Read a third time.

Clause 1 [Meaning of "emergency"]:

4:14 pm
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Lord Lucas (Conservative)

moved Amendment No. 1:

Page 1, line 6, leave out "threatens serious damage to" and insert "seriously threatens"

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Lord Lucas (Conservative)

My Lords, in moving Amendment No. 1, I shall speak also to Amendments Nos. 2, 9 and 10.

I cannot remember having had this effect on a Bill before. I tabled an amendment only to have the Government make exactly the opposite amendment to a piece of wording that I rather liked. I am sorry to have had that done on this occasion, but at least it will draw the Government into a discussion, which we did not get on Report, on the different implications of these two sets of words.

My understanding of "threatens serious damage" is that it does not have to be a serious threat in any way at all. I use my previous illustration. If I hold up an orange in Trafalgar Square and say, "This is a nuclear bomb and I am about to destroy London", then I am threatening serious damage, and it comes within this clause. It clearly would not come within "seriously threatens", because it could not be taken to be a serious threat and therefore that sort of created or peripheral threat to the security of the nation, to the environment or to human health would be ruled out in terms of triggering the enormous powers in the Part 2 of the Bill.

The current wording would allow something like the Reichstag incident to be used as a trigger for the powers in the Bill. Whatever safeguards there are, we are potentially giving enormous powers to government Ministers under the Bill. Once you have passed Clause 1 you do not have any look back to how serious the incident is. The controls that come under the triple lock after that all relate to the response proportionate to the threat—not to the seriousness of the threat, but to the threat itself. So the reaction the Government will be entitled to undertake in reply to me with my orange in Trafalgar Square would be in response to a nuclear detonation wiping out the centre of London, not to me holding an orange.

I find that difficult. I believe that the lock needs to be more serious than that. We need to be in a position where there is a really serious threat. I like the words "seriously threatened" that the Government put in their amendment at an earlier stage. That incorporates the balance between threat and seriousness very nicely in an ordinary English phrase which will be well understood by individuals, generals, courts and everybody. I find it difficult to change the words to "threatens serious damage to", particularly in relation to war.

None the less, I shall listen with great interest to how the Minister proposes his amendment. As I say, I should be very grateful if he would give some examples of the sorts of incidents, particularly in relation to subsection (c), which now will be permitted to trigger the powers in Part 2 of the Bill, which would not have been permitted to do so under the present wording. I also hope that he will give us a better understanding of those two phrases and tell us the degree of latitude which the Government wish to give themselves. So I shall listen with interest, but I find the current wording very disturbing. I beg to move.

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Lord Peyton of Yeovil (Conservative)

My Lords, I shall briefly support the amendment. I do so because the whole Bill has a nasty odour about it. It conveys the impression that a personal liberty is not a very important thing and that any powers that Ministers take will always be very reasonably used and with restraint. I do not subscribe to that doctrine in any way.

I look forward to hearing from the Minister what is meant by "serious damage". I understand that he has been unable to do so so far in our proceedings; if he has, I am sorry, but perhaps he would give me the reference. If serious damage is threatened, huge powers are available to a Minister of the Crown. That is altogether rather loose. There is no need for me to prolong my remarks, but I want to have a clear idea of what the Government mean by the simple phrase "serious damage". Otherwise I shall have wasted my time, and your Lordships' time will also be wasted. It is far from clear at the moment.

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Lord Pearson of Rannoch (Conservative)

My Lords, I shall concentrate on the remarks of my noble friend Lord Peyton. I regret that your Lordships have been spared any intervention by me on this frightening Bill until now. Like many of your Lordships and many people in the country at large, I have been viewing its passage through your Lordships' House with growing alarm as its true scope has become apparent. The noble Lord who moved the amendment and other noble Lords are of course to be congratulated on improving it considerably—or, rather, making it less draconian and anti-democratic than the Government clearly intended it to be.

In those circumstances, I have two questions for the Minister. This may have been touched on in Committee, but not entirely satisfactorily. First, what is the relationship between the Bill and the Scottish Executive, which has been given everyday control of the environment in Scotland? Who will operate the environmental clauses of the Bill, in particular: Westminster or Edinburgh? Is the Scottish Executive happy with whatever is the answer to that question?

Secondly, what is the meaning of the wording in the Bill:

"disruption or destruction of plant life or animal life",

which is consistently repeated throughout the Bill, although I do not need to weary your Lordships with precise references? It is consistently repeated throughout the Bill as giving rise to an emergency and the possible use of the powers of the Bill. The mind boggles as to what that could mean.

Does the Minister agree—if he disagrees, why?—that that could apply even to a large heath or moorland fire, perhaps in a site of special scientific interest or a special area of conservation? That would clearly be damaging to plant life. Could people undertaking the Duke of Edinburgh's Award Scheme, who have been known to cause such fires in the past, be prevented in future? A number of people in Scotland are worried about that and I should be grateful if the Minister could confirm the answer.

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Lord Monson (Crossbench)

My Lords, like the noble Lord, Lord Lucas, I am especially puzzled by government Amendment No. 3. Why talk about something threatening damage to the security of the United Kingdom, rather than threatening the security of the United Kingdom? Is not that a tautology?

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Baroness Buscombe (Shadow Minister, Home Affairs; Conservative)

My Lords, I immediately offer my support to the noble Lord, Lord Monson, in what he has just said. Some of the wording simply does not make sense.

I am extremely disappointed that we have been unable to persuade the Government to assist your Lordships in trying, as we have all been doing throughout the passage of the Bill, to raise the threshold of what can reasonably be described as an emergency. So I have enormous sympathy with the amendments proposed by my noble friend Lord Lucas. His argument is well rehearsed and the Government know full well how we on these Benches feel about that aspect of the Bill's drafting. The current drafting is too ambiguous, wide and open to misinterpretation. It is essential to get the drafting correct.

In response to the noble Lord, Lord Pearson of Rannoch, I must say that we have already debated a number of the issues to which he referred.

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Viscount Goschen (Conservative)

My Lords, my noble friend Lord Lucas should be commended for persevering with the drafting of this vital clause concerning the meaning of emergency. On Report, as I understood it, the Government's argument against similar amendments tabled by my noble friend was that it was vital to retain the provision that the potential damage should be serious to trigger the Bill's provisions, as well as the level of threat. I accept that argument, but the Government have not given a convincing explanation of why the current wording of Clause 19(1)(a) achieves that. The House was at one that what is required to be serious is both the level of threat and the potential damage: a combination of both of those events to produce a combined threat of sufficient severity to trigger the Bill's provisions.

Having said that, I look forward to hearing the Minister's reply. As I read it, my noble friend's amendment transfers the emphasis to the level of threat—his orange in Trafalgar Square—but that reduces the emphasis on the level of potential damage, which must also be high. So I agree with both the Government and my noble friend and think that their provisions should be combined to provide for an event or situation that seriously threatens serious damage. I suggest that that would satisfy both parties. I regret that we do not have a Fourth Reading—although I doubt that the Minister agrees with me on that. However, if we were to pass my noble friend's amendment, there might be an opportunity for the House of Commons to insert the second "serious".

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Lord Pearson of Rannoch (Conservative)

My Lords, the noble Baroness, Lady Buscombe, mentioned me from the Front Bench; I am of course aware that these matters have been debated. I was merely adding a fresh voice to say that they have not been satisfactorily answered.

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Lord Elton (Conservative)

My Lords, the word "serious" is offered to us before and after the word "threat" in these alternative amendments. I remind your Lordships that the context in which we are debating is one in which what was thought to be a supremely serious threat from Iraq proved to be no such thing. For that reason, the most important thing is to put the word "serious" before the word "threat", as my noble friend has done.

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Baroness Hamwee (Shadow Minister, Office of the Deputy Prime Minister Local Government & the Regions; Liberal Democrat)

My Lords, it is procedurally slightly awkward that we are unable to hear the Minister advocating his amendment before he is pre-empted by responses to it. The noble Lord, Lord Lucas, says that he is surprised at having had the opposite effect on the Government and that that might make him pause in future, but he is to be congratulated on pursuing a difficult issue. We think that the Government are right in effectively concentrating on the effect rather than the threat. For that reason, we will support them. I must say that the Government have caused my noble friends and me to dance on the head of a pin in private before reaching that point, because the matter is difficult.

The House having decided that the definition of emergency should be the same in both parts of the Bill, which is right, different issues now arise as to how one deals with the definitions. We have more protection in Part 2 than we had when we started. In any event, we have in effect a definition of what is damaged in Clause 1(2). I think that we are in danger of going so far in trying to pin the thing down that we begin to miss the point. One can go too far with definitions; one must reach a balance. As I said, we will support the Government.

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My Lords, I, too, am grateful to the noble Lord, Lord Lucas, for his energy and persistence on the matter and congratulate him on that, which has been most beneficial. The noble Baroness, Lady Hamwee, suggests that there has been a lot of dancing on the head of a pin over this. It is an iterative process. We have tried to respond sensitively to points made in your Lordships' House about definition, and that is how we have reached our current position. We are trying to develop threads of consistency.

As currently drafted the definition of "emergency" in both parts of the Bill is,

"an event or situation which threatens serious damage to human welfare . . . an event or situation which threatens serious damage to the environment . . . or . . . war, or terrorism, which seriously threaten . . . security".

The amendments tabled by the noble Lord, Lord Lucas, would harmonise the drafting in Clauses 1(1) and 19(1) by providing that an emergency is an event or situation which seriously threatens human welfare or the environment. The purpose of the noble Lord's amendments is to increase the threshold for triggering the civil protection duties under Part 1 or the use of emergency powers under Part 2. However, that would not be the practical legal effect of the amendments. By specifically requiring the threat, not the damage, to be serious, the amendments would open up the possibility of a very serious threat with relatively low-level consequences being an emergency. It could be argued that, if anything, the amendments lower the threshold.

The Government in their amendments—mindful of the rule of the noble Lord, Lord Lucas, which requires drafting to be clear and consistent, and to use the fewest possible words—decided to look again at the drafting of Clauses 1(1) and 19(1). The draftsman chose to draft Clauses 1(1)(c) and 19(1)(c) in this way for largely linguistic and not substantive policy reasons. Different language is currently used in relation to security because of the difficulties of referring to the scale of damage caused to an intangible concept such as security. However, while the drafting is different, the Government's intention was the same: there must be a threat of serious damage before the situation can be considered an emergency.

Having looked at the issue again with parliamentary counsel, we can see the benefit, certainly as regards clarity and consistency, of harmonising the drafting for each category of damage. So the government amendments in this group would define emergency as an event or situation which threatens serious damage to human welfare, an event or situation which threatens serious damage to the environment, or war or terrorism which threatens serious damage to security. I hope that noble Lords see that that clarifies the definition. Certainly the noble Baroness, Lady Hamwee, sees that; as she says, it is more about consequences.

Before we move on to the next group of amendments, it is perhaps worth re-emphasising that the purpose of the definition of "emergency" is to set out the threshold of events, should they come to pass, that could trigger emergency powers. It is then the job of the triple-lock test, which is very important, to ensure that the threat of the events occurring is credible and that emergency powers are necessary to deal with those consequences. That is the important way to look at the issues. I hope that my remarks have covered the points raised in our short debate, but I wish to deal with specific issues not covered.

I wish to respond first to the noble Lord, Lord Pearson of Rannoch. As the noble Baroness, Lady Buscombe, suggested, we have been over these issues several times. Let us remind ourselves of the application of the legislation in Scotland. Emergency powers are a reserved matter, as I am sure the noble Lord will be aware, and are therefore outwith the competence of the Scottish Parliament. Part 2 will therefore apply to the whole of the United Kingdom. Civil protection, on the other hand, is largely devolved to Scotland, and quite rightly so. Following their own review of civil protection arrangements, consultation exercise and discussions with their stakeholders, the Scottish Executive concluded that it was appropriate to update the legislation as it applies to Scotland. The Bill is the most effective and efficient way of doing that, given that the arrangements that the Executive wish to put in place are more or less identical to those originally proposed for England and Wales.

The Scottish Parliament, as a consequence, agreed a similar Motion on 4 March this year, giving its agreement that the United Kingdom should consider the provisions of the Bill. The Bill reflects the devolution settlement. Following Royal Assent, Scottish Ministers will make regulations and issue guidance for bodies under their jurisdiction. The Scottish Executive will also conduct a public consultation following Royal Assent. The issues that concern the noble Lord, Lord Pearson of Rannoch, should be dealt with in that respect.

4:30 pm
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Lord Pearson of Rannoch (Conservative)

My Lords, before we go any further, does the Minister agree that the disruption or destruction of plant life could include trying to prevent a serious threat to a special area of conservation, a site of special scientific interest or whatever? Are we really brought thus low by the Bill?

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My Lords, I suppose that there might be circumstances when sites of special scientific interest get caught up in the way in which the noble Lord suggests. But I cannot see that, of itself, that would be a triggering event for the exercise of emergency powers. The noble Lord needs to reflect on what he suggests. Given the noble Lord's understandable concern about heathland, moorland and so on, perhaps the issue could be raised with the Scottish Executive in their further consultations. I do not think that we can deal with it in relation to these amendments. I have listened carefully to the noble Lord, but the issue does not have a great deal of bearing on the amendments. I have the greatest respect for the noble Lord but perhaps he could reflect on that point.

I wish to respond to the comments of the noble Lord, Lord Peyton of Yeovil. I cannot accept his premise that the Bill fundamentally undermines individual liberties. Perhaps the noble Lord has heard us say it across the Dispatch Box previously, but it is worth remembering that actions taken under the Bill must be compatible with the Human Rights Act 1998. That is an important failsafe provision. We have made specific concessions in this House and in another place because obviously the Government share some of the wider concerns that the noble Lord, Lord Peyton of Yeovil, worries about. This issue is important to your Lordships' House and the people of our country. We must put in place emergency planning procedures, civil protection schemes and the powers to deal with the most profound and serious threats to our liberties, our way of life and the conduct of life generally in a civilised society. This Bill does that; it provides the Government with powers in extremis and in difficult circumstances.

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Lord Peyton of Yeovil (Conservative)

My Lords, the noble Lord is skating on rather thin ice around the point that I asked. The key is: what is serious damage? When does damage become serious enough to bring into effect the massive powers that Ministers will have under the Bill? Can the Government give me any idea when the damage will become serious enough to trigger these grave consequences?

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My Lords, we must make a judgment based on the circumstances of a terrorist attack or damage inflicted on infrastructure, the fabric of our life, perhaps by an accident of weather and incidents such as foot and mouth disease. The degree and severity of the problem will require appropriate action. Judgments will be made by those who exercise the powers that the Bill currently contains, whether in Parts 1 or 2. I hope that I have addressed most of noble Lords' questions in this short debate.

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Lord Lucas (Conservative)

My Lords, I am grateful for that reply. I am sorry that I do not seem to have swayed the House with my arguments. I remain concerned. As the noble Lord said, one must be careful about threats to one's liberty and way of life. At the moment, the principle threats appears to be the Government, but there is nothing much that I can do about that now. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 2 not moved.]

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

moved Amendment No. 3:

Page 1, line 10, leave out "seriously threatens" and insert "threatens serious damage to"

On Question, amendment agreed to.

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

moved Amendment No. 4:

Page 1, line 19, leave out "an electronic or other" and insert "a".

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My Lords, as, I think, I said about the previous group of amendments, the Government are committed to ensuring that the drafting of the definition conforms to the Lucas principles of simplicity, clarity and consistency. It is in that spirit that I speak to the government amendments in the group.

Clauses 1(2)(f) and 19(2)(f) provide that,

"disruption of an electronic or other system of communication",

is capable of constituting a threat of damage to human welfare. With the advent of e-commerce and the networked society, electronic communications have become integral to our lives, and the failure of an electronic system of communication could precipitate an emergency or exacerbate its effects. However, the formulation "system of communication" clearly comprises electronic systems, and there is no need to refer to it specifically. In the spirit of the rule followed by the noble Lord, Lord Lucas, we propose to remove it.

The Government have looked again at Clause 1(3)(a) in the light of similar concerns raised by the noble Lord, Lord Lucas, in Committee. The Government are committed to striking the right balance between, on the one hand, economy of words and, on the other, ensuring that we give local responders the clarity that they need. The Bill refers to,

"contamination of land, water or air with— (i) harmful . . . chemical or radio-active matter, or (ii) oil".

On reflection, we think that we can rationalise the drafting. There can be little doubt that oil is a chemical that can cause serious damage to the environment. Given the reference to chemical matter, it is unnecessary to refer to oil separately.

We also agree that it is not necessary to refer specifically to "harmful" chemical, biological or radioactive matter. Contamination will constitute an emergency only if it poses a threat of harm to the environment, so the word "harmful" on line 5 is redundant. The clause will now provide that,

"contamination . . . with biological, chemical or radio-active matter",

may constitute a threat of serious damage to the environment. We agree with the noble Lord, Lord Lucas, that his amendments will make the drafting of the clause clearer, sharper and more concise and therefore we propose to accept them. I beg to move.

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Lord Lucas (Conservative)

My Lords, that is a nice surprise to end the Session with. I am extremely grateful and, again, I thank the noble Lord's Bill team. They have been helpful throughout. This is not the greatest of their kindnesses to me, but, none the less, I appreciate it as a final one.

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Baroness Buscombe (Shadow Minister, Home Affairs; Conservative)

My Lords, I thank the Government for considering the amendment again. It is similar to one that we tabled in Committee. After hearing the concerns expressed by the Law Society and British Telecom, we felt that the drafting was too ambiguous. I am pleased that the Government have reconsidered and tabled amendments that we find more satisfactory.

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Lord Elton (Conservative)

My Lords, if nobody else wants to say anything, I shall congratulate my noble friend and thank the Government for recognising his ability to struggle through Committee and Report with the most appalling cold.

On Question, amendment agreed to.

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Lord Lucas (Conservative)

moved Amendments Nos. 5 and 6:

Page 2, line 5, leave out "harmful"

Page 2, line 6, leave out sub-paragraph (ii).

On Question, amendments agreed to.

Clause 2 [Duty to assess, plan and advise]:

4:45 pm
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Baroness Buscombe (Shadow Minister, Home Affairs; Conservative)

moved Amendment No. 7:

Page 3, line 28, leave out "radiological" and insert "radioactive"

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Baroness Buscombe (Shadow Minister, Home Affairs; Conservative)

My Lords, Amendments Nos. 7 and 8 refer to minor changes to the amendment successfully moved on Report last week by my noble friend Lord Jopling. Unfortunately, my noble friend cannot be present today, due to an important engagement that keeps him away from your Lordships' House, so I have agreed to move the amendment on his behalf.

The amendments would correct one word in my noble friend's amendment and ensure that the clause had the meaning that he intended. I hope that the Government will accept the minor changes. I beg to move.

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Lord Garden (Liberal Democrat)

My Lords, I support the amendment. We discussed the matter on the previous occasion, and it was obvious that the change was necessary. The House was pretty well agreed then, so I trust that the Government will accept the amendment.

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Lord Elton (Conservative)

My Lords, the word was suggested by the Government, so I think that they probably will accept the amendment.

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My Lords, I am not sure that we accepted it. The point came from the Cross Benches.

We will not contest the amendments this afternoon. The noble Lord, Lord Jopling, rightly moved his amendments, which were agreed by your Lordships' House. However, as I argued then and as we will continue to argue, the noble Lord's argument was fallacious. We believe that powers that were put in place—ironically by the government of which the noble Lord, Lord Jopling, was a member—during the 1980s and as late as 1990 already provide government with sufficient cover.

We will have to return to the issue, so I will remind your Lordships' House of the situation. Under the Airports Act 1986, the Secretary of State may give directions to the operators of airports in the interests of national security. The Aviation and Maritime Security Act 1990 gives the Government a wide-ranging power to require port authorities to undertake screening and monitoring. Detailed requirements relating to port and shipping security have been adopted at international level. In particular, there is the International Ship and Port Facility Security Code. At Community level, there is Regulation (EC)725/2004 on enhancing ship and port facility security. Those include provisions relating to security assessments for ports, provision of information and port facility plans. The provisions are enforced under the Ship and Port Facility (Security) Regulations 2004 (SI 2004/1495).

Under the regulations, ships and port facilities can be inspected for the purpose of ensuring that they are secure. The regulations also enable any property or apparatus found on the ship or at the port to be tested and allow steps to be taken to ascertain whether security practices and procedures are being followed. Under Clause 5 of this Bill, an order could be made requiring local authorities or any other category 1 responder to perform their functions in a particular way. That could include the purchase and deployment of equipment, as the noble Lord, Lord Jopling, suggested.

The powers conferred on the Government by the noble Lord's amendment are unnecessary and redundant. In addition, the new provisions could undermine the robust procedural safeguards set out in the existing powers. I forwarded correspondence to the noble Lord, Lord Jopling, setting out the way in which the existing legislation worked in much more detail, as well as the scope of the powers and the procedures to be followed when they were used.

If left on the statute book, the noble Lord's amendment could cause significant confusion. I give notice that the Government will therefore seek to overturn the amendments in another place. The Government already have a wide range of powers necessary in this area. We are already taking decisive measures to detect the smuggling of chemical, biological, radiological and nuclear material and to ensure that we are prepared, should such material be deployed in a terrorist attack.

I have nothing further to add on the amendments moved today, but we reject the provisions they seek to change.

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Lord Walton of Detchant (Crossbench)

My Lords, before the Minister sits down, the two amendments relate simply to a point of terminology. Radiology is a discipline practised by doctors who are concerned with the interpretation of X-rays and other images of the human body and so on. The whole purpose of these two amendments is to correct that error of terminology by replacing "radiological" with "radioactive".

I comment no further on the nature of the amendment which the noble Lord, Lord Jopling, tables and which was accepted by your Lordships' House, but I want to make the point, as I did on the previous occasion, that the term "radiological" is incorrect and "radioactive" is the correct one.

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My Lords, I entirely accept that point, as I did during the course of the debate. I seek simply to ensure for the record that it is understood why we believe these amendments are unnecessary and why they could be damaging and cause confusion. I also want to counter the suggestion that we have in any way been complacent. In fact, the previous government were not complacent on this issue and the three pieces of legislation to which I shall specifically refer were all put in place under their watch—no doubt for the very reasons which the noble Lord, Lord Jopling, exercised in moving his original amendment. They wanted to ensure that adequate powers existed and that steps could be taken to ensure that the authorities, in whatever guise, could act effectively. We believe that those powers are more than sufficient for the job.

No doubt we shall return to that matter when the Commons has considered Lords amendments and I look forward to rehearsing the issues again.

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Baroness Buscombe (Shadow Minister, Home Affairs; Conservative)

My Lords, I thank the Minister for his response and I am grateful in particular to the noble Lord, Lord Walton of Detchant, for contributing to the debate. He came to my rescue, pointing out that these amendments relate to the terminology.

I shall repeat the closing words of my noble friend Lord Jopling in the debate on Report because I want to emphasise why this amendment is so important and why the main amendment was so important on Report. My noble friend said:

"It is essential that the Government have powers to direct local authorities and other public bodies to obtain that equipment in adequate quantities, to ensure—although this is not stated in the amendment—that a sufficient number of properly trained operatives is available to work it and find out whether this hazard exists. This is a crucial amendment. I hope very much that your Lordships will accept it".—[Hansard, 9/11/04; col. 777.]

Those were the words of my noble friend and we continue to support the amendment. I commend it to the House.

On Question, amendment agreed to.

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Baroness Buscombe (Shadow Minister, Home Affairs; Conservative)

moved Amendment No. 8:

Page 3, line 31, leave out "radiological" and insert "radioactive"

On Question, amendment agreed to.

Clause 19 [Meaning of "emergency"]:

[Amendments Nos. 9 and 10 not moved.]

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

moved Amendments Nos. 11 and 12:

Page 13, line 9, leave out "seriously threatens" and insert "threatens serious damage to"

Page 13, line 18, leave out "an electronic or other" and insert "a".

On Question, amendments agreed to.

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Lord Lucas (Conservative)

moved Amendments Nos. 13 and 14:

Page 13, line 24, leave out "harmful"

Page 13, line 25, leave out sub-paragraph (ii).

On Question, amendments agreed to.

Clause 22 [Scope of emergency regulations]:

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

moved Amendment No. 15:

Page 15, line 17, leave out "an electronic or other" and insert "a".

On Question, amendment agreed to.

Clause 23 [Limitations of emergency regulations]:

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Baroness Buscombe (Shadow Minister, Home Affairs; Conservative)

moved Amendment No. 16:

Page 17, line 2, leave out from "service" to end of line 4.

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Baroness Buscombe (Shadow Minister, Home Affairs; Conservative)

My Lords, your Lordships will now be more than familiar with this amendment as I have run it at both Committee and Report stages of the Bill. We have brought it back to Third Reading as, I am sorry to say, each time we have a debate on the issue the Minister, despite her best efforts, has not convinced me of the Government's way of thinking.

The amendment would leave out one of the two exceptions in the Bill; interfering with strike action. I have spoken about my objection to this exception at length, but I want to take a little time to outline our concerns one last time in the hope that I can persuade the Minister to accept the amendment.

We on these Benches do not believe that it is right or sensible to allow strikes to continue when the country is facing or about to face a national or serious emergency. It is obvious that in such a situation we may well need ambulance drivers and crew, firemen and workers in transport, most commonly London Underground workers. For one reason or another, which I will not go into now, these groups are also those which feature most prominently in the national news for industrial action. The point I made on Report about strikes during the Second World War was unfortunately misunderstood by other noble Lords and I shall try to explain it further today.

During Committee, the Government put forward the argument that during a time of crisis those on strike would come back to work without question. Unfortunately, the statistics I used on Report showed that goodwill alone cannot be relied upon during times of national crisis. It is sad to say that many withheld their labour during the Second World War; a time when to do so was frowned upon.

I move on to another of the Government's arguments; that we have always had the exemption and that it should remain because of historical significance. It seems a curious argument from a Government who want to get rid of the Lord Chancellor, want to get rid of hunting and seem determined to get rid of jury trial, which is one of the cornerstones of our legal system, that simply because we have had a law for 80 years we should keep it on the statute book.

The Government's final argument which has been most recently advanced is that there are criminal laws in place for individuals on strike who know that they are endangering lives. However, I am unsure how this would work in practice. If someone were already out on strike and did not know that there was some sort of emergency, clearly he would lack the mens rea required to commit a crime and incur criminal liability.

We have been working hard to try to put sufficient safeguards into the Bill. We have improved it in a number of ways, but this is a point about which we still feel strongly. The noble Baroness, Lady Scotland, said on Report that the right to withdraw labour within the law is a fundamental right that should be protected, even during emergencies; that the deliberate endangerment of human life or property, or causing illness or injury, are matters of criminal law. That is fine, but this does not—I repeat, does not—as the Minister believes, place a proper limit on the potential effects of industrial action.

I urge the Minister, at this late stage, to reconsider our amendments. I beg to move.

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Viscount Goschen (Conservative)

My Lords, in disallowing strike action, the Government's position on my noble friend's amendment is inconsistent. This Bill is, without doubt, draconian and I suggest that the Government agree with that. It allows them to set aside virtually any Act of Parliament. It provides for immense reserve powers.

However, this Bill is not for likely eventualities; it is for unlikely eventualities. We are not saying that, for example, firefighters are likely to strike in the event of a national emergency. I am sure that they are highly unlikely to strike. But when examining the Bill, we are looking at worst-case scenarios.

We have the extraordinary circumstance in which, on the Minister's own admission, under the powers of the Bill people can be compelled to do things. The only people who cannot be compelled are those who refuse to do their own job. In that way, as I mentioned on Report, if there was a strike by Tube drivers, the only people in the entire kingdom who could not be ordered to drive Tube trains would be Tube drivers. That strikes me as a tremendous anomaly.

The Government have argued throughout all stages of the Bill that they need those massive reserve powers. I do not think that they should be coy about this one additional reserve power that may, in one set of circumstances, be useful. It is not likely to happen, but it may happen. Therefore, it should be in the Bill.

Finally, when we were faced with a firefighters strike not so very long ago, the Government made it known publicly that they were considering legislation to prevent firefighters going on strike. They used that tactic to negotiate with the firefighters in order to cause them to resolve their dispute. It has clearly been through the Government's mind that, just as the police are not allowed to strike, there could be circumstances when groups of people such as firefighters and other essential services might be brought within that ambit. I support my noble friend's amendment.

5:00 pm
Photo of The Earl of Onslow

The Earl of Onslow (Conservative)

My Lords, I believe that it is illegal to strike in the power industry. If things get very bad, there is really serious trouble and the power industrial workers basically say, "We are going to ignore the law and we are going to go on strike", that is a time when emergency powers are genuinely needed.

It would not be very sensible to say, "Oh no, we have got the power strike workers on illegal strike, but we don't have the power to take emergency measures". I find that a little odd. Does not the noble Baroness?

Photo of Lord Lester of Herne Hill

Lord Lester of Herne Hill (Liberal Democrat)

My Lords, I would be very grateful if the noble Baroness could help me in her reply. I am genuinely puzzled about why one needs either Clause 23(3)(a) or (3)(b). In Clause 23(5), the Government have sensibly and commendably accepted that,

"Emergency regulations may not amend . . . the Human Rights Act".

The Human Rights Act protects the fundamental right to be a conscientious objector, for example, which effectively is in Clause 23(3)(a), and the right to strike or take part in industrial action as part of freedom of association, which is in paragraph (b). Of course, those rights are not absolute. They are subject to the public interest, including national security, emergency and so forth.

I do not ask this question from a political perspective; I genuinely seek information. If the Government are to make exceptions of that kind, why do they not make an exception, say, for free speech? The answer is because that is covered by the Human Rights Act. So I do not see why—given that the Human Rights Act will give protection to trade unions and strikers, but subject to a fair balance test, and similarly to conscientious objectors—those paragraphs have been put in. There must be a very good reason and I am being stupid. I should be grateful to be enlightened on that.

Photo of Lord Elton

Lord Elton (Conservative)

My Lords, the reason would seem to a layman to be that when the human rights veto, as it were, is withdrawn because of the public interest, the phrases that we are now trying to remove will bite. In other words, even if public interest requires it, the Government still will not be able to,

"prohibit or enable the prohibition of participation in, or any activity in connection with, a strike or other industrial action".

As I understand it, it negates the freedom of action given by the limitation in the Human Rights Act.

We are talking about a time when the country is expected to be in extremis. The Government have said again and again that they will do that only if it is the last resort; for example, if national life is in danger, if the threat is serious and if the damage threatened is serious. Then we can start to put in a voluntary limitation beyond that already provided in statute.

I agree with the noble Lord, Lord Lester, who understands this much more than I, that there must be some other motivation. There must have been a deal struck or something that we do not know about. But if that is not the case, there cannot be any proper resistance to this amendment.

Photo of Lord Garden

Lord Garden (Liberal Democrat)

My Lords, in debating this Bill we keep worrying if we put new constraints on our liberties and the like. In all the debates that I have listened to, I have heard nothing that has shown any evidence that having this exemption for trade unions has affected us over the past 80 years when we successfully got through a world war and we were threatened with nuclear annihilation for the best part of 40 years.

We are now into a different regime of security concerns. It seems extraordinary that we should now argue that we want to inhibit one of the liberties that we have enjoyed over that period. From these Benches, I am afraid that, whatever the answer to my noble friend's question, we would not wish to support an amendment that gets rid of a right that has not affected our security in the past.

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Lord Elton (Conservative)

My Lords, before the noble Lord sits down, if the right exists already, why is this necessary in the Bill?

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Lord Garden (Liberal Democrat)

My Lords, I will not respond at length. We are replacing old emergency legislation, which had that right in it, with updated legislation.

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Baroness Scotland of Asthal (Minister of State (Criminal Justice System and Law Reform), Home Office; Labour)

My Lords, I agree with the noble Lord, Lord Garden, in relation to that matter. As always, I regret any disappointment that I shall cause the noble Baroness, Lady Buscombe, but I fear that I shall cause her some disappointment today. This is not an amendment that the Government can support. So we will resist its inclusion.

Perhaps I may make a number of points clear, in case I was insufficiently clear at Second Reading, in Committee and on Report. Allowing the use of emergency powers to prohibit strikes would risk straying into the realm of political interference rather than emergency response. The Government have deliberately drafted the Bill to avoid the possibility of the powers being used for political purposes.

Prohibiting strike action would weaken that position and open up the possibility of the powers being used for the wrong reasons. I believe that that is something on which the House has been at one and in total agreement. That is something that the Government, Parliament and civil liberties groups have all made very clear must be avoided throughout the development and passage of the Bill.

The right to withdraw labour within the law is a fundamental right that should be protected even during emergencies. The noble Lords, Lord Lester and Lord Garden, are absolutely correct on that point. Emergency powers must comply with the Human Rights Act. The Government believe that that ensures that the fundamental rights of individuals are protected from any possibility of interference by the state. They believe that collective rights, in the form of the right to withdraw labour in accordance with the law, should also be protected.

The Government see that as a clear area in which the powers of the state could be misused in a way that threatens both individual and collective rights. Therefore, that requires express protection. I say to the noble Viscount, Lord Goschen, that there is no coyness in that. It is called respect for democracy.

Aside from civil liberties issues, there are very real practical problems with using emergency powers to ban strikes that may trigger the kinds of emergencies set out in Part 2 of the Bill. It simply does not fit well with the nature of emergency powers or the safeguards set out in the Bill. Given the temporary nature of emergency regulations and the fact that they can be used only where urgently needed, necessary and proportionate—the three areas that we have been talking about—we would risk ending up in a rather ridiculous situation where a strike is called and the powers are invoked to prohibit it. The strike is called off and therefore the powers are no longer justified. The regulations are then revoked, only for industrial action to be launched again now that the prohibition has gone. Are we then to invoke emergency powers again only for the same thing to happen, perhaps time and time again ad infinitum?

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Lord Elton (Conservative)

My Lords, I think that the noble Baroness envisages a scenario rather different from ours. She is positing a case where the emergency is constituted by the industrial action. The case we see is where there is another national emergency and, within that framework, an irresponsible trade union decides to exploit its position by calling a strike. The powers would not be revoked until the emergency was over, and they would not be revoked when the strike was over.

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Baroness Scotland of Asthal (Minister of State (Criminal Justice System and Law Reform), Home Office; Labour)

My Lords, the noble Lord envisages a position where one would take action under emergency powers to prevent those who wish legitimately and within the law to go on strike doing so. We simply do not think that that is right.

Looking at the history, this action does not seem to be merited. The noble Lord, Lord Lester, asked why we need to provide for these issues. It is fair to say that the right to strike is protected in part by the Human Rights Act, but in this case we think that it is appropriate to go beyond the protection in that Act. Experience shows that strikes can be the kind of situation which may necessitate the use of emergency powers, and it is therefore appropriate to make additional and specific protection for the right to strike.

I should also say that it was present in the 1920 legislation. Here we have simply continued that which was present then because it appears to have worked well. We did not think it appropriate to expunge the provisions when we came to revise the 1920 legislation and to consider again what it was necessary to do.

I see that the noble Lord wishes me to give way.

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Lord Lester of Herne Hill (Liberal Democrat)

My Lords, I do not completely understand the Government's position and I wonder whether I could have another go. What the Minister has said about the right to strike could apply equally to any other human right such as that to publish newspapers. The logic of the argument would be the same.

I acted for the trade unions before the European Commission on Human Rights when they sought to challenge the ban on GCHQ trade union activities introduced by the government led by the noble Baroness, Lady Thatcher. I am delighted to see the noble Baroness in her place. However, I lost because the commission held that there was a fair balance between the right to strike and the banning of the right to strike in the context of GCHQ.

I understand perfectly that we are following what was provided for in 1920, but in 1920 we did not have the Human Rights Act. Now that we have that legislation, I still do not understand why the fair balance that that Act maintains between collective or individual rights and the general interests of the community, including those in a national emergency, is not sufficient without the need for these two extra provisions. What form of right to strike do the Government have in mind that goes further than the fair balance contained in Article 11 of the convention? It is that which I simply do not understand.

I agree with the noble Baroness in her general approach towards the right to strike, its importance and the need not to interfere with it except in the direst and most exceptional circumstances. However, my point is about the method, given that the Government concede that the Human Rights Act is to be sovereign in this area.

5:15 pm
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Baroness Scotland of Asthal (Minister of State (Criminal Justice System and Law Reform), Home Office; Labour)

My Lords, in many ways this is part of the historical legacy. When one looks at what happened with the 1920 Act it is quite clear that jurisprudence and the way we have looked at it take into account the fact that that Act specifically preserved the right to strike. If we now seek to expunge that right, we do not in any way wish that to be misunderstood.

The noble Lord will know that when we went through the process of looking at the draft Bill, considering where, if at all, the 1920 Act should be amended and changed, we considered those sections which could safely and properly be retained and those sections which could safely and properly be expunged. Because of the importance of this issue, the Government came to the conclusion that it would be safer—perhaps in the manner of a belt-and-braces approach—to retain the provisions to put beyond doubt that these issues remain the same and unchanged by the new legislation.

One has only to go through our debates at Second Reading, in Committee and on Report to know why that clarity needs to be put in the Bill in this instance, as we move away from the 1920 construct into the new construct that we are seeking to develop and apply more generally. We need clarity of understanding and therefore we think that the paragraphs set out in Clause 23(3)(a) and (b) have utility.

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Baroness Scotland of Asthal (Minister of State (Criminal Justice System and Law Reform), Home Office; Labour)

My Lords, I would remind noble Lords that this is Third Reading. It is not Second Reading or Committee, and it is certainly not the Report stage.

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Lord Stoddart of Swindon (Independent Labour)

My Lords, I rise only to ask a question, which I think we are entitled to do under the rules.

I appreciate that this is a difficult area, but am I right in thinking that for an official strike to take place, a period of 21 days' notice has to be given anyway? The limit of any emergency legislation under the Bill is 21 days unless it is renewed. Therefore any strike taking place within that period would be illegal, in particular if it was an unofficial strike. Can the noble Baroness help me with that point?

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Baroness Scotland of Asthal (Minister of State (Criminal Justice System and Law Reform), Home Office; Labour)

My Lords, I agree with the noble Lord that only lawful strikes are preserved in this Bill and that unlawful or secondary strikes are not included. We think that current appropriate legislation bites on this, which would mean that a strike should not be adversely affected by those rights.

This refers back to what the noble Baroness, Lady Buscombe, said had happened in the past. The noble Baroness was concerned that even where industrial action is not the cause of the emergency it may still hinder the response—a point also made by the noble Lord, Lord Elton—if a strike is already in progress when an emergency occurs. However, I am not aware of any examples where this has been the case.

Noble Lords will be aware of the long tradition of those taking industrial action co-operating to minimise any risk to the public. For example, during the 1970 dock strike, for which emergency powers were invoked, dock workers continued to unload perishable items, while during the 2002 firefighters' strike, firefighters continued to respond to incidents where lives were at risk.

During our debate on Report the noble Baroness referred to the fact that strikes did take place during World War II. I understand the point she was making, and it was of course correct. But I am aware of no evidence to suggest that they compromised the war effort in any way or put others at risk. It would be wrong to exaggerate their magnitude. At their peak in 1944, 3,714,000 days were lost to strike action. However, it is worth remembering that in 1974 the figure was 14,750,000 days, and in 1984 it was 27,135,000 days. It is also worth remembering that it was the preservation of fundamental rights and civil liberties for which the war was being fought. I for one am proud and reassured that we were able to maintain these rights wherever possible, even in our darkest hour. It was that refusal to restrict dissent and to uphold pluralism that set us apart from the totalitarian regimes of the day and helped to ensure that the United Kingdom remained a beacon of hope and freedom to those across the Continent whose rights and freedoms had been taken away. This Government have no intention of diminishing that light.

The Government believe that industrial disputes, so long as they remain within the law, are a matter for employees and their employers. The emphasis must be on their resolution, and the Government taking sides and interfering in a draconian manner would be likely only to inflame the situation.

As I made clear on Report, those who wilfully and maliciously go on strike where they know or have reasonable cause to believe that the probable consequence of doing so will be to endanger human life or cause serious bodily injury, or expose valuable property to destruction or serious damage, commit an offence under the Trade Union and Labour Relations (Consolidation) Act 1992. That places a real limit on the potential effects of industrial action. Any action that involves deliberate endangerment of human life or property, or causes illness or injury, is a matter of criminal law, be it in normal times or in the midst of emergencies. These laws apply to everyone, including those who take industrial action.

The law in these areas is robust and effective and the Government's position, as set out in the Bill, is that existing legislation which has been approved by Parliament should always be used where it will be effective. The Government accept that industrial action may have a disruptive effect on services. The Bill ensures that action can be taken to mitigate the worst effects of a particularly disruptive strike without resorting to prohibition. As I have already made clear, the legislation this replaces contains an identical provision. We do not believe that there is anything in the past which would cause us to suggest that we should change.

On the point raised by the noble Earl, Lord Onslow, emergency measures can be invoked in order to mitigate the issues to which he referred. I have already described why we say that if a strike occurs in the midst of an emergency we shall be able to deal with it perfectly properly without denying people the liberty and opportunity to act in accordance with their rights, which are upheld and underscored by current human rights protection.

I am sorry to disappoint the noble Baroness, but we remain resolutely opposed to the expunging of the provisions.

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Baroness Buscombe (Shadow Minister, Home Affairs; Conservative)

My Lords, I shall be brief. I am deeply disappointed that, even at this stage, I have failed properly to explain our position and to persuade the Government that one of our real concerns is not that the strike may cause the emergency itself but that some unprecedented severe act may occur when certain trade unions are already out on strike. The Government are saying that it is all right to be on strike when there is a threat to our national security, but we on these Benches do not accept that.

The noble Lord, Lord Lester of Herne Hill, said that it was right for people to be allowed to go on strike except in the direst exceptional circumstances. We are talking about the direst exceptional circumstances. We are talking about an unprecedented act such as the 9/11 attack which, as we speak, could occur within minutes of now. Let us suppose that the Tube workers were currently out on strike. Are the Government saying that it would be perfectly all right for the chaos that could prevail across London to continue because those people have the right to strike? Are we saying that saving lives could happily be hindered because of the right to strike?

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Baroness Scotland of Asthal (Minister of State (Criminal Justice System and Law Reform), Home Office; Labour)

My Lords, I hesitate to interrupt, but I specifically said—I am sure that the noble Baroness heard me—that industrial action which threatens life is illegal and as such it would be stopped. Let me remind the noble Baroness that I also said that most people behave incredibly responsibly; they do save lives and they do go back to work when our country is at risk.

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Baroness Buscombe (Shadow Minister, Home Affairs; Conservative)

So why, my Lords, do we need this exception on the face of the Bill? I do not want to detain the House a moment longer. Let us agree to disagree. I beg leave to test the opinion of the House.

On Question, Whether the said amendment (No. 16) shall be agreed to?

Their Lordships divided: Contents, 138; Not-Contents, 200.

Division number 1

See full list of votes (From The Public Whip)

Resolved in the negative, and amendment disagreed to accordingly.

5:36 pm
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Baroness Buscombe (Shadow Minister, Home Affairs; Conservative)

moved Amendment No. 17:

Page 17, line 16, at end insert—

"(c) the Habeas Corpus Act 1816 (c. 100),

(d) section 7 of the Parliament Act 1911 (c. 13) (duration of Parliament),

(e) the Bill of Rights 1689 (1 Will & Mar. Sess. 2, c. 2),

(f) the Act of Settlement 1700 (c. 2),

(g) the House of Commons Disqualification Act 1975 (c. 25),

(h) the Life Peerages Act 1958 (c. 21), and

(i) the House of Lords Act 1999 (c. 34)"

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Baroness Buscombe (Shadow Minister, Home Affairs; Conservative)

My Lords, we have raised this issue previously. The current drafting of the Bill allows the Government, by virtue of Clause 22(3)(j), to disapply or modify any enactment save the Human Rights Act.

The Government have changed their mind on the powers of the clause since it has arrived in your Lordships' House. At first, they argued that there was no need to exclude any Acts from the paragraph in question, and sent a strongly worded reply to the Joint Committee on Human Rights when the latter raised an objection to this enormous power. However, they have changed their mind regarding the Human Rights Act, and have decided that it does need protection, after all.

We are now asking the Government to do the same and protect the Acts outlined in my amendment. These are: the Habeas Corpus Act 1816; Section 7 of the Parliament Act 1911; the Bill of Rights 1689; the Act of Settlement 1700; the House of Commons Disqualification Act 1975; the Life Peerages Act 1958; and the House of Lords Act 1999.

We have tried to keep this list brief. It is certainly not as long as that suggested by the Joint Committee on Human Rights. However, we feel that the list we have proposed is sensible and adequate to protect from possible interference some of the most important legislation on the statute book.

These Acts have been around for so long it seems implausible that any government would ever wish to change them. If I may, I suggest that it would be wise for the Government to concede this point. There has been much discussion on the point, and it would bring peace of mind to many around your Lordships' House and beyond to know that these core Acts cannot be touched.

I very much appreciate the Minister writing to me following our debate on Report. However, as one who was called to the Bar some 27 years ago, I found her letter rather patronising. That said, let me respond to some of the points she made. I accept that no legislation is immune from change, which is why we have kept our list to the very core enactments that underpin our unwritten constitution. Notwithstanding the fact that the Minister has already conceded that we need to strengthen access to judicial review, and has sought to do so by bringing forward amendments on Report, we believe that it is important to go one step further.

We firmly believe that it is our duty, as Her Majesty's Opposition, to persuade the Minister that, given Clause 22(3)(j), we must safeguard those core enactments which protect the constitution of Parliament, the activities of Parliament and access to justice—in other words, our core freedoms and our democracy.

In her letter addressed to me regarding a similar amendment on Report, the Minister stated that the Government are convinced that the absence of an express power to amend constitutionally important legislation, coupled with the clear expression of the purposes for which regulations can be made and the safeguards set out in the Bill, ensure that substantive amendment to such legislation is not possible by way of emergency regulations. I am sorry, but I simply do not accept that as a convincing argument for standing back and allowing Clause 22(3)(j) to sit on the statute book without further safeguards.

In addition, in introducing an amendment on Report expressly to exempt the Human Rights Act from Clause 22(3)(j), the Minister stated that notwithstanding the Government's belief that it is not strictly necessary expressly to protect the Human Rights Act,

"in the light of concerns expressed by civil liberties groups and in Parliament, the Government believe that an express provision to the effect that emergency regulations cannot disapply or modify any provision of the Human Rights Act would offer the certainty and reassurances that some seek".—[Hansard, 9/11/04; col. 867.]

I urge the Minister to accept our amendment. In so doing, she would be responding to the many who have expressed their alarm and serious disquiet with regard to the extraordinarily wide powers which this enabling legislation confers upon individuals in government.

I was struck by the byline attached to the Home Office letterhead, which is:

"Building a safe, just and tolerant society".

I suggest to the Minister that in proposing this amendment, we believe we are seeking to safeguard a safe and just society. I beg to move.

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Lord Lester of Herne Hill (Liberal Democrat)

My Lords, I find this a curious amendment from the official Opposition, because it seeks to treat our system as if we are approximating towards a written constitution which guarantees basic civil and political rights to people of this country. My party and I strongly favour a written constitution similar to that which exists in every other European state and in most other Commonwealth countries. If that were done, the purpose that this amendment seeks to achieve would be accomplished in a proper constitutional way. Emergency powers could not be used in a way that violated basic constitutional rights.

However, as far as I am aware, that is not the position of members of the Conservative Party although, if they were true to their Burkeian traditions, they would actually move in that direction. What we have instead is a partial list of statutes, some much more important than others with omissions of others that are equally important. For example, we do not find the Magna Carta, the Claim of Right, the Act of Union in Scotland—or its modern counterpart the Scotland Act—or the Northern Ireland Act.

Instead, we have the Habeas Corpus Act which has been entirely superseded and made much more effective in practice by Article 5 of the European Convention on Human Rights which guarantees the right of liberty in a way that the Habeas Corpus Act 1816 failed to do. We have provisions about the Bill of Rights of 1688-89, most of which are either of no relevance or belong in a constitutional charter. The Act of Settlement is the same. I cannot for the life of me see why the Life Peerages Act should be treated as a great constitutional Act or, for that matter, the House of Lords Act.

Although I have more than sympathy with the need to protect our birthright—as it is quaintly described in the Act of Settlement:

"the laws of England are the birthright of the people thereof"—

I believe in protecting that birthright by a new constitutional settlement. That would make us stronger in negotiating with the EU, give us a greater sense of national identity, codify the basic political and civil values of this country, protect the church and state and the separation of church and state and so forth. I do not believe that a shopping list of miscellaneous old statutes, some important and some less so, is the right way to go about it. Nor do I believe that it is necessary in order to accomplish the movers of the amendment's needs.

Therefore, I very much hope that the amendment will not be pressed to a Division and that the noble Baroness will persuade her colleagues so that the official Opposition joins the Liberal Democrats and, I hope, the Government in due course in favour of a modern, coherent written constitution.

5:45 pm
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Lord Peyton of Yeovil (Conservative)

My Lords, I rise to support my noble friend despite the observations of the noble Lord, Lord Lester. He may be right in saying that the list of measures could be improved and I do not doubt that my noble friend would be willing to consider that. However, what really matters is that there should be some important measures in the Bill. If the Government wish to add to them in another place, that would be fine.

I have always worried about this Bill as I remarked earlier this afternoon. It has an odour about it of casualness where personal liberty is concerned and I was only slightly comforted to hear the Minister, in that nice voice of hers, saying that the Government had been concerned all along to avoid large powers being used for wrong reasons. That helped me a little, but what worried me earlier was the unwillingness or inability of the noble Lord, Lord Bassam, to give any idea about what constitutes damage serious enough to bring into effect or make lively the powers conferred on Ministers by the Bill.

My concern remains and I am hopeful that the Minister will not just wave away the cogent arguments produced by my noble friend to see that really important traditional measures—whatever they may be, because I do not think that this list is in any way exclusive—that play a fundamental part in propping up the liberty of the subject are not lightly discarded by a Bill of this kind. If the Minister were to accept the amendment or even say that the Government would take it away and see what they could do with the Bill in another place, I would be very happy, but I am bound say that my suspicions were better founded than I originally thought if she waves aside the anxieties that have been expressed today.

I hope that the Minister will take no notice of the noble Lord, Lord Lester, who was rather cavalier in his treatment of personal liberties—too cavalier to support this amendment. I support my noble friend.

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Lord Renton (Conservative)

My Lords, I also warmly support this amendment for a rather special reason. Forty-six years ago, I helped the late Lord Butler of Saffron Walden to pilot the Life Peerages Act 1958 through the other place. Now, all your Lordships except the 92 hereditary Peers, the Bishops and the Law Lords are dependent on that Act as part of our law and the composition of your Lordships' House. If any doubt whatever were thrown upon it, it would be disastrous for that composition. I hope that the noble Baroness, Lady Scotland, whose open mindedness I have admired on many occasions, will realise that my noble friend has moved a vitally important amendment.

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Lord Monson (Crossbench)

My Lords, we spoke on this matter at considerable length on the previous occasion. Subsequently I have seen copies of some of the correspondence that the noble Baroness, Lady Buscombe, received. I was alarmed to see that the Government maintain that it may be necessary to prolong the life of Parliament beyond five years in certain emergency situations. I find that very worrying. However, over and above that, I wonder what on earth is wrong with the belt-and-braces approach suggested by the noble Baroness, Lady Buscombe. It may not be entirely necessary but at least, as she said, it would give enormous reassurance to the millions of people throughout Britain of all parties and none who are extremely unhappy about this Bill.

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The Earl of Onslow (Conservative)

My Lords, surely personal and individual liberties cannot be offhandedly dismissed in the way that the noble Lord, Lord Lester, did on the basis that the Human Rights Act was good enough. A whole part of our liberties—

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Lord Lester of Herne Hill (Liberal Democrat)

My Lords, I am sorry to interrupt the noble Earl at this stage but I did not say that. I said that we needed a written constitution and not an anomalous list of old statutes, some of which are important and some less so.

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The Earl of Onslow (Conservative)

My Lords, the noble Lord obviously does not understand human liberty in the way that I do. I understand human liberty as a Whig and as someone who seriously thinks that one of the greatest acts of human history was the 1688 settlement. To dismiss it as just pooh-pah, which I thought the noble Lord did, and to say that we need a written constitution along the lines of republican France seems to me rather an odd idea for a Liberal.

Be that as it may, we have had our little tit-tat. The serious point I hope to make is that a very serious longstop clause must be contained in a power given to Ministers to amend or repeal legislation by diktat. This collection of Acts is the minimum that should be safeguarded. I would not trust my own party with the power, let alone the noble Baroness, much as I love her, or some other parliamentarians. I simply do not trust human beings with that power. There must be a safeguard of some kind.

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Lord Stoddart of Swindon (Independent Labour)

My Lords, I very much enjoyed the speech of the noble Lord, Lord Lester. I admired his adroitness in using what is a very limited amendment to give us a dissertation on a written constitution. No doubt he will return to that at some point in the future.

I am attracted to this amendment simply because I know that many people outside Parliament are very worried about this Bill. They need reassurance. It is all right for the Government and, indeed, the Opposition for that matter, to say, "You can trust us", but the fact of the matter is that none of the governments of the past few years have shown themselves to be utterly trustworthy. They come forward with all sorts of very important legislation at short notice that is not properly discussed, for example, the Anti-terrorism, Crime and Security Bill, which went through the House of Commons in three days, and was amended to some degree and improved only in this House over a period of, I believe, 11 days. People outside this House are learning not to trust governments in the way they used to.

Photo of Lord Archer of Sandwell

Lord Archer of Sandwell (Labour)

My Lords, I am most grateful to the noble Lord, but does he have it in mind that we are discussing a situation where there is an emergency, and that any power about which we are talking depends upon there being an emergency?

Photo of Lord Stoddart of Swindon

Lord Stoddart of Swindon (Independent Labour)

My Lords, I am perfectly well aware of that, but many people do not trust the Government to act in accordance with the legislation which is in operation. That is what I am getting at—that the general public do not trust governments in the way that they used to. That is why there is much concern outside this House among the general population about a Bill that gives the Government extraordinary powers. A number of letters that I have received mention these very Acts as being safeguards which could be swept aside under this Bill. It is not only myself and other noble Lords who are concerned about them; ordinary people outside, who have a concern for democracy and the continuation of the protection of our freedoms and democracy, are worried. That is why I believe that it may be necessary to include this amendment in the Bill.

The noble Baroness who is to reply to the amendment may well be able to assuage the fears not only of noble Lords but of others outside this House. She may be able to give us assurances that convince us in this House that the Bill will be all right without the amendment. I hope that she will give that matter much attention because many people will need much persuasion that the Bill is all right as it is.

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Lord Elton (Conservative)

My Lords, the noble Lord, Lord Lester, said that the list in my noble friend's amendment is anachronistic because many of the items in it have been amended, and that it is incomplete because many items have been left out. However, the noble Lord, Lord Stoddart, rightly said that this is a symbolic list. The amendment is symbolic in much the way that my noble friend Lord Onslow is symbolic. He is also anachronistic, if I may say so, and he has doubtless yet to achieve all that he wishes in life. However, he is an extremely important ornament and functioning part of your Lordships' legislature.

This amendment may also be anachronistic, but, unlike my noble friend, it can go to the House of Commons and be brought up to date. The proper answer for the Government to give is not that (c), (d), (e) and perhaps (f) are not right and (g) and (h) ought to be altered and (i) is superfluous. The answer ought to be, "We understand that the House of Lords, not for the first time, is resonating to an anxiety in the country and trying to allay it by reasonable measures". This is such a reasonable measure. I ask the noble Baroness in replying to the amendment to undertake to give such reassurance. The House of Commons is at liberty to produce its own amendment, or its amendment to this amendment. In that way she may yet satisfy us tonight.

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Viscount Goschen (Conservative)

My Lords, in an undated letter to my noble friend Lady Buscombe the noble Baroness said the following:

"The Government shares the concerns expressed that emergency powers should not be capable of making substantive amendments, which undermine the constitution of the United Kingdom".

I certainly agree with the noble Baroness, but, unfortunately, that is not what the Bill says. We seek to take the noble Baroness's sentiment and enshrine it in the Bill.

The noble Lord, Lord Lester, pointed out that the group of statutes which we propose should be safeguarded constituted a ragbag, or some such term—I forget his exact words. Perhaps it is but the fact is that we do not have a written constitution to write into this Bill, and I suggest that we are unlikely to have one by Prorogation on Thursday. Therefore, we have to protect what we do have. As we have an unwritten constitution which consists of a variety of statutes, we have to pick those that we think are the most appropriate. I agree with the noble Lord that the list is not exclusive or exhaustive and that other statutes could be added. I am sure that the noble Baroness will pray that in aid in her defence. However, we are at least drawing a line in the sand. We are saying that at the very minimum these important aspects of our constitution should be protected.

The Government, by their own admission, have no business in enabling a situation whereby emergency regulations can be used to alter the fundamental constitution of our country. That is the position in the Bill. I would certainly prefer a Bill that was much more specific and which said what these powers could be used to amend, but we have been denied that. Therefore, we must at the very least have a list of those important constitutional statutes that cannot be amended by this Bill.

6:00 pm
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Baroness Scotland of Asthal (Minister of State (Criminal Justice System and Law Reform), Home Office; Labour)

My Lords, I have had one of my most enjoyable 23 minutes in a very long time. I will always remember the noble Lord, Lord Elton, describing the noble Earl, Lord Onslow, as a symbolic functioning ornament; it will live long in my memory. However, I want to make a number of matters plain.

It was not my intention to appear patronising in the letter. The noble Baroness will know that, although I address my letters to her, I hope that they will be shared more broadly with noble Lords. Therefore, I try to phrase them in an inclusive rather than exclusive way. If I failed on this occasion, I beg her pardon. I hope that she will recognise that offence was by no means intended.

I understand the logic of the noble Lord, Lord Lester, in relation to the nature of a written constitution. I agree with him on why the provisions should not be in the Bill. In no way do I misconstrue his interpretation; we all know that he is one of the most valiant supporters of human rights and interests in the country. It would be impossible to misinterpret his intent in that regard.

I reassure the noble Earl, Lord Onslow, that republican France is still very different from Her Majesty's United Kingdom, and is likely to remain so. It is equal, but we in Britain greatly enjoy that difference.

I understand the suggestion of the noble Lord, Lord Peyton, that there is an odour of casualness. However, had he had the benefit of enjoying every part of the Bill, as I have, he would have noticed that there was no casualness in the way in which it had been treated. Every minute detail has been scrutinised, worried over and argued about. He can rest assured. I thank him for his flattery in relation to the nature of my voice; I shall seek to retain it for his pleasure in due course.

The noble Lord, Lord Renton, was concerned about the Life Peerages Act. Perhaps I should declare an interest, having benefited from it myself. Some outside the House would find it odd that we should say to the courts of England and Wales, and to the public and future governments, that it is more important to protect the ability of Her Majesty to create life peerages than to protect people discriminated against on grounds of race or sex. It is curious that it is more important to preserve the rights of 92 hereditary Peers than those of the devolved administrations.

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Baroness Buscombe (Shadow Minister, Home Affairs; Conservative)

My Lords, there is a serious reason why the Life Peerages Act 1958 is included. I am sorry; I had assumed that it was fairly obvious. We want to ensure that it is not possible for any senior Minister or Prime Minister to disapply an Act and so, in some way, interfere with the constitution of either House of Parliament. That it is included has nothing to do with anything external to your Lordships' House or another place. That is purely why it is included; I hope that the noble Baroness will understand.

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Baroness Scotland of Asthal (Minister of State (Criminal Justice System and Law Reform), Home Office; Labour)

My Lords, I hear what the noble Baroness says. However, I remind her that the Act itself simply provides Her Majesty with the right to issue life peerages, and that its protection would not protect those who sit as Members of your Lordships' House. It is the Writ of Summons issued by Her Majesty that enables such a person to sit as a Member of the House of Lords. Whether or not the statute was protected from amendment, Writs of Summons could be issued to enable their receivers to sit in the House of Lords. The nature of the Bill preserves the rights of Her Majesty to act in that manner. That is why the noble Baroness and others need not be overly anxious on the subject.

I reinforce what I said in the letter—it was referred to by the noble Viscount, Lord Goschen—about the necessity to protect the rights so dearly cherished by us all. The Government are at one with noble Lords who wish to see our constitutional arrangements supported and preserved. Nothing in the Bill does violence to that sentiment.

As I made clear on Report, the emergency powers exist to make temporary changes to the law where effective response is prohibited by insufficient powers. The Government cannot run amok altering legislation as we see fit. Any changes will be temporary and can be made only for the purposes of preventing, controlling or mitigating an aspect or effect of the emergency in question. They must be necessary, proportionate and compatible with the Human Rights Act, and will be scrutinised by Parliament.

The possibility of temporarily amending legislation of constitutional importance was examined in great detail by the Joint Committee that undertook pre-legislative scrutiny of the Bill and during debates in both Houses. Discussions have also taken place at official level with the civil liberties groups. The Government share the concerns expressed that emergency powers should not be capable of making substantive amendments which undermine the constitutional arrangements of the United Kingdom. However, we are satisfied—we remain so—that the Bill cannot be used by this Government or any other government in that way, given the absence of any express power to do so. I understand the desire of the noble Earl, Lord Onslow, not to trust any government, perhaps particularly because of his experience with his own, but I shall say no more about that. The issues are protected.

I want to move on to why the list approach is inappropriate.

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Lord Elton (Conservative)

My Lords, before the noble Baroness moves on, can she clarify a deeply important point? Under Clause 22(3)(j), a Minister can,

"disapply or modify an enactment or a provision made under or by virtue of an enactment".

Is she saying that that would lapse with the end of the emergency powers? In other words, is she saying that a Minister cannot break the tumbler so that it is irreparable when the order is revoked? I would be most grateful to hear the noble Baroness say, in terms and on record, that a disapplication or modification would be coterminous with the emergency.

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Baroness Scotland of Asthal (Minister of State (Criminal Justice System and Law Reform), Home Office; Labour)

My Lords, that is how it works. The emergency powers under the Bill enable a government to take those steps necessary to address an emergency. That is why we have the tight time frame. Noble Lords will remember our debates about seven days, 21 days, the importance of when the issues will lapse, the fact that we have to come back and get assent from Parliament, and that the powers last only so long. We have included those time limits. However, noble Lords will know that it will be open to Parliament on a number of occasions to shorten the time limits and to come back and have the powers disapplied. We have debated that at length.

The powers are there for the purpose of the emergency. Once the emergency goes, so do the powers inherent in the direction. Noble Lords will remember the clear comments made on Report about the utility of the provisions lasting for only so long as they were necessary. Opposition Peers commented that, although powers were taken on a number of occasions, they were not used. Some people prayed in aid September 11, where the substantive law, not the emergency powers, was used to deal with the situation.

We expect the ordinary laws of our country to be used if at all possible, unless and until we had an extreme situation, in which case the emergency powers would be available to address it. That is the whole thrust of the Bill. It is not to deal with the general situation, but to deal with a situation in extremis.

We cannot agree that including a list of "constitutional enactments" to be protected from amendment is the right way to achieve that shared aim. As the noble Lord, Lord Lester of Herne Hill, said, we have no written constitution and no universally agreed list of legislation which is "constitutionally important". All Acts of Parliament have the same status, and it is common for them to contain both very important provisions and very minor ones. Acts may deal with the fundamental rights of individuals or the building blocks of our constitution but contain provisions that are—I hesitate to say "banal"—certainly technical.

The Human Rights Act, for example, one of our most treasured Acts, contains provision both for the pensions of judges and the right to life. Although I pay every respect to the noble and learned Lords who sit on our Judicial Committee, I do not believe that any of us would say that those two issues have quite the same importance.

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Lord Lester of Herne Hill (Liberal Democrat)

My Lords, this is an important issue, which may be listened to with great care by the House. Does the noble Baroness agree that the Government have commendably treated the Human Rights Act as no ordinary law and made provision to ensure that future legislation, as well as past legislation, must where possible be read and given effect compatibly—so that in effect it is treated as a special constitutional measure and safeguard, pace Dicey, who revolves in his grave as a result of that? Is that not the position?

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Baroness Scotland of Asthal (Minister of State (Criminal Justice System and Law Reform), Home Office; Labour)

My Lords, it is. Noble Lords will know that we debated long and hard whether the Human Rights Act should be given that special position. The argument could run that because the Human Rights Act has to be referred to on the face of every Bill, and because the provision is already there, we do not have to have the same provision reflected on the face of the Bill. We have come to the conclusion that, due to the very special nature of the Human Rights Act, we can make the exception.

As a consequence of the way in which legislation is made generally, there is room for legitimate disagreement about which enactments contain provisions of constitutional importance. We do not believe that it is possible to prepare an accurate list of enactments which should be protected. For example, some will argue that the devolution Acts are of great constitutional importance; those less sympathetic to devolution may not. There are arguments in favour of both interpretations. Those Acts alter the distribution of powers and the way parts of the country are run. On the other hand, they do not affect the sovereignty of Parliament or the fundamental rights of individuals.

It is important to bear in mind that, regardless of whether it is believed to be constitutionally important, no legislation is immune from change through the ordinary legislative process, as can be seen by the myriad amendments and repeals to enactments that have been highlighted for express protection. I need only mention the case of Magna Carta—popularly considered to be of the greatest constitutional importance, while in practice the vast majority of it has been repealed and the protections that it still contains are better provided for in the Human Rights Act.

I note that, following discussion of the Magna Carta on Report, it has been removed from the list of enactments that it is suggested should receive express protection. That highlights the point that keeping any such list up to date and accurate would be impractical, as the importance and content of legislation changes over time. Indeed, many of the enactments referred to in the debate have largely been amended or repealed and the protections once guaranteed in many Acts are now largely to be found elsewhere.

Any list of protected Acts would inevitably be an inaccurate attempt exhaustively to list all such constitutional enactments. But this amendment would be a problem. The danger of an incomplete list of constitutional enactments which cannot be amended is that the courts could conclude that it was an exhaustive list and that Parliament envisaged that constitutional enactments which were not specified could be amended by emergency regulations. The effect of the amendment would be that a court might conclude that the Scotland Act could be modified so as to suspend the Scottish Parliament, or that the Data Protection Act could be suspended. That is not our intention.

In other words, the amendment would weaken the safeguards in the Bill. As the Bill is currently drafted, emergency regulations could not be used to make a substantive amendment which undermined the constitutional fabric of the UK. But once Parliament begins to list enactments that cannot be amended, there is a real risk that a court will conclude that, notwithstanding the other provisions of the Bill, any enactment which is not on the list can be amended. That is not how we have run our law in this country. It is against our tradition to do it in such a way.

I should make it clear that it is because this Government love the freedoms of this country and the constitutional arrangements that we have made that we feel that they are important. I heard the noble Baroness, Lady Buscombe, say, "hunting". I am not hunting in this Bill for anything other than justice.

6:15 pm
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Lord Donaldson of Lymington (Crossbench)

My Lords, why is it right to exclude the Human Rights Act but not the Habeas Corpus Act? I suppose that the courts might say that, after such a long time, they do not really derive their powers from the Habeas Corpus Act—it is inherent. But that is a different argument altogether. Certainly the argument put by the noble Lord, Lord Lester, does not run. Even if it is just to comfort me and one or two others, why can we not protect the Habeas Corpus Act?

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Baroness Scotland of Asthal (Minister of State (Criminal Justice System and Law Reform), Home Office; Labour)

My Lords, the noble and learned Lord knows that he can make no more powerful argument than to ask me to comfort him, because I would go a long way to try to comfort him. But, even for him, we feel that the Human Rights Act is enough.

There have been strong arguments that, because of the way in which we interpret the law—as the noble and learned Lord will know well—technically, the Human Rights Act does violence to the principle that anything that is not expressly excluded is deemed to be implied. There was therefore a big argument about whether we should include the Human Rights Act. Although we regard those Acts as of equal importance, it was eventually agreed that, because of the special nature of the Human Rights Act—as the noble and learned Lord will know, many of the provisions in the Habeas Corpus Act are included in the Human Rights Act—this was an appropriate step.

I have said from this Dispatch Box on a number of occasions that the rights embedded in the legislation referred to are not changed and that anyone reading the Hansard report of our debate will know that, when passing this legislation, the Government of the day were absolutely clear that the constitutional and other Acts to which we have referred were not adversely affected by the passing of the Bill. Nothing in the drafting could possibly or properly be construed to do that.

I hope that that will be of comfort to the noble and learned Lord. I hope that he will agree that we have some of the best constitutional judges and lawyers in the world. I am confident that the combination of the Bill and the statements made in this House will not be misconstrued by the judiciary, unless the quality of that judiciary were to be materially changed. Thus far, this country has been blessed with exemplary care from the judicial officers who have discharged their duty with integrity.

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Baroness Buscombe (Shadow Minister, Home Affairs; Conservative)

My Lords, I wish that I could be as trusting as the Minister in believing that, once an emergency is over, any Acts that have been disapplied will automatically be enacted and respected in any event. Sadly, I do not find myself to be so trusting, and clearly nor did the Joint Committee which scrutinised the draft Bill. That committee recommended that 21 Acts should appear on the face of the Bill as not being liable to modification or disapplication under Clause 22(3)(j).

In comparison, my list of Acts is modest. Indeed, noble Lords have suggested that it is a symbolic list and, in a sense, it is. As the noble Lord, Lord Monson, said, in a sense it provides a belt and braces that we consider to be crucially important not only for all the reasons that we have expressed throughout the passage of the Bill in your Lordships' House but also because of all those beyond the House, as referred to by the noble Lord, Lord Stoddart. We want to respect their concerns and give them some reassurance with regard to a Bill that gives those in power such extraordinary powers. The Minister said that no legislation should be protected from amendment by the ordinary legislative process. But I suggest—in fact, I firmly believe—that this Bill is an extraordinary process.

There is a further point. First, we decided to remove Magna Carta 1297 from the list because, as the Minister said, we accepted that the Magna Carta has been largely repealed. But that does not mean that it is therefore otiose to list the Acts that we believe represent the core enactments to enshrine, protect and safeguard our Parliament and our access to justice. We believe, for example, that there is a strong case for protecting the Habeas Corpus Acts.

The point about derogation, to which I referred on Report with regard to the Human Rights Act, is important. The Government can, and do, derogate from certain provisions of the convention and can do so by certification by a Minister. We do not believe that the Human Rights Act is necessarily as robust as the Minister thinks. Perhaps I may suggest that at some point the Minister reads a recent article by Keith Ewing in the latest issue of Public Law entitled "The Futility of the Human Rights Act 1998".

We believe that the Government, through their willingness to change their mind throughout the passage of the Bill in expressly protecting the Human Rights Act, have shown that we should be firm in our resolve to protect those core enactments, as I have attempted to do in this amendment. I am sorry that the Government have not listened to us in that respect. I appreciate that the Government listened to us on earlier amendments in relation to safeguarding, or further ensuring access to, judicial review, but we believe that we should take that one step further. The amendment is right and it is symbolic. No list will ever be perfect, but we believe that we should be strong. I therefore wish to test the opinion of the House.

On Question, Whether the said amendment (No. 17) shall be agreed to?

Their Lordships divided: Contents, 146; Not-Contents, 169.

Division number 2

See full list of votes (From The Public Whip)

Resolved in the negative, and amendment disagreed to accordingly.

Clause 34 [Commencement]:

6:33 pm
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Baroness Buscombe (Shadow Minister, Home Affairs; Conservative)

moved Amendment No. 18:

Page 22, line 2, after "Act" insert ", except for the provisions of Part 2"

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Baroness Buscombe (Shadow Minister, Home Affairs; Conservative)

My Lords, in moving Amendment No. 18 I shall speak also to Amendments Nos. 19 and 20. The amendments would add three new subsections to Clause 34 entitled "Commencement". Essentially they would act as a sunset clause for Part 2 of the Bill; in other words, the emergency powers. They would ensure that Part 2 is in force for three years before Parliament has the opportunity, once again, to discuss what we on these Benches regard as vast and draconian powers. Part 2, if ratified, would continue in force for another period of three years, when it would be debated again.

When I first introduced the concept of a sunset clause, the Government stated that the timeframe we have selected for review—that of one year—was too short a period to allow for long-term planning. I believe that that was a concern of the Liberal Democrats as well. We listened to that concern and so increased the review to three years in accordance with that view.

We also dropped the proposal for a review on Part 1 of the Bill, so we confine our concerns to Part 2. However, contained in the Bill are large powers that potentially could affect much, including the constitution. We on these Benches would feel happier if we knew that Parliament had the power to debate and amend, as it sees fit, the provisions of Part 2 every three years.

On Report, the Government seemed to believe that in bringing forward a sunset clause we were saying that any possibility of an emergency would fall away after a year. On the contrary, we take the state of our nation very seriously. We accept that there is a need to have strong emergency regulations and emergency powers, but from day one in the debates on the Bill we have endeavoured to ensure adequate safeguards, access to Parliament and access to justice. We believe that it is vitally important that your Lordships and colleagues in another place should have the opportunity, once every three years, to debate the workings of the Bill in both Houses. That is why we feel strongly that it is right to have a sunset clause. I beg to move.

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Lord Avebury (Shadow Minister, Foreign & Commonwealth Affairs; Liberal Democrat)

My Lords, the noble Baroness says that she wants the opportunity to debate the Act once every three years, but that is not what is proposed in the amendment. It proposes that Part 2 will cease to have effect three years after it comes into force, notwithstanding the fact that, as your Lordships have agreed throughout every stage of the Bill—

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Baroness Buscombe (Shadow Minister, Home Affairs; Conservative)

My Lords, perhaps I can reassure the noble Lord, Lord Avebury. We have worked on the amendment very carefully with the Public Bill Office. Yes, it would cease to have effect, but it would be debated in both Houses of Parliament, and assuming that the powers were re-enacted, it would automatically come into power again for a further three years. It simply mirrors the anti-terrorism laws with which your Lordships may be familiar, where a similar sunset clause exists, but on an annual basis. That is also the case in the Northern Ireland Acts.

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Lord Avebury (Shadow Minister, Foreign & Commonwealth Affairs; Liberal Democrat)

My Lords, no doubt the noble Baroness has taken advice on the matter. As I read the amendment, at the end of the three years, either the legislation would have to be re-enacted so consuming parliamentary time, or alternative legislation would have to be put in its place. Either way it would not be a matter simply of a one-day debate, but would require the usual procedure for legislation with Second Reading, Committee stage, Report and Third Reading. If that is not the effect, no doubt the Minister in her reply will be able to explain, from the Government's angle, how they see the provision working.

If, at the end of the three years specified in the amendment, Parliament considers that the list of events or situations constituting an emergency under Part 2 needs to be modified, or that the scope of the emergency regulations needs to be widened to accommodate some yet unforeseen danger, it would be perfectly possible to deal with the matter in the normal way. However, both the definition and the scope of Part 2 are in such extensive terms that it would seem unlikely that such a need would arise.

My noble friend Lord McNally said that,

"we should not leave this kind of legislation on the statute book without an opportunity for Parliament to check on it".

He went on to say that,

"a sunset clause is well worth considering".—[Hansard, 9/11/04; col. 878.]

Since then we have given further thought to how Parliament should best exercise the kind of oversight envisaged by my noble friend. We reached the conclusion that the sunset clause would not be the ideal way to achieve that objective. If, at the end of the three years, or whatever period is considered most appropriate, no amendments are seen to be necessary to the legislation, we do not want to force Parliament to re-enact the present Bill as that would be a nonsensical waste of time. Instead we are attracted to the idea of a review and a report which would enable Parliament, as the noble Baroness suggested, to debate the operation of the whole Act, including Part I, without occupying legislative time unless it proved to be necessary at that point.

There are precedents for that. The precedent I looked at was under Section 126 of the Terrorism Act 2000 under which my noble friend Lord Carlile reports to Parliament, having had access to all relevant information, including sensitive material and intelligence. In his last report to Parliament in April of this year, my noble friend said that the Terrorism Act was necessary and fit for the purpose, so there has been no need for a debate on the matter. We have not requested time for a debate on the Terrorism Act, and I do not think that any of your Lordships would suggest that we should occupy parliamentary time unnecessarily to look at that legislation.

My noble friend also carries out an entirely separate review, which is non-statutory, on the operation of Part VII of the Act, which refers to Northern Ireland. So there is a precedent for having a non-statutory review as well as the statutory review of the Terrorism Act that I have already mentioned.

When the noble Lord, Lord Lucas, moved an amendment on Report for a more limited form of report to Parliament, the Minister said that because the Government were already transparent about their civil contingencies work and the Home Office regularly reports on these issues there was no need for an annual report of any kind.

The same arguments could have been applied to the Terrorism Act. The crucial point there, which I think the noble Lord, Lord Bassam, may have overlooked, is that Parliament could repose greater confidence in an independent person, such as my noble friend, who has access to a great deal of relevant but confidential or secret material, than in a Home Office Minister, even the noble Baroness, Lady Scotland, or the noble Lord, Lord Bassam. If the noble Lord, Lord Bassam, told us in a year's time that the Civil Contingencies Act is fit for the purpose, the reaction might be, "Well, he would say that, wouldn't he?". But, if someone like my noble friend said so, then we would be reassured that he had examined the matter on our behalf and from a different perspective from that of a Home Office Minister.

So what we would like is for the Minister to say that the Government will now invite an independent person of the standing of my noble friend Lord Carlile to review the working of this Act and to report back to Parliament. If the noble Lord can give me an assurance on that, even though it is not on the face of the Bill, then I think that I and my noble friend would be satisfied. If not, and subject to what the Minister has to say, we would be inclined to support the amendment in the name of the noble Baroness, Lady Buscombe. That would at least give the other place an opportunity to reconsider the matter at a later stage.

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Lord Elton (Conservative)

My Lords, perhaps I may reassure the noble Lord, Lord Avebury, who, from the phrases he uses, appears to be speaking for his Front Bench. There is a nodding of heads, so geographically he is not where he is sitting.

The interpretation he has put on the amendment is in my view entirely mistaken. I am very familiar with the working of the Terrorism Act from the ministerial office I held for many years, in which it was necessary to renew an Act every year under terms similar to this. The first line of the amendment in proposed new subsection (2A) provides that the,

"Act shall come into force in accordance with provision made by a Minister of the Crown by order".

Proposed new subsection (2B) limits the efficacy of that order for three years,

"unless both Houses of Parliament resolve that it shall",

continue. This is not a three-stage process, it is a single debate.

An order thereafter, under proposed new subsection (2C), may be subsequently renewed, again for periods of up to three years. In Northern Ireland the review used to be annual; in this case it is triennial. Normally it takes a couple of hours, unless something is going badly wrong. If it is going badly wrong and the Government know that it is they will bring in legislation; if it is going badly wrong and the Government do not know, then it is high time that this House or the other place intervenes to prevent it continuing to go wrong.

So, perhaps I may reassure the noble Lord that he will be taking no dangerous step in supporting the amendment but rather that he will be strengthening the protection which it provides.

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The Earl of Onslow (Conservative)

My Lords, there is one other precedent from about 1688 to 1956. The Army Act used to be renewed every year because in those days we were frightened of standing armies. There is no excuse for saying that there is no time for Parliament to legislate.

My noble friend Lord Elton made the point that if something goes wrong the Government can correct it and if it goes wrong and the Government have not noticed it then Parliament can correct it. This is such serious legislation, especially with the powers to repeal and re-enact legislation, that a sunset clause of some sort on the face of the Bill is essential.

6:45 pm
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Baroness Scotland of Asthal (Minister of State (Criminal Justice System and Law Reform), Home Office; Labour)

My Lords, in answer to the point of the noble Lord, Lord Avebury, he is correct in relation to Amendment No. 19 to the extent that Amendment No. 19 provides a sunset clause for Part 2 of the Bill. Clause 34(2A) provides for Part 2 to come into force by order of a Minister of the Crown, and reflects what is currently provided for in the Bill. Clause 34(2B) ensures that part of the Bill ceases to have effect three years following commencement unless both Houses of Parliament agree to its extension.

So one has the uncomfortable position on this amendment that unless both Houses agreed to the extension—one assumes unamended—the Bill would fall and we would have to re-argue which provisions, if any, were to apply. I have taken it that that was the intent of the amendment.

Clause 34(2C) has the effect of ensuring that, following agreement, any order to extend the provisions of Part 2 of the Bill can be only for a maximum period of three years each time. So there is, in effect, an opportunity—

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Lord Elton (Conservative)

My Lords, did the Minister refer to Clause 34(2)(b), which is about the provisions of the Act coming into force in accordance with provision made by Scottish Ministers by order, or is she referring to some other provision?

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Baroness Scotland of Asthal (Minister of State (Criminal Justice System and Law Reform), Home Office; Labour)

My Lords, I refer to the way in which Amendment No. 19 seeks to deal with the matter. I am dealing with the amendment of the noble Baroness, Lady Buscombe, and the impact it seeks to have on the way in which this Bill would operate. So, to that extent the noble Lord, Lord Avebury, is correct in terms of the impact that that amendment could have in relation to it.

Amendments Nos. 18 and 20 are consequential. The Government cannot support the amendments. We shall resist their inclusion.

Of course I hear what the noble Lord, Lord Avebury, says in relation to the new construct. However, one has to make a clear choice at this stage because it is important to appreciate the significant differences between the Terrorism Act and this legislation. We do not think that legislation is an appropriate model for the Bill. Your Lordships will know that the differences between Part 2 of the Bill and the Terrorism Act is that things will be done as you speak and need to be reviewed. If you compare that to Part 2 of this Bill, we would hope that it would remain unused on the statute book for years to come, unless and until an emergency arose and regulations had to be made.

One would then have to ask what the review team would be reviewing because the review would merely be a re-run of the arguments in the course of the Bill's passage. Your Lordships will remember that under the old Act a period of 29 years went by without the legislation ever being used at all. So it is a very different situation from the Terrorism Act where what the noble Lord is being asked to review is very much alive, very much in use and happening immediately. The House is right to seek to have it reviewed, but that is a very different situation.

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Lord Avebury (Shadow Minister, Foreign & Commonwealth Affairs; Liberal Democrat)

My Lords, I was contending that the review should cover unforeseen emergencies which might have arisen since the Act came into force and which would require some change in the scope of the emergency regulations or even in the definitions at the beginning of Part 2. But if such a thing did not materialise, then, as with the report that I referred to written by my noble friend Lord Carlile on the workings of the Terrorism Act 2000 in April 2004, it would be a nil return. He would say that the Act is working satisfactorily and he has nothing to report, and then there would be no need to take up the time of Parliament.

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Baroness Scotland of Asthal (Minister of State (Criminal Justice System and Law Reform), Home Office; Labour)

My Lords, I understand the way that the noble Lord puts it. The reason that we say that it will not apply in that way is that the whole purpose behind the Bill's construction is to allow the House and Parliament to debate the regulations that would apply in any given situation. Very unusually, the House and Parliament have an opportunity to amend regulations. Your Lordships will know that usually, under the affirmative resolution procedure, we either accept or reject and there is no opportunity for us to amend. It is therefore a bit of a curate's egg: you either take it all or reject it all. Because of the particular, fast-moving nature of these regulations and because we will have to adapt them, we have provided that opportunity to amend in Parliament.

While we are discussing commencement and sunsetting, I inform the House that we intend to commence Part 2 immediately following Royal Assent. That is because we recognise the inadequacies of existing legislation, which represent a weakness in our capability to respond to the most serious emergencies that should not be allowed to continue any longer than necessary. We think that the convention of allowing two months to pass between Royal Assent and commencement is unnecessary because Part 2 is purely a mechanism for making legislation that will affect no one simply by its being commenced. That decision is based purely on the need to fill the gap in our capabilities.

Sunsetting legislation is appropriate where the powers that it contains are expected no longer to be needed after a certain period, after which their use should be reviewed by Parliament. As I have said before, the Bill does not meet those criteria. The issue in this case is not timekeeping. I think that the noble Baroness, Lady Buscombe, accepts that. No one believes that emergencies will stop happening in three years' time. I understand her point, but we would say that that is when sunsetting is appropriate.

Sunsetting is justifiable when legislation is enacted to deal with short-term issues or where the exercise of powers conferred by the Act will not be subject to further parliamentary scrutiny, as in the case of the Anti-terrorism, Crime and Security Act 2001, but not in the case of the Bill. The purpose of an annual or, as has been suggested, triennial, review is that, given the nature of the powers, Parliament should assess whether it is appropriate for them to continue to exist in the light of how they have been exercised. I understand that we do not agree on that. The Civil Contingencies Bill does not fall into that category of legislation; it is a long-term mechanism, as I have said many times.

I was of course interested to hear how the noble Lord, Lord Avebury, put it. This is a clear case of where we must see what helpful things we can do. This House and the other place always have an opportunity to propose a debate or call for papers and your Lordships will know that we have always responded and the House has always make provision for proper debate, scrutiny and discussion. I am confident that if those matters continue to cause concern, that will happen. Indeed, knowing how this House has worked in the past five years, I am confident that if we exercised the powers under the Bill, the House would do that.

That is a perfectly proper way for Parliament to scrutinise: first, to scrutinise the regulations in detail and to amend them when necessary; but, secondly, if the House feels it appropriate, to call for a report or debate. That is perfectly possible within our current rules. Therefore, we do not think that the provision adds significantly; it is unnecessary. As I have said several times, we hope that the powers will never have to be used; they are there just in case, as a safety net to be used in extremis. That is why I am unable to accede to the urging of the noble Baroness on the sunsetting clause.

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Baroness Buscombe (Shadow Minister, Home Affairs; Conservative)

My Lords, I am very disappointed by the Minister's response. I have tried to tell the noble Baroness, Lady Scotland, that we are here trying to insert an important safeguard. Sensibly, we believe, we are considering only a review of Part 2 emergency powers. We have opted for a modest, triennial review. I am grateful to my noble friend Lord Elton for his confirmation that we seek a review that might take up two hours of debate in your Lordships' House which, let us face it, is hardly a great deal of parliamentary time, compared to the time given to other Bills, such as the Hunting Bill.

We are trying to find a way to have the opportunity to review extraordinarily wide powers if something is going badly wrong. These are extraordinarily wide powers. We want the opportunity, if necessary—and only if necessary—to put right anything that is wrong in the Bill. Yes, in that case, we would be debating amendments, which we believe is a sensible option, given these extraordinary powers. We appreciate that the legislation may be unused for years to come. I hope that the noble Baroness is right. If that is the case, great, but let us have the safeguard.

If nothing is going wrong, all that we are asking for is, once every three years, a two-hour debate or something similar, to be sure that we all remain content that this is the right legislation to have in place to protect our nation. I believe that we are right to push for this and I beg to test the opinion of the House.

On Question, Whether the said amendment (No. 18) shall be agreed to?

Their Lordships divided: Contents, 162; Not-Contents, 126.

Division number 3

See full list of votes (From The Public Whip)

Resolved in the affirmative, and amendment agreed to accordingly.

7:07 pm
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Baroness Buscombe (Shadow Minister, Home Affairs; Conservative)

moved Amendments Nos. 19 and 20:

Page 22, line 10, at end insert—

"(2A) The provisions of Part 2 of this Act shall come into force in accordance with provision made by a Minister of the Crown by order.

(2B) An order under subsection (2A) shall cease to have effect on the expiry of the period of three years beginning on the day it is made unless both Houses of Parliament resolve that it shall further continue in force for a period not exceeding three years.

(2C) An order made under subsection (2A) and renewed in accordance with subsection (2B) may, on expiry, be renewed following resolution of both Houses of Parliament for further periods not exceeding three years." Page 22, line 11, leave out "or (2)" and insert ", (2) or (2A)" On Question, amendments agreed to.

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Lord Bassam of Brighton (Government Whip (technically a Lord in Waiting, HM Household); Labour)

My Lords, I beg to move that the Bill do now pass.

Moved, That the Bill do now pass.—(Lord Bassam of Brighton.)

On Question, Bill passed, and returned to the Commons with amendments.