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Clause 34 — Commencement

Orders of the Day — Civil Contingencies Bill – in the House of Commons at 12:47 pm on 17th November 2004.

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Votes in this debate

Lords amendment: No. 49.

Photo of Ruth Kelly Ruth Kelly Minister of State, Cabinet Office 1:01 pm, 17th November 2004

I beg to move, That this House
disagrees with the Lords in the said amendment.

Photo of Michael Martin Michael Martin Chair, Speaker's Committee on the Electoral Commission, Speaker of the House of Commons

With this we may discuss Lords amendments Nos. 50 and 51 and the Government motions to disagree thereto.

Photo of Ruth Kelly Ruth Kelly Minister of State, Cabinet Office

These amendments provide the vehicle for bringing part 2 of the Bill, on emergency powers, to an end three years after it has been brought into force. The Government are unable to agree with that approach. The idea of sunsetting part 2 of the Bill was originally raised by the Joint Committee that conducted pre-legislative scrutiny of the then draft Bill. The Government in their response made it clear that a sunset clause is relatively unusual and requires careful consideration. The issue was discussed at some length on Report and Third Reading in the other place.

The arguments against sunsetting are compelling. Sunsetting legislation is appropriate when the powers it contains are expected no longer to be needed after a certain period, or if their use should be reviewed by Parliament. This Bill does not meet either criterion. Time-limiting the Bill is clearly not appropriate. No one believes that emergencies will stop happening in three years' time. If part 2 of the Bill were to be repealed, something else would simply have to be put in its place. The purpose of review by Parliament on a triennial basis, it is suggested, 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 the way in which they have been exercised. I understand that that was the main intent behind the amendment.

Provision for regular review by Parliament may be appropriate where the exercise of powers is of legitimate parliamentary interest but their exercise is not subject to parliamentary scrutiny, the intent being that some powers—given their nature—should not simply be handed over to a Government to exercise indefinitely in the manner of their choosing. That argument, however, does not apply to part 2 of the Bill. Any exercise of the powers it confers will undergo detailed parliamentary scrutiny.

I would also question the utility of review every three years, given that part 2 is a last resort option for dealing with only the most serious of emergencies, for which existing legislation proves insufficient. It is not intended for regular use. It is worth noting for example that there was a 29-year gap between the uses of the powers under the present legislation. It simply would not have been necessary or sensible to review the Emergency Powers Act 1920 every three years during that period.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

The Minister says—and she is right, because clause 27 applies—that there will be parliamentary scrutiny of the regulations. Will Parliament be able to amend the regulations through the process of scrutiny?

Photo of Ruth Kelly Ruth Kelly Minister of State, Cabinet Office

Yes. In a totally exceptional provision, it will be possible for Parliament to amend the regulations—for example, to impose additional limitations and constraints on their use by providing that the use of the powers should come to an end after a certain date.

Emergency regulations would be laid before Parliament as soon as was reasonably practical, once they had been made, and would require the assent of Parliament to continue in force. Any further set of regulations made after the lapse of the regulations would also have to go through the same process of parliamentary scrutiny.

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills

The Minister talks of detailed scrutiny, but the regulations would be in the form of an Order in Council and subject to the statutory instrument process. The detailed scrutiny would have to take place in 90 minutes. Or does the Minister know something that the House and the Standing Orders do not?

Photo of Ruth Kelly Ruth Kelly Minister of State, Cabinet Office

The hon. Gentleman raises an important and interesting point. I said that I would expect detailed scrutiny by Parliament to take place, and I accept that 90 minutes is indeed unlikely to be sufficient to debate regulations of such importance. It is likely that in the time of such an emergency there would be a call for a major debate on the subject of the crisis and the Government would respond to that and provide the appropriate time. The hon. Gentleman may question why we have not chosen to amend the Standing Orders to reflect that expectation. I would argue that it would not be appropriate to complicate the Standing Orders with varying procedures for different kinds of regulations. However, I place it clearly on the record that we would expect detailed scrutiny of the regulations to take place.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Leader of the House of Commons

As the Minister will know, it has been thought right to have sunsetting for a small class of provisions, including the Anti-terrorism, Crime and Security Act 2001—an obvious example—and the Terrorism Act 2000, which repeated the provisions that used to be in the Northern Ireland (Emergency Provisions) Act 1973. Given that the Bill proposes to give, rightly, the most draconian powers to Ministers in an emergency, it surely also falls into that category and should be treated seriously.

Photo of Ruth Kelly Ruth Kelly Minister of State, Cabinet Office

The hon. Gentleman is not alone in trying to draw parallels between the Bill and the Acts that he mentioned. Indeed, several of their Lordships also attempted to draw such parallels. They argued that because a review mechanism was appropriate in those contexts, it would be appropriate in this case. I beg to disagree. The powers in this Bill are not intended to be used on a regular basis. The powers in the Acts to which the hon. Gentleman referred are not subject to parliamentary scrutiny when exercised. We are dealing with a different type of Bill: it is an enabling Bill and the exercise of the powers it contains would be subject to detailed parliamentary scrutiny. The other Acts that have been mentioned grant ongoing powers that can be evaluated after a certain period of time has elapsed.

Photo of Mr Richard Allan Mr Richard Allan Shadow Spokesperson for the Cabinet Office, Cabinet Office, Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Trade and Industry)

Following the point made by Mr. Shepherd about the nature of the scrutiny of the regulations once they are invoked by a Minister, we are concerned that those debates will be focused on the regulations before the House, rather than on the wider principle of whether the powers should have been used at all. We seek a review or a sunset provision because we want a review of the legislation as a whole, rather than the specific regulations that may have been invoked at a particular moment.

Photo of Ruth Kelly Ruth Kelly Minister of State, Cabinet Office

It is worth bearing in mind the fact that we envisage the powers being used only for the most serious situations. It is unthinkable that any emergency that such powers would be connected with would not be debated in full while that emergency was taking place, including the Government's handling of the situation and the use of emergency powers.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Leader of the House of Commons

Of course the particular circumstances that arise would probably be debated, and the particular measures taken would also be debated, albeit ex post facto and at not very great length. The point that is being made—I hope that the Minister will address it—is that the powers and their appropriateness to the situation would not be the subject of such a debate. That is what we would like to see scrutinised every three years. What is wrong with that?

Photo of Ruth Kelly Ruth Kelly Minister of State, Cabinet Office

The true parallel to draw here is between the exercise of the regulations and the Anti-terrorism, Crime and Security Act 2001 and the Terrorism Act 2000, not between the Bill and those Acts. They do not all fall into the same category. The regulations would be subject to detailed parliamentary scrutiny and, as I was in the process of telling the House, I cannot conceive of their being used in practice without a full parliamentary debate or without scrutiny after the event of how they had been exercised in practice and of whether greater limitation should have been imposed on their use. There is no real parallel between the Bill and the Terrorism Act 2000 or the Anti-terrorism, Crime and Security Act, as this is a purely enabling Bill.

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills

But of course, the underlying anxiety is the very definition of what constitutes an emergency, which lies in the Government's hands and in the hands of the parliamentary majority that the Government normally have. With such a very loose definition of what constitutes an emergency, with the powers being so enormous and with the rights of scrutiny dependent on the Government—not necessarily this Government, because of course the Minister is arguing for a permanent Act—we want the greatest possible clarity about why all that is appropriate.

Photo of Ruth Kelly Ruth Kelly Minister of State, Cabinet Office

The hon. Gentleman should reflect on the fact that not only does Parliament have the power to amend the regulations, which is an exceptional provision and additional safeguard that strengthens the robustness of the scrutiny process, but the emergency regulations contain their own sunset clause: they lapse 30 days after they are made and fresh parliamentary approval must be required if further regulations are to be made. One could speculate about the composition of a Parliament that would somehow override the rule of law and the detailed safeguards in the Bill, but I would argue that that would be a function of the will of Parliament and the extremism of Members of Parliament, rather than anything to do with the functions of the Bill.

The Bill contains far more safeguards than its predecessors. It contains provision for detailed parliamentary scrutiny and amendment by Parliament of its provisions. It also contains in-built sunset clauses on the use of the regulations. In summary, the Government simply cannot agree to these Lords amendments. We are replacing a long-standing, generic framework that is entirely unsuitable for sunsetting, and effective arrangements for parliamentary scrutiny are already set out in the Bill in relation to the regulations made under it.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Leader of the House of Commons

The Government have improved the Bill in the other place, and I pay tribute to the work of my noble Friend Baroness Buscombe, who led for the Opposition in the other place and was able to persuade the Government to do some things that I had found it very difficult to persuade them to do in the House. She has obviously got some silky skills that I have not yet acquired. It was good that the Government were prepared to tighten the definition of an emergency. Although I accept the point made by my hon. Friend Mr. Shepherd, the definition is now better.

The Government now recognise the role of the voluntary sector—something that we have pressed for throughout our debates in Committee. The test for urgent directions under clauses 7 and 8 is more objective. That is good. Clause 7 directions will be made in writing—something that we pressed for in Committee. Again, that was a good change. The removal of clause 19(5)(a), which would have allowed a Minister to treat certain situations as coming under the definition of an emergency irrespective of whether they came within the categories set out in the Bill, and the recognition of the role of parliamentary and judicial scrutiny of emergency regulations under clause 22 were all to the good.

On these Lords amendments, however, we wish the Government to go further. In the other place, my noble Friend argued that clause 34 should contain the three new subsections in Lords amendment No. 50, to provide sunset provisions for part 2. After three years, part 2 would fall unless both Houses agreed to renew it, but if they agreed to a renewal, it would last for another three years. We are used to that approach in the context of emergency powers.

Despite the Minister's comments, it was agreed from the outset that the Anti-terrorism, Crime and Security Act 2001 should be subject to sunset provisions, as it contains some draconian powers in part 4 to allow the indefinite detention without charge of foreign nationals suspected of involvement with various terrorist bodies. Part 4 of that Act requires annual renewal by Parliament, and the provisions will expire altogether on 10 November 2006. Similarly, with the Northern Ireland situation, the Northern Ireland (Emergency Provisions) Act 1973 provided for annual approval by Parliament, and those provisions have been carried into the Terrorism Act 2000, so there are precedents.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Leader of the House of Commons

My right hon. and learned Friend mentions the Army Act 1992, and there are others. In fact, the Government are committed to such procedures. In a document that deals with the agenda for the future of regulation in this country, the then Minister for the Cabinet Office said:

"as part of their better regulation agenda, the Government are committed to using sunset clauses where appropriate."

Not only are there precedents, but the Government claim to have a policy to promote such provisions. We first made the proposal for a sunset provision in Committee. We have suggested various lengths of time that might be appropriate. The Government have refused to agree.

The powers in part 2 are draconian and warrant a sunset provision. We are not saying, as the Minister suggested, that civil contingencies legislation may no longer be necessary in three years' time, but the Minister acknowledges that, over time, the powers needed to tackle such situations change. That is why the Bill has been introduced. Given the effects of such a Bill on liberty, it is only right that the latest circumstances should be considered. After all, the reason why the Government introduced the Bill is: events and new circumstances.

Given that the Government accept that events and new circumstances can prompt and require a new response, it seems wrong that they are not prepared to follow that principle by accepting a sunset provision of the kind that we suggest. We will continue to press for such a provision to be included in the Bill, and I hope that Ministers, even in the short time available, will reflect on that and consider the seriousness of the powers that they are taking and how necessary it is to review them in due course.

Photo of Mr Richard Allan Mr Richard Allan Shadow Spokesperson for the Cabinet Office, Cabinet Office, Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Trade and Industry)

I would echo the comments made by Mr. Heald about some of the improvements that have been made to the Bill, but we continue to have some concerns. The Liberal Democrats were open-minded in the debate that took place in the House of Lords. My colleague, Lord Avebury, made it clear that we were looking for some kind of review procedure, although not necessarily as proposed in the Lords amendment with which the Government now seek to disagree, but that we would not be happy if the provisions did not contain an ability independently to review the way in which the powers may be used. Unfortunately, the Minister in the House of Lords gave us nothing, so we made it clear that in lieu of there being no alternative, we would vote with the Conservatives to ensure that we kept the issue alive.

We suggested as an alternative the kind of procedure that is followed under the Terrorism Act 2000, whereby my noble Friend Lord Carlile has a statutory responsibility to review some of the provisions used under that Act. That is very useful. It has kept issues alive and on the political agenda that we fear would not otherwise have been kept alive so forcefully if the procedure had simply involved a Home Office Minister reporting on the powers under that Act. So we seek to support the principle of independent review in resisting the Government's attempts to remove the Lords amendments.

The Minister refers to the fact that part 2 should be used only in extremis, and we agree. We believe that it should be used in very few circumstances. Having gone to all the trouble to get the legislation on to the statute book, I for one would be delighted if it were 29 years before it is used. I would love to see the provisions not used at all, and to return on a triennial basis with a report simply making a nil return to say that the powers had not been used and that the legislation could therefore be allowed to continue.

Our fear, however, is that the powers in the Bill will not be used only in extremis. Ministers might be tempted to use them rather than go through the normal legislative procedures. Even in a case as serious as the attacks that took place in the United States on 11 September, we were able through the normal parliamentary procedures to introduce the Anti-terrorism, Crime and Security Act 2001. It was contentious, but it got through the House in reasonable time. Similarly, we responded to the foot and mouth crisis with legislation that is specifically about how we deal with animals in such a situation and that, I hope, will pre-empt the need for emergency regulations. Parliament has enacted legislation ahead of any potential crisis.

We want that approach to continue. The normal approach to an emergency should be either to foresee the emergency and have the legislation on the statute book so that the part 2 powers are not needed, or to come to the House to introduce legislation in the normal way, again so that the part 2 powers are not needed.

We believe that there might be a temptation—perhaps out of laziness or because Ministers do not want to use up their valuable slots for pre-emptive legislation—to fall back on the powers in the Bill. If such a mindset takes hold, the powers may be used inappropriately as an earlier port of call than they should be. We see them very much as a last resort that should be used in extremis. The triennial review proposed in the amendment would be a good way to address those genuine concerns.

If, as the Minister suggested, the powers were not used at all, the process involved in the amendment would be very speedy. The Government would say that they had not used the powers and the House would simply renew the legislation and provide the powers for the next three years. Off we would go. If the Government had used the powers, the amendments would allow us to hold an independent session in which all we would debate is whether the powers had been used appropriately. We would not be confronted by an emergency at the time of the debate.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Leader of the House of Commons

Does the hon. Gentleman not agree that a great deal of thought has been given recently to how legislation should be dealt with? The report of the Constitution Committee in another place proposes much more post-legislative scrutiny. If we are dealing with draconian powers such as those in the Bill, they are the obvious candidates for such an approach. A sunset clause is the obvious way of forcing post-legislative scrutiny.

Photo of Mr Richard Allan Mr Richard Allan Shadow Spokesperson for the Cabinet Office, Cabinet Office, Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Trade and Industry)

The hon. Gentleman has expressed my sentiments effectively. We are at one on this. We are seeking to find a way of monitoring the Bill, because it is potentially so powerful. Because we fear that it will be used more frequently than is strictly necessary, we want to be able to return to it. The Minister suggests that we can do that when we are confronted with an emergency or discussing the detail of regulations that are there to deal with that emergency. However, to suggest that we will be calmly stepping back and reviewing all the possible legislative options that the Government could have used instead of the emergency legislation is fantastical. We will not do that. When the House is confronted with an emergency and a Minister says that we need emergency regulations, the reality is that the regulations will go through using the Government's majority. There simply will not be the scope to take the constitutional or long view that we would need to challenge Ministers as to whether they strictly need to use the part 2 powers in the Bill.

We need the opportunity to return to the powers every three years. As the hon. Member for North-East Hertfordshire said, the advantage of the sunset clause is that it would force such a review in a way that no other provision could. That is a sensible way forward in that it establishes the point of principle that such powers must be scrutinised separately from the debates around specific regulations.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

I support my hon. Friend Mr. Heald and Mr. Allan.

The Minister conceded—indeed, she had to concede—that sunset clauses are unusual. They are unusual, but so are the powers in the Bill. It would be difficult to imagine a Bill that was more dramatic in the powers that it confers on the Executive. They powers are contained in clause 22(3) which, apart from anything else, states:

"Emergency may make provision of any kind that could be made by Act of Parliament or by the exercise of the Royal Prerogative".

The powers extend to

"the confiscation of property (with or without compensation)", the prohibition of movements, the prohibition of assemblies, the deployment of the armed forces, the prohibition of travel, the prohibition of specified activities, disapplying or modifying any enactment, requiring a person or body to act in performance of a function, and so on and so on. In other words, the Bill gives to the Executive of the day powers of a wholly draconian—and I would say authoritarian—character.

The question is whether we should so conduct ourselves as to leave the Bill in perpetuity on the statute book or give ourselves the opportunity from time to time to review whether such a Bill should be on the statute book. I have no doubt that we should review it from time to time.

The hon. Member for Sheffield, Hallam made the point—he is entirely right—that Governments may well be moved to use the powers in circumstances that it is difficult to justify as falling strictly within the definition of clause 19. All of us know that Governments like to use powers that exist, and I ask myself whether the Government might not have been willing to use the powers for the confiscation of property without compensation if they had been able to do so when the foot and mouth crisis was at its height.

One has to ask oneself some uncomfortable questions. The first is, "Do you trust any Government?" or, if one wants to be more particular, "Do you trust this Government?" I remind myself of the circumstances in which we were taken to war in Iraq. We were told facts that turned out not to be accurate. I happen to believe that Ministers knew or ought to have known that they were not accurate, but that is a matter for historians or perhaps an impeachment motion in the House. My point is that to the question, "Do you trust the Government?", the only sensible answer has to be, "No, under no circumstances." If that is true, the House had better equip itself with a mechanism for reviewing the powers.

We have also asked why we should not have such a mechanism, but I did not hear the answer to that question. I heard lots of evidence of unwillingness, but that is a very different matter. That is not a justification; it is sheer unwillingness.

Are there any procedural difficulties? No, because Lords amendment No. 50 requires only a positive resolution in both Houses. That would take only an hour or two, but it would enable the political debate to focus on the Bill so that we can ask whether we need a different definition of an emergency, whether particular powers should remain on the statute book, and whether additional safeguards should be incorporated in statutory language. We are being denied that ability.

The Minister tells us that the regulations have their own inherent sunset clauses. That is true in part, but it will have not escaped her, no doubt sharp, eye that the regulations can be relaid time and time again. The sunset clause of which she spoke is not perhaps as robust a safeguard as she might have hoped that we would believe.

As you may have noticed, Mr. Speaker, I am becoming increasingly cantankerous with age. I find my distrust of Government is becoming more and more intense, especially since Iraq. I would not give any Government—least of all, this Government—the powers that are in this Bill and, in particular, in clause 22. I very much hope that we will have a sunset clause.

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills

The Damascene conversion that my right hon. and learned Friend Mr. Hogg has undertaken during his travels through the House illuminates the sky and gives us hope.

My difficulty with the Minister's words was her response that the measure would be inappropriate in the context of such a Bill. I am especially mindful that the Government have already derogated from the Human Rights Act 1998, which they enacted, and that that derogation may occur if our country faces an emergency that threatens the life of the nation. We are already in a position in which the Government may say that life is threatened, but they have managed their business in the years since that Act came into existence without recourse to the new permanent structure without end that they now want.

I accept the points made by Mr. Allan because the Bill is detailed, comprehensive and iron-clad to such an extent that it is inappropriate for a democratic country and a democratic House. The route that he outlined matched my judgment on how emergencies should be dealt with. Legislation on such matters should be introduced on a case-by-case basis and considered in a day, as has often been the case during my time in the House. However, that process requires the danger or peril facing the life of the nation to be self-evident to such an extent that the House will accede to that legislation.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham 1:30 pm, 17th November 2004

My hon. Friend will remember the old Northern Ireland emergency legislation that had to be renewed annually. Will he remind himself and the House of the fact that the Labour party welcomed the opportunity to oppose that legislation year after year?

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills

I am grateful to my right hon. and learned Friend because the propositions of the Government could be tested annually on such occasions and, indeed, the then Opposition made full use of that opportunity.

Photo of Bill Cash Bill Cash Conservative, Stone

May I amplify my hon. Friend's point because he is anticipating something that I was going to say? Does he agree that the Terrorism Act 2000 supersedes and subsumes the Northern Ireland legislation to which my right hon. and learned Friend Mr. Hogg referred? A feature of this Government is their tendency towards permanence.

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills

My hon. Friend is right and his point forms a substantial part of my case. As the Minister well knows, the House unfortunately did not have the opportunity to discuss part 2 of the Bill, so all the powers that my right hon. and learned Friend the Member for Sleaford and North Hykeham cited are, in a sense, strange to a debate in which every hon. Member may speak. We are running at a gallop on the back of Lords amendments, which I shall support, although I think that they are inadequate. That explains why there is great reluctance to accept the Bill in such a permanent form.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Leader of the House of Commons

My hon. Friend will recall that a great raft of amendments was not considered on Report because of the guillotine. The proposal before us was among the amendments that were not considered at the time. Does he agree that it is a sad reflection of the present situation that the other place must do our job?

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills

All that is true. In fact, the situation is worse than my hon. Friend described it, because the whole of part 2 was not considered.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

May I suggest to my hon. Friend that the inclusion of a sunset clause would allow the House to consider part 2 in detail for the first time? We were denied that opportunity under the guillotine to which my hon. Friend Mr. Heald referred.

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills

That is true. We would be able to consider the provisions after three years, although we have not yet been able to consider them for five minutes. We are considering a piece of primary legislation that will create a framework that will affect the rights for which the House has fought for centuries. We had annual Army Acts so that we could control the supply of money to the Crown to ensure that the Crown could not do that which we did not want. The same important point is relevant to the Bill. The Government should not shrug off our anxieties and complaints. They could bring forward individual pieces of legislation. They could have addressed our point. Although I think that there should be an annual review, I shall gladly support their lordships' amendments.

Photo of Bill Cash Bill Cash Conservative, Stone

I agree with many of the points that hon. Members have made. The Bill, with its power to deal with enactments with such a broad brush, is Orwellian in its range and depth. The permanence of the arrangements takes us way beyond "1984" into the indefinite future. There are profound reasons why we should object to such infringement of the liberty of the people of this country and Parliament.

I said that the Terrorism Act 2000 subsumed and superseded the temporary provisions imposed on Northern Ireland under the Acts passed between 1989 and 1996. However, when my hon. Friend Mr. Shepherd talked about a standing army, he might not have known—although knowing him, I am sure that he did—that his point went straight to the heart of the Bill of Rights. The Bill of Rights is regarded as a permanent safeguard, but this Bill will not cover it. No doubt we shall later consider the interaction between the Bill and the Human Rights Act 1998, which is a temporary palliative because it may be amended or repealed, and the Bill of Rights, which any person in this country would regard as the bulwark of our liberty.

Article 6 of the Bill of Rights says:

"the raising or keeping of a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law".

That was why we required the Army Acts to which my hon. Friend the Member for Aldridge-Brownhills referred. The provision in article 9 is fundamental to the proceedings of the House. It says:

"the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament".

The Bill will override the most fundamental aspects of liberty and freedom in this country. As there is not at least a sunset clause to guarantee that the powers be reviewed regularly, I condemn the Bill's provisions for their lack of liberty and permanence and I condemn the intolerant, totalitarian thinking behind them. The Labour party is supposed to be the descendant of Tom Paine and "The Rights of Man". The Bill is a disgrace.

Photo of Ruth Kelly Ruth Kelly Minister of State, Cabinet Office

We have had a passionate and interesting debate, although I think that most of the arguments expressed by Conservative Members reflected their fundamental disagreement with the Bill itself, rather than their view that a sunset clause would be the most appropriate way to deal with the situation before us.

The Bill has been drafted to enable future emergencies to be covered flexibly under it. The provisions are sufficiently flexible to ensure that specific supply systems or facilities may be covered under the definition of an emergency when serious damage to human welfare is threatened. It also allows examples about which we are not yet aware to be addressed. However, specific powers will be contained in regulations issued under the Bill, so any debate on the Bill itself would be only a rerun of our debates throughout its consideration in the House and the other place.

Photo of Mr Richard Allan Mr Richard Allan Shadow Spokesperson for the Cabinet Office, Cabinet Office, Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Trade and Industry)

Does the hon. Lady appreciate that a debate on the Bill some three, six or nine years after it has come into force—after which we might know about circumstances in which it was used—would be different from today's debate, because we are currently discussing our fears due to the fact that we do not know the way in which the Bill will be used? We are asking for the opportunity to debate the Bill after we know how it has been used in practice.

Photo of Ruth Kelly Ruth Kelly Minister of State, Cabinet Office

The Bill itself does not restrict individual liberty. It is the provisions made by the regulations that may infringe or restrict civil liberties. I have outlined the safeguards, which are in the Bill and include detailed parliamentary scrutiny under the regulations.

Photo of Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham

The hon. Lady is right when she says that individual prohibitions are contained in regulations, but she is bound to concede that the powers are created in clause 22(3). Whether Ministers should be able, through regulations, to do this and that does lie on the face of the Bill. It is that which we need to review.

Photo of Ruth Kelly Ruth Kelly Minister of State, Cabinet Office

The Bill, which we have debated for a while, has far more safeguards built into it than the Emergency Powers Act 1920, which it replaces. The triple lock is the cornerstone of the safeguards set out in the Bill. Three stringent tests must be met if emergency powers are to be used. First, the emergency must be serious and require immediate action. Secondly, it must be necessary to take emergency powers, such as when it is not possible to introduce a Bill in the usual way; that deals with one of the points raised by Mr. Allan. Thirdly, emergency regulations must be proportionate to the aspect or effect of the emergency at which they are directed.

A range of additional safeguards is on top of that triple lock—we shall debate that in other groups of amendments—as well as the automatic safeguards of the public test of reasonableness and the provisions of the European convention on human rights, which apply to all legislation.

Photo of Bill Cash Bill Cash Conservative, Stone

The hon. Lady refers to the test of reasonableness. Hopefully she will be aware of the case of Liversidge v. Anderson in the late 1940s, in which the question of reasonableness, which had been imported into regulation 18B of the defence regulations, came into question. Where is the test of reasonableness expressly stated in respect to the application of the powers? Furthermore, does she agree that Lord Diplock and a series of other judges said that the case of Liversidge v. Anderson was bad law? I asked in Committee for that to be examined, but I do not think that it was.

Photo of Ruth Kelly Ruth Kelly Minister of State, Cabinet Office

I have had no indication from business managers that there was insufficient time to discuss that in Committee. The public law test of reasonableness applied to the 1920 Act and will continue to apply. We would agree that the case the hon. Gentleman cites is bad law, but it is not necessary to provide for a test of reasonableness on the face of the Bill.

I outlined the additional safeguards on top of those that applied to the 1920 Act. We will go on to debate the need for emergency regulations to be compatible with the Human Rights Act and whether that is a sufficient safeguard. I would argue that it is, but that will be discussed in the next group of amendments.

Photo of John Bercow John Bercow Conservative, Buckingham

The Bill envisages a vast and unwarranted arrogation of powers from Parliament to the Executive. Why does clause 20(3)(c) include Government Whips as the persons entitled to make regulations?

Photo of Ruth Kelly Ruth Kelly Minister of State, Cabinet Office

The hon. Gentleman will find that senior Ministers are able to carry that out in some circumstances.

Photo of John Bercow John Bercow Conservative, Buckingham

I do not want to encroach on private grief, and, equally, far be it from me to settle the hon. Lady's disputes with Government Whips, but I hope she realises that reference to Government Whips includes senior Ministers and the other way around. The Government Whips would have that power under the terms of the Bill. They are rejoicing in it. It is up to her either to apologise for it or to explain it satisfactorily.

Photo of Ruth Kelly Ruth Kelly Minister of State, Cabinet Office 1:45 pm, 17th November 2004

I remind the hon. Gentleman that a reference to senior Ministers includes Lords Commissioners.

Photo of Ruth Kelly Ruth Kelly Minister of State, Cabinet Office

So the hon. Gentleman accepts that, and Lords Commissioners are indeed senior Ministers.

Photo of Ruth Kelly Ruth Kelly Minister of State, Cabinet Office

They certainly are. We are not talking about junior Ministers. There needs to be a fall-back position in case Her Majesty the Queen cannot act in a timely fashion. The process set out in the Bill has been followed in other cases.

Photo of Richard Shepherd Richard Shepherd Conservative, Aldridge-Brownhills

This is an important point, although relatively small. We understood that the inclusion of Treasury Ministers or Lords Commissioners was to allow for a direct reference to the Chancellor of the Exchequer. No one would have difficulty with that. However, the Bill as drafted includes the first three Whips from the Whips Office. There is something ludicrous about Whips who never speak in the House being able to amend primary legislation.

Photo of Ruth Kelly Ruth Kelly Minister of State, Cabinet Office

The Government are following conventional procedure when Her Majesty is unable to act in a timely fashion for whatever reason. I think the hon. Gentleman would agree that the inclusion of Lords Commissioners is not the core of the debate.

Photo of Ruth Kelly Ruth Kelly Minister of State, Cabinet Office

Perhaps the hon. Gentleman will allow me to address the point.

The question is whether the Bill should be subject to a sunset clause after a period of time or whether it falls into the same category as the Anti-terrorism, Crime and Security Act 2001. Let me explain the difference. Under the Act, things are being done—perhaps as we speak—such as the detention of foreign nationals who are suspected of being terrorists and the sharing of relevant confidential information between Customs and Excise or the Inland Revenue and the intelligence services. In other words, there is something to review—the action that has taken place under that Act—after two years of its operation. We hope that part 2 of the Bill remains unused for many years to come. The legislation that it replaces remained unused for 29 years.

Photo of Ruth Kelly Ruth Kelly Minister of State, Cabinet Office

Perhaps the hon. Gentleman will let me finish my point. What would the review team review unless and until emergency regulations were made? The debate and the review would merely be a rerun of the debates in the course of the Bill's passage. If regulations are made, they will be scrutinised in depth by Parliament at that time.

Mr. Heald suggested that the Cabinet Office and the Government are promoting the use of sunset clauses. I do not differ from him in that. In fact, I am the Minister with responsibility for better regulation and know about promoting the use of sunset clauses in government. Cabinet Office guidelines—I have taken the trouble to look them up—say that sunset clauses should be used where appropriate. They also set out a long list of when that might be appropriate. I shall read out just two items that might interest the hon. Gentleman were he making this point. Examples include—I say this to argue that they should not be used in future—measures extending the powers of the state or reducing civil liberties, reserve powers that may never be used or bodies that are set up but not immediately given any powers to do anything. One might argue that those are relevant to this debate; it could be argued that part 2 of the Bill extends the powers of the state or reduces civil liberties.

I would argue, however, that the need for any regulations made under the Bill to be approved by Parliament offsets any argument that the Bill itself should contain a sunset clause. I agree with the hon. Gentleman that sunset clauses are appropriate for the regulations, which is why I pointed out to the House that there is an in-built sunset clause; the regulations will lapse 30 days after they are made. The House can shorten that time if it wants to.

Another hon. Gentleman—I am afraid that I forget exactly who it was—argued that the existence of an in-built sunset clause does not prevent the Government from laying another set of emergency regulations. But if that were done, the whole process of parliamentary scrutiny would have to be gone through again; and the triple lock would apply; and the debate would have to take place; and in that debate there would undoubtedly be an evaluation of how the powers in the Act and the regulations had been used.

Photo of Oliver Heald Oliver Heald Shadow Secretary of State (Justice), Shadow Leader of the House of Commons

Does not the Minister understand the distinction, which I have been making throughout the debate, that if a Whip were, on a regular basis, stationing an armed person at the end of one's road to stop one's movement, one might want, after three years, to review the operation of the Act, as it may be that on one occasion that action was justified?

Photo of Ruth Kelly Ruth Kelly Minister of State, Cabinet Office

The hon. Gentleman does not seem to have much faith in the concept of Parliament, which is here to scrutinise the exercise of the regulations and decide whether the triple lock applies and whether the powers exercised are appropriate and reasonable. That is why the triple lock is set out, and Parliament has the power not only to debate but to amend the regulations to ensure that they are being used in an appropriate fashion.

I believe that Parliament can be quite effective in scrutinising the Government from time to time. I believe that Parliament would not be shy of criticising or constraining the Government were it, for example, to consider that a situation was not an emergency, that the range of powers should be narrowed or that the powers were being exercised in an unreasonable way that was not consistent with the nature of the emergency. I would not expect Parliament to be any less effective in scrutinising emergency regulations than it is in other cases; in fact, I would hope and expect it to be more effective and assiduous in scrutinising those regulations.

m

On the matter of lack of trust, the hon. Gentleman speaks more gnerally for the public.

Submitted by mick angel

Photo of Bill Cash Bill Cash Conservative, Stone

I fear that in her response to my previous intervention the Minister completely failed to understand the point that I was making about the test of reasonableness, and she really must take it on board. Under article 18B of the defence regulations there was a test of reasonableness, but it was overridden in the view of Lords Diplock, Scarman and Reid as being bad law. That is the point; if we do not have an express test of reasonableness, the liberty of the subject is severely at risk. The Minister made the point that she wanted proper, effective scrutiny, but she walks away from it when it is offered.

Photo of Ruth Kelly Ruth Kelly Minister of State, Cabinet Office

I beg to disagree. There is a public law test of reasonableness in the Bill. It does not have to be shown in the Bill; it will still apply to the Bill. The safeguards set out in the Bill are far, far stronger than those that applied under the 1920 Act, legislation that was not used by any Government for 29 years. It lay on the statute book untouched.

The safeguards that we have built into the Bill are far stronger. They include a triple lock on the use of the powers, making sure that the legislation could not simply be taken through Parliament and that the use of the powers must be reasonable and proportionate. Those are strong safeguards, and there are additional ones built into the Bill; for example, one that will protect compatibility with the Human Rights Act 1998, which we are about to debate in the next group of amendments.

The Bill will not somehow become unnecessary after a period. Sunset clauses are appropriate if a situation is to come to an end after a short period. That is why we have included express provision for sunsetting in the use of the regulations. It is why we have also provided, exceptionally, for enhanced parliamentary scrutiny in the exercise of the regulations. It is why I argue, too, on behalf of the Government, that sunsetting for the Bill itself is not appropriate.

Question put, That this House disagrees with the Lords in the said amendment:—

The House divided: Ayes 293, Noes 171.

Division number 332 Orders of the Day — Civil Contingencies Bill — Clause 34 — Commencement

Aye: 293 MPs

No: 171 MPs

Ayes: A-Z by last name

Tellers

Nos: A-Z by last name

Tellers

Question accordingly agreed to.

Lords amendment disagreed to.

It being one hour after the commencement of proceedings, Mr. Deputy Speaker put the remaining questions required to be put at that hour, pursuant to Order [this day].

Lords amendments Nos. 51 and 52 disagreed to.