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.

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

Lord Judge Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Wednesday 13th May 2020 Lords Chamber

[Lord Judge (CB)]

During the rehearsal for this afternoon, I was asked to say my piece, and I used two words. I said, “Henry VIII”. Just in case it was not apparent to anybody who heard me say that,I was trying to convey, as I did on 17 March, when the rather claustrophobic shades of the pandemic were closing in on us, that the Bill unnecessarily invests excessive power in the Executive and does so by secondary—

[The Deputy Chairman of Committees]

My Lords, the Committee is having some problem in hearing the noble and learned Lord, Lord Judge, and I wonder whether his connection is stable.

[Lord Judge]

Shall I start again?

[The Deputy Chairman of Committees]

Perhaps start again, or perhaps go at least two sentences back.

[Lord Judge]

I will try again. On Henry VIII, I was trying to convey that the Bill unnecessarily invests excessive powers—

[The Deputy Chairman of Committees]

Lord Judge, I am afraid that there is a problem with your connection. I suggest that we move to the next speaker and hope to come back to the noble and learned Lord at the end of the list, by which I hope his connection will be better. If that is acceptable, I ask the broadcasters to please unmute the noble and learned Lord, Lord Goldsmith.

--- Later in debate ---

[The Deputy Chairman of Committees]

: My Lords, I am hoping to call the noble and learned Lord, Lord Morris of Aberavon, in a second, but, before doing so, I should say that after the noble and learned Lord I intend to call the noble and learned Lord, Lord Judge, whose contribution we were not able to hear earlier. I understand that his connection is now properly established. I call the noble and learned Lord, Lord Morris of Aberavon. Is he with us? I think we must assume that the noble and learned Lord, Lord Morris, will not be joining us at this time. Is the noble and learned Lord, Lord Judge, available?

[Lord Judge]

Can you hear me?

[The Deputy Chairman of Committees]

I can certainly hear you, Lord Judge.

[Lord Judge]

Good. Do you mind if I ask whether you heard anything that I said when I started last time?

[The Deputy Chairman of Committees]

In the interest of making sure that everybody hears everything that the noble and learned Lord has to say, perhaps I may suggest that he starts again from the top. I think that would be preferable to trying to start in the middle.

[Lord Judge]

I thank the Deputy Chairman very much. I apologise to those who have already heard me say this but, when I was tested at the rehearsal to make sure that my machine was working and I was well plugged in, my only response was “Henry VIII”. It was a wonderfully short speech. Effectively, it said what I wanted to say. However, just in case anybody does not know what I meant, I was intending to convey my view of the Bill, as I did on 17 March at Second Reading, when the awful, claustrophobic shades of the pandemic were closing in on us. Having listened to the debate and read the report of the Constitution Committee, I summarised my view of the Bill by saying that it unnecessarily vests excessive power in the Executive by means of secondary, not primary, legislation. It is a very simple principle and it is wrong. At the time, I submitted to the House in what I hope was my characteristic way—understated—that it was not exactly regulation-light.

The result of reading the report and listening to today’s debate—I do not wish to add to the many wonderful contributions that have been made—is that I can be less circumspect this time: this Bill is now heavy. It is overweight with regulation.

Why can we not be realistic about what the affirmative process actually does? It is not a means of controlling the Government. When, in 2015, a go was had at trying to stop a Conservative Government using Labour Government legislation to achieve £4.5 billion-worth of change to fiscal issues, it was apparently regarded as a constitutional outrage. That is us. As far as the Commons is concerned, unless something has happened very recently, it is 1979 since it rejected an affirmative resolution. That suggests that if we are honest with ourselves, the affirmative resolution process, even the super-affirmative, is not nearly as good as every Government of any colour always says it is supposed to be.

The fact of the matter, although I cannot identify a particular Henry VIII clause here save and except the usual ones about amending and getting rid of primary legislation, is that, from his underworld, Henry VIII has hacked into departmental computers. Alternatively, he has been inserted—resurrected and put into departmental computers. We must be very careful about attaching so much weight to the use of secondary legislation that might affect individuals’, companies’ and organisations’ rights. That is really all I want to say at this stage. I will say something about the regulations relating to the creation of criminal offences, but I support the concerns that have been expressed all round. Thank you very much for helping me to get that through, Deputy Chairman.