Civil Procedure (Amendment) (EU Exit) Rules 2019

Lord Collins of Highbury Excerpts

Monday 25th February 2019 Lords Chamber

[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?

[Baroness Goldie]

My Lords, I am very grateful to those who have contributed. Let me address the important questions raised. The noble Lord, Lord Foulkes, raised a wide range of issues. His pertinent question was “Where are the lawyers?”; he asked why they were not standing up. The noble and learned Lord, Lord Hope, answered that question neatly, to use a judicial phrase, by stating that he had nothing to say. That is perhaps characteristic of him sometimes—although fortunately, for the benefit of this House, not always. I think it is a very helpful commentary on what are technically fairly mechanical provisions, if I might describe them as such.

On the important point about scrutiny, I say to the noble Lord, Lord Foulkes, that these instruments are made under an Act of primary legislation—Section 40 of the Sanctions and Anti-Money Laundering Act 2018—which this House went through line by line. The details of these SIs raised no new issues. The noble Lord, Lord Thomas of Gresford, had a similar concern about that.

My noble friend Lady McIntosh of Pickering raised the question of Scotland and Section 38 of the sanctions Act, which makes provisions to the effect that these rules of court need be made by Westminster in relation only to England, Wales and Northern Ireland. Scotland is to make its own rules, as per the primary legislation. As she will be aware, rules of court in Scotland are different and it is entirely appropriate that the devolved Parliament is placed in charge of these matters.

The noble Lord, Lord Thomas of Gresford, also raised what he described as the creep of closed material procedures. I understand his concern, but let me try to allay it. The Government believe that these procedures are right for cases which involve national security material. Previously, these cases were unable to proceed, which meant that questions posed by claimants remained unanswered. That seems unsatisfactory. The defendant—the Government—could not fully present their case, which is also unsatisfactory. In that event, designations might have had to be revoked. The purpose of the sanctions Act, augmented by these regulations, is to ensure that the hiatus, or dilemma, for both Government and applicants is resolved.

The noble Lord, Lord Thomas of Gresford, also raised an interesting question about the drafting format, asking why we were amending Part 79 rather than creating a new one. Amending the existing rules of court was felt to be the most appropriate and proportionate way to draft these instruments, because it ensures that the effect of closed material proceedings is unchanged in the context of sanctions decisions; in other words, there is a consistency about the provisions.

The noble Lord, Lord Collins, asked about delay. As he is aware, a very considerable volume of statutory instruments has been reaching the other place and this House. I acknowledge that a large body of work has had to be resolved and processed by this House. That has gone through the committee and sifting procedures. I accept that this instrument has been fairly late coming to this House but I hope that your Lordships accept, given the very technical nature of these provisions, which do not create any new policy matters, that it has been addressed adequately by the Government and that your Lordships have been given the opportunity to scrutinise them.