved authority”.


That is a perfectly sensible provision, and consistent with the devolution scheme. What troubles me is why the qualification that I have mentioned should be there. My question is: should it be there at all? And if it should not be there, should it not be taken out? I beg to move.

[Lord Wallace of Tankerness (LD)]

My Lords, the Committee is indebted to the noble and learned Lord, Lord Hope of Craighead, for his detailed analysis of the Bill as it originally stood, and the points arising. My name is on the amendment, but I would be happy to deal with the important issues of principle that prompted me to sign some of these amendments, in an attempt to honour the spirit of the original devolution settlement, when we deal with the group containing the government amendments. Obviously, however, I support the amendment that the noble and learned Lord has moved.

European Union (Withdrawal) Bill

Debate between Lord Hope of Craighead and Lord Wallace of Tankerness

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

[Lord Hope of Craighead (CB)]

My Lords, I would like to intervene, following what the noble and learned Lord, Lord Mackay, has said, and referring to the amendment that was moved by the noble Lord, Lord Foulkes of Cumnock. One of the problems I have faced since looking at this Bill, is trying to find hard examples of situations in which the Supreme Court would wish to refer a matter to the European Court of Justice.

There is a very good example reported in Monday’s Times of a case called SM (Algeria) (Appellant) v Entry Clearance Officer. I will take a moment to explain what the case is about, because it is a good example of citizens’ rights. SM was a little girl, who was placed into the legal guardianship of EU citizens, who happened to be in Algeria. The question concerned her position in coming to the United Kingdom as a member of that family under the Immigration (European Economic Area Regulations) 2006. Merely referring to those regulations reminds us that they would become, as I understand the position, retained EU law under Clause 2 of the Bill.

The problem arose because the court saw that the regulation had been transposing wording from a directive, which is the normal way in which these things work, but the transposition was inaccurate. This is a situation I have encountered before—it happens from time to time. The question is how to deal with the inaccuracy. The inaccuracy was that while our regulation talked about “family member”—somebody who was put into the legal guardianship of a couple, would normally be regarded as a member of the family—the directive was talking about “direct descendants”, and she was not a direct descendant, because she was not actually related, in that sense, to the people who had become her guardians. In order to resolve that problem, the court found it necessary to refer the matter to the European Court of Justice—which it did on Monday. That was under the existing position.

In resolving the point raised by the noble Lord, Lord Foulkes, it may help to ask how that matter would be handled after exit day. I may be wrong, but my understanding is that it would be for the Supreme Court to resolve the issue itself. The directive would come into EU retained law under Clause 3, so we would have both pieces of legislation to look at. I think that the court, having regard particularly to the way in which we had translated the directive, would give great weight to our own language and regard this little girl as part of the family and therefore entitled to take the benefit of the regulation.

In explaining the situation, I hope I have not made it too complicated, but it is a good example of citizens’ rights, accorded by our own regulations, giving effect to EU law. There must be very many in the corpus of regulations which forms part of EU law. It comes back to the point made by the noble and learned Lord, Lord Mackay of Clashfern. The Supreme Court looks very carefully at the interests of children and would accord every weight to the normal rules about the priority given to the interests of the child in construing the regulation in a sense that fits with our own language. I should have thought that, after exit day, the question of referring the matter to the European Court of Justice simply would not arise because the court would be capable of resolving the issue itself without being bound by the problem of having to refer something which was not that clear. If I may use the English expression, it was not crystal clear; therefore they were bound to refer. Under the situation after exit day, any superior court will be fully able to resolve the problems of interpretation that arise. Will the Minister confirm that, in this situation, there would be no need for a reference because our courts would be able to deal with it perfectly properly, looking at the language of our own regulations, despite the problem that might have arisen in translating them from the directive into English?

[Lord Wallace of Tankerness]

I am grateful to the noble and learned Lord. The point made by the noble Lord, Lord Foulkes, in moving this amendment— I referred to it myself—was that, as part of the agreement that was struck between the United Kingdom and the European institutions in December, provision was made to,

“establish a mechanism enabling UK courts or tribunals to decide, having had due regard to whether relevant case-law exists, to ask the CJEU questions of interpretation of those rights where they consider that a CJEU ruling on the question is necessary for the UK court or tribunal to be able to give judgment in a case before it”.

So it is not a case of questioning the ability of the Supreme Court. We have entered into an agreement which says that there must be an opportunity or a mechanism to refer to the Court of Justice of the European Union. How does the noble and learned Lord see the mechanism for giving effect to what the United Kingdom Government have agreed?

[Lord Hope of Craighead]

I have listened with great care to what the noble and learned Lord has said but I cannot look into the future. I do not know what is going to happen as a result. We just have to look at the present situation. There are two factors to bear in mind. As far as the UK is concerned, for people looking to come here, an immense amount of citizens’ rights are guaranteed already under the regulations which implement directives. We ought not to lose sight of that. Secondly, problems of interpretation because of conflicts between the wording of the directive and our transposition of it, give rise to some doubt. Under the existing position, there is an obligation to refer which will not be present after exit day. This is a different situation with which I believe our courts will be able to cope perfectly well.

Tributes: Baroness D'Souza and Lord Laming

Debate between Lord Hope of Craighead and Lord Wallace of Tankerness

Monday 5th September 2016 Lords Chamber

[Lord Wallace of Tankerness (LD)]

My Lords, it is a pleasure to follow the Leader of the House and the Leader of the Opposition in paying tribute to the noble Baroness, Lady D’Souza, on behalf of the Liberal Democrat Benches, and to give our thanks to her for the dignity with which she discharged her duties as Lord Speaker. It is, of course, a comparatively new post and, building on the foundations laid by the noble Baroness, Lady Hayman, the noble Baroness, Lady D’Souza, has developed and shaped the office during her time in that role.

The noble Baroness performed her ceremonial roles with considerable dignity. I always thought that she found exactly the right words whenever welcoming and thanking visiting dignitaries. The fact that both the noble Baroness the Leader of the House and the noble Baroness, Lady Smith of Basildon, talked about her outreach work, shows the stamp she put on the office. She ensured that the office of Lord Speaker did not focus inward on your Lordships’ Chamber but was outward facing. She developed an extensive outreach programme with the public. She spoke with many civil society and educational groups, attended countless public meetings across the country to describe the work of the House, and continued and expanded the innovative Peers in Schools programme, reaching out to schools far and wide.

She also sought to bring the outside world into Parliament. The noble Baroness, Lady Smith, reminded us of the visit of President Jimmy Carter. For me, it was a most memorable event. Her decision to invite him was significant because he was willing to accept. I do not know whether it was cunning or inadvertence on her part, but the initial invitation to us was just to a lecture by President Carter. It was only on the day that I realised that the subject was to be the eradication of Guinea worm disease. I must confess that I did not expect to be quite so fascinated by a parasitic infection. This lecture, given as part of the Lord Speaker’s global lecture series, demonstrated again the commitment of the noble Baroness, Lady D’Souza, to strengthening links between Parliament and the wider community outside. This has been complemented by her work in strengthening the relationships of this House with many Parliaments overseas.

She had the challenge, if I may put it like that, of chairing the House Committee. I wonder how many former members of the committee share my view that her initiative in the last six months of her term in hosting the meetings in her rooms, accompanied by refreshment, boosted their productivity and seemed to shorten them.

Throughout her tenure as Lord Speaker, the noble Baroness, Lady D’Souza, fiercely sought to safeguard the reputation of this House at a time of increased scrutiny. At our regular meetings we often discussed our shared interest in upholding the good standing of this House and working through a number of difficult issues to find the best solutions for the House and all its Members. It is with much affection that, on behalf of these Benches, I wish her very well as she stands down from the role.

I also pay tribute to the noble Lord, Lord Laming, for stepping into the role of Chairman of Committees at what was, we recall, a difficult time for your Lordships’ House. As they say, a volunteer is worth 10 pressed men or women. The noble Lord was always assiduous in his role, seeking to work in a most consensual way for the benefit of the House. His courtesy, respect for colleagues, attention to detail and steady guidance have been of considerable benefit, and he has always taken care to fully understand the issues. Again, I extend our warmest and heartfelt thanks to the noble Lord, Lord Laming, and wish him well in his chairmanship of the new Services Committee, to which he brings considerable experience.

I also welcome the noble Lord, Lord McFall of Alcluith, to the post of Senior Deputy Speaker. We go back many years to our time together in the House of Commons, and I know that that post is in secure hands. I also welcome our new Lord Speaker, the noble Lord, Lord Fowler. As the noble Baroness, Lady Smith, reminded us, he is the first man to hold the post. The noble Lord’s election demonstrated that he has the overwhelming confidence of this House and I wish him very well indeed in his new role.

[Lord Hope of Craighead (CB)]

My Lords, perhaps I may be permitted to add a few words from these Benches, as both of those to whom we are paying tribute this afternoon were previously Convenors of the Cross-Bench group and it is to this group that they have both now returned.

The noble Baroness, Lady D’Souza, came to the Cross Benches when she was made a Member of this House in July 2004. Her warm and generous personality made an immediate impact, and it came as no surprise when she was elected Convenor only three years later, in 2007, in succession to Lord Williamson of Horton. She held that position for nearly four years until her election as Lord Speaker in 2011. Then it was the noble Lord, Lord Laming, who was elected by the Cross Benchers to take her place as their Convenor. When he retired after serving his full term of four years, he must have thought—as the noble Baroness, Lady Smith of Basildon, suggested—that the time had come for him to take a back seat and lead a quieter life. But, of course, those who were wondering who was best suited to take over as Chairman of Committees at a critical time had other ideas. We were so very fortunate that the noble Lord was willing to be persuaded to fill the gap. No one was better suited to do this than he was.

I well remember the day when the noble Baroness contributed her own words as Convenor to the farewell to the Law Lords when the appellate jurisdiction of this House came to an end in July 2009. We the Law Lords were all sitting that day on the Cross Benches as members of her group for the last time before we were disqualified on our move to the Supreme Court. We appreciated her kind words very much. For me, four years of disqualification followed. So I was unavoidably absent for the rest of her convenorship, for the first two years of her time as Lord Speaker, and for the first two years of the noble Lord’s time as Convenor. However, when I came back in the summer of 2013 I was able to see them both in action.

It struck me at that time, and has been borne in on me even more now, that we expect an awful lot of our Lord Speaker. It seemed to me that her position on the Woolsack, although always dignified, was a rather lonely one. As others have said, her real contribution to the House has been in the work she has done outside the Chamber. For many of your Lordships much of what she did there was not obvious, but it has been my privilege during the past year to see quite a lot of her. I had regular meetings with her when she was Convenor, attended functions over which she presided and saw her work as chairman of the House Committee and as a member of the Procedure Committee and the Committee for Privileges. On each of these occasions she played an important and valuable role, always putting the needs of the House before all other considerations.

As for the functions, I remember the great ones, which included the addresses in the Royal Gallery by the President of China and the German Chancellor, Angela Merkel, over which she and the Speaker presided, as well as the more intimate ones on her own in the Reading Room, particularly the one that both the noble Baroness, Lady Smith, and the noble and learned Lord, Lord Wallace, mentioned, when Jimmy Carter came to talk to us about his work to eradicate the Guinea worm disease. My recollection of that event is that she took the risk at the end of the lecture of asking whether anyone had any questions on what he had been talking about. Anyone who has chaired a lecture knows how risky that can be. I still remember the look on her face when a wholly irrelevant and really rather naughty question was asked by a journalist: “Trump or Clinton, who will it be?”. That was six months ago, long before we knew who the final candidates would be, and I remember the look of sheer relief on her face when Jimmy Carter dealt with the cheeky question head on, generously and at length, instead of refusing to answer it—although, of course, skilled politician that he is, he did not really answer the question.

The noble Baroness did us proud on these occasions, charming our visitors with her grace and the warmth of her welcome. There were hard times for her, too, as the holder of any great public office must experience from time to time. Whatever she felt inside, she bore them with remarkable courage and fortitude. We have much to be grateful for. All of us on the Cross Benches wish the noble Baroness well on her retirement from the many responsibilities that she has borne so well. We look forward very much indeed to welcoming her back to these Benches, where she still has so much to contribute.

We welcome, too, the return to these Benches of the noble Lord, Lord Laming. Let us be clear that it is certainly not because of what he has done that the role of Chairman of Committees has been reformed. He brought to that office a charming mixture of kind, self-deprecating humour and quiet efficiency. Committee meetings under his chairmanship, for which he always prepared very carefully, were always a pleasure and he struck exactly the right tone when presenting his committee’s reports to the House. We have much to be grateful for and I know that I have the support of all of those who are with me on the Cross Benches when I say how much we appreciate what he has done in that role. As has already been said, we are very fortunate indeed that he has agreed to serve from these Benches as the first chairman of the Services Committee as it settles into its new responsibilities. So, as I am sure he knows only too well, the work that he is doing for the House is not yet over.

On behalf of these Benches I also extend a very warm welcome to the noble Lord, Lord Fowler, as our new Lord Speaker and to the noble Lord, Lord McFall, in his new role looking after the committee system, which has been so carefully reformed. We look forward very much indeed to working with them both in the future.

House Committee

Debate between Lord Hope of Craighead and Lord Wallace of Tankerness

Thursday 21st July 2016 Lords Chamber

[Lord Wallace of Tankerness (LD)]

My Lords, I, too, support the Motions moved by the noble Baroness the Leader of the House. The point made by the noble Lord, Lord Balfe, with regard to Members’ allowances will be very much on the agenda of the new House of Lords Commission, as it has been recently on the agenda of the House Committee.

With respect to the Procedure Committee report, I, too, welcome the fact that the pilot scheme for having ballots during recesses for Oral Question slots has now been put on a permanent basis. The pilot schemes have shown that this works and helps those who live outwith London. I also very much welcome the fact that we are to have Clocks showing seconds, as I think that will help to get us through debates. If noble Lords are given an advisory speaking time of seven minutes, there is a tendency—this is only natural—when we see seven minutes up on the Clock to think that we are still within the advisory time when, in fact, we have run over. The noble Baroness the Leader of the House mentioned the Clocks being replaced. Can she indicate when the Clocks are likely to be replaced and we will have Clocks showing seconds?

With regard to the recommendations of the Leader’s Group on Governance, I echo what has already been said. I pay tribute to and thank the noble Baroness, Lady Shephard, for the work that she and her group did on this matter, and, indeed, the previous Leader of the House the noble Baroness, Lady Stowell, who set all this in motion and gave it the impetus to see it through to the Motions before us today.

My noble friend Lady Maddock made an important point and I hope that, when she replies to the debate, the Lord Privy Seal will be able to offer some reassurance on it. My recollection of the governance report is that it indicated the intention that there should be a Speaker’s advisory committee. I think that continuity in that regard was anticipated. However, if the noble Baroness can offer reassurance on that point it would be very welcome.

If we are to perform our duties in this House in scrutinising the Executive, we need facilities and services to enable us to do it. Therefore, it is important that when we take decisions on how we administer these services and facilities they are taken in an open, transparent and accountable way, and they meet high professional standards.

During the consultations that were undertaken by members of the Leader’s Group, many people on the Back Benches in particular spoke of the need for some radical change. I believe that this is what the report came forward with and what we are now delivering. We have a strong senior committee and now two other very important committees, the Finance Committee and the Services Committee. It is important that they examine the culture of committees as well as basic administration and the way that it is undertaken.

I hope that all members of the new committees will embrace this philosophy and find new and innovative ways of working that engage more Members from right across the House in the decision-making processes. I know that my noble friend Lady Doocey—I am delighted that she will be chairing the Finance Committee—is keen to explore how to do things differently. I am also delighted that the noble Lord, Lord Laming, who has given such service in particular in the last year, will be chairing the Services Committee. I also congratulate the noble Lord, Lord McFall, of whom I have been a colleague in both Houses; I know that he will discharge his duties as Senior Deputy Speaker in a way that will engage colleagues. I therefore confirm my support for the recommendations from the Leader’s Group and for the Motions before the House today, which implement these much-needed reforms.

[Lord Hope of Craighead (CB)]

My Lords, I just add a word from these Benches in support of the Motions that the Leader of the House has moved and endorse all that she has said in introducing them. For my own part, I emphasise two points. First, on the identity of the two key people chairing the Commission and the Services Committee—and also the Finance Committee, because so much rests on its shoulders to progress into the new system—the fact that the noble Lord, Lord Laming, will chair the Services Committee is particularly important because he can carry through into the new system his knowledge and understanding of how the previous committees worked.

The other point that I stress is one that the noble Baroness made in her few remarks—that built into this approach is a commitment to reflect on its operation at the end of the forthcoming Session. It is important that we should have that amount of flexibility, so that we can assess exactly how things are working out. Inevitably with a new structure, one has to set up the structure first to see how it works in practice, given the personnel who make it work. I endorse exactly what the noble Baroness said about the reassurance that Members who may have some concerns should feel, given the willingness of everybody involved in these new structures to look again at whether they need any changes—they might not—and to see that everything is working as we would wish. Without repeating them, I also endorse the remarks made by the noble Baroness, Lady Smith of Basildon, and the noble and learned Lord, Lord Wallace of Tankerness.

Her Majesty the Queen: 90th Birthday

Debate between Lord Hope of Craighead and Lord Wallace of Tankerness

Thursday 21st April 2016 Lords Chamber

[Lord Wallace of Tankerness (LD)]

My Lords, from these Benches, I am delighted to add our good wishes and congratulations to Her Majesty the Queen on this very special occasion of her 90th birthday. Her Majesty has had, and continues to have, an extraordinary life which she has dedicated in service to our country.

As we have heard, we are living today in a very different society from the one into which Her Majesty was born 90 years ago today. Then, the sufferings and losses of the Great War were still raw. It was less than a decade since the United Kingdom had emerged from the horrors of the First World War, vowing that such devastating conflict should never happen again. And yet, sadly, it did happen again, when Her Majesty, then Princess Elizabeth, was barely a teenager. As we have heard from the Leader of the House and the Leader of the Opposition, during the Second World War Her Majesty not only served in the Auxiliary Territorial Service but brought comfort to many young people by broadcasting a message to evacuees, urging them to have courage.

Thankfully, today the prospect of war breaking out in the heart of Europe is unimaginable. Today, too, we are living in a world which is far more interconnected than it has ever been. Again, the Queen has fully engaged with this changing world. The metamorphosis of empire and colonial rule into the Commonwealth of free nations has in no small way been achieved by the Queen’s strong personal commitment to that unique institution and force for good in the world. She has kept up with technology and the IT revolutions which have transformed our world. In March 1976, when almost 50, and taking part in a network technology demonstration, the Queen was the first Head of State to send an email, although I rather suspect they did not call it that then.

Throughout the huge change that this country has experienced in the past 90 years, Her Majesty has been a constant, standing with her people whether it be in times of tragedy or times of joy. Her unwavering sense of duty, supported for more than 68 years by the Duke of Edinburgh, and her commitment to the service and welfare of the people of this country are surely an inspiration to us all. When speaking in your Lordships’ House on the eve of Her Majesty’s 80th birthday, my noble friend Lord McNally recalled the vow that the then Princess Elizabeth made in Cape Town on her 21st birthday. She said:

“I declare before you all that my whole life, whether it be long or short, shall be devoted to your service”.

Gladly, it has been a long life and surely no vow has been more dutifully honoured.

On behalf of my Liberal Democrat colleagues, I offer my warmest good wishes to Her Majesty the Queen on this most joyous of milestones for a day full of love and affection from family, friends and a grateful nation. Long live our noble Queen!

[Lord Hope of Craighead (CB)]

My Lords, as the House knows, members of the Cross-Bench group whom I represent seldom, if ever, speak with one voice. I am reminded of that feature of our existence almost every day, but this occasion, surely, is quite different. I know that each member of the group would wish me to say how delighted we all are to be associated in every way with what has been said, and that we join together as one in supporting this Motion.

The Cross-Bench group brings to this House Members with a wide range of experience. Many have spent their entire working lives in the public service. Some, by reason of the positions that they have held, have a much greater appreciation than the rest of us of the volume of work with which Her Majesty has lived for so many years, with such a great sense of dedication and commitment. But all of us, in one way or another, have our own memories of her and of the service that she has given. We can all share in the memories of the great occasions.

Perhaps one above the others that deserves to be remembered today is Her Majesty’s state visit to Dublin in May 2011. Her remarkable speech at the state dinner in Dublin Castle was surely an extraordinary moment in history, which only she could bring about. Her silent tribute in the garden of remembrance the previous day had done so much to settle memories of the past.

One occasion that stands out in my own memory, because I was there, was her Address to both Houses in Westminster Hall on the occasion of her Golden Jubilee. It is hard to believe, but that was 14 years ago in 2002. The then Speaker, Speaker Martin, and the Lord Chancellor, the noble and learned Lord, Lord Irvine of Lairg, who I am glad to see is in his place, presented their addresses and handed them to her after reading them. Then it was her turn. She stood up and went forward to the microphones to read her own speech. There was no table; there was no lectern; she held her speech in front of her as she stood alone, I thought with great courage, on the steps in front of a huge audience. Unlike the speeches at a State Opening, that speech was her own creation—full of warmth and perfect for the occasion. She ended with a triumphant sentence assuring us of her resolve to continue to serve us all to the best of her ability. It was faultlessly read, as always, in a firm, clear voice. She then sat down to prolonged applause, which lasted for well over a minute. She seemed not to have expected that, and was greatly moved by that applause, but it was so well deserved.

Later she joined us for a reception in the Royal Gallery. One of the Law Lords who was with me had his back to her as she reached us. He was tapped on the shoulder by the Lord Chancellor. My colleague had the misfortune to be in the process of eating a large biscuit. Something was bound to go wrong and, indeed, it did. When he turned round, he was so astonished to see her standing beside him that he dropped his biscuit onto the floor right in front of Her Majesty’s feet. Her Majesty, who has a great sense of humour, was much amused. Another Law Lord, a judge from New Zealand, was then introduced. Her Majesty said to him, “I hear that you are about to end your appeals to the Privy Council”. He replied that it would not affect him, as he had already reached the retirement age of 75 and would no longer be able to sit. “When was your birthday?”, she asked. When he said that it was in June, she exclaimed, “You are two months younger than I am”. So much hangs on those words—we can all do our own arithmetic—but those words were as clear a demonstration as there could be that retirement was not for Her Majesty, that it is not and it never has been. How blessed we all are that this is so.

On behalf of all of us on the Cross Benches, I join with the rest of the House in supporting the Motion and wishing Her Majesty a very happy birthday. We offer her our warmest congratulations and our profound thanks. I think it is also right to say that we offer our profound thanks to His Royal Highness the Duke of Edinburgh—always there at Her Majesty’s side and with his own unique sense of humour, as has been said. For him, too, surely, this is a very happy day.

Scotland Bill

Debate between Lord Hope of Craighead and Lord Wallace of Tankerness

Monday 29th February 2016 Lords Chamber

[Lord Wallace of Tankerness]

My Lords, I noted earlier, with regard to paragraph 103, that it surely cannot be conceivable that the funding would dry up. The House is therefore owed an explanation as to precisely what lies behind paragraphs 52 and 103 of this agreement.

The proposal that my noble friend and I have tabled is that there should be a review, which should be informed by a commission. The commission should be three persons from the Office for Budget Responsibility advisory panel, to be appointed by the OBR’s chairman, therefore taking it even more than arm’s length away from the Government, and there also should be membership of a Scottish professional body—it could be the Institute of Chartered Accountants of Scotland or CIPFA—to be agreed by Her Majesty’s Treasury and Scottish Ministers, whose members should be appointed by the senior office-bearer of that body. Again, that is an attempt to put it at one remove from the Scottish Government. It would be a genuinely independent body that would inform the review about how the fiscal framework had worked.

We go further than that by saying that no person appointed to the commission should have been a member of any political party for five years prior to accepting membership. Consistent with the fiscal framework, the report should be laid no later than 30 November 2021 and submitted to both Houses of this Parliament, the Scottish Parliament, the Chancellor of the Exchequer and Scottish Ministers.

All that we find out in the fiscal framework agreement is that the arrangements for review, including how independent they will be, should be left to the Joint Exchequer Committee. We may feel that in order to be reassured, it is not unreasonable for Parliament to set some parameters for how the independence of that review body will be established. The amendment is therefore intended to probe just what Ministers have in mind with regard to the working out of that review, and indeed to answer some of the questions about what happens in the event of a failure to reach agreement on the review. There are important questions to be answered, and I look forward to the response of the Minister.

I am sorry, is the noble and learned Lord, Lord Hope, waiting to intervene or to ask a question?

[Lord Hope of Craighead (CB)]

I was hoping to follow the noble and learned Lord.

[Lord Wallace of Tankerness]

That is fine. I hope that the Minister will be able to fill in the gaps when he comes to reply to this important debate.

[Lord Hope of Craighead]

My Lords, I would like to pursue the points made by the noble Lord, Lord Forsyth, and the noble and learned Lord, Lord Wallace of Tankerness, about dispute resolution. As a lawyer, one tends to look to the dispute resolution bits, because they are the things that matter to us, to see that there is actually an effective mechanism for that, rather than at the fiscal parts, which I am content to leave to others.

Would the Minister care to look at paragraph 46, which the noble Lord, Lord Forsyth, identified? It contains the definition of “policy spillover effects”, which is where either Government make a policy decision that affects the tax receipts or expenditure of the other. If that happens then there is a spillover and a spillover effect. In paragraph 98 we enter the dispute resolution system, which applies to, among other things,

“All disputes arising from the consideration of direct and behavioural spillover effects, including both gains and losses”.

So this particular group of paragraphs deals with the resolution of the dispute. We can see how it works: first, if it cannot be settled at working level then it becomes a disagreement and is referred to senior officers at director level or above, including consideration at Joint Exchequer Committee official level too. If that does not work, the matter becomes not a disagreement but a formal dispute. It is then referred to Ministers to be raised and discussed at a meeting of the JEC.

We then move to paragraph 100, and so far we are working down the line of complete impasse:

“If … there is a dispute that cannot be resolved between Ministers, there is an automatic pause placed on the disputed finances, i.e. no decisions … can be taken by either government in relation to the disputed amount until the dispute is resolved”.

That seems a strange system, given that revenues either way are crucial to the running of the country. To have a dispute simply frozen in that way is very strange. The formula goes on a little further, because if that happens then the Governments are to draw up a statement of fact on the dispute, and technical input may be sought to ensure that the facts are correctly stated. It will then be considered by both Governments, who commit to using their best endeavours to resolve the dispute.

However, the agreement says in paragraph 103:

“If no agreement can be reached then the dispute”,

fails—or rather “falls”—and, as the noble Lord, Lord Forsyth, pointed out,

“there would be no specific outcome from the dispute and so no fiscal transfer between the Governments”.

What puzzles me further is paragraph 104, and maybe the Minister can help here:

“If either Government wishes to pursue the dispute further”—

let us imagine that the UK Government are anxious to do that—

“it can be referred to the ‘Protocol on the Resolution and Avoidance of Disputes’ attached to the Memorandum of Understanding between the UK government and the devolved administrations”.

I do not know where the memorandum is—it is not in the Printed Paper Office, as far as I know—and it is also said to be subject to review. So there is a cloud of uncertainty over exactly what paragraph 104 means and how fixed it is as a system for resolving these disputes.

If one is entering an area like this where it is plain that there will be political arguments on either side that may lead to a complete impasse, it is crucial that there should be a system for the resolution of disputes; otherwise one is left with a situation where no transfer takes place although one side is calling for it and the other is not. How can the system be left in that situation, hanging in the air without anyone to decide it? Can the Minister inform the House about that? It has a direct bearing on the amendment by the noble Lord, Lord Forsyth.

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

Debate between Lord Hope of Craighead and Lord Wallace of Tankerness

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: Independence

Debate between Lord Hope of Craighead and Lord Wallace of Tankerness

Tuesday 24th June 2014 Lords Chamber

[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

Debate between Lord Hope of Craighead and Lord Wallace of Tankerness

Tuesday 1st April 2014 Lords Chamber

[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.