Civil Procedure (Amendment No. 5) Rules 2013

Lord Phillips of Sudbury Excerpts

Monday 29th July 2013 Lords Chamber

[Lord Bew]

My Lords, I will speak only to the Northern Ireland section of the Motions before the House tonight. I will ask the Minister two questions in the spirit of the remarks that have been made, particularly by my noble friend Lord Pannick, not in opposition in principle to the Minister’s proposals this evening but with a sense that we ought to proceed with great care, caution and circumspection in what is undoubtedly a significant change.

The Minister, in his introductory remarks, referred to consultation between the Lord Chancellor and the Lord Chief Justice of Northern Ireland, and I was delighted to hear that. However, there is also a question in my mind as to whether there was any consultation with the Northern Ireland Human Rights Commission, either by the Lord Chief Justice or through the Lord Chancellor’s office, and just how wide that consultation actually went in Northern Ireland.

My second question very specifically relates to the special advocates, and to vetting procedures for special advocates in Northern Ireland, where I think it is a more difficult matter perhaps than in the rest of the United Kingdom. When the Rules of the Supreme Court (Northern Ireland) (Amendment No. 3) came before this House at the end of January 2009, I asked the noble Lord, Lord Bach, who was then the Minister, about the vetting of special advocates in Northern Ireland. He replied that there was a high level of vetting. He referred to credit checks, checks on criminal convictions and so on—similar to those for a civil servant. The documents that I have received so far, either in that case or in the case of the Motions before the House tonight, refer not at all to the special advocates and the level of vetting. I just want reassurance that it is still regarded as a high level of vetting, given the sensitivity of the matters, which inevitably come under the purview of the special advocates, and I ask whether, in the difficult circumstances of Northern Ireland, that level of vetting is, in fact, sufficiently high.

[Lord Phillips of Sudbury]

My Lords, I will make one brief comment. I start by commending my noble and learned friend the Minister for the way in which he has dealt with this extremely complex set of issues and for the way in which he opened the debate tonight. It is commonplace to observe that closed material procedures touch on matters as sensitive, in terms of the fundamentals of our system, as anyone can imagine. Having heard the extremely thoughtful contributions of fellow Peers tonight, it occurs to me that, if it were at all possible, it would be advisable—if I can put it that way to the Minister—to take away the issues that have been raised here tonight rather than push them through.

There are only a dozen of us in the House at this time. We have heard some extremely thought-provoking points made by the noble Lord, Lord Beecham. The noble Lord, Lord Pannick, referred to the five Neuberger principles—if I may call them that—which all require, I think, considerable further thought. The noble and learned Lord, Lord Goldsmith, raised the issue of potential vetting, so to speak, of applications by the Attorney-General of the day. I hope my noble friend the Minister will not have any fear of going against precedent if he considers it advisable to postpone passing these rules tonight so that the matter can be further considered and brought back immediately after the Recess, because the issues could scarcely be more important.