Rule of Law: Law Officers

Debate between Lord Keen of Elie and Lord Foulkes of Cumnock

Tuesday 15th September 2020 Lords Chamber

[Lord Keen of Elie (Con)]

My Lords, I would offer absolute reassurance with respect to the points that have been raised. First, there seems to be a common misconception that somehow we could unilaterally alter the treaty provisions. That is simply not possible and is not being attempted. What we are addressing are circumstances in which, in the face of a material breach or fundamental changes in our obligations due to the conduct of the other party, we need to take preventive measures to maintain the paramount intent of the Northern Ireland protocol, which is the integrity of the Belfast agreement.

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

My Lords, the Minister has a very distinguished record in the Scots and English Bar. Does he not find it demeaning to stand up and give this lame political justification for what distinguished lawyers outside Parliament consider to be a breach of the law? How can he justify continuing as a law officer, given that situation?

[Lord Keen of Elie (Con)]

My Lords, I am not seeking to give a political justification for anything; I am providing a legal justification for saying that the UKIM Bill falls within the boundaries of international law, within the boundaries of our treaty obligations and within the boundaries of the rule of law.

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

Debate between Lord Keen of Elie and Lord Foulkes of Cumnock

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

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

I had not intended to intervene at this stage. However, since this, is or ought to be, very similar to Committee if we were sitting in the Chamber, I hope that Members will understand why I do so. It is not to deal with questions that the Minister raised about Crown dependencies and overseas territories—although he answered the question that I had intended to ask later on, on other amendments, so that will shorten the debate later—nor indeed about the different jurisdictions within the United Kingdom. Again, that will be dealt with in subsequent amendments and I can come back to that during that debate.

I want to say two things. First, I agree totally with what my noble and learned friend Lord Falconer said; that will surprise neither him nor the Minister. Secondly, the noble Lords, Lord Adonis and Lord Pannick, made important points, which the Minister just touched on. As the noble Lord, Lord Adonis, said, we should note the significance of this being the first Committee stage of a Bill that we have held virtually. It is very important that we see that it operates properly.

As it happens, two members of the Procedure Committee are in this debate: the noble and learned Lord, Lord Morris of Aberavon, and me. At the committee’s last meeting, we asked for a report on the workings of this Committee stage—that is, how it will proceed. At its next meeting, the committee will discuss the procedure for virtual voting. If my noble and learned friend Lord Falconer hopes to divide the House on Report, as he indicated—I hope that he will—that cannot be done without virtual voting. It would be improper and unconstitutional for that to take place. My noble friend Lord Adonis should be reassured by that.

Finally, I hope that the Minister will treat this Committee stage just as he treats Committee stages on the Floor of the House—that is, take account of what has been said, be prepared for a challenge on these issues on Report and bear all this is mind before bringing the Bill in its present form back on Report. I hope he takes note of that.

[Lord Keen of Elie]

My Lords, I of course am listening to the contributions made to the debate in Committee and will take account of the observations that have been made. I make no comment on the procedural issues that the noble Lord raised.

--- Later in debate ---

[Lord Keen of Elie]

My Lords, I am obliged to the noble Lord, Lord Foulkes of Cumnock, for tabling what he very candidly pointed out were probing amendments. I am also obliged to the noble and learned Lord, Lord Wallace, who drew on his experience of the devolved Administrations and was able to outline the position in this matter. I will come in a moment to address the questions raised by the noble and learned Lord, Lord Hope, in the context of these provisions.

As the noble Lord, Lord Foulkes, pointed out, two authorities are identified in this part of the Bill that might proceed to implement matters of private international law in Scotland. That is consistent with legislation in other areas. The Secretary of State might decide, with the consent of the Scottish Ministers, to make UK-wide provision for implementation. That is why he is one of the identified national authorities, because there are circumstances in which the Scottish Ministers would be entirely content for there to be UK-wide provision.

Alternatively, if that is not the case, Scottish Ministers may themselves then proceed as a national authority to implement the matter in domestic law. That is because, as the noble and learned Lord, Lord Wallace, pointed out, the position is that—I am sorry, something came up on another phone and rather distracted me—the implementation of private international law is a devolved issue under the Scotland Act, so allowance is made for both provisions.

As regards this Bill, an LCM was discussed between officials. The Scottish Ministers have recommended that such an LCM should be provided, and the noble and learned Lord, Lord Wallace, pointed out the terms of the recommendation that Scottish Ministers have made to the Scottish Parliament with regard to this matter. Indeed, there was prior discussion about these proposals last year, when the Lord Chancellor, for example, was in communication with the Scottish Government on matters of the convention. Perhaps I can clarify this by reference to the points made by the noble and learned Lord, Lord Hope. The Secretary of State may be a national authority with the consent of Scottish Ministers because Scottish Ministers may, as sometimes happens, wish to see UK-wide regulations made here for implementation. Alternatively, as the national authority, they may choose to do that for themselves. The Secretary of State clearly does have the power to do that because under the Scotland Act there is the power to legislate for the entirety of the United Kingdom as regards the implementation of a matter that is otherwise within the devolved competences, so that does not raise an issue either.

With regard to the matter of whether or when it would be one national authority or the other, that is simply a matter that will be discussed, as it is in other contexts, between the United Kingdom Government and Scottish Ministers. If Scottish Ministers are content that the UK Government should legislate UK-wide on this matter, that will happen. If they are content for that to be done, then Scottish Ministers will deal with the matter. The Secretary of State cannot deal with the matter without the consent of Scottish Ministers, so I hope that that puts minds at rest in this regard.

As regards the identification of the Secretary of State as an authority and the reference, for example, in the Scotland Act to a Minister of the Crown, I accept that the reference in this Bill is more limited. Because I cannot answer immediately, I will consider why it was thought appropriate to limit it to the Secretary of State as opposed to the wider reference to a Minister of the Crown. But I will look at that to see whether there is an issue there that needs to be addressed.

As regards consultation on the implementation of international treaties, that is not an issue, but as regards entering into international treaties, that is of course a reserved matter. I recognise that it is appropriate that Scottish Ministers and others should be consulted on these matters for their interests when they arise. I do not understand that to be a difficulty in this context, nor a matter that would require express provisions in the terms of this Bill.

I thank the noble Lord, Lord Foulkes of Cumnock, for his probing amendment and I hope that I have been able to put minds at rest as regards why there are two identified national authorities for the purposes of Clause 2. In the event that Clause 2 stands, these are appropriate alternative mechanisms for the implementation of these provisions.

One final matter raised by the noble Lord, Lord Foulkes, was the issue of contract, but of course, where you have a contract, it will have a choice of jurisdiction and a choice of law. If the contract has Scotland as a choice of jurisdiction and Scots law as the choice of law, that will be binding if we have a situation in which, for instance, the Lugano provision applies. I hope that that answers the query in so far as I have understood it.

I cannot give a precise date for the provision of the LCM, but as the noble and learned Lord, Lord Wallace of Tankerness, himself indicated, Scottish Ministers have recommended the granting of an LCM, and it is not anticipated that there will be any difficulty. With that, I invite the noble Lord to withdraw the amendment.

[Lord Foulkes of Cumnock]

My Lords—

Vagrancy Act 1824

Debate between Lord Keen of Elie and Lord Foulkes of Cumnock

Thursday 23rd April 2020 Lords Chamber

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

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

[Lord Keen of Elie]

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

“annoying, offensive, obstructive or dangerous behaviour”—

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