Clause 21 - Scope of emergency regulations
Civil Contingencies Bill
9:30 am
Mr Richard Allan (Shadow Spokesperson for the Cabinet Office, Cabinet Office; Sheffield, Hallam, Liberal Democrat)
I wish to speak to amendments Nos. 116, 117, 120 and new schedule 1, which were inspired by Justice and Liberty, as well as the principles of justice and liberty. The amendments would—as the hon. Member for North-East Hertfordshire (Mr. Heald) said about his amendments—define a series of constitutional Acts that cannot be modified under an emergency regulation. We have already established that emergency regulations can be wide ranging. Although we are seeking to ensure that a category of legislation cannot be interfered with through the use of emergency regulations, that does not mean that we would limit the power of Parliament to alter or adjust those Acts. We believe that it is appropriate to do that through primary legislation. We cannot see why the circumstances under which the Acts that we have defined in new schedule 1 could or should be amended in the context of an emergency regulation, which by definition has a duration of only seven days until it must be considered by Parliament. In other words, Parliament may amend some of those Acts if it proves necessary, but it should do so explicitly in the context of emergency regulations.
The Joint Committee considered the issue in some detail and came up with its own list of Acts of Parliament, but the Government in their response, to which the hon. Member for North-East Hertfordshire referred, declined to accept its recommendation. It is worth looking at the Government's response to tease out the key issues. They said that they agreed in broad terms that constitutional legislation should be excluded, but they have given us dubious comfort, in the context of the amendments, in telling us that parliamentary counsel says that the power in question
could not be exercised in the way that we fear that it would be exercised. The problem that has given rise to the amendments is this: we do not take sufficient comfort in the advice of parliamentary counsel to accept that the Bill as drafted excludes constitutional Acts from potential interference through emergency regulations.
I should like to highlight one point in particular. The Government said—to paraphrase part of their response—that, ''We make legislation by tacking all kinds of bits into Acts. Therefore it is hard to pick out the constitutional ones. We may have constitutional bits at the core, but there will be all sorts of other stuff tacked on to the sides.'' Sadly, there is probably some truth in that. The Government specifically referred to the European Communities Act 1972, which is one of the Acts to be excluded that we list in new schedule 1. They said:
''Even in an enactment of undeniable constitutional importance as, for example the European Communities Act, it is possible to conceive of appropriate amendments.''
In other words, in one sense they are saying, ''We do not wish to interfere with the constitutional legislation'', but in their response they say that there may be circumstances in which they would wish to do that. I assume that that is because they envisage some odd bits on the edge of the 1972 Act that they may wish to interfere with, but they do not envisage that they might secede from the European Union through emergency regulations. However, we have to think of Governments of all political persuasions potentially being in power. We would not wish the definition of a state of emergency—that is, the device of emergency regulations, rather than primary legislation—to be the reason for secession from the European Union. It is precisely that kind of fundamental constitutional measure that we want to avoid.