Beyond Brexit: Institutional Framework (EUC Report)

Lord Thomas of Cwmgiedd Excerpts

Monday 6th December 2021 Grand Committee

[Lord Thomas of Cwmgiedd (CB)]

My Lords, I thank the noble Earl for securing this debate. I also want to say a word on the noble Baroness, Lady Donaghy, who managed to steer so many disparate views together to produce a report which is so comprehensive on the subject. Others have spoken today about SMEs, the Erasmus programme and, equally importantly, the creative industries, which have suffered so greatly from what has happened. However, I want to take a very narrow perspective.

In most respects, it is too early to tell whether the TCA works but there is one area where we can see a problem ahead. It is illustrative of a major problem with which we have to deal, and it is the Lugano Convention. I am not interested in its details but why there is the refusal to allow us to accede. It is really for one reason alone: competition. How are we going to deal with that and make our services competitive? I regret to say that I want to do this through the microcosm of the law. I hope the Committee will forgive me, as it is not that technical a subject in this respect.

The key to the success of our system has been English law, and I say that as a Welshman. It is important to appreciate that we have huge advantages in this country. We have good leadership and our judiciary is outstanding; we have huge support from the City of London and the professions; and to be fair to it, the Ministry of Justice has done a bit, particularly since the noble Lord, Lord Wolfson of Tredegar, was appointed a Minister. However, the real issue is: how do we deal with competition? First, we must not be complacent. I am sure we are not, but what is the key to this? The law is developing at an immense pace at the moment. I had thought of saying something about climate change, but thought that it might be a little tricky.

I think it is safer for me to stick to an area where the change has been accelerated massively by the pandemic: the importance of digital infrastructure and the trade in data. This is a very fast-moving area. Certainly in Europe at the moment, much less attention is given to the GDPR, which seems to have been our focus, than to the industrial value of data. Therefore, we have to look to the future of English law, which is the basis of the success of our legal profession, and ensure that it is taken cognizance of and fitted into the fast-developing changes.

We ought to reflect on the fact that our system is flexible, innovative and has a long tradition of leadership, but rhetoric sometimes forgets that we share a common European legal heritage. To pick up what the noble Baroness, Lady Armstrong, said, should we look at competition in this area by subtle co-operation, or do we indulge in a stand-off or rhetoric that does not help? I have no doubt that if we are effectively to deal with competition in this area in law—it applies equally to regulation—our job is to participate on a co-operative basis to show that we have the skills to lead, which we do. However, we will not get anywhere in deploying those skills unless we act with an openness that enables us to put forward ideas and solutions that allow the basis of our law to be recognised as the way forward.

Therefore, I want to ask the Minister whether we can stop using a rhetoric that discourages co-operation. My whole experience in Europe, particularly over the last couple of years—I mean not just the European Union but Europe as a whole, working closely on the development of European Union law and transnationally—is that the only way we will succeed in competition is by friendly co-operation, with a keen eye on our long-term goals. This is a long game, and we must not lose it by rhetoric that does not foster co-operation and the subtlety with which we have managed our legal system. The common law has always been a magpie: it takes good ideas from everywhere. It is not nasty to other people or disrespectful of them, but acknowledges everything with gratitude. I hope we can go forward on that basis.