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

Lord Hain Excerpts

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

Moved by

[Lord Hain]

11: Schedule 6, page 68, line 44, at end insert—
“( ) Before laying a draft of an instrument before each House of Parliament under sub-paragraph (2), the Secretary of State must consult—(a) Scottish Ministers,(b) Welsh Ministers, and(c) the Northern Ireland department.”

[The Deputy Speaker]

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

[Lord Hain (Lab) [V]]

My Lords, in moving Amendment 11, I shall also speak to Amendment 12. I am, of course, aware that the position on consultation is different for Northern Ireland and Scotland, which have separate and therefore fully developed legal systems, where Wales does not; therefore, private international law and the implementation of these agreements is devolved in their cases.

At Second Reading, I asked for copper-bottomed assurances from the Minister with regard to devolution—namely that, should the Government identify issues within devolved competence, which would be impacted by existing or future private international law agreements, they would consult the Welsh Government—I emphasise the word “consult”. I was arguing not that the Welsh Government or Senedd should be able to veto or prevent the UK Government concluding such international agreements but simply that, in doing so, they should first make sure they understood the perspective of the devolved institutions, which, in many cases, are obliged to implement such agreements, and preferably secure their consent.

Frankly, I was astonished by the cavalier—some might say high-handed or arrogant—dismissal by the Minister, the noble and learned Lord, Lord Keen, of my request. We may be getting used to the way that this Government are determined to sideline and ignore Parliament, but I had not expected this response, because I was advised that the Welsh Government had been given specific verbal assurances on this point. Welsh Ministers were so concerned at his dismissive reply that their Counsel General, a Minister, wrote to the Lord Chancellor protesting about it.

This is not just a debating point. As I made clear at Second Reading, the UK Government have already signed international agreements which directly impact on the rights of the Senedd to determine the franchise—a pretty fundamental point, you may well agree—and a competence that was devolved only in 2017. The truth is that the Government did not consult any of the devolved Governments properly over a series of European Union withdrawal and Brexit-related Bills. Instead, UK Ministers tried to indulge in a series of power grabs, as previously devolved functions were returned from Brussels back to the UK. There were a series of stand-offs with the First Ministers of Wales and Scotland. There were also refusals to grant legislative consent Motions in Wales and Scotland until satisfactory outcomes were belatedly conceded by Her Majesty’s Government. I am sure that something similar would have arisen in Northern Ireland had Stormont not been so damagingly self-suspended for three years during this Brexit-dominated period.

I therefore repeat my request for the Minister to give an assurance at the Dispatch Box now on the necessity for full and early consultation, for my amendments are designed to ensure that the devolved institutions are not blindsided by finding out after the event that the UK Government have signed up to obligations on their behalf, without any forewarning.

[Baroness Ritchie of Downpatrick (Non-Afl) [V]]

My Lords, I support the amendments in the name of my noble friend Lord Hain. I am a signatory to Amendment 11, which quite clearly emphasises—as does Amendment 12—the need for direct consultation with the devolved institutions. I am a former Member of the Northern Ireland Assembly; I was also a Minister in the Executive and had direct responsibility for benefits and for the protection of children through child support. One facet of this Bill deals with those issues to do with absent parents and the protection of children when the absent parent has gone to live in another jurisdiction. I fully understand and appreciate the matter.

My point, in supporting the amendment, is to ensure that the devolved institutions are not blindsided. I carried out some, shall we say, investigation and research on this: we know that the Northern Ireland Assembly’s Committee for Justice was contacted by the Minister for Justice on 28 April and that the committee gave approval on 30 April. Then the legislative consent Motion, which gives effect to the UK Government legislation, was approved on 19 May.

However, on further examining that debate in the Northern Ireland Assembly on 19 May, I noticed that some Members, albeit accepting the premise and purposes of the Bill, were concerned that after its approval they would not be consulted as an Assembly. The Minister would simply be advised that certain instruments were to be laid and that this particular legislation would apply, but they as Members of the Assembly would not be able to debate it, change it or give an opinion. In my view, that is undemocratic, hence my support for both amendments in the name of my noble friend Lord Hain.

--- Later in debate ---

[The Deputy Chairman of Committees]

I have received no requests to speak after the Minister, so I call the noble Lord, Lord Hain.

[Lord Hain [V]]

I thank my noble friend Lady Ritchie of Downpatrick for the telling point that she made about Northern Ireland and the confused picture of consultation there. I also thank my noble friend Lord McConnell for the interesting points that he made, including on the long-overdue formal structure for mandates for treaties. It was an interesting point that the Government might want to consider. Whether it is over Europe or international treaties, I have always found the process for forming the mandate for the negotiations in respect of the devolved Administrations, as my noble friend Lord McConnell put it—as a former First Minister of Scotland, he is an authority on these matters—to be a sort of retrospective rather than prior consultation. I thank, too, the noble Lord, Lord Thomas of Gresford, for his important point about getting agreement, if possible, with the devolved Administrations on all the Bills that are descending on us in a great shower as we move to leave the European Union.

The noble Lord, Lord Bhatia, made important points about family law and proper consultation over the complexities of children’s rights. My noble and learned friend Lord Falconer made what I thought was the very telling observation that the way that these amendments have been handled and, indeed, the response to my points at Second Reading are all of a piece, to use his phrase, with the way in which the Bill has been conducted.

I thank the Minister for his response. However, I am afraid that I do not accept his interpretation of the way that I approached this matter at Second Reading, and I think that revisiting Hansard will confirm that. My points concerned Wales. I asked for a copper-bottomed guarantee on consultation over Wales. I did not get it then and I have only sort of got it, grudgingly, now. I simply say to him that I always found in my role as a Minister that it was better to own up and admit to mistakes if and when you made them. If I may say so as a former Secretary of State for Wales and for Northern Ireland, I think that it is also better to be open and embracing about devolution and the statutory requirements for consultation and agreement on these matters, rather than to be a bit grudging and chippy about them.

I have no idea what the Welsh Government will make of the Minister’s reply. He seems to have given a commitment to consult and reach agreement, but we will need to see. Maybe this matter will have to be revisited on Report, especially if the Welsh Government react with a letter to the Lord Chancellor in the way that they did after his response to me last week. Perhaps that will not be necessary—I certainly hope not. I beg leave to withdraw the amendment.

Amendment 11 withdrawn.