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

Lord Judge Excerpts

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

[Lord Judge (CB)]

My Lords, the noble and learned Lord, Lord Mance, has had the courtesy to show me a draft of what he is going to say. In view of the fact that he will say everything that I would have thought of saying, and rather a lot more—and will do it rather better—I shall be brief. But I would like to say before he speaks that I agree with him. In particular, I agree that this is sensible legislation. We need to have these arrangements. But I have a particular reservation about vesting power in a Minister, using secondary legislation apparently to change the entire law of arbitration as it works in this country. That needs to be examined, and the noble and learned Lord will no doubt develop the point.

The reason I am speaking is of course because we are dealing with secondary legislation, and this is yet another example of proposed legislation that is not exactly regulation-lite—I spell that “lite” because I want to show your Lordships that I have even seen Diet Coke. This is not diet regulation. We have one clause, then a second clause which is simply a regulation-making power, then we have 66 pages, perhaps more—yes, we come to page 68—and then we find the mother and father of Schedule 6, which is more regulation-making powers. Dare I ask the Minister a question? It has been a long day, and he has had to listen to a lot of speeches. Is Schedule 6 tucked away because it is shy of showing its face? It could just as easily have been part of a major structure of the Bill, not a schedule. But that is a minor detail.

Schedule 2 is not so bad. It is certainly better than Schedule 6. As the Minister said in opening, it attracts, or would attract, the provisions of the Constitutional Reform and Governance Act. However, as noble and learned Lord, Lord Wallace of Tankerness, just explained, the Constitution Committee took a view that that did not provide all the answers to everything. Therefore, we have a measure of parliamentary control over Section 2 and the use of the regulations there, not none, which is therefore rather better.

I have simple questions about Schedule 2. What will the powers be used for? Why are they needed if the powers in Clause 2 are as clear as they are and are subject to the controls which the Minister suggested? I want to know what possible thought the Minister has in mind about why we need a Henry VIII clause. “Has it just come off the computer? Let’s stick a Henry VIII clause in.” Amending primary legislation is precisely what Henry VIII clauses are about. The House has heard me on numerous occasions on this topic. I will not entertain the few of your Lordships who are here tonight about it, but I would like the Minister to see whether he could help us with it. Beyond that, I have no further observations to make. We need to be careful about how we run our legislation through regulatory mechanisms.