Private International Law (Implementation of Agreements) Bill [HL] — House of Lords, 2020-05-13
Topic: International Affairs
Donald Thomas (Liberal Democrats, Centre to centre-left): My Lords, in his letter of 19 April in response to the report of the Delegated Powers Committee, the Minister said: "The Committee’s Report implies that the power in clause 2 of the Bill would allow the Government to implement agreements on any aspect of private law with a foreign element, rather than merely agreements on the much narrower subject area of private international law, as defined by clause 2(7) of the Bill. … It will not be possible for matters outside of the areas indicated by the definition of ‘private international law’ in clause 2(7) to be implemented using the power." The Minister echoed what was set out in paragraph 7 of the Explanatory Notes, which state: "PIL agreements cover a discrete area of law that is narrowly defined." One would therefore have expected that the interpretation of Clause 2(7) to be narrowly defined, but as the noble and learned Lord, Lord Falconer, pointed out, there is a width and uncertainty about these provisions that really do not follow the expressions being used For example, the definition clause for "international agreement", which Amendment 9 deals with, includes, "an agreement to which the UK is, or is expected to become, a party." What does that mean? Does that mean that legislation will be brought forward under these provisions and regulations brought forward in respect of an agreement to which we are not a party? As the noble and learned Lord, Lord Falconer, pointed out, what happens if the agreement is not ultimately made and the negotiations fall through? We would then, presumably, have regulations on the statute book dealing with an agreement to which we were not a party The definition of "private international law" is also contained in that same subsection, and Amendments 10, 12 and 13 demonstrate the loose wording that is used in case anything has been missed. That is rather typical of the drafting of the legislation. It is so drafted that anything can be bought in and the door is kept open. For example, it includes "rules and other provisions", and there is to be co-operation in relation to the "service of documents, taking of evidence and other procedures" not defined. Paragraph (c)(ii) deals with "anything within paragraphs (a) and (b)." It is so loose and ill-defined So the purpose of the amendment moved by the noble and learned Lord, Lord Falconer, is to define the scope of regulation-making powers of the Bill so that the regulations should be confined exclusively to the field of private international law. Any provisions that trespass into any other territory could not be incorporated into domestic law by these regulations. I wholly support what he says about that I also support what was said by the noble and learned Lord, Lord Manse, on arbitral awards and model laws But I am interested in Amendment 6. Perhaps the Minister will share his thoughts about any proposed regulations concerning legal aid. What proceedings in the field of private international law does he envisage? To what is this directed? Would these be additional provisions to existing legal aid regulations? Would there be more hoops or fewer? Would there be more generous or less generous provision, and in what fields?