A speech by Lord Thomas – 8th December

I don’t mind mistakes. Everybody makes them and the helter-skelter of regulating the statute book in time for our leaving the EU has no doubt led to many errors in the wave of 2019 regulations which were put before us. If they could not be spotted at the time by government lawyers, perhaps the opposition parties can be forgiven for letting them through. I understand another SI similar to this to amend mistakes is in the pipeline, 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 would be able to sue employers in UK courts than the government intended.

Secondly, the jurisdiction and judgments family rules contain two minor errors; the first are references to “actions for adherence and aliment” concepts which have been abolished in Scots law and the second, Inadvertently taking 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 (Northern Ireland) Act 2016. Similarly, the Family Procedure and Court of Protection Rules contained minor errors.

Two of the civil judicial cooperation exit instruments of 2019, which are very important to ensure cooperation 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 to the use of Henry VIII powers arises when they purport to carry into effect policy. 

By contrast, the powers to make secondary legislation that are so offensive, the ones put back last night into the UK Internal Market Bill and abandoned this morning, were not just those who 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 by the attempt to give such unlawful secondary legislation the status of an Act of our parliament so that the use of unlawful powers could not be challenged in the Courts by judicial review. The proposal was an extraordinary 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 with the head of the European Commission to assert the primacy of British Sovereignty – having desperately weakened his 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 Johnsonian cavalry coming over the hill, but by that parfait 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.

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 international cooperation 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 cooperation 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 and outdated concept of Machiavellian sovereignty for which Charles I lost his head, and the British Empire went to the wall: and this before an audience of European states who know only too well where assertions of nationalism and exceptionalism lead.

Not much to do with this statutory instrument, you may think, and you would be right. But this proceeding for once gives me a platform to add a very small footnote to a historic day.

* Martin Thomas is a Liberal Democrat member of the House of Lords and the party's Shadow Attorney General

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3 Comments

  • So Lord Martin Thomas “takes the Whig view of history, that steadily but assuredly humanity progresses from darkness into light”. Not surprising, but I must disagree. If
    Lord Thomas checks it out, he’ll find that neither did Herbert Butterfield when he first coined the phrase ‘Whig History’).

    “Steadily but assuredly” humanity didn’t progressed from darkness into light between 2010-15.

    Evidence ? Despite insisting that, “those with the broadest shoulders should bear the greatest burden”, the poor did bear the brunt of the changes to direct taxes, tax credits and benefits from May 2010 to 2014-15.

    Up to 2015, the poorest twentieth lost nearly 3 per cent of their incomes on average from these changes (not allowing for VAT and other indirect taxes)….and people in the next five-twentieths of the income distribution lost almost 2 per cent. Tax and benefit changes benefited richer groups more, while contributing nothing to deficit reduction

    With the notable exception of the topmost twentieth, those in the top half of the distribution were net gainers from the changes. The combined impact of direct tax and cash transfers was mostly regressive, moving incomes from poorer households to those that were better off.

    Source : the Rowntree Trust, the enduring legacy of one time great New Liberal researcher, Seebohm Rowntree.

  • MARTIN THOMAS 10th Dec '20 - 1:57pm

    Thank you David, for drawing attention to the report of the Rowntree trust into the increasing inequality in our society . It does not, as you suggest, indicate progress over the last decade. However, I am optimistic that we will not stand still. The assertion of liberal values and the continued fight in which we are engaged, will ensure that progress will ultimately be resumed. That’s why we carry on.

    Incidentally, Herbert Butterfield was the master of my college when I was an undergraduate. He wrote his Familia book in 1931. I wonder what he would have made of the defeat of Nazism, the ending of the Cold War and the freeing up of Eastern Europe or, the successes of the common market and The increasing recognition of human rights. We currently struggle to build a world order which will tackle and defeat racism, climate change and many other problems which faced in the modern world.
    Butterfield wrote in “The Whig Interpretation of History” that the methods of the Whig historian demonstrated throughout the ages the workings of an obvious principle of progress, of which the whigs have been the perennial allies while the Tories have perpetually formed obstructions.

    LI am on the side of the whigs. HB was wrong. Maurice Cowling the ultra right fellow who followed later at Peterhouse described Butterfield as a closet Asquithian but we won’t go into that.

  • Thanks for your kind response, Martin. I remember your excellent speeches at the NLYL/ULS Conferences back in the 1960’s. I wish I could share your optimism and it would help if the modern party was more forthright and had a change of gear about poverty.

    Interesting to hear you knew Butterfield. I wouldn’t condemn him for being a closet Asquithian, though I prefer the younger Squiff to the older one. Butterfield (and you as an LLG fan) must have had a sinking when reading that Cowling classic, ‘The Impact of Labour’.

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