Civil Procedure (Amendment) (EU Exit) Rules 2019

Lord Thomas of Gresford Excerpts

Monday 25th February 2019 Lords Chamber

[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.

[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.

[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.