Under the Order of the House of
"The Lords agree without amendment the amendments proposed by the Commons in lieu of certain Lords amendments to the Civil Contingencies Bill to which the Commons have disagreed. They do not insist on certain of their amendments to which the Commons have disagreed, but do propose amendments in lieu thereof, to which amendments they desire the agreement of the Commons. They do not insist on their remaining amendments to which the Commons have disagreed."
Lords amendments considered.
Lords amendment: No. 49B
The Government remain convinced that sunsetting the Act itself is not appropriate in this case. The need to be able to respond to the most serious emergencies will not disappear after a given period, and revocation of the legislation would simply necessitate replacing it with something very similar.
As I made clear in Commons consideration of Lords amendments, any use of the powers under part 2 will be subject to detailed and rigorous parliamentary scrutiny and will be limited by the restrictions and safeguards set out in the Bill. Any regulations made under the Bill will be subject to sunsetting after a maximum of 30 days. This is one of the most aggressive sunsetting clauses to be found anywhere on the statute book.
I am sure that the Minister has had the opportunity since yesterday to speak to her advisers about the test of reasonableness. The plain fact is that the Bill does not contain an express reasonableness test with regard to the use of emergency regulations. In the light of the debate yesterday, will she explain to the House why that is not in the Bill?
I explained in terms to the hon. Gentleman yesterday that it was not necessary to have express provision for a test of reasonableness in the Bill. I also explained why that was the case.
The Government remain convinced that the sunsetting of regulations, and the need for them to receive the assent of Parliament, is the right way to ensure that the powers cannot be misused and that effective scrutiny takes place. Indeed, we have amended the Bill to specify that regulations must contain provision to ensure that parliamentary scrutiny can take place where this is effected by the emergency in question, or by response efforts.
The Minister may recall that the Minister in the Lords continually referred to the use of the powers as a temporary arrangement, yet it is clear from the wording of the Bill as it now is that the powers are not temporary but permanent. Will the Minister explain that as well?
As I explained yesterday to this House, and as has been explained in the other place, the regulations and the exercise of the powers under the Bill are temporary and subject to an aggressive sunsetting clause, in that they fall after 30 days unless Parliament confirms that they should continue and the orders are relaid.
There is no doubt that, given the scale of the emergencies that we are talking about, the Government's handling of such an emergency will be subject to intense scrutiny both inside and outside Parliament after the event. I need only refer to inquiries and reports published after the foot and mouth outbreak—in that case, emergency powers were not necessary—to highlight the fact that post-event scrutiny and review are, and will remain, defining features of the most serious emergencies.
However, in the light of the concerns that have been expressed, the Government are minded to give a firmer assurance to both Houses about the way in which we will ensure that the Bill operates correctly. In the event of the use of emergency powers, the Government would put in place formal arrangements to review the way in which the Bill and its mechanisms, including the safeguards, had worked in practice. To that end, within one year of the end of the point at which the emergency regulations fall, a senior Privy Councillor, appointed by the Government, would carry out a review of the operation of the Bill. The process would be repeated for each emergency for which the Bill is used. That review would be published, and thus be available to Parliament.
The findings will provide a useful tool for the Government, who would aim to learn lessons from any emergency and improve processes wherever necessary. They will be conscious of the need to justify their decision to use the powers and their handling of the emergency in the cold light of day, both before they use the powers and throughout their exercise.
The Government's approach is consistent with the long-standing convention that, following major emergencies, Governments appoint senior independent figures to review events. The Anderson inquiry into foot and mouth is a good example. There are also strong parallels with the practice used under the Anti-terrorism, Crime and Security Act 2001.
I am grateful for the commitment that the hon. Lady has given, as it substantially meets the Opposition's arguments. It is obviously desirable to have such a report, but can she make a commitment that it would be debated in both Houses?
I would certainly expect it to be debated. The nature of the review would be determined by the nature of the emergency—that is more flexible and less mechanistic than a sunsetting debate a year after the use of the powers, which could be disproportionate and unnecessary, particularly if the exercise of the powers was uncontroversial and effective.
I do not wish to be churlish, but the hon. Lady was asked to give a commitment. What she expressed was expectation, so would she now give a commitment?
I can assure the House that a debate will take place—that is the commitment that I am giving on behalf of the Government. An independent report will be published and debated by Parliament.
I have given a commitment that the Government will appoint a senior independent figure to review events along the lines of the practice adopted under the Anti-terrorism, Crime and Security Act. If we can agree to that—I hope that all hon. Members accept that it represents movement by the Government and a real increase in parliamentary scrutiny—we will have settled on a powerful, dual-track approach. First, actions under the Civil Contingencies Bill will be subject to the existing 30-day sunset provision. Secondly, there will be a slower review of the operation of the Bill itself.
I hope that that gives the House the reassurance that it seeks and demonstrates the Government's commitment to effective review and scrutiny of the use of the emergency powers legislation, not just at the time that it is used but in the longer term, when we can consider its appropriateness in the light of experience and the passage of time.
I have been impressed by the sensible and consensual nature of the debates on this important piece of legislation, both in the House and in the other place. The Bill has, indeed, benefited from a number of helpful amendments made in the light of concerns expressed during debate. I hope that all hon. Members receive this proposal in the same light, and I commend it to the House.
I agree with the point on which the Minister ended. The Bill has been fully considered. It started with pre-legislative scrutiny and it was fully considered in Committee. The pity of it is that when it came to Report, which is an important stage of any Bill, such a draconian guillotine was imposed that hon. Members who had taken an interest in the Bill over some time were unable to discuss large parts of part 2. With that caveat, I thank the Minister and her predecessor for the consensual nature of the discussions that we have had on the Bill.
I made my remarks yesterday about sunsetting. It is a good thing to have sunset provisions for draconian powers. Having said that, today in the other place my noble Friend Baroness Buscombe tabled amendments to make the sunset provision take effect a year after any occasion on which the powers in part 2 were used. The purpose of that is to provide an opportunity to reflect on the power itself in the light of the way in which it had been used. None of us knows what circumstances will arise.
I accept that the Minister's commitment today to a report from a Privy Councillor every time that the part 2 provisions are used, followed by an opportunity to debate that report, is a substantial commitment and meets the case. I would like to press the Minister a little on one thing. My hon. Friend Mr. Cash intervened in the Minister's speech to make the point that the person who did the report should be a respected independent figure. Will she say a little more about the independence of the person chosen to produce such a report?
We feel that we have achieved something. I would like to think of it as perhaps not a full loaf but certainly a half.
I am pleased that we are able to finish the proceedings on the Bill on a consensual note. It has perhaps a more select audience than the previous Bill that we were debating, but in many senses it is a more significant measure.
The Minister has set out a procedure for reviewing the use of the emergency powers that fits in with what we argued for in the House of Lords and in this House yesterday. Lord Carlile is independent, but I would not say that he is non-political. He is still a political Member of the House of Lords. He reviews procedures used under the Anti-terrorism, Crime and Security Act 2001. That was precisely what we were looking for in the context of this legislation. We have set certain thresholds for Ministers to invoke the powers; as we discussed yesterday, those thresholds remain subjective. A review of the operation of those subjective tests is all-important. The Minister helpfully set out yesterday the way in which the thresholds worked—the difference between the Minister "thinking" and being "satisfied".
I now have that difference straight in my head with the illustration of the Prime Minister's argument that he did not think that Iraq had weapons of mass destruction, but he was satisfied that it had. There is something there that can be tested. Similarly, in the context of a flu outbreak, a Minister might be satisfied that an outbreak was deadly and justified all kinds of emergency provisions being brought into place. That is a testable set of criteria; it is not the Minister simply thinking that a deadly flu outbreak is taking place and that things need to be done. Those are judgments that we believe Ministers are entitled to make, but Parliament is entitled to go over them again to see whether the facts justified the conclusion that was reached.
We think that the procedure that the Minister has set out today will meet our requirements. We are content not to oppose what the Minister suggests as a substitute for the set of arrangements sent to us by the House of Lords. I reiterate the comments that the Minister and Mr. Heald made about the conduct of proceedings on the Bill. This is the last opportunity that we will have to debate it in this place, but we have a different piece of legislation now from the one with which we started some time ago.
Does the hon. Gentleman agree that it is important that the person should be an independent figure? Does he also agree that the one thing that scarred the progress of the Bill was the very stiff programme motion introduced on Report, which meant that we were not able to discuss a large portion of the Bill at that important stage?
I am able to close on a consensual note by agreeing with the hon. Member for North-East Hertfordshire. The way in which the Report stage was handled was disgraceful. Part 2 of the Bill is far more significant than part 1 in terms of civil liberties and its constitutional implications, yet we ended up spending more time on part 1 than on part 2. We certainly did not have enough time to go through all the aspects of part 2 that we wanted to consider. That was reflected in the number of amendments from the Lords to part 2, which showed that there was still plenty of work to be done. I do not want the House of Lords to be used as a Committee stage for the more significant parts of the Bill, while the House of Commons gets to debate just the froth around the edges. The way in which part 2 and the Report stage were handled was disappointing.
I return to the hon. Gentleman's point about the independence of the person who carries out the review. Many of the concerns expressed yesterday from the Opposition Benches were about the fact that when there is an emergency, the requirement for the Government to get a majority in Parliament is not a sufficient safeguard. Under those circumstances, Governments can whip their Back Benchers—by definition, they have a majority of them—behind them, so that is not an adequate safeguard. The hon. Gentleman is right to say that the key test is whether the person who conducts the review will stand outside the normal political melee and be able to reach an independent judgment.
For that to happen, two criteria must be fulfilled. One is that the person makes that judgment at a distance, as the Minister set out today, not in the debate about the emergency regulations themselves. That would be in the heat of the moment, and we want the judgment made at a cool reflective distance. The second criterion is that the person should be outside the normal political arena, so I understand why a Privy Councillor would be appropriate, assuming they were acting as an independent Privy Councillor with the nation's interests at heart, rather than with a party political interest at heart. Having listened to the contributions from right hon. Members in all parts of the House, including the Conservative Benches, I have confidence in the majority of the Privy Councillors present putting the nation's interests ahead of party interests and being very interested in the constitutional implications of the emergency powers.
If that can be achieved, we will have reached a reasonable compromise. I am grateful to the Minister for acceding to our arguments, whereas yesterday she had to argue that the Government did not consider that necessary. I thought we were persuasive and I am glad that she was persuaded to move in this direction.
I rise to follow up briefly the point that I raised in an earlier intervention, which was supported by my hon. Friend Mr. Heald, the shadow Leader of the House, relating to the appointment of an independent Privy Councillor to review the powers contained in the Bill. As my hon. Friend said, those powers are draconian and if they are to be reviewed, the person reviewing them should be genuinely independent. Mr. Allan, speaking for the Liberal Democrats, highlighted that. He also expressed confidence that a majority of Privy Councillors can display proper and appropriate independence.
I shall press the Minister, however. My hon. Friend the Member for North-East Hertfordshire and the hon. Member for Sheffield, Hallam emphasised that on Report inadequate time was provided for large sections of part 2, which is the most important part of the Bill, to be debated. I hope the Minister, for whom I have considerable affection and regard for her abilities, will take a message back to her party that it is inappropriate that on Report, which is the only stage at which Back Benchers can fully participate in the consideration of legislation, they did not have an opportunity to contribute because of the limitations imposed by the programme motion. Therefore, many of us choose Lords amendments as an opportunity to participate.
Will there be any discussion between the Opposition parties and the Government before a Privy Councillor is appointed, so that there is confidence across the House that the individual who is appointed to undertake this important task is genuinely independent? This legislation is critical. As several of my Opposition colleagues have highlighted during the debate, the powers that are granted to the Government under the legislation are draconian—probably the greatest powers in any legislation to have been vested in Government in the 34 years that my right hon. Friend Mr. Gummer has been in the House. Therefore, I seek an assurance that the independence of the Privy Councillor is verifiable and that there is genuine consultation across the political parties prior to this person being appointed to undertake this important job.
I am slightly delaying sitting down to enable the Minister to receive the appropriate information from those who advise her. It is an important matter, I hope that she considers it to be an important matter, and I hope that she will reply to my request and that of my hon. Friend the shadow Leader of the House.
I am here at the bitter end because I remain deeply concerned about the potential impact of the way in which these powers could be used in terms of the liberty of the subject—not an expression that should be used lightly. But in this particular context, and in view of the rejection of the inclusion in the list beyond the Human Rights Act 1998 of habeas corpus and the duration of Parliament, to give but two particularly important provisions, I remain deeply concerned about the way in which these powers could be misused. In particular, as I have already said, there is no express test of reasonableness, and impermanence is imported into the arrangements, which is unsatisfactory.
With regard to the nature of the decisions that could be taken, even Law Lords have recently, in relation, I think, to the Rehman case, said that political decisions in matters of this kind would be best taken by Ministers rather than by the Lords of Appeal in Ordinary where there are extremely delicate questions about the liberty of the subject in relation to issues of national security. That is where the interface comes between emergency powers on the one hand and questions of national security on the other, because the two are likely to interlock. I simply make the point that the Human Rights Act in itself, irrespective of what the noble Lord Lester of Herne Hill said a few days ago, is inadequate to cover the various difficulties and dangers to the liberty of the subject that I believe are inherent in the proposals.
It is a step in the right direction to have a review by a senior Privy Councillor, but I repeat what I said in an intervention, that under no circumstances whatever should that person come from a political background. I say that because, having regard to the case law that has developed in relation to decisions of the most sensitive nature that I have just described, the view is taken that these are and should be political decisions and that that question has been adjudicated by the courts themselves. In this particular context, there would be a greater degree of independence if no person who held the job came from a political background.
I appreciate that my Front-Bench colleagues and the Liberal Democrats have now concluded that exchanges between the two Houses have reached their final stage. Nevertheless, I fear that the powers could be misused, and I think that the fact that the Government's programme motion impinged on Report, which is in many respects the most important stage in any Bill's consideration—it is particularly important in dealing with a Bill such as this one—was disgraceful.
Absolutely. My right hon. Friend puts it extremely well. On emergency powers and national security, the decision to invoke the powers is bound to be political at that point. Any question of review would need to be balanced with a degree of independence that would be guaranteed only by ensuring that any subsequent decision on the review was taken by a person without a political background.
I have made my reservations clear. There will not be another Division on these matters, but they will continue to evolve. Given the permanence of the issues and the incredible importance of getting them right, at least we have fought as hard as possible to ensure that they are dealt with in the right framework for future generations.
I thank the hon. Members for North-East Hertfordshire (Mr. Heald) and for Sheffield, Hallam (Mr. Allan) for the way in which they have approached the Bill and the graciousness with which they have received the Government's proposals, which I have just set out. I also thank the hon. Members for Macclesfield (Sir Nicholas Winterton) and for Stone (Mr. Cash) for recognising that the Government have gone at least some way towards meeting their concerns, even if they have not been met in full.
I understand that there is some natural concern about how the review will be carried out and who will be appointed to lead it. The intention is that a single Privy Councillor will lead the review, but they will of course be assisted by a review team in carrying it out. The review will be independent, and the United Kingdom has a strong track record of appointing independent senior figures to carry out inquiries. In any event, to maximise the lessons learned, the Government would want to appoint someone who could step back from the situation. The report would be published and there would be a debate, and one of the issues debated would surely be the nature of the review itself.
I accept what the Minister is saying, but will she draw a distinction between what has been described as a political background, which is not the critical issue, and mindset, context and the way in which the process will be achieved, which will be much more important? Somebody's background will perhaps be irrelevant, as somebody who is not of a political background can have very strong political views. The critical issue is the context and process, not the background.
I completely agree. As I have set out, it would be extremely important for the Government to appoint someone who could step back from the situation. Of course, that ability comes from the personal specifications of the person who is carrying out the review and their willingness and freedom from political influence. It is such concerns that would inform the Government in their choice of Privy Councillor. The Government would of course discuss on Privy Council terms and consult the principal parties, thereby meeting the concerns of the hon. Member for Macclesfield. I hope that those assurances will satisfy nearly, if not all, Members.
I am sorry that doubt has been expressed about whether the Bill has been debated and consulted on enough. I am fairly new to it, but there has been considerable discussion—not least during pre- legislative scrutiny—and, as usual, the amount of time agreed between the political parties was not subject to much dispute.
In fact we divided on every programme motion, although we have the highest opinion of the Government Whip involved.
I thank the hon. Gentleman for making that clear. In any event, I think there was considerable scrutiny both in Parliament and outside. We do not follow this course lightly, and I believe that it will create a much more substantial and flexible framework than the one that it replaces.
The pre-legislative scrutiny was very helpful, and the Committee stage worked well. The problem arose on Report. The bottleneck relates to time in the Chamber, and that is where the dispute remains. If we learn anything from the process, it will be about expanding the time available to Members who cannot take part in pre-legislative scrutiny and the Committee stage.
On a point of order, Madam Deputy Speaker. Members throughout the House, apart from Ministers, have expressed concern about the Report stage, when large parts of the Bill could not be discussed. Would it be possible for you to bring that to the attention of the Chairman of Ways and Means—the Deputy Speaker—who, on occasion, is called on to give evidence to the Procedure Committee, the House of Lords Constitution Committee and other bodies?
Or, indeed, the attention of Ministers. I have certainly heard what has been said today.
I thank Members on both sides of the House for the scrutiny that they have devoted to the Bill. I think that it has improved significantly as a result, and I believe that the review process will go a long way towards meeting the last remaining concerns.
Lords amendment disagreed to.
Committee appointed to draw up Reasons to be assigned to the Lords for disagreeing to their amendments Nos. 49B and 50B: Mr. Allan, Mr. Heald, Ruth Kelly, Ms Bridget Prentice and James Purnell; Ruth Kelly to be the Chairman of the Committee; Three to be the quorum of the Committee.—[Ms Bridget Prentice.]
To withdraw immediately.
Reasons for disagreeing to certain Lords amendments reported, and agreed to; to be communicated to the Lords.