Civil Procedure (Amendment) (EU Exit) Rules 2019

Lord Hope of Craighead Excerpts

Monday 25th February 2019 Lords Chamber

[Baroness Northover (LD)]

My Lords, I want to add to what my noble friend Lord Thomas of Gresford has said and to comment on what the noble Lord, Lord Adonis, said. The noble Lord may remember that that first piece of Brexit legislation was very controversial and full of extra powers given to Ministers, and the noble and learned Lord, Lord Judge, who is in his place, was an extraordinary help to the House in highlighting those. On Report and thereafter, the focus was on several of the most egregious uses of those powers, but they were littered throughout the Bill. The noble Lord, Lord Adonis, is right to highlight this as one of the changes.

[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.