Draft Civil Jurisdiction and Judgments (Amendment) (EU Exit) Regulations 2019

Stuart C McDonald Excerpts

Tuesday 5th February 2019 General Committees

[Stuart C. McDonald (Cumbernauld, Kilsyth and Kirkintilloch East) (SNP)]

I thank the Minister for her statement. I want to make a couple of short comments. It is important that we do not underestimate the significance of these proceedings. We are, essentially, re-writing an important piece of primary legislation. Full treaties are basically being dis-applied from the United Kingdom through 84 pretty technical clauses. I just wonder at the outset whether there are ways that we can make this process work better from the point of view of scrutiny.

Importantly, the explanatory memorandum to the draft regulations refers to there having been no formal consultation but some discussions with stakeholders; the Minister named one or two of the stakeholders. However, from what I can see, the explanatory memorandum was written several months ago. I wonder if it would have been possible during that time to ask for written submissions from some of these stakeholders, so that MPs trying to scrutinise such important bits of legislation could see for themselves the expert opinion of the likes of the Law Society or the Bar Council.

I managed to track down a briefing from the Law Society of Scotland. I am grateful to it for having prepared one at such short notice. The Minister will be pleased to hear that it gave the draft regulations a clean bill of health, so we ultimately accept their need and will support their implementation. However, given the significance of these issues, it would have been useful to have seen a little bit more detail than provided in the explanatory memorandum.

The explanatory memorandum makes reference to private international law being transferred to Northern Ireland, to be within the competence of the Northern Ireland authorities, but it is silent on devolution to Scotland. I have not been able to get a definitive view in the time available whether this matter should be devolved to the Scottish Parliament. Regardless of whether it is devolved or not, I would like some reassurance that there have been close discussions with the Scottish Government about what the draft regulations will mean for the Scottish courts. There usually are such discussions, but I do not see them mentioned in the explanatory memorandum. The White Paper on civil jurisdiction commits to close working with the devolved Administrations. It would be useful to have a flavour of what has been discussed in relation to this particular draft statutory instrument.

Finally, I have a question on an exception that the Minister pointed out, although it is probably for a future day, about our retaining the rules on the jurisdiction in employment cases. Reading through the explanatory memorandum, it seems to me that an employer must sue an employee where the employee is domiciled, which seems perfectly sensible. However, if it is the other way around, the employee has a choice of where to sue the employer, although strangely enough that choice does not include where the employee is domiciled. He could sue in the jurisdiction where he carries out work for his employer but not where he is domiciled.

I totally get that the Government are actually only implementing what the Brussels regulations do at the moment, but I think the situation is slightly strange. The Government have tweaked one or two other Brussels regulations in relation to corporations and associations, so I wonder if they gave any thought to tweaking that one. It seems strange that an employee could not sue where they are domiciled. I am guessing that that would affect someone who lives in, say, Newcastle, but works offshore, three weeks on, three weeks off, in Scottish waters. As I understand it, they would not be able to sue in England. That is probably too technical for today; it is something to think about for another occasion.

Notwithstanding our slight concerns about the degree of scrutiny of something as important as the draft regulations, I understand that they are necessary. We support them.