Jurisdiction, Judgments and Applicable Law (Amendment) (EU Exit) Regulations 2020

Lord Thomas of Gresford Excerpts

Tuesday 8th December 2020 Grand Committee

[Lord Ponsonby of Shulbrede (Lab) [V]]

My Lords, I thank the Minister for explaining in some detail this statutory instrument. This SI fixes the defects in civil regulations, family regulations, mediation regulations, Rome regulations and even the rules of regulations. Is the Minister satisfied that all the problems have been ironed out? With only 24 days until we leave the EU, how many more instruments can we expect to see before the House before we go? Can he confirm that none of the amendments in this statutory instrument are in any way being discussed in Brussels today as part of the negotiations for when we finally leave?

I move on to an issue that I raised with the Minister when we had a private talk with the Minister in another place, Alex Chalk, on a specific concern of mine. I remind the Minister that I sit as a family magistrate in London and deal with the reciprocal enforcement of maintenance orders, which come under these regulations. The issue that we have in our courts is with the question of enforcement of these orders. As the Minister said, they will principally move to being enforced under the Hague conventions of 1996 and 2007. However, the issue that we have in our courts is that we have no powers, as far as I am advised by legal advisers, to enforce these maintenance orders.

[Lord Thomas of Gresford (LD) [V]]

I have been overlooked and it has gone straight to the noble Lord, Lord Ponsonby.

[Lord Ponsonby of Shulbrede (Lab) [V]]

I was just concluding my comments, but I think that the noble Lord, Lord Thomas, is after me on the list.

--- Later in debate ---

[Lord Thomas of Gresford (LD) [V]]

I am very grateful. I am sorry if there has been a glitch. I was ahead of the noble Lord, Lord Ponsonby, on the list that I received this morning.

I do not mind mistakes—everybody makes them—and the helter-skelter of amending the statute book in time for our leaving the EU has no doubt led to many errors in the wave of 2019 regulations put before us. If the mistakes could not be spotted at the time by government lawyers, perhaps the opposition parties can be forgiven for letting them through. I understand that another SI to amend mistakes is in the pipeline, similar to this, and I would expect others to follow.

First, the 2019 civil jurisdiction and judgments regulations inadvertently broadened the special jurisdiction rules, with the effect that a larger group of employees than the Government intended would be able to sue employers in UK courts. Secondly, the jurisdiction and judgments family rules contain two minor errors. The first are references to “actions for adherence and aliment”, concepts that had been abolished in Scots law before I ever came to know that they existed and, secondly, they inadvertently took away jurisdiction from the Scottish court to hear claims for aliment not connected to divorce or other proceedings.

The 2019 cross-border mediation regulations did not take into account alterations made by the Employment Act (Northern Ireland) 2016. Similarly, family procedure and Court of Protection rules contained minor errors. Two of the civil judicial co-operation exit instruments of 2019, which are very important to ensure co-operation with our former European partners, have been overtaken by the provisions of the withdrawal agreement.

I welcome this SI not so much for what it contains but because of its limited purposes—to use the powers that have been granted under various statutes to put right mistakes. There is nothing grandiose about it. The objection, that we hear so much, to the use of Henry VIII powers arises when they purport to carry into effect policy, not when they rectify errors, as here. By contrast, the powers to make secondary legislation that have been so offensive—the ones put back last night into the United Kingdom Internal Market Bill and abandoned this morning—were not just those which would have permitted a Minister to break the law and are contrary to the rule of law championed for so long by this country; that offence was compounded on this occasion by the unprecedented attempt to give such unlawful secondary legislation the status of an Act of Parliament, so that the use of unlawful powers could not be challenged in the courts by judicial review. The proposal was an extraordinary and unprecedented step, which I hope will never be repeated.

Today is an interesting day, not just for last night’s reassertion of illegality by a pack of Tory MPs, but as the day that the Prime Minister heads off to meet the head of the European Commission to assert the primacy of British sovereignty, having desperately weakened his own bargaining position by demonstrating that the United Kingdom cannot be trusted to keep its word. But I must be up to date. Perhaps honour has been saved this morning, not by the tooting John Soane-ian cavalry coming over the hill, but by that parfit gentil knight in tarnished armour, Michael Gove, the man the Prime Minister most trusts above all others to put a drooping lance into his back—ironic, is it not?

I take the Whig view of history: that, steadily but assuredly, humanity progresses from darkness into light. Such progress involves the necessary recognition of the rule of law, of human rights, and of international co-operation as an expression of our common humanity. In my lifetime, there has been progress. The forces of fascist dictatorship were crushed in the Second World War. International institutions such as the United Nations and its many agencies were created in its aftermath. Domestically, the welfare state, which had its origins in the reforms of Lloyd George in the early part of the 20th century, progressed and was entrenched. It gives us the National Health Service, and today, V for vaccination day.

However, in the last few years, progress has stumbled. Narrow nationalism proclaimed by populist leaders has re-emerged, blinking, into the light. The most notable instance has been the Donald Trump years—America first, when international co-operation in tackling climate change was abandoned, alliances were broken, the international order challenged, and internally, the concept of welfare, as illustrated by Obamacare, was attacked. It was all un-American.

Today, Mr Johnson will, in the Trump tradition, be arguing for British exceptionalism—Britain first. He will be asserting a faded—

[Lord Parkinson of Whitley Bay (Con)]

I wonder if the noble Lord, with his Whiggish view, could come back to the regulations in hand.

[Lord Thomas of Gresford (LD) [V]]

I am just about to complete. I was about to say that Mr Johnson will be asserting a faded and outdated concept of Machiavellian sovereignty for which Charles I lost his head and the British Empire went to the wall. Not much to do with this statutory instrument, you may think—as the noble Lord who interrupted suggested, and he was right—but this proceeding does for once give me a platform to add a very small footnote to what is an historic day.