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.
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My third point is simply a teasing matter about terminology. The matter is not assisted by the fact that in this Bill the UK authority is described as the “Secretary of State”. In the Scotland Act, that authority is described as a “Minister of the Crown”; for example, in Sections 56 and 63. So too in the European Union (Withdrawal) Act 2018 we are told that the relevant authority there is a “Minister of the Crown”. The change of terminology puzzles me somewhat: why “Secretary of State” here and “Minister of the Crown” in the other contexts?
To sum up, the reference in Clause 2(7)(b)(ii) to
“the Secretary of State acting with the consent of the Scottish Ministers”
is very welcome in its reference to consent. When I made contributions on the withdrawal Bill I tried frequently to introduce the word “consent” without any success, so to see that word here is music to my ears. One must be thankful for small mercies. However, I cannot help thinking that Clause 2(7)(b)(ii) should not be in the Bill at all. If it is to be kept in, I would be grateful if the Minister would say, first, why mention is made here of the Secretary of State at all; secondly, how that is compatible with the provisions of the Scotland Act; and, thirdly, why the expression “Minister of the Crown” is not being used here instead.