My Lords, I thank the noble Lord, Lord Hain, for meeting with me after Second Reading, when we discussed what he termed the copper-bottomed guarantee that he had sought in that debate. I explained
to him the difficulty I had with that demand, given that it conflated the position of the Welsh Government with that of the Northern Ireland and Scottish Governments in circumstances where there was a quite separate and distinct divorce settlement with regard to the latter two, in contrast with the position in Wales. I understood him to appreciate that—indeed he even mentioned amending his amendment. I indicated that I did not think that necessary, because of course we are dealing here with a point of principle, and an important one.
Before I turn to the detail of the amendments, I stress to noble Lords that Ministry of Justice officials are in regular conversation with their counterparts in the devolved Administrations, not only about the matters contained within the Bill but whenever private international law issues arise that touch on areas of their devolved competence more generally. We are very conscious of our responsibilities under the devolution settlements, and our approach in this area is always to seek to engage early and often when any questions arise. It is my view that such an approach of early engagement is the best way to make consultation genuinely meaningful.
The noble and learned Lord, Lord Falconer of Thoroton, referred to an earlier observation by the noble and learned Lord, Lord Hope, with regard to his concern over the devolved aspects of the Bill. I have to say that I am perplexed by the observations of the noble and learned Lord, Lord Hope, and perhaps I should have responded earlier. There are two distinct ways in which these matters can be dealt with in the devolved context of Scotland. One is by the Scottish Ministers and the other is by the Secretary of State with the consent of the Scottish Ministers. The latter avenue is of course there because there are circumstances in which the Scottish Government will say to the UK Government, “We are quite content that you should implement these provisions throughout the United Kingdom without us having to replicate your efforts”. I hope that that assists in clarifying that point.
The Government have fully honoured the devolution settlements in this area as we approached the drafting of the Bill, including, I may add, the Clause 2 power itself and how it can be exercised in particular in relation to Northern Ireland and Scotland. It is important to point out at the outset that the devolution settlement is different in distinct parts of the United Kingdom, as I said before, and that difference is reflected in the Bill.
Amendment 11 affects Scotland and Northern Ireland, where private international law is a devolved matter, differently to Wales, where these matters are almost entirely reserved. For Scotland and Northern Ireland, there are already two designated “appropriate national authorities”, as I just mentioned, which may exercise the Clause 2 power for those jurisdictions: either the Scottish Ministers or a Northern Ireland department, or alternatively, the Secretary of State acting with the consent of those Ministers or the Northern Ireland department. Either way, the ultimate decision on use of the Clause 2 power in Scotland and Northern Ireland rests with the devolved Administrations, and that is reflected in the Bill.
In principle, I have no objection to consulting before the Secretary of State can make regulations which apply in Scotland and Northern Ireland. Indeed, it is something that would happen, because he can make those regulations only with the consent of the Scottish Government or of the Northern Ireland department. I refer also to Clause 2(7)(b)(i) and (c)(i), which provide that the Secretary of State already needs the consent of the Scottish Ministers or a Northern Ireland department to legislate for those parts of the United Kingdom. I do not see how one would gain such consent without consultation. It goes without saying that if you are to secure consent, you must consult and engage.
The Scottish Government and Northern Ireland Administration have been fully engaged in the drafting of the Bill, including the Clause 2 power, and there is strong support from both devolved Administrations on the Clause 2 power as currently drafted. That is reflected in the fact that a legislative consent Motion has already been granted by the Northern Ireland Assembly, and another has been laid before the Scottish Parliament, with both the Scottish Government and the Scottish Parliament’s Justice Committee recommending that consent be granted. There we have a clear picture of what is happening in the devolved Administrations with regard to the Bill, and in particular Clause 2, and their welcome of these developments. They are the product of consultation and of consent.
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I now turn to Wales, where the private international law situation is different. It is almost entirely reserved, but there is an exception for Cafcass, which provides expert child-focused advice and support and safeguards children. I can confirm that at present there are no agreements we wish to join and implement using the Clause 2 power falling within the area of devolved competence in Wales. However, should an intention to join and implement such an agreement arise, we would of course consult the Welsh Government before implementing the agreement—as we do—at the soonest possible opportunity and with the intention of engaging in meaningful consultation and discussion, with a view to reaching agreement over how best to proceed. I trust your Lordships now appreciate the different position of Wales in this context and why I could not simply give the copper-bottom guarantee that merged the position of Wales with Northern Ireland and Scotland.
Amendment 12, also tabled by the noble Lord, Lord Hain, covers similar ground to the previous amendment. It inserts a requirement that, prior to laying a draft of a statutory instrument to implement an agreement before each House of Parliament under paragraph 3(2) of Schedule 6, the Secretary of State must request and obtain the consent, by means of a resolution, of the Scottish Parliament, the Senedd and the Northern Ireland Assembly, as appropriate in so far as the private international law agreement affects matters that are devolved to each of those legislatures.
I have already set out the devolution settlement in this area and the proposed use of the Clause 2 power in that context. The Bill as currently drafted fully adheres to the devolution settlement in this area of law. I also recognise that the position of Wales in this
area is different to that of Scotland and Northern Ireland and have already given assurances on that matter.
I continue to believe that the approach taken by both amendments of introducing a legislative requirement either to consult the devolved Administrations or to get their formal consent on the exercise of the Clause 2 power is unnecessary and confusing given how the Bill is currently framed. The issue of consent is already catered for in the Clause 2 power. On consultation, I continue to believe that any formal provision is unnecessary because one will never secure consent without consultation.
I hope that satisfies the noble Lord, Lord Hain, with regard to our position. We are concerned to consult and have consent in the context of each devolved settlement, remembering that it is for the Scottish Government to implement private international law agreements in Scotland, which is quite distinct from the position in Wales. For these reasons, I invite the noble Lord to withdraw his amendment.