Civil Procedure (Amendment) (EU Exit) Rules 2019

Lord Adonis Excerpts

Monday 25th February 2019 Lords Chamber

[Baroness Goldie]

It may assist the noble Lord if I explain that I am not taking the two instruments together. I am going to speak to them together but they will be moved separately.

[Lord Adonis (Lab)]

They should be debated separately; not only moved separately.

[Baroness Goldie]

Then let us start the debate.

My Lords, the Sanctions and Anti-Money Laundering Act 2018 passed through this House last year. For noble Lords not familiar with this legislation, the sanctions Act provides the legislative framework for the UK to continue to meet its international obligations, to implement UK autonomous sanctions and to update our anti-money laundering framework—although the latter is not part of our discussion today—after we leave the EU.

Before I explain the nature of these instruments, I would like to provide some background and to share the context of our approach to sanctions. The UK has strong expertise in this area and, following our departure from the EU, we want to continue working together with international partners to ensure we can develop and implement effective sanctions in the future. As an EU member state we currently implement more than 30 sanctions regimes, designating around 2,000 individuals and entities. These include country-specific sanctions regimes, as well as regimes targeting Daesh, al-Qaeda and other terrorist groups. Noble Lords will be aware that the Prime Minister has committed that the UK will look to carry over EU sanctions into UK law after the UK’s departure from the EU. Applying pressure through sanctions, together with international partners, is one means of enabling us to deliver our foreign policy objectives.

--- Later in debate ---

[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.

[Lord Adonis]

I am grateful to the noble Lord for giving way. Can he explain to the House how this is a change? I thought the whole purpose of this regulation was that nothing would change, but he is telling us that this will be the first introduction of closed material procedures in respect of sanctions proceedings. Can he explain to the House how that can be? It sounds like a significant change—not “no change”.

[Lord Thomas of Gresford]

The reason these regulations have come forward is the passing of the Sanctions and Anti-Money Laundering Act 2018, which was the very first piece of Brexit legislation to be brought before Parliament. Section 40 gives the Minister the right to make rules of court to carry out the procedures set out in that section, which are based upon the Counter-Terrorism Act. So it is a change of rules that these regulations are dealing with. The actual discussion about whether they should apply to sanctions was appropriate when the Bill was going through this House last year.

[Lord Adonis]

Did the House agree that the closed material procedures could be used in these cases?

[Lord Thomas of Gresford]

The House agreed at that point. All I am doing is moaning slightly about the further extension of the procedures. There is nothing that I can do about that because they already passed into law in the 2018 Bill last year. I sat in on some of the proceedings but did not actually take part, although I know that others who are present did so. As I say, I am kicking against the further extension of these closed material procedures in the field of sanctions.

I have a second point, which is perhaps a bit more specific. Part 3 of this SI is extremely confusing. I do not understand why the statutory instrument should not simply have replaced Part 79 instead of making minor alterations to 20 of the 29 paragraphs. I would be glad to know why that has happened, why it was not replaced with a new Part 79 and whether this is the proposed procedure for future regulations brought forward to deal with Brexit legislation.

[Lord Hope of Craighead (CB)]

My Lords, I would like to follow the observations of the noble Lord, Lord Thomas, mainly because I have been involved in one or two cases in the Supreme Court where this type of procedure has been used. It causes real problems for appellate judges because one of the features of the closed procedure is that you cannot give reasons for your decision that can be made public so you are taking a decision in private, the reasons for which are kept private as well. That is the situation that we are faced with.

With regard to the content of this measure, however, I cannot see it as extending the procedure any further than it exists at present. In response to the noble Lord, Lord Foulkes, I did not get up earlier because I could not see anything to comment on in the substance of the instrument. I cannot speak for other noble and learned Lords but I think there is some virtue in remaining silent if you have nothing to say.

[Lord Adonis]

My Lords, I have never suffered from that difficulty. What the noble and learned Lord has said is very reassuring. It seems to a non-lawyer reading the Explanatory Memorandum as if the issues at stake are significant, not minor. From what he is saying, I think it is fair to say that while no one doubts the significance of closed material procedures, let alone the sanctions regimes to which they apply, this does not involve any changes. Some of my good friends on the Lib Dem Benches are very wary of closed material procedures, as am I. Indeed, I find the noble and learned Lord’s brief description of them—judgments in which no reasons are given in public at all—to be a matter of extreme concern, and they should take place only in the most extreme circumstances. I am amazed that the noble and learned Lord, Lord Judge, allowed measures like that to pass through the House at all, given his views on the growing extent of executive powers.

However, on the basis that there is in fact no actual change in powers that have already been granted by Parliament, clearly we would be doing the right thing just to allow this order to go through.

[Lord Collins of Highbury (Lab)]

My Lords, I will speak very briefly. Of course, we had extensive debates when the first Brexit Bill on sanctions went through and we have certainly spent a lot of time trying to restrict executive powers. However, one thing that was absolutely clear when we took that Bill through was that we needed sanctions regimes. We needed them to ensure that our progressive foreign policy—under whichever Government—could be maintained. Therefore, the Opposition supported the Bill and it is now an Act. I certainly cannot see any reason to not support the straightforward extension in this SI.

I have a couple of questions. One is on consultation; I expected my noble friend Lord Adonis to mention that it seemed rather limited. Is that the norm in these circumstances? Could it have gone a bit further? Also, on the timing, why has it taken so long to bring this rather simple SI forward? Should it not have come forward earlier, bearing in mind that it is linked to other SIs?