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

Lord Wallace of Tankerness Excerpts

Report stage & Report stage (Hansard) & Report stage (Hansard): House of Lords
Wednesday 17th June 2020 Lords Chamber

Moved by

[Lord Wallace of Tankerness]

1: Clause 1, page 2, line 6, at end insert—
“3CA The 2000 Hague Convention to have the force of lawThe Convention on the International Protection of Adults concluded on 13 January 2000 at The Hague shall have the force of law in England and Wales, and in Northern Ireland.”

[The Deputy Speaker]

I remind noble Lords that Members other than the mover of an amendment and the Minister may speak only once and that short questions of elucidation are discouraged. Anyone wishing to press an amendment to a Division should make that clear in the debate.

[Lord Wallace of Tankerness (LD) [V]]

My Lords, the amendment follows on from my contribution at Second Reading on 17 March. I tabled an identical amendment in Committee but withdrew it from the Marshalled List, having been invited to a further meeting with the Minister, the noble and learned Lord, Lord Keen of Elie. At the outset, I express my thanks and appreciation to him, his officials and his Bill team for their constructive—and, I hope, productive —engagement with me since before Second Reading.

Basically, the purpose of the amendment is something akin to jurisdictional catch-up. It seeks to give force of law in England, Wales and Northern Ireland to the provisions of Hague Convention 35 of 13 January 2000 on the International Protection of Adults. Section 85 of and Schedule 3 to the Adults with Incapacity (Scotland) Act 2000, which I had the privilege to sponsor in the earliest days of the Scottish Parliament, paved the way for ratification of the Hague Convention by the UK Government in respect of Scotland in November 2003.

The convention is intended to give support to vulnerable adults who, by reason of impairment or insufficiency of personal faculties, need legal protection, specifically when there are interests in different international jurisdictions. For example, the convention can determine: which court has jurisdiction in relation to protective measures; the law to be applied in particular circumstances; and the establishment of central authorities, which can locate vulnerable adults, give information on the status of vulnerable persons to other authorities and facilitate mutual recognition of relevant orders.

In supporting ratification, the briefing from the Law Society of England and Wales states:

“Due to not being party to the convention, England and Wales does not have a central authority to issue the relevant certificates of authority for powers of attorney to act outside the jurisdiction. This gives rise to unnecessary difficulties in relation to the protection of overseas property and welfare by attorneys and deputies who have been appointed to protect potentially vulnerable people.”


I believe that there is a compelling case for ratification in respect of all parts of the United Kingdom. In this way, those resident in Glamorgan, Gloucester or Belfast will be on comparable terms to citizens in Glasgow or Banff in relation to recognition and enforcement of relevant court orders in 2000 convention contracting states. One might say that it would be a good example of levelling up.

Indeed, the primary legislation to give effect to the convention provisions is already in place for England and Wales through Section 63 of and Schedule 3 to the Mental Capacity Act 2005 and, in the case of Northern Ireland, through Section 283 of and Schedule 9 to the Mental Capacity (Northern Ireland) Act 2016. It would be helpful if, in his reply, the Minister could give an indication not only of the Government’s intentions but of discussions with the Northern Ireland authorities. Given that the Assembly passed the 2016 legislation, I hope that progress toward ratification for Northern Ireland can also proceed.

The long-overdue ratification of this convention would be beneficial for vulnerable adults and those who support them in England, Wales and Northern Ireland. I commend the amendment to the House and I am hopeful that the case for ratification will commend itself to the Minister. I beg to move.

[Lord Marks of Henley-on-Thames (LD) [V]]

My Lords, I fully support the amendment moved by my noble and learned friend Lord Wallace of Tankerness. It is plainly an anomaly that the 2000 Hague Convention does not at this stage apply throughout the United Kingdom. The inclusion of the convention in Clause 1 will achieve this. I hope that the Government will accept the amendment to achieve the end that my noble and learned friend seeks.

[The Advocate-General for Scotland (Lord Keen of Elie) (Con)]

My Lords, I begin by thanking the noble and learned Lord, Lord Wallace of Tankerness, not only for his contribution to the debate but for engaging with my officials and me on this matter.

As noted, the amendment seeks to deal with the ratification of the 2000 Hague Convention on the International Protection of Adults in respect of England, Wales and Northern Ireland. Of course, the United Kingdom has ratified this convention, but the extent of this is limited to Scotland. I am pleased to confirm to the noble and learned Lord that it is our intention to extend the ratification of this convention to England and Wales. Discussions have commenced with officials in Northern Ireland to ascertain whether the Northern Ireland Executive would require the extension to apply to Northern Ireland.

The Mental Capacity Act 2005 largely implements the convention and contains powers to make any additional provision required. Schedule 3 to that Act provides for the recognition and enforcement in England and Wales of protective measures made in respect of vulnerable adults by the courts of other contracting states. Some Schedule 3 provisions are already in force and some will come into force upon ratification, at which point reciprocal recognition of domestic protective measures by other states will also come into effect. There remain some outstanding matters that require further implementation; largely, additional operational arrangements for the location or placement of vulnerable adults as between contracting states.

It is the Government’s view that the most appropriate way to implement these remaining matters is to make any additional provision required in or under the 2005 Act, using the powers provided for in that Act for this specific purpose. We will proceed with this as soon as we reasonably can, taking account of the need to take the Northern Ireland Executive with us if it is their wish that the matter be extended to Northern Ireland. In these circumstances, I invite the noble and learned Lord to withdraw this amendment.

[Lord Wallace of Tankerness [V]]

My Lords, I thank my noble friend and the noble and learned Lords who contributed to this debate for their support for what I seek to achieve by it. I thank the noble and learned Lord the Advocate-General for Scotland for his positive response, and for his clear and unequivocal commitment to ratification. I recognise that there is already in place a substantial body of primary legislation in the 2005 Act, which will allow that to proceed. I very much hope that the engagement with the Northern Ireland Executive will continue, so that when ratification takes place it can apply to the whole of the rest of the United Kingdom. On that basis, I seek leave to withdraw my amendment.

Amendment 1 withdrawn.

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

Lord Wallace of Tankerness Excerpts

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

[Lord Falconer of Thoroton]

My Lords, we have adumbrated many of the same points over and over, because they keep coming up again and again, so I will try to restrict my remarks on these amendments to essentially only new points. This group of amendments effectively deletes the Government’s regulation-making power where the regulations in effect intend to say how an international treaty shall apply either as between Scotland, England, Wales and Northern Ireland—within the United Kingdom—or as between the United Kingdom and the Isle of Man, any of the Channel Islands or a British Overseas Territory.

The effect of my amendment is that the Clause 2 power cannot be used where it is proposed to apply an international convention between the parts of the UK; to apply an international convention between the UK and a relevant territory; or to amend, extend, adapt or revoke any declaration made at the time of ratification. It is wholly wrong that any of these things should be done by regulation as opposed to primary legislation. I use these amendments simply to indicate the width of the power being sought. I beg to move.

[Lord Wallace of Tankerness (LD)]

My Lords, I will make two preliminary points. The first echoes what has been said in many of our proceedings so far this afternoon. Perhaps not surprisingly, as a member of the Constitution Committee, I do not think that Clause 2 should be in the Bill, for all the reasons already outlined both in committee reports and by a number of your Lordships in debates on earlier groups. I have not yet been persuaded or heard any argument to the contrary, so my primary position is that Clause 2 should not be there.

The second point is that, where these amendments relate to jurisdictions within the United Kingdom, it is a question not of whether it should be done but of how. In his response to the first group of amendments, the noble and learned Lord, Lord Keen, gave some good reasons why, as a matter of public policy, there should be certainty in the arrangements, for argument’s sake, for enforcing a Scottish court’s order in England, as there would be for enforcing an English court’s orders in France. Therefore, it is a question not of whether there is merit in having some kind of intra-UK arrangements but rather of how it should be done.

During Second Reading I reflected briefly on this and referred to the briefing from the Bar Council. It is perhaps worth going back to it and reminding ourselves what it said in relation to the provisions in Schedule 6:

“The question, however, whether to apply an international convention’s rules between parts of the United Kingdom is often a very difficult one. Where it is to be applied, extensive amendments to that convention are often appropriate, (an example being the provisions in the Civil Jurisdiction and Judgments Act 1982, which apply a substantially modified form of the European Union rules to intra-United Kingdom cases). The Bar Council is concerned that schedule 6 does not provide sufficient safeguards in this respect and considers that it should be amended to provide the requisite clarification.”


I endorse that. It is not a question about whether it should be done. We have heard that, for example, in the Civil Jurisdiction and Judgments Act 1982 there were requirements to amend or change the rules for intra-UK cases.

It is also important to note that we are giving powers to the national authorities—not just the United Kingdom Parliament but to Scottish Ministers and Northern Ireland Assembly Ministers. As far as I can see—I stand to be corrected if I have not noticed something —these regulations would be brought in without any consultation between the different Administrations. There is no doubt that private international law is a devolved matter as far as the Scottish Parliament is concerned, but negotiating international treaties does not affect the sovereignty of the United Kingdom, and it seems to make some sense that there should be some negotiation, or at least consultation and discussion among the constituent parts of the United Kingdom, before regulations are brought forward. As far as I can see, neither Clause 2(2) nor Schedule 6 makes any provision for that.

My position is that it is not a question about whether it is right and proper that there should be intra-UK arrangements but rather that what is proposed in the Bill does not provide adequate safeguards about how that should be done.

[Lord Adonis]

I have nothing to add to this discussion.

--- Later in debate ---

[The Deputy Chairman of Committees]

One speaker has indicated that they wish to come in on the amendment.

[Lord Wallace of Tankerness]

My Lords, I note what the Minister said about fears that something might be imposed on Scotland or Northern Ireland, but as I read it, Scotland or Northern Ireland could actually impose something on England. He then went on to say that there would of course be discussion, negotiation and consultation. If that is the case, why does it not say so on the face of the Bill? Would he be minded to give further thought to these provisions and how they are drafted to secure some degree of consultation, which does not, I would argue, detract in any way from the devolution settlement?

[Lord Keen of Elie]

Let me be clear: I do not accept the underlying premise of the noble and learned Lord’s argument. However, I am perfectly content to look at this before the next stage of the Bill in order that I can, again, reassure him of the position. There is no intent here to proceed to regulatory-making power without the consent of the relevant devolved Administration. That would be wholly inappropriate, and I accept the noble and learned Lord’s observation that it would conflict with the devolved settlement. However, I am perfectly willing to look at this again.

--- Later in debate ---

[Lord Foulkes of Cumnock]

It is appropriate that these amendments follow those we have just been discussing, 3 and 18. I am pleased that four very distinguished lawyers will participate in this debate, as well as the Minister, who is an equally distinguished lawyer. I should explain that I am not a lawyer—although, mind you, that will become blindingly obvious during the course of what I have to say. These are very much probing amendments. I, like the vast majority of members of this Committee, hope that we will not have Clause 2. However, if we have it, we will need some clarification. I will therefore confine myself just to some questions for the Minister.

On the question of the appropriate national authority, in the Bill there are two different options in relation to Scotland. First, there is approval by Scottish Ministers—it would be for the Scottish Government to decide—or approval by the Secretary of State with the consent of Scottish Ministers. Will the Minister explain the difference between the two? How is it decided which of these two is appropriate, and who decides whether it should be approved by Scottish Ministers or by the Secretary of State with their approval? Will it be clear which treaties are UK treaties, dealt with by UK legislation, or by Scottish legislation? Of course, this applies equally to Northern Ireland, although my amendments do not apply to that. Does the Minister envisage that there might be a dispute between the devolved Governments and the United Kingdom Government? We have seen a few of those recently, sadly. If so, how would the question of who would be responsible for resolving the disputes be resolved?

Secondly, are there likely to be any cross-border elements that apply both to Scotland and to England and Wales in this case, and if so, how would they be dealt with? For example, could custody of children create any difficulties? We have seen the problems regarding people moving over the border to deal with or to avoid custody being taken by one parent or the other. Could that create difficulties?

Thirdly, English law and Scots law are different with regard to issues such as power of attorney. Could power of attorney which was dealt with in one jurisdiction be different and not applicable in another jurisdiction, and would that create problems?

Fourthly, on global contract law, which, again, is one of the treaties and part of the Bill, is there an issue of which jurisdiction might settle any dispute? If so, would this go to the English or Scottish court? How would the dispute be decided, and by whom?

Finally, this Bill requires a legislative consent Motion of the Scottish Parliament. I understand that that Motion has been lodged. When does the Minister expect it to be dealt with, and does he envisage that there will be any problem? Those are my questions for the Minister. I look forward to his replies, and to the interventions of distinguished lawyers, including, in particular, two Scots lawyers of great distinction. With that, I beg to move.

[Lord Wallace of Tankerness]

My Lords, as the noble Lord, Lord Foulkes of Cumnock, has said, it is welcome that we have this opportunity to probe. In his Explanatory Statement, which appeared next to this amendment on the Marshalled List, the noble Lord said that it was

“to explore whether conflict might arise as to whether it is the responsibility of Scottish Ministers or of the Secretary of State in consultation with Scottish Ministers.”

But, as he indicated in his remarks just now, that is not actually in the Bill, which speaks of

“the Secretary of State acting with the consent of the Scottish Ministers”.

That is a crucial difference.

There is no doubt that negotiating or joining an international agreement on private international law is a reserved matter for the Government of the United Kingdom as a sovereign state. Equally, there is no doubt that private international law is a devolved matter. Section 126(4)(a) of the Scotland Act makes that expressly clear. Therefore, the implementation of these agreements is within the legislative competence of the Scottish Parliament.

It is right, therefore, that Scottish Ministers should be one of the appropriate national authorities. Equally, there will be occasions—perhaps a number of occasions —when it makes sense for the United Kingdom Secretary of State to make regulations with respect to the whole of the United Kingdom with the consent of Scottish Ministers. In paragraph 8 of their legislative consent memorandum, the Scottish Government draw attention to this fact:

“In 2018, the Scottish Ministers (with the approval of the Scottish Parliament) consented to two UK statutory instruments … including devolved material relating to the 2005 and 2007 Hague Conventions.”


So there is a very recent precedent for regulations to be made in the sphere of private international law. It has been done by a United Kingdom statutory instrument, but with consent not just in the case of Scottish Ministers but with the approval of the Scottish Parliament. These are often pragmatic matters, but the fact that it requires consent means that the UK Government cannot override the Scottish Parliament. The noble Lord, Lord Foulkes asked whether the legislative consent Motion has been passed; I checked yesterday—I do not think it has. But paragraph 19 of the Scottish Government’s memorandum says:

“The Bill is drafted to respect the devolution position: the Scottish Ministers make provision for implementation in Scotland with UK Ministers only being able to do so with the consent of the Scottish Ministers. Legislation in this area has in the past been taken forward on a UK basis and it may be convenient for it to be so in the future so the Scottish Government recommends this approach.”


There is one final matter which is not really germane to the terms and text of the amendments but I shall be grateful if the Minister is able to respond. Given that the implementation can be a matter for the Scottish Government, what engagement is he aware of with Scottish Government officials in some of the negotiations on these private international law agreements? For example, two agreements are referred to in paragraph 53 of the Explanatory Notes of the 2019 Singapore agreement and the 2019 Hague Convention. Is the Minister aware of any engagement or involvement by Scottish Government officials? Quite clearly, if the next step is implementation, it is important that Scotland is a party to these negotiations, albeit at the end of the day, as responsibility for joining these international agreements rests with the United Kingdom.

[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.

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

Lord Wallace of Tankerness Excerpts

2nd reading & 2nd reading (Hansard) & 2nd reading (Hansard): House of Lords
Tuesday 17th March 2020 Lords Chamber

[Lord Wallace of Tankerness (LD)]

My Lords, this is undoubtedly an important Bill. It may not attract much attention in your Lordships’ House but it nevertheless is important, as the Minister indicated in moving that it be read a second time. In the debate on the gracious Speech on 8 January, the Minister indicated that it is

“a Bill enabling us to operate agreements on private international law”

after the transition period following our departure from the European Union. He specifically mentioned agreements that

“can help to return home a child abducted by one of their parents, help two parents living in different countries to agree custody arrangements in the best interests of their children, or help a UK business to resolve issues with a supplier based abroad.”—[Official Report, 8/1/20; cols. 187-88.]

These are obviously vital for both family and commercial reasons. It is therefore important that we do not have any post-Brexit lacunae in our law.

I put my name on the speakers’ list to raise the specific issue of the Hague Convention 35, on the international protection of adults. It is the 11th convention listed in Annexe B to the Explanatory Notes on this Bill. I am grateful to the Minister and his Bill team for taking the time last week to discuss this with me. I will return to that.

As my noble friend Lord Marks of Henley-on-Thames is understandably unable to be with us this evening, I confirm that my party is generally supportive of the Bill. But, as with all legislation, it is important that your Lordships’ House should scrutinise it properly. I sometimes think that is especially the case when we are dealing with a Bill generally thought to be a good thing; we must still give it proper scrutiny.

In its briefing to Peers, the Bar Council very much makes this point. In its concluding paragraph, it states:

“Private international law is at once both a highly technical field and one that is extremely important in regulating the lives of individuals and businesses when they cross borders. Never has there been a greater need to consult specialists in this field to ensure rigorous scrutiny and to produce a cogent and coherent strategy in this field.”


It is important that we bear that in mind. Indeed, I ask the Minister: in the drafting of the Bill, how much consultation took place with specialists in the area?

I have no doubt that there will be detailed scrutiny in Committee. I will just highlight one or two points. As is often the case, the issue of delegated powers requires highlighting. As I understand it, it is a basic rule of constitutional law that when treaties are made by virtue of the royal prerogative, the involvement of Parliament is nevertheless required to change the law, to confer rights on individuals or, indeed, to deprive them of rights. That is invariably done by way of primary legislation.

Clause 2 confers regulation-making powers on the appropriate national authorities

“for the purpose of, or in connection with, implementing any international agreement … so far as relating to private international law”.

Clause 2(7) defines “international agreement” as

“a convention, treaty or other agreement to which the United Kingdom is, or is expected to become, a party”.

In other words, primary legislation may not be required. It may be done by regulation sometime in the future. In a non-EU context, when did we last have an international agreement or treaty implemented without primary legislation? In his speech moving this Second Reading, the Minister mentioned the Constitutional Reform and Governance Act and indicated that that would nevertheless give Parliament a locus. It is important to recall that the 20th report of Session 2017-19 by your Lordships’ Constitution Committee—of which I had the privilege of being a member and of which the noble and learned Lord, Lord Judge, was at the time a member—concluded:

“The current mechanisms available to Parliament to scrutinise treaties through CRAG are limited and flawed. Reform is required to enable Parliament to conduct effective scrutiny of the Government’s treaty actions, irrespective of the consequences of Brexit.”


I hope that when we come to scrutinise this, we will get some answers from the Government as to why they think CRaG is sufficient in circumstances where, in the past, it was all done through primary legislation. Indeed, as the noble and learned Lord, Lord Judge, will well remember from his time on the Constitution Committee, recurring themes are delegated powers and treaty making and parliamentary scrutiny, as in our report. These two come together in this Bill, and we will want to give careful attention to that.

I referred to Hague Convention 35, of 13 January 2000, on the international protection of adults. It is for the protection of vulnerable adults who, by reason of impairment or insufficiency of their personal faculties, are not in a position to protect their interests. The convention determines which court has jurisdiction to take protection measures, which law is to be applied in the circumstances and who may be a vulnerable person. It establishes a system of central authorities that should co-operate, locate vulnerable adults and give information on the status of vulnerable persons to other authorities. The smooth legal arrangements for matters covered by the Bill, which the noble and learned Lord referred to in his speech, must surely also apply to some very vulnerable people.

The convention has 17 signatories and has been ratified for 10 jurisdictions. I use the word “jurisdiction” advisedly: although the United Kingdom is a contracting party, the convention has been ratified only by the United Kingdom Government on behalf of Scotland, on 5 November 2003. That ratification followed on from Section 85 and Schedule 3 to the Adults with Incapacity (Scotland) Act 2000. I declare a personal interest, because I was the Minister responsible for taking that legislation through the Scottish Parliament.

Since then, in Northern Ireland, there has been Schedule 9 to the Mental Capacity Act (Northern Ireland) 2016, which states that the convention will have effect in Northern Ireland—although there has not yet been ratification for Northern Ireland. In England and Wales, I understand that Schedule 3 to the Mental Capacity Act 2005 makes some provision, but we have not had ratification in respect of England and Wales either. It may be argued that the procedures established by the 2005 Act mean that, in practice, courts in England and Wales, and in Northern Ireland, can recognise and enforce protective measures from other states, be they contracting parties or not. But most contracting states will recognise and enforce only protection measures from other contracting states. As an example, France, Germany or Switzerland will recognise and enforce protection measures from each other, and from Scotland, but not from England, Wales or Northern Ireland. Why should citizens in these parts of the United Kingdom not enjoy the advantages enjoyed by those habitually resident in, or closely connected to, Scotland?

I believe it is in the hands of the United Kingdom Government to rectify this. It may not require legislation if some of the procedures are already in place through the 2005 Act. However, I hope that the advantage might be taken in this Bill to move forward on this and implement the convention for England and Wales and Northern Ireland.

One final matter is the difficulty that can be experienced in relation to the recognition of protection measures within the United Kingdom. Ratification of Hague Convention 35 may not necessarily resolve that, as they remain internal matters among the jurisdictions within these islands. Schedule 6 to the Bill deals with regulations made under Clause 2 and refers to implementing or applying an international convention to a particular part of the United Kingdom. In that regard, the Bar Council said that if it were to be given effect in, say, Scotland, but not elsewhere in the United Kingdom, the question of whether to apply an international convention’s rules between parts of the United Kingdom would often be very difficult. Where it is to be applied, extensive amendments to that convention are often appropriate; an example is the provisions in the Civil Jurisdiction and Judgments Act 1982, which apply a substantially modified form of the European Union rules to instruct UK cases. The Bar Council is concerned that Schedule 6 does not provide sufficient safeguards in this respect, and considers that it should be amended to provide the requisite clarification. I would be interested if, in reply, the noble and learned Lord could say something about intra-United Kingdom recognition and indicate how some of the concerns raised by the Bar Council may be addressed.

In conclusion, some of the briefings and representations I received on notification of HC35 have highlighted numerous difficulties in the operation of the law in relation to powers of attorney and civil instruments, and more general issues on the rights of persons with disabilities. However, those are for another day. I believe that today there is an opportunity for the Government to commit themselves to taking a small step in the sphere of private international law which could be of benefit to an important section of our community.

European Union (Withdrawal Agreement) Bill

Lord Wallace of Tankerness Excerpts

Committee: 2nd sitting (Hansard) & Committee stage & Committee: 2nd sitting (Hansard): House of Lords
Wednesday 15th January 2020 Lords Chamber

[Lord Murphy of Torfaen (Lab)]

My Lords, I endorse the remarks of my noble friend Lord Griffiths and the noble Baroness, Lady Randerson, on Amendment 29. Your Lordships will recall that it is nearly 23 years since the people of Wales and Scotland voted for devolution. It is almost 22 years since the people of Northern Ireland voted for the Good Friday agreement and the establishment of devolution there. Happily, last week we saw the restoration of the institutions of government and democracy in Northern Ireland.

The political landscape of our country has changed tremendously during the past two decades. Having been the Secretary of State for Northern Ireland and for Wales, I am not convinced that Governments of either persuasion—nor the coalition— understood, in the course of those 20 years, what devolution was all about. Certainly, the relationships between the United Kingdom Government and those in Belfast, Cardiff and Edinburgh could have been better. I am one of those old boys to whom the noble Baroness, Lady Randerson, referred. Back in 2003, we had Labour Governments in Scotland, Wales and England. It was a bit cosy, inevitably. Things changed after that. We never had a Labour Government, of course, in Northern Ireland.

The Joint Ministerial Committee, for which I held Cabinet responsibility from 2007 onwards, never really worked. It was a great idea, bringing together Ministers from all the different Administrations but it did not work as it should have done. It did not meet as frequently as it should have done. I am not convinced that even under the new designation of Joint Ministerial Committee on EU Negotiations it has been all that successful, but it has been a bit better than previous incarnations. Now is the chance because our constitution has changed dramatically, not just because of devolution but because of what we are debating today.

Our departure from the European Union and all that involves in constitutional matters has to be looked at in the context of devolution as well. I hope that the Minister will look very carefully at Clause 29 in particular and put when and how JMCs meet on a proper statutory footing. If JMCs do not work then the trust and the confidence between the three devolved Administrations—one now very new—and the United Kingdom Government will evaporate. A number of noble Lords, including the noble and learned Lord, Lord Thomas, have made the point that unless we get the devolution settlement post Brexit right, it will threaten the union. The Government talk about the precious union all the time but it can be threatened if we do not take the devolved Administrations seriously in their role within the United Kingdom. If this does not work then the movement for independence in Scotland will get even stronger and movement towards a united Ireland might actually happen in Northern Ireland. I do not want any of those things to happen. I am a unionist with a small “u”. The best way to prevent that and to restore strength in the union is to ensure that we respect the devolution settlement, and these amendments do precisely that.

[Lord Wallace of Tankerness (LD)]

My Lords, I bring a Scottish voice in support of the arguments that have been advanced in the amendments from the noble and learned Lord, Lord Thomas of Cwmgiedd, and by other noble Lords who have spoken. These are important points, not only as the noble Lord, Lord Murphy, has just said, for maintenance of the union but also for many practical reasons. As the noble Baroness, Lady Finlay, said, no one disputes that the negotiation of an international treaty is a matter devolved to the United Kingdom Government. However, we have to recognise that much of the subject matter of many of these agreements will fall to the devolved Administrations to implement; it will be in areas of devolved competence. Therefore, it is important that there be proper engagement with the devolved Administrations in reaching these agreements, not only to ensure a community of interest within these islands but to give those with whom we are negotiating some reassurance that what they are negotiating will be implemented properly by the various devolved Administrations. If the people from the devolved Administrations are not present, something may be missing in the reassurances they are seeking.

In paragraph 114 of the report published yesterday by the Constitution Committee—of which I am a member—the committee reiterated what it said in its report last year on the parliamentary scrutiny of treaties:

“As part of its treaty-making after the UK leaves the European Union, the UK Government must engage effectively with the devolved institutions on treaties that involve areas of devolved competence … The UK Government will need to consult the devolved governments about their interests when opening negotiations, not just to respect the competences of those governments but also in acknowledgement of the important role devolved administrations may play in the implementation of new international obligations”.


In paragraph 115, the Constitution Committee recommends that

“the Government set out before the Bill’s report stage what its process for consultation and engagement with Parliament and with the devolved authorities will be in respect of the future relationship negotiations with the European Union”.

Amendment 29 goes further than that and wants to put it in the Bill; that is probably worth while.

Some noble Lords will recall that, when the Joint Ministerial Committee on EU Negotiations was established—I think, in the autumn of 2016—great commitments were made about the intention of the United Kingdom Government to engage at every step of the way in the negotiations to get a withdrawal agreement. Yet we know that, for many months, that Joint Ministerial Committee never even met. This is not the place to go into why it did not meet, but good intentions were not delivered on. We know that there were good intentions. In replying to the debate on the gracious Speech last Wednesday, the noble Baroness, Lady Williams of Trafford, said the following in response to a similar point that I and the noble Lord, Lord Kerr of Kinlochard, made then:

“the noble Lord, Lord Kerr, and the noble and learned Lord, Lord Wallace of Tankerness, asked about the representation of the devolved Administrations in negotiations on our future relationship. We recognise the need for their close involvement in negotiations on our future relationship with the EU in order to deliver a satisfactory outcome”.—[Official Report, 8/1/20; col. 289.]

That was a statement of intent with which I could have no dispute, but we want more: we want how it will work in practice to be fleshed out. Given that the Joint Committee on EU Negotiations has not had a happy track record—it improved as time went on—many of us would feel more reassured if it was on the face of the Bill.

[Lord Hamilton of Epsom (Con)]

Is it not difficult to legislate for a committee to meet more often when it does not meet often enough?

[Lord Wallace of Tankerness]

My Lords, the amendment would establish that it should meet, and some timescales are set down. My concern relates to good intentions. No one disputes the good intentions for the Joint Ministerial Committee on EU Negotiations when established, but they were not carried through in practice. When the Minister comes to reply—I am not sure which Minister it will be—I am sure that we will be told of good intentions. We want to ensure that good intentions are delivered on.

[Lord Kerr of Kinlochard (CB)]

My Lords, I support Amendment 18. It would be very much in the Government’s interest to buy the amendment; it is quite hard to see what arguments could be made in public against their doing so.

I want to speak briefly to Amendment 29, to which I have put my name. I have little to add to what was said on the subject by the noble Baroness, Lady Randerson—she knows much more about it than me. I disagree only with one thing that I think she said, which was that the JMC had tended to meet regularly but not frequently. It might have been better to say that it met rather irregularly and very infrequently.

I am pleased to be able to say that my text for this debate comes from a point made yesterday by the noble Lord, Lord Howarth of Newport, when he stressed the need for courtesy and respect in the handling of the devolved Administrations. I strongly agree with the noble and learned Lord, Lord Wallace of Tankerness: things are getting very tense. I agree with the point made earlier in discussion on this group of amendments that the devolution settlement is in clear and present danger. As we approach the minutiae of this Bill, we need to have the broader picture in mind. Fine words have been said and undertakings given by successive Front-Bench spokesmen, but they are not perceived in Cardiff or in Edinburgh to have been delivered on. That is why it is a good idea to write into statute the role of the JMC.

That for me is the second-best option. The best option would be to include representatives of the devolved Administrations in the negotiating teams that go to Brussels when the subject for discussion is going to touch on the competence of the devolved Administrations. The battle over common frameworks will be very much easier if the devolved Administrations believe they have been involved in the substance of the negotiations.

I recall that when we first joined the European Union, long before I was born, the first representatives to discuss, for example, fisheries in Brussels were John Silkin accompanied by Bruce Millen and Willie Ross. It was frequently the Scots who spoke on fisheries in the Council, although the legal establishment from London was sitting alongside them. I see no difficulty of principle, and I hope the Government do not, in including the representative devolved Administrations in the negotiating team.

Queen’s Speech

Lord Wallace of Tankerness Excerpts

Wednesday 8th January 2020 Lords Chamber

[Lord Wallace of Tankerness (LD)]

My Lords, like many other noble Lords who have spoken in this debate, the noble Viscount, Lord Hailsham, has referred to the constitution, democracy and rights commission and I very much agree with what he has said. If one looks at the perhaps now infamous page 48 of the Conservative manifesto, I think one can argue that it is so lacking in specification that the Government can scarcely claim a mandate for any of the specific proposals that they might subsequently bring forward. However, one phrase jumped out at me and caused me some concern:

“We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays.”


Those words have echoes of some ministerial responses to the Supreme Court judgment in the case of the illegal Prorogation.

Ministers would be well advised to reflect on the words of Mr Michael Gove when he was sworn in as Lord Chancellor in May 2015. Indeed, Mr Gove himself might want to reflect on them. He said:

“It must be a sorry nation … in which judges themselves agree with politicians 100% of the time.”


He then went on to quote Lord Denning in the 1977 case of Gouriet v Union of Post Office Workers:

“Be you ever so high, the law is above you.”


Of course, Lord Denning was in turn quoting Dr Thomas Fuller from 1733. This is a theme that has infused our thinking about the relationship between the state and the courts—that the law is above even the lawmakers. As the Supreme Court made clear in the Prorogation case, a fundamental principle of our law is the sovereignty of Parliament—not the sovereignty of the Executive. This House will do well to challenge any measures brought before us that try to change that and make it the sovereignty of the Executive.

In the remaining time, I want to say something about Scotland. Like the noble Lord, Lord Kerr of Kinlochard, I await with eager anticipation proposals from the noble Lord, Lord Dunlop. This is a time for some innovative thinking. Would the interests of Scotland, Wales and Northern Ireland be better served by a very high-ranking Secretary of State for the nations and regions rather than territorial Secretaries of State? If there is to be a review of the role of the House of Lords, why do we not constitute it, as often happens in a number of other second Chambers, with a very weighted bias towards the nations and regions of the United Kingdom? A starting point could be the evidence which, over 50 years ago, the Scottish Liberal Party submitted to the Kilbrandon Royal Commission on the Constitution.

More immediately, the Government are about to start negotiations on the future trading relationship with the European Union, as well as numerous bilateral trade negotiations. It is not disputed that under the devolution settlements the conduct and conclusion of negotiations are reserved to the United Kingdom Government. However, on a number of these issues, the subject matter of such negotiations will fall within devolved competence. Indeed, those with whom we are negotiating may well have an interest in implementation in all parts of the United Kingdom. Last year’s report by the Constitution Committee on the parliamentary scrutiny of treaties made the point that there should be full engagement of the devolved Administrations. In their response, the Government said:

“The Government will continue to share papers, including relevant interdepartmental correspondence, and invite the DAs”—


the devolved Administrations—

“to meetings on subjects in which they have a devolved policy interest. The Government remains committed to timely consultation where possible … These new structures will ensure there is meaningful engagement with the devolved administrations at all stages of a negotiation, including prior to developing the mandate and finalising the agreement.”

That, of course, was the government response from the previous Administration under Mrs May. When she comes to reply, will the Minister confirm that that is still the position of the United Kingdom Government, and can she say what steps have already been taken to engage the devolved Administrations in any upcoming negotiations with the EU or indeed in other bilateral trade negotiations?

It is not just a question of institutional arrangements, although the downside of not treating the devolved institutions with respect in future trade negotiations could be damaging given the capacity of many to milk a grievance. The Prime Minister has said that on no account will he cede powers without a second independence referendum, although the Secretary of State for Scotland went on the record during the election as saying:

“The democratic mandate for a Section 30 Order is a matter for 2021. We’ll see whether the SNP get a majority then”.


It has been said in this debate by the noble Lords, Lord Kerr and Lord Reid, that there would be great pressures in 2021 if the SNP were to get a majority. The best way of avoiding that is not to allow it a majority. Let us not play the First Minister at her own game. Nothing suits her better than to constantly debate the constitution. Let us challenge her on her stewardship of the things that are fully within her devolved responsibility. If she says that she wants to set up a central bank so that we can reapply for EU membership, let us challenge her. How could Scotland set up a central bank so easily when it cannot even build hospitals safely or build two ferries on time?

If the First Minister wants to talk about independence, she should also be willing to face up to the record of ScotRail, the centralisation of police services and the mental health waiting times for children. Finally, as the noble Lords, Lord Reid of Cardowan and Lord Soley, said, we must establish the case for our United Kingdom not only from the head but from the heart. That was perhaps not always what we did in 2014, but the question of why we believe the United Kingdom is so valuable might be worthy of a debate in your Lordships’ House.

Finally, we can look around the world at the islands and peninsulas that have been scarred by years of division. Here, for the last 300 years and more, we have built a great democracy together based on a culture of human rights and the rule of law. We have built the National Health Service and a welfare state. We have resisted invasion and conquest. We did not fall in the last century for the totalitarian ideologies which blighted other countries. Yet, at the same time, we have retained our identities as separate parts of the United Kingdom while also feeling British. That is something that we should be proud of and that we perhaps need to articulate more often and more eloquently than I have managed this evening.

[Lord Bethell (Con)]

My Lords, I politely remind contributors to this debate that there is a guidance of five minutes for speeches and we have a great many speakers to come. It would be hugely appreciated if speakers could please stick to the guideline.

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

Lord Wallace of Tankerness Excerpts

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.

--- Later in debate ---

[Lord Duncan of Springbank]

My Lords, this is one of these rather interesting areas in which I seem to be called on to explain the inscrutable workings of the Scottish Government, which I am unfortunately rather ill equipped to do. The noble and learned Lord, Lord Wallace, raised a number of issues regarding the lengthy delay. To be frank, I do not have an adequate answer to give him on behalf of the Scottish Government.

I have before me a statement which says that the Scottish Government have undertaken detailed consideration and consultation. Clearly it has taken a very long time. Exactly why that has been the case remains to be seen. Indeed, through a series of questions asked by a number of Members of the Scottish Parliament, it is quite evident that the Scottish Government were very optimistic that this would be delivered—that the answer would be arriving now—and that has simply not happened.

The noble and learned Lord, Lord Davidson, asked who is to blame for this. I would not use the term “blame”, but I suggest that the Scottish Government have responsibility in that regard. When we learned that there needed to be an amendment of the legislation which was reserved, we of course acted expeditiously to move that forward and will do so. Today is a measure of how quickly we have been able to move. I have not had sight of the details of the Scottish Government’s proposals. While I could speculate that they may look rather like the English and Welsh version—I would only be speculating in saying that—I anticipate that this will come through the Scottish Parliament in due course. I am afraid that I cannot speak on its behalf, however, so I am unable to answer that question.

The noble and learned Lord, Lord Hope, raised the issue, echoed by the noble and learned Lord, Lord Davidson, of those individuals who find themselves outwith the territorial jurisdiction of Scotland—in Wales or in England. That is a correction which we can take forward. As to the mechanism whereby that will be undertaken, I have to admit to the noble and learned Lord, Lord Davidson, that I do not have the detail on that. If it is equivalent to the English or Welsh version, I can certainly have that information placed in the Library. If it is some variation on that, we will have to wait until the Scottish Government determine what it should look like.

As to the amount of money not gathered as a consequence of the length of delay, the noble and learned Lord, Lord Wallace, is correct in his figures. The estimate is that around £1 million is available to be gathered in this way, but that of course depends on the details of the Scottish Government’s regulation, which I do not have. I am not sure whether that is an accurate reflection of the money or whether it is just speculation on our part. It may be that, once we have more detail on this, I can secure that information and place it in the Library. Of course, the avid Members of the Scottish Parliament may be better equipped to interrogate the Scottish Government further on these issues, about which I am afraid I have remarkably little information to satisfy noble Lords.

[Lord Wallace of Tankerness]

Perhaps I might ask the Minister something that hopefully will be within his responsibilities. The Explanatory Memorandum says that it has been,

“prepared by the Office of the Secretary of State for Scotland”.

Paragraph 6.1 states:

“On a practical level, there need to be enforcement measures to ensure that the victim surcharge is paid. One such measure is deduction of sums of money from the relevant offender’s benefit payments”.


Given that that was written by the Office of the Secretary of State for Scotland, can one reasonably infer that there are other ways in which the other enforcement measures could have been done—and, indeed, that they could have been used against people who do not have benefits and might be very wealthy? Therefore, given that that is in an Explanatory Memorandum from the UK Government, can the Minister explain why an interim order was not brought forward before there was a need for this particular one?

[Lord Duncan of Springbank]

Again, the noble and learned Lord asks a question to which I am afraid I do not have an adequate answer in terms of an interim approach to this. Scotland has two Governments, and of course we are active in the area where we can control the elements within our remit. The Scottish Government are responsible for those matters which they must determine and drive forward. As a consequence of that, I am less able to answer the question.

However, I do have an answer to the question of whether the rates of subtraction from benefits are a potential risk to the individual’s ability to pay, or indeed to struggle to pay. The DWP has set out very clear guidelines to avoid any suggestion that the deductions themselves are in any way harmful to the individual. If these guidelines are followed in the Scottish example, I anticipate that this would therefore not be an issue that would occur in the Scottish Government’s proposals. Again, I am speculating on what they will be putting in there; I do not have that detail.

As I move this forward and welcome the support of the House this evening, I suspect that that the Members of the Scottish Parliament may well be better equipped to continue to prod the Scottish Government in order to elicit the responses which I have been unable to deliver on their behalf. On that basis, I hope that I can move forward and commend this order to the House.

Scottish Government: Discussions

Lord Wallace of Tankerness Excerpts

Thursday 2nd May 2019 Lords Chamber

[Lord Wallace of Tankerness (LD)]

My Lords, this time last year, during the final stages of the European Union (Withdrawal) Bill, never a day seemed to go by when we did not discuss common UK frameworks. Can the Minister perhaps update us on what is happening? It seems to have gone quiet. How will he ensure that in areas of shared responsibility there is parity of esteem and there will not be direction from Westminster?

[Lord Duncan of Springbank]

The noble and learned Lord is correct. There needs to be parity of esteem in all these discussions. The intergovernmental review should look at the functioning of the frameworks. The existing joint ministerial committees can be improved, and I suspect that the improvements will emerge from the intergovernmental review.

Withdrawal Agreement: Attorney General’s legal opinion on the Joint Instrument and Unilateral Declaration

Lord Wallace of Tankerness Excerpts

Tuesday 12th March 2019 Lords Chamber

[Lord Keen of Elie]

My Lords, I concur with both of my noble friend’s observations.

[Lord Wallace of Tankerness (LD)]

My Lords, the noble and learned Lord emphasised the importance in the joint instrument of urgency. Indeed, paragraph 7 of the Attorney-General’s opinion today states:

“Therefore, provided the United Kingdom can clearly demonstrate in practice that it is effectively organised and prepared to maintain the urgent pace of negotiations that they imply, the EU could not fail to match it without being at risk of breaching the best endeavours obligation”.


As the Minister has emphasised that this is political, perhaps rather more than legal, I ask him a political question. Can he give the House three examples of when, since March 2017, the United Kingdom Government, in dealing with Brexit, have clearly demonstrated in practice that it is effectively organised?

[Lord Keen of Elie]

Respectfully, it appears to me that we have demonstrated that throughout the process.

Scotland: European Union (Withdrawal) Bill

Lord Wallace of Tankerness Excerpts

Thursday 14th June 2018 Lords Chamber

[Lord McAvoy (Lab)]

My Lords, I thank the Minister for repeating the Statement. This House debated the vital issues of devolution over a number of hours and days during the passage of the EU withdrawal Bill. I pay tribute to noble Lords on all sides of the House for interrogating the Government on the issues with care and a wealth of knowledge. This House agreed a package of amendments to be sent back to the other place for their careful consideration. It is, frankly, remarkable that the Government provided less than 20 minutes for the elected House to debate the proposals in front of them on issues as fundamental to the union as devolution and the future of the Northern Irish border.

When this House gave the Bill its Third Reading, we expressed our regret at the absence of a legislative consent Motion from the Scottish Parliament and our hope that the UK Government would convene cross-party talks with the Welsh and Scottish Governments to look at ways forward. We are informed that requests for such talks, including by the shadow Secretary of State for Scotland, have been declined. This is, at the very least, disappointing.

The Government did not give enough thought to devolution in their drafting of the Bill, as in many other areas, and brought forward a flawed piece of legislation. The Government’s own Ministers conceded this point. A great deal of time and debate went into trying to address problems which are in part of the Government’s own making. It is unreasonable, at the next stage of that process, to claim that there is no time left for the other place to have a full debate on the new Clause 11 that it was promised.

We have repeatedly asked the Government to think more carefully about the devolution settlements, and the place they have in upholding our union and shaping the future of the Brexit negotiations. Are the Government actively considering Her Majesty’s loyal Opposition’s calls for the Joint Ministerial Committee to be put on a statutory footing, and have the minutes of its meetings published? We have a situation and there has to be a discussion, agreement and consensus, and I hope that the Minister can provide some hope in that quarter.

[Lord Wallace of Tankerness (LD)]

I thank the Minister for repeating the Statement. I am not sure whether to thank him for the name check, which was a fairly broad interpretation of a somewhat more complex legal point. However, clearly, the Statement was made in the other place in response to the failure to have an adequate debate on the Lords amendments and following on, too, from the stunt of the SNP walking out yesterday. However, anyone with even a limited knowledge of Scottish politics knows that the SNP is a grand master at cranking up the grievance machine. Can the Minister therefore say why the Government gave them a gift-wrapped grievance to exploit?

We must also ask about the role of the Secretary of State for Scotland. Let us recall that he promised the House of Commons that amendments to Clause 11—which was, by that stage, completely discredited—would be tabled in the House of Commons on Report. That did not happen. I think there was some forbearance, when the Bill came to this House, because we took the view that, if time was needed to get these amendments right, then time should be taken. Indeed, we had good debates in Committee and on Report and even some further debate at Third Reading. But that was done on the expectation that Scotland’s elected Members, not just the SNP Members but those from the Conservative Party, Labour Party and Liberal Democrats—and indeed Welsh and Northern Ireland Members, because it affects their constituents too—would have a proper and adequate opportunity to look at these amendments. They are a total recasting of the devolved situation post Brexit and the Government must really answer why they did not arrange the timetable in such a way as to allow that to happen. We are entitled to ask whether the Secretary of State for Scotland made representations for the timetable to be arranged in such a way for there to be adequate debate. If he did not, he was derelict in his duty and, if he did, I ask the Minister what conclusions can we draw about the weight he carries within government in as much as these representations were overlooked?

If one goes to the substance of the Statement, it says that:

“While the devolution settlements did not predict EU exit, they did explicitly provide that, in situations of disagreement, the United Kingdom Parliament may be required to legislate without the consent of the devolved legislatures”.


It is of course the case that, legally, Section 28(7) of the Scotland Act 1998,

“does not affect the power of the Parliament of the United Kingdom to make laws for Scotland”.

That is a statement of the sovereignty of the United Kingdom Parliament. Section 28(8) goes on to state:

“But it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament”.


As the Supreme Court found in the Miller case, it is a convention and, therefore, it is a perfectly legal position that the United Kingdom Parliament can legislate. Can the Minister indicate—it may be that he has not had time to look back at exactly what Lord Sewel said—whether Lord Sewel explicitly said, as was claimed in the Statement, that in some way this would be used as a form of dispute or disagreement resolution? I would quite like to know where this explicit reference to that came from.

We know that this particular Bill is a forerunner to agreeing frameworks. The principles of the frameworks for the United Kingdom were agreed by all parties at the Joint Ministerial Committee on EU Negotiations back in October. Can the Minister indicate what steps have been taken to put some meat on to the frame of these frameworks? Has the position that has been taken by the Scottish Government—indeed the Scottish Parliament—in any way hampered these discussions in recent weeks, both at official level and at ministerial level?

For my final point I just return to the issue of dispute resolution because, if we are going down the road towards UK frameworks, it is important that we have a better form of dispute resolution than taking the sledgehammer to what has happened in the meantime. We want to know what thought has been given by the United Kingdom Government, in discussion with the devolved Administrations, to ensure that there is far better dispute resolution than we have had to date.

[Lord Duncan of Springbank]

My Lords, I thank both noble Lords for beginning what I think is a very necessary discussion on the functioning of the Sewel convention. If I may—to go in reverse order—I will address the question of the frameworks themselves and their functionality, because I think this is where we need to focus our attention. These have been the subject of extensive engagement at an official level. If we add up the number of hours that have now been spent with officials examining each of those frameworks, we are in excess of 100 hours of meetings specifically to look at the functioning of the frameworks themselves. A phrase that comes to mind is: “officials are smiling on it”, which we always widely interpret as things are going quite well—but officials smiling is not the same as Ministers themselves signing it off. One challenge that we have often had is that what appeared to be agreement at the level of the officials—where examination on the detail of the frameworks themselves appeared to be reaching consensus and agreement—did not always match and meet the next step of making sure that Ministers themselves were able to sign that off. That has been one of the greater challenges that we have experienced because, again, this is without precedent. We are trying to establish how we can repatriate laws that we have not had functional control over, and trying to do so within a devolved framework, which of course did not exist when those laws were first moved from the United Kingdom Parliament across to Brussels.

In terms of the events in the other place, time was given, but it might be argued that time was misspent. A great deal of time was spent on a number of elements in discussion, thereby precluding serious engagement on these specific aspects. There needs to be some soul-searching across a number of parties as to how it ended up that way. I do not think that we in this place—or indeed those in the other place—can legitimately say that there has not been substantive engagement on the devolved clauses, Clauses 11 and 15, on many different occasions, both here and through the various forums that exist for officials and for Ministers to examine them. There has been, I suspect, on this clause alone, more correspondence, engagement and meetings to try to bring about the necessary agreement. Clearly, we were able to secure that agreement with the Welsh Administration but not with the Scottish Administration.

The noble and learned Lord, Lord Wallace, raised the point that my right honourable friend in the other place said that he would bring agreed amendments on Report, but the key part is “agreed”. In order to achieve that, the two sides had to reach agreement. It was not for want of effort that that agreement was not found. The reality is very simple: if you are unwilling to accept that there needs to be some form of concessions to seek that agreement, then you are simply not going to get it. At each stage when we thought that we had moved far enough to change the structure of the clause in such a way that we would be able to get support, we found that the goalposts had shifted slightly further away from us. Clearly, we were able to deliver the support of the Welsh Government, but we were never able to secure the support of the Scottish Government. Even though the officials—and indeed certain Ministers in the Scottish Government—believed that we had made enough progress, unfortunately, when it came to the final sign-off, that was simply not the case.

I take the point from the noble Lord, Lord McAvoy, about the JMC and how it shall work. There are examinations now about how we shall create structures that will necessarily address the changing environment and changing reality. How that will evolve is yet to be determined, but I take on board the points that he has made; it is useful for us to be part of that engagement. There will need to be cross-party engagement on the functionality of what, in effect, is a new constitutional arrangement—one that we are still writing. That is part of the challenge that we are living through right now; we have not yet signed off the final chapter of what this will look like. It is therefore quite difficult, in one respect, to determine exactly how we, as the Government, shall address that—my word, that is very unusual handwriting on the note just passed to me; I will read and speak to it momentarily, but not right now.

To conclude my remarks on this particular point, the important thing is that the show is not over. We are trying, and continue to try, to deliver the outcome that is right, but there needs to be an acceptance of agreement, which has to be based upon at least some acceptance of a concession. At the moment, the Scottish Government’s view on this is so didactic, specific and unmoving that, in essence, we are placed in the invidious position right now of taking a journey that we did not set out to take but which is facilitated within the law. As the noble and learned Lord, Lord Wallace, has said, the Sewel convention does allow for this particular approach under not normal circumstances. We do not want to be taking this journey at all, but we are and we must, because the key thing is that, on day one after Brexit, the statute book must work, not just here in London but in Edinburgh, in Belfast and in Cardiff.

--- Later in debate ---

[Lord Duncan of Springbank]

I thank the noble Lord for his words of advice, but Scots are renowned for telling it like it is, and I assure him that I moderated my language a great deal when I chose those words. What I saw yesterday was scandalous, and I think anyone who saw it would agree. It was a dereliction of a democratic role. That level of theatrics may play its part—I do not doubt that—but there are other things that should be done in the other place.

On qualified majority voting, in the United Kingdom we have a degree of asymmetry. Attempts were made by the other party to address this through regional assemblies within England, but that was simply not supported by the public will. It is not easy to accept in such a small island archipelago such as we are, where one nation is so dominant in terms of population, that we should somehow simply divide the land into four parts and pretend that each is equal and should be considered as such. That would not be easily done. I do not think that the Government today are ruling anything out, but we have to be realistic—something else the Scots are renowned for.

[Lord Wallace of Tankerness]

My Lords, if no one else is rising to speak—we still have 12 minutes—I will ask a question. The Minister said in response to the questions I raised that time was taken up by Divisions, but can he confirm as a matter of fact that the Government could have arranged the timetable, given that it happened over two days, so that the issues on what became Clause 15 were taken first and were not truncated in the way they were? It is also part of the Government’s own timetable that time for Divisions is taken account of. Can the Minister confirm that it was a matter of the Government’s own judgment that they did not put this item in a place where it could be properly debated?

[Lord Duncan of Springbank]

I thank the noble and learned Lord for that point. I can confirm that the Government could have adjusted it, had they been minded to do so. However, the problem was that they did not anticipate what happened as the votes began to dominate and consume the speaking time. Part of the dilemma that was faced was therefore that by the time this was recognised, the time itself had elapsed. I do not doubt that yesterday, had the Scottish National Party not left the building and had lodged their request for a debate, there would have been a debate on that very point to allow each of these issues to be aired adequately.

Northern Ireland: Supreme Court Ruling

Lord Wallace of Tankerness Excerpts

Thursday 7th June 2018 Lords Chamber

[Lord Duncan of Springbank]

I thank the noble Baroness. I wish I could give more than warm words at this time. We have to consider the judgment very carefully; it is 140 pages long and came out only this morning. However, the early analysis suggests that the technicality that the noble Baroness and I have both touched upon will in due course be addressed by another case, and that technicality will be eliminated.

The issue is therefore how this matter shall be addressed in Northern Ireland. Clearly, as I have said on a number of occasions on a number of matters, we would prefer a devolved Administration—a devolved Executive—to take these issues forward. None the less, the last time that the Assembly in Northern Ireland debated this issue on a cross-party basis—on each occasion regarding each of the elements that were part of the judgment today: the fatal foetal abnormalities, rape and incest—the Assembly itself did not endorse progress on these matters. It is important that the issue is addressed with some urgency but also with some care, because there are a number of wide implications that we must take on board. That is why at this stage we will consider the judgment very carefully to ensure that we understand exactly what it is saying, so that we can appreciate how to take the next steps.

[Lord Wallace of Tankerness (LD)]

My Lords, this is obviously a very charged and sensitive issue. As the Minister and the noble Baroness, Lady Smith, have said, the judgment will require a lot of detailed consideration. None the less, it is clear that there was a majority in the Supreme Court who, but for the fact that there was no legal standing on the part of the Northern Ireland Human Rights Commission, would have found a declaration of incompatibility. Given that under paragraph 3(c) of Schedule 2 to the Northern Ireland Act 1998 human rights and the observance and implementation of our international obligations, including human rights obligations, are an excepted matter and therefore fall within the responsibility of the Westminster Parliament, and given that both the relevant United Nations committee and now a majority in the Supreme Court have said that the current law of abortion in Northern Ireland is lacking with specific regard to Article 8 of the European convention, is there not some responsibility on the UK Government to address this matter with a degree of urgency, as the noble and learned Lord, Lord Mance, encouraged?

I certainly agree with those who have said that it would be far better if this were dealt with by the Northern Ireland Assembly. Indeed, my colleague in the Alliance Party of Northern Ireland, David Ford, had already brought in a Bill before Stormont was suspended with regard to addressing fatal foetal abnormality in relation to abortion. While that is obviously the best route to go down, as long as the Northern Ireland Assembly is not functioning there is within the current devolved settlement a responsibility on the UK Government to do something.

[Lord Duncan of Springbank]

I thank the noble and learned Lord. He is absolutely right that the judgment itself, even on a cursory reading, does not allow us to escape the conclusions that have been drawn simply because there is a technical matter there. The obligation for us right now is to ensure that we are able to move forward on this matter. The challenge, however, is that we must ensure clarity from the parties and communities in Northern Ireland as to how. We do not wish to be seen as, in essence, trying to interfere from over the water deliberately to change what are clearly very deeply held views by a number of parties. None the less, the finding itself will need to be considered very carefully and we must do that in order to be clear that we are upholding our obligations, something that the Government will continue to do.