Civil Procedure (Amendment) (EU Exit) Rules 2019

Baroness McIntosh of Pickering Excerpts

Monday 25th February 2019 Lords Chamber

[Lord Foulkes of Cumnock]

My Lords, I hesitated to rise because I was sure that a number of other people would raise issues. A number of distinguished lawyers, people who understand the constitution better than I do and people who understand, even more than I do, the implications of what we are doing are present. We are dealing with something of monumental importance. Those of us who are astonished at the way that the Prime Minister is acting at the moment—as though she were a dictator in a banana republic—are amazed at the way that some Members of Parliament of both Houses seem to be sitting back and letting it happen.

The implications are astonishing. We have already looked at them in relation to visas. We are now told that if we come out of the European Union at the end of March we will have to have visas, and it will cost €60 to go to countries which we can now go to freely and as many times as we like. We will have lorry parks all over Kent because of the arrangements for customs clearance. There are questions over medicines and food supplies, which people are really worried about. The president of the CBI is warning us on behalf of all industries of the Armageddon that we face. On aviation, we have already discussed how we are still concerned that flights might not be guaranteed to all destinations after the end of March.

We now come to a life or death matter which is of great importance to everyone. We are talking about sanctions against Daesh or ISIS, action against Russian oligarchs and dealing with terrorists. These are major issues. All it needs is for some mistakes to creep into the statutory instrument that we are considering for something dreadful to happen and for us to fail to be able to deal with terrorists in the future or impose sanctions when we wish to. There are likely to be unintended consequences if we get this wrong.

Normally, if we were starting from scratch, we would go through primary legislation line by line. The noble and learned Lord, Lord Mackay, with his huge knowledge, would alert us to some of the imperfections contained in it and my good friend, the noble and learned Lord, Lord Hope—again, from his great experience—would point out some of the difficulties. We would go through it line by line and be able to consider and vote on amendments. However, because this is being dealt with through a statutory instrument it is, again, a take-it-or-leave-it situation.

It is absolutely unacceptable for a Parliament to be treated in this way. I find it astonishing that people whom I know to be manifestly concerned are willing to sit quietly and let this get through. This is not acting as a Parliament and scrutinising something in the way that we should; it is a meek acceptance of something being pushed through, having been started to patch up differences in the Conservative Party for party-political reasons by David Cameron, who has now fled the scene. He is no longer with us or taking any responsibility for the mess that he has got us into. Other people spread lies during the leave campaign about what was to happen and some of them, for a while, took the Queen’s shilling, but they are no longer with us or taking responsibility for what is happening. It is outrageous that this is being undertaken. I hope that at some point before the end of March, more and more people will get up and call the situation unacceptable, which it is. If we allow all these statutory instruments to go through again and again—day after day, without question or challenge—then we are not fulfilling our function as a legislative Chamber of the Houses of Parliament of the United Kingdom, and we should be ashamed.

[Baroness McIntosh of Pickering (Con)]

I am not outraged. I welcome the statutory instrument. I have merely a factual question to put to the Minister. Paragraph 3.4 on page 1 of the Explanatory Memorandum says:

“In the view of the Department, for the purposes of Standing Order … the subject matter of this entire instrument would be within the devolved legislative competence of the Scottish Parliament if equivalent provision in relation to Scotland were included in the Act of the Scottish Parliament”.


My understanding is that the current legislation is governed by the regulations adopted in Scotland in 2017. Can the Minister tell us how the department in question reached that conclusion, and what discussions were had with the relevant department and with the Scottish Parliament itself before bringing forward the statutory instrument today?

[Lord Thomas of Gresford (LD)]

My Lords, closed material procedures were introduced by the Labour Government around 2008—or possibly before then—when they were subject to considerable controversy and discussion. They were introduced for a number of named, specialist tribunals in the context of terrorism; the applicability of closed material procedures in cases that involved the safety of the public were obviously a matter of balance as to where the public interest lay.

Since then, these procedures have crept in scope—the noble and learned Lord, Lord Hope, used that expression in one of the cases to have been decided in relation to them. There was great controversy as to whether a court of appeal should hold proceedings with closed material procedures in place. The Supreme Court has now come round to them but was very reluctant to do so. The creep of the scope has now extended to the challenges to sanctions decisions. As the Explanatory Memorandum makes clear, this will be the first instance of the use of the powers in Sections 66 to 68 of the Counter-Terrorism Act 2008 in the context of sanctions.

It is unfortunate that a Minister who is challenged on a decision that he has made with material in front of him, can go to the court and say, “We must have in place these closed material procedures so that the person who is challenging my decision never sees the full basis upon which that decision was made”. A special advocate is then brought in to represent his interests—but I think it is regarded by all as a very unsatisfactory way of doing justice and carrying out the duties of the court.