Civil Contingencies Bill

– in the House of Lords at 11:00 am on 21st October 2004.

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Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip 11:00 am, 21st October 2004

My Lords, I beg to move that the House do now again resolve itself into Committee upon the Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Bassam of Brighton.)

On Question, Motion agreed to.

House in Committee accordingly.

[The CHAIRMAN OF COMMITTEES in the Chair.]

Clause 20 [Power to make emergency regulations]:

[Amendment No. 99 not moved.]

Photo of Lord Archer of Sandwell Lord Archer of Sandwell Labour

moved Amendment No. 100:

Page 14, line 15, at end insert "necessary"

Photo of Lord Archer of Sandwell Lord Archer of Sandwell Labour

Following our more passionate debates earlier in the week, this promises to be rather a tranquil episode—at least by the time the Chamber has emptied.

These exploratory amendments are intended to provide my noble friend with an opportunity to explain to me that I am guilty of a misunderstanding. They relate to what appears to be a logical eccentricity in the Bill. At Second Reading, I invited my noble friend Lord Bassam to explain it. Wisely, he dealt with the situation by promising an explanation at a future time. Of course I do not complain at that; it is always wise, if the batsman is uncertain, to see whether he can get away without playing a stroke. But my puzzlement remains intact.

Clause 22 authorises the making of regulations for certain purposes. Clause 20(5) includes as a condition precedent that the person making the regulations should confirm that the regulations are restricted to the purposes specified. I have no problem with that, if that is what the drafting is intended to achieve, but it is not what the Bill says. Clause 22 says that the provision in the regulations must be for what the person making them "thinks" is the purpose. Clause 20 requires that the regulations must be for what he or she is "satisfied" is the purpose. So the criteria relate not to the purpose of making the regulations but to what the person making them "thinks" is the purpose or is "satisfied" is the purpose.

The purpose of a regulation must be the purpose in the mind of the person who makes it. You cannot have a purpose which is not a purpose in someone's mind. A purpose is a mental event; you cannot have a purpose in the abstract. It must be in the mind of the person who seeks to implement the purpose. But if the purpose is in the mind of the person who makes the regulations, that person must know what the purpose is. How can it make sense, then, to speak of what he or she "thinks" is the purpose? Can we imagine a Minister saying, "I am making this regulation; I think my purpose in doing it is so-and-so, but I am not sure"?

We encounter the same oddity in Clause 23(1), where regulations may make provision only if the person making them "thinks" that he is doing so for one of the specified purposes. I do not pretend that there is any great matter of principle at stake, but surely it is important that legislation should be intelligible. It is part of the function of your Lordships' House to protect the statute book from nonsense. I wonder what Lewis Carroll would have made of it; hence this amendment. I beg to move.

Photo of Lord Elton Lord Elton Conservative

I wonder what the purpose is of bringing the person making the regulations into it at all. It would surely satisfy the test that the Committee wants by simply saying, "provided that the regulations contain only provision which is necessary for the purpose". We should leave out this judgmental, dubious, unknown, anonymous person with great power in the future.

Photo of Lord Garden Lord Garden Liberal Democrat

I also support the amendment tabled by the noble and learned Lord, Lord Archer. It seems very sensible and something that the Government ought to be able to give on.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

Our view is that this amendment is not necessary, but, if I may respectfully say so, I have very much enjoyed the exposition on it by my noble and learned friend Lord Archer. I shall explain how the clauses work together. I hope that Members of the Committee will find that we have entered into more tranquil waters with these amendments.

Clause 20(5)(b)(ii) ensures that regulations can be made only for the purpose of preventing, controlling or mitigating an effect of that particular emergency. Clause 21(3) ensures that emergency powers can be made only where the person making them is satisfied,

"that it is necessary to make provision for the purpose of preventing, controlling or mitigating an aspect . . . of the emergency".

Clause 20(5)(b)(iii) requires that,

"the effect of the regulations is in due proportion to that aspect or effect of the emergency".

The public law test of reasonableness applies to those making decisions on those requirements.

The effect of these is to ensure that any use of the emergency powers must be necessary and proportionate in the prevailing circumstances. The Government accept that a number of the preconditions to the making of emergency powers require the exercise of judgment. It is difficult to conceive of appropriate limits on the exercise of emergency powers that would operate in a more objectively verifiable way. The limits which related to, for example, the area affected or the number of people affected would be easier to verify but would make the exercise of emergency powers inflexible and mechanistic. That is why it has been expressed by the draftsman as requiring that they "think" that it is so. It is subject to the reasonableness test, too. The determination by the regulation-maker that the preconditions for use of the emergency powers are satisfied will be subject to review on the reasonableness grounds in the normal way. I hope that Members of the Committee will see therefore that that is why the drafting is expressed as being that the maker "thinks" that this is so.

The exercise of emergency powers would be challenged on several other grounds. In particular, regulations can be challenged on the ground that they are incompatible with convention rights. If convention rights are at issue, the court is likely to adopt a heightened standard of review.

Although I enjoyed the exposition by my noble and learned friend, I think that the way in which the Bill is drafted enables us to have the matter reviewed, if necessary, in a way that makes sense. I am happy to go back to the draftsman to see whether there is a more elegant way in which it can be expressed, but I do not think that it is inaccurately expressed now.

Photo of The Earl of Onslow The Earl of Onslow Conservative

We do not wish for elegance: we wish for clarity. I may be fairly thick—I am perfectly prepared to concede that—but I found the arguments in all those subclauses incredibly complicated.

What my noble friend Lord Elton said was crystal clear and precise. That is the sort of thing that always ought to be in legislation—not convolution, however elegant or beautifully expressed. Legislation should be clear and precise.

Photo of Lord Archer of Sandwell Lord Archer of Sandwell Labour

I am grateful for noble Lords' contributions. I appreciate that those who prepared my noble friend's brief had not had the opportunity of hearing what I said a few moments ago. Most unusually for my noble friend, she did not address the point that I was making.

I was not suggesting that the Government were trying to slip something past us to produce a great increment in their power; I was simply saying that, as the clause reads, it is nonsense. I am grateful for the offer that my noble friend made a few moments ago. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 20 agreed to.

Photo of Lord Lucas Lord Lucas Conservative

moved Amendment No. 100A:

After Clause 20, insert the following new clause—

"PROVISION TO BE MADE IN EMERGENCY REGULATIONS

(1) Subject to subsection (3), emergency regulations shall make provision to ensure the maintenance or early restoration of the functions set out in subsection (2), to the extent that these functions have been compromised or damaged by an emergency or by regulations made under this Part.

(2) The functions referred to in subsection (1) are—

(a) the proper functioning of Parliament;

(b) representative democracy based on a universal suffrage;

(c) public access to justice;

(d) an independent judiciary; and

(e) the proper functioning of the courts.

(3) Emergency regulations need not make the provision described in subsection (1) above if—

(a) there is not time to formulate such provision, and less than 30 days have passed since the date of the emergency or regulations referred to in subsection (1); or

(b) provision has been made by other means."

Photo of Lord Lucas Lord Lucas Conservative

In moving Amendment No. 100A, I shall speak also to Amendments Nos. 148 and 149. I am concerned that we should have a Bill that is robust and acts as we want, even under the most extreme circumstances. As the Minister has said on several occasions, we are looking at the very long term for the application of the Act, and, particularly in Part 2, we are considering circumstances that are likely to be extreme.

One scenario is a biological attack by Al'Qaeda a couple of weeks before an election, while there is no Parliament. The attack—to pick up the theme of a recent BBC programme—involves the deliberate spreading throughout the UK of a haemorrhagic virus with a decent incubation period of about three weeks. We suddenly find ourselves with what will clearly be a widespread epidemic of something that is passed by reasonably close contact between people. At that point, we are into a situation of emergency regulations, and we will wish severely to restrict the movement of people, as that is about the only the way of controlling the spread of such a disease. We will not have elections, and we will almost certainly suspend the action of the courts and other bodies that involve people gathering together. There will be no practical way of recreating Parliament in the short term, because Parliament will not exist at that point. We will have an extended period of government under the Bill, without any checks.

I have no great doubts about the current Secretaries of State, but we could, over the next 50 years, get someone like Mr Kilroy-Silk occupying one of those positions. In those circumstances, we would want to be sure that the power that we gave the Secretaries of State under the Bill led inevitably back to something like the form of government that we would like to see. I should not be surprised, if we happened to have a Liberal Prime Minister, to find that PR was the form of election when we came back, rather than first-past-the-post. It would be hard for a government to resist the temptation to do things by emergency regulation that they had not had the chance to do before. They could, to some extent, reform the democracy that we would get back. I want to be fairly certain that what we would get back would be a parliamentary democracy governed by the rule of law and that people would have free access to the courts, free media and so on.

In Amendment No. 100A, I have set out a sketch of that scenario. I am no draftsman, and I do not know that this is the right way of tackling the constitution, which is, in any event, a pretty obscure set of rules and conventions. However, I want to see in the Bill something that is clear to the ordinary general in the street, as it will be the generals and chiefs of police who will call such a government to order. They will be the people keeping the country in a state of emergency. I do not want them to be in the position of the Wehrmacht under Hitler. He had assumed power legitimately under the constitution as it then was, and they felt that they had to go along with that. I want it to be clear that a prolonged and unnecessary period of government under the Bill is illegitimate and that we ought to get back to something with a parliamentary system and free access to the courts. We need something in the Bill for that.

I hope that I am talking about an extreme case and that it never happens, but we cannot rely on the intricacies of constitutional understanding by senior lawyers. They may have no access to the media, if the government were so inclined. There may be no way in which those who have the power to turn us back to the ways that we would like will have access to such advice or will have any confidence in their ability to judge between the advice of a senior lawyer and what they are told by the government. When we grant such enormous powers without prior parliamentary scrutiny—in Germany, it happened with prior parliamentary scrutiny, but there is nothing that we can do to prevent that under our constitution—it is important to make sure that we do not slip into such an abyss because of something that we wrote carelessly 30 or 40 years before.

Amendments Nos. 148 and 149 pick up a couple of bits of legislation. I suspect that they are not things that I want to pursue, but it seems to me that the Crown is an important character in all this. In the first instance, it is the Crown that is supposed to make the regulations. Any long-running illegitimate government would have to deal with that problem. I think that they would deal with it through the Regency Acts, which, if properly managed, essentially give the government the power to decide who the monarch is. It would be dangerous to change the existing provisions in a way that allowed the monarch to be replaced.

I can see circumstances in which we would want to be able to amend the Acts to make sure that there was a monarch. A well meaning government might want to amend the Acts. That is one of the difficulties that we have throughout the Bill: we can see reasons why the powers might have to be used. However, given the ultimate fall-back of the monarchy, which is important in the context of the Bill, I have considerable worries about giving the government the power under the Bill to decide who the monarch is. I beg to move.

Photo of Baroness Buscombe Baroness Buscombe Shadow Minister, Home Affairs, Shadow Minister (Home Affairs), Shadow Minister (Home, Constitutional and Legal Affairs) , Shadow Minister (Digital, Culture, Media and Sport)

My noble friend has touched on an incredibly important aspect of the Bill. I want to question the Minister on a matter to which I will return until I feel satisfied that the Minister can reassure me. That matter is judicial review.

I have a feeling that the Minister will respond by saying that my noble friend's amendments are not necessary because, at the end of the day, there is always judicial review. But what happens if a Secretary of State or the Prime Minister of the day has disapplied the legislation enabling those who believe that a Minister has taken or is taking unreasonable action under this legislation to seek judicial review? As far as I can see, judicial review is the only real safeguard in the Bill. I think that my noble friend is seeking to ensure that certain actions are taken quickly so that we do not lose the possibility of judicial review.

On 19 July

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

Perhaps I may help in this matter. Although the noble Lord, Lord Lucas, has made it clear that his amendments are perhaps not drafted as accurately as he would want, he is raising the issue simply so that we can clarify it. We have looked at the issue very carefully, and, in a few moments, I will be saying that we will take it on board and try to make the drafting clearer. I do not know whether the noble Baroness would find it useful if I gave my response now so that we could see whether I can deal with these matters to her satisfaction. I could then come back and deal with any further matters on which, having heard my reply, she wanted further clarification. I am rising now simply to be helpful.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I understand the import of what the noble Lord said. Although we think that Clause 22(2) makes it clear that emergency regulations are intended to be used to protect or restore rather than hinder public functions such as the administration of justice, and to protect or restore the activities of Parliament, and although we think that that creates a very clear presumption that regulations should not be used in a way which is contrary to these aims, exactly as the noble Lord would wish, in order to make that clearer, the Government will consider an amendment that will put the maker of the regulations under a duty to consider what steps can be taken to protect or preserve the ability of Parliament to scrutinise the regulations and actions under them and the ability of the courts to entertain challenges to the regulations. We believe that that will give effect to the intention behind Amendment No. 100A.

The courts will expect the maker of the regulations to act reasonably, and so—just to take up the noble Baroness's points—a failure reasonably to make emergency regulations to protect Parliament or access to the courts could be challenged on that basis. It may assist if I provide a couple of examples of how we see that operating.

If parliamentarians have been exposed, for example, to an infectious disease and it is necessary to quarantine them or to close the Palace of Westminster, that should still be possible. However, the maker of the regulations should consider what provisions can be made to allow Parliament to continue functioning; that is, for example, by quarantining MPs in a building that has video-conferencing facilities. If a cloud of toxic gas was heading towards London and it was necessary to evacuate London, the maker of the regulations should be able to do so. But he or she must consider what steps should be taken to protect Parliament and the operation of the courts. In those circumstances, the regulations may need, for example, to requisition property elsewhere for Parliament to use and to give High Court judges a priority place in the list of the evacuees.

The Government hope that the House will appreciate that this approach will ensure appropriate provision is included in the regulations to allow Parliament and the courts to scrutinise them and actions taken under them and will also ensure that where action needs to be taken that may affect Parliament or the courts which is necessary to respond to the emergency, then that action can still be taken. I think that the amendment which I hope to move on Report will meet the concerns behind Amendment No. 100A and answer some of the questions raised by the noble Baroness about how we will manage judicial review.

The noble Lord, Lord Lucas, raised a point about the Regency Act. If I may respectfully say so, it is difficult to conceive of a situation where in order to prevent, control or mitigate an aspect of an emergency it would be appropriate to amend the Parliament Acts or the Regency Act.

In theory, were the Queen to become incapacitated and the range of persons specified in the Regency Act who may appoint a regent—namely, any three of the spouse of the sovereign, the Lord Chancellor, the Speaker of the House of Commons, the Lord Chief Justice of England and the Master of the Rolls—were all also to be incapacitated, it might be appropriate to modify the Regency Act to provide that other appropriate persons could appoint a regent. However, examples of that kind show that the range of circumstances in which such an amendment would be appropriate or possible under the Bill is extremely narrow. I hope that that will be some comfort to the noble Lord.

Photo of Lord Elton Lord Elton Conservative

I am not sure whether that was meant to terminate the debate, but it has created a friendlier and less anxious atmosphere for the debate. I just hope that the noble Baroness has in mind how different this Chamber, the people in it and the feeling would be if it had been Margaret Thatcher who had been asking for these powers towards the end of her prime ministership. If there is a party in power which does not have the trust of the people, the people are very anxious; and it does not happen only to Conservative governments. It is also the case that the further along the political spectrum in either direction one goes, the greater is the danger of a totalitarian break-in. And this is the point at which it would take place.

Therefore, I hope that we deal with Part 2 with great care and possibly even strengthen the provision in Clause 22(3)(j):

"(other than a provision of this Part)".

As I read the Bill as presently drafted, those are the words that actually entrench these provisions against alteration by the Minister. That is their intention. I just wish that they could be carved in stone, written in bold and endorsed in some other way in the Bill.

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

I think that the Minister has been extremely helpful. There is only one point, which was raised by the noble Lord, Lord Lucas, that still concerns me; that is, if there is a very serious emergency after a dissolution. After a dissolution there are no Members of the House of Commons; they cease to exist. In those circumstances, what arrangements will there be for Parliament to continue to exist?

It is true that Peers of the realm receive a Writ of Summons immediately Parliament is dissolved. So in that sense Parliament still exists. But would it mean that the House of Lords would then exercise the powers of Parliament, in which case it would need the power to arrange finance for whatever was taking place during the emergency and what was needed? I think that that is a very important point. I do not think the Minister addressed it, but perhaps she could give it some consideration.

Photo of The Earl of Onslow The Earl of Onslow Conservative

On that point there is historical precedent to which I alluded the last time we talked about this. When William III landed on 5 November 1688, the Commons was not sitting because James II had refused to issue Writs of Summons for the Commons. When James II fled, the Lords, acting in convocation, made sure that the Commons could sit and arranged as quickly as possible for an election which then confirmed King William in power. I would presume that that is one of the advantages of a Chamber which can exist outside the other one in these obviously extreme circumstances.

I could not agree more with my noble friend Lord Elton. Those powers are absolutely enormous. I am very frightened of them. I am not sure that any emergency justifies them. It is much more likely that we will want to do things—that is, clear up, do this, that and the third thing—rather than start making regulations and Acts of Parliament. That is what frightens me about this.

On this occasion, I trust Mr Blair. I may be in a minority of one, but I trust Mr Blair: I do not think that he would do that. I trust my right honourable friend Mr Howard. But who knows what will come afterwards? Societies can collapse entirely and get panicky. Nasty people can emerge. We must not allow power to go away from Parliament under any circumstances whatever. It is too important and too vital.

Photo of Lord Elton Lord Elton Conservative

Perhaps I may just add to that point. My noble friend reminds me that of course it would be, I believe, the Lord Chancellor who would convene the House of Lords in the absence of a sitting Parliament. That has a read-across to the Constitutional Reform Bill. I hope that the noble Baroness or her advisers will take note of that. It is very important that what we do here is consonant with what is done there, so that the Lord Chancellor or whoever will be in a position to convene this House in such circumstances after the enactment of what is now the Constitutional Reform Bill.

Photo of Baroness Falkner of Margravine Baroness Falkner of Margravine Liberal Democrat

On this side, we would associate ourselves with and support Amendment No. 100A proposed by the noble Lord, Lord Lucas. I welcome the noble Baroness's openness to the principle behind the amendment. The noble Lord, Lord Lucas, invoked the possibility of even a Liberal Democrat government perhaps finding themselves making decisions. I will therefore quote a good liberal, perhaps with a small "l" rather than a large one, since we are talking about the constitution. Walter Bagehot described the English constitution to be of two parts:

"first, those which excite and preserve the reverence of the population—the dignified parts—and next, the efficient parts—those by which it, in fact, works and rules".

The sentiment behind this clause would cover both. It would cover not only the dignified part in the sense of publicly stating that that rule of law in a democracy is where we would wish to find ourselves at the end of the emergency, but also the efficient part. Earlier in the week, the noble Baroness referred in debate to trying to be as inclusive as possible. I am speaking for the first time on the Bill. Our concern is that the general tone is sometimes over-inclusive—that is, prescriptive—and at other times leaves out principles that it should cover. In that spirit, I should like to support and welcome the noble Baroness's comments.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I understand the concern that has been expressed by noble Lords on this matter. We are absolutely clear and of one mind that of course we want the powers to be used proportionately and properly. None of us would like them to be used or misused in the way that the noble Earl, Lord Onslow, and the noble Lord, Lord Lucas, have suggested. Therefore, I very much understand the sentiment expressed by the noble Baroness, Lady Falkner of Margravine.

We have tried to make Clause 22(3)(j), which the noble Lord, Lord Elton, mentioned, as strong as we can. I am more than happy to look at whether the draftsman can do even better. I know that the noble Lord is saying that it is jolly good and seems to do it, but if we could have some gold standard reinforcing that anyone can think of, we would all agree that it should be there. I shall certainly take that back to determine whether there is anything that we can do about it. It may be that this is the best guarantee that we have, but I shall look at it very clearly.

In relation to the point made by the noble Lord, Lord Stoddart, about what happens when Parliament has been dissolved, pending a new election, of course, it would always be possible for the Queen acting in Council to recall the old Parliament using emergency regulations. She also has the advantage of having available to her Privy Counsellors from across the piece. As noble Lords know, the Government continue in being, notwithstanding the dissolution of Parliament. So it would be possible for my right honourable friend the Prime Minister or someone standing as First Lord of the Treasury

Photo of The Earl of Onslow The Earl of Onslow Conservative

So the powers of the Sovereign to recall Parliament once it has been dissolved, exist? I thought that once Parliament was dissolved, it was dissolved. But can it be recalled or "undissolved", if that is the word I am looking for?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I think that it would be possible. I shall certainly go away to check that. There are two points: first, of course, the Government continue notwithstanding the fact that Parliament has been dissolved. So the Government are entitled and able to act, particularly in a position of emergency. Secondly, of course, the Queen in Council can still make regulations in relation to meeting the needs of the emergency.

In those circumstances, one would imagine that it would be perfectly proper for Parliament to be recalled very quickly under those provisions. It would probably be that the old Parliament would be recalled until such time as we could do something better. It appears that the rules would enable us to do that which we would need to do to get Parliament back as quickly as was needed in those emergency situations.

But I will take these issues away to ensure that what I have said to the Committee is accurate. I will come back with a fuller exposition. It may be that this is a matter about which I could write to all Members of the Committee so that we would have that information. Noble Lords could then decide whether they want to bring the matter back later.

Photo of The Earl of Onslow The Earl of Onslow Conservative

I think that I would much rather that the noble Baroness spoke about the matter on the Floor of the House. It is too important just for individuals who have taken part to be written to. I would much rather—I hope the Committee agrees—that it should be written into the record.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I absolutely agree with the noble Earl, Lord Onslow. As a matter of courtesy, I was suggesting that if I were to write to Members of the Committee about the position that would enable them to consider their position. When we come back on Report, they would be able to raise any further or other issues on which they wish to have clarification. When I answer I will be able to give a full answer that will be on the record. The House could therefore feel more comfortable that it has been dealt with. That is what I had in mind, if that would meet the needs of Members of the Committee.

Photo of Lord Lucas Lord Lucas Conservative

I am exceptionally grateful to the noble Baroness and, indeed, even more grateful to her officials for enabling this progress to be made. I look forward with great interest to the amendment, which will presumably be laid at Report. We will see how far it goes and whether there are any other little gaps we would want to put some putty in. But it has been progress in absolutely the right direction. I am extremely grateful for it.

Perhaps I may raise a couple of other points. We have had reference to Clause 22(3)(j), which is supposed to prevent Part 2 being amended by regulations. My concern is that those words are qualified in the opening words of subsection (3), which state, "in particular". On reading the two together, the words "in particular" seem to open the question again of whether paragraph (j) is just a particular example of what the regulations can do; that is, the regulations could amend Part 2 because of the opening words in Part 3 making the concept unlimited and the rest just examples. Under those conditions, would it not be better to have the prohibition in Clause 23, which clearly covers the limitations on emergency regulations? If it were put there, and thus outwith the qualification of the words "in particular", I would feel more comfortable.

Secondly, I want to pick up a point made by my noble friend Lord Onslow about the possible role of the House of Lords in extremis. If we really want a resilient House of Lords that would be available in all circumstances, perhaps we should think of making it hereditary. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 21 [Conditions for making emergency regulations]:

Photo of Lord Dixon-Smith Lord Dixon-Smith Shadow Minister, Environment and Transport

moved Amendment No. 101:

Page 14, line 28, leave out ", is occurring or is about to occur"

Photo of Lord Dixon-Smith Lord Dixon-Smith Shadow Minister, Environment and Transport

We move on from the major issue of the constitutional relationship between this Bill and all existing law and constitutional practice to the rather more insignificant but nonetheless important matter of how it is to work in practice. To that end, I would suggest that the words in subsection (2) are unnecessary.

The subsection states:

"The first condition [for making emergency regulations] is that an emergency has occurred, is occurring or is about to occur".

I shall put those words in conjunction with a comment made during consideration of the Bill by the Minister at col. 512 on 14 October:

"If, for example, we were to receive warnings that a nuclear device had been planted in major cities, we might wish to take powers to find and neutralise them and to evacuate areas, even if there were a degree of doubt about the credibility of the threat".—[Hansard, 14/10/04; col. 512.]

It seems to me that this presents the possibility of a new form of terrorism; that is, the creation of the illusion of a terrorist act.

One can conceive of a scenario. Let us consider a carefully leaked dribble of intelligence from somewhere in the Middle East or perhaps from one of the more rebellious parts of Pakistan which suggests that a group had succeeded in devising a dirty nuclear bomb or bombs. The intelligence would continue to leak over a period of some months, hinting that teams are being put together to deliver those bombs. That intelligence continues to build until it finishes up with the delivery of the mythical weapon. At that point we would create the actuality of the effect of terrorism by ordering, say, the evacuation of a large part of London or another city. That would seem to be all of the joys with none of the responsibilities.

While that may sound absolutely fictional, I am afraid that the record over recent years on the use of intelligence seems to permit the possibility. It would worry me a great deal if we were to leave in the Bill the words that I suggest should be removed.

In any event, the reality is that these words are not essential. When one considers the various forms which terrorist action or emergencies of other kinds might take, to think of taking action in anticipation is extremely dangerous. The example of the dirty nuclear weapon that I have just mentioned is all very well, but what if we were to work on intelligence which suggested that it was to be planted in the City of London, and at that point the guy delivering the bomb decides that London is rather difficult and takes it to Sheffield or Manchester? Are we then to take action in London and cope with the disaster in the other city? That is the reality of the problem. I accept the high level of risk involved here, but we need to think carefully of what we are about.

Let us consider other forms of disaster that might give rise to the use of these powers, in particular natural disasters. The obvious circumstance that would require the use of the powers is when a major tidal surge is expected, possibly as the result of a sub-oceanic earthquake. In the case of a tidal wave, the event would have occurred and we would know that it was coming towards us. While the actuality of a wave surging over the Thames Barrier may be somewhat in doubt, if a major wave were to overwhelm London's flood defences, we would be given hours of warning. Reports of the approach of the tidal surge would begin in the north of Scotland and be followed all the way down the east coast, giving us five or six hours of solid information. The event would already have commenced. So, again, the words in this subsection are not necessary.

At an earlier stage of the Committee proceedings the possibility of an asteroid arriving from outer space was mentioned. Once more, the event would have occurred. By predicting its course, we would know that the asteroid was travelling towards us. Given that, I have grave doubts about including the words,

"is occurring or is about to occur", in the Bill. They give rise to the possibility of the inappropriate use of these powers. My noble friend mentioned the circumstance where Parliament is dissolved before an election. This subsection opens up the possibility of a complete abuse of the constitutional process.

Of course this is all highly unlikely, but taking out these words would make it virtually impossible, which is the sentiment behind the amendment. It is exploratory in nature and is designed to bring forward a further explanation of exactly how this detail will work. I beg to move.

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour

If Amendment No. 101 is agreed to, I shall not be able to call Amendment No. 102 by reason of pre-emption.

Photo of Lord Lucas Lord Lucas Conservative

I rise to speak to Amendment No. 102. I have found myself looking in the opposite direction from my noble friend, which I think arises out of the length of the semantic chain we have to follow in order to reach this point. We start with Clause 19(1),

"'emergency' means an event or situation".

I suspect that an event is something which has a period of time attached to it, while a situation can be pretty much spread over time and suggests that the state of affairs may be indefinite. A further blurring takes place in Clause 20(2) which qualifies the condition of emergency by stating that a Minister of the Crown has to be "satisfied" about its existence, which again offers considerable scope for judgment. We come then to Clause 21(2), the subject of these amendments, which states that,

"an emergency has occurred, is occurring or is about to occur".

The noble Baroness made it fairly clear in her opening remarks that we may quite possibly have to deal with fictitious emergencies or ones that are not actual. We have just been through one of those. What else is the 45-minutes claim but a fictitious emergency? It is very easy to see how those things can arise in all honesty. We have to make judgments on the basis of the best information that we have, and that information may be pretty poor.

The false emergency has been used as a weapon of tyranny before. It was one of the main planks in Nineteen Eighty-Four if I remember rightly. Indeed, it was part of Hitler's armoury in getting into power, with the burning of the Reichstag, which was an imaginary emergency, along with various other things that he did to stir up public fear. Such tactics are used in this country only by the Animal Liberation Front, and we can see how hard such tactics are to counter in a democracy. I suppose that we might find a political party using them some time.

If we are to go down this route, we must allow the Government to act on their best beliefs. Having listened to my noble friend, I am not sure whether the blurring in Clauses 19 and 20 is sufficient to allow us to do without the words that he wants to excise. One can cover any situation when one wants to take action just by calling it a situation rather than an event, and allowing ministerial judgment.

My first thoughts were that the problem was in the other direction, and that the uncertainties around an event might be considerable, to the point that it was very hard for a Minister to be satisfied that an event was about to occur, but when the risks of it occurring were so great, such as a nuclear bomb in London, that we absolutely had to do something. That was my worry, and I look forward to being enlightened by the noble Baroness.

Photo of The Earl of Onslow The Earl of Onslow Conservative

One of the things that the Bill has brought out is that when talking about it we have to invent more and more horrendous forms of emergency. They range from blue tits being swamped by olive oil—I have been laughing and giggling happily to myself for the past few days about that—to hidden nuclear bombs, to this, to that and a third thing. In some ways we are in danger of over-hyping what could happen. We are enacting legislation on a tiny risk of a major hazard. We have to go on inventing wilder and wilder scenarios to frighten ourselves into giving Ministers those powers.

My two noble friends, having come at the problem from different ends, and in asking for completely different answers, shows best why I am beginning to wonder whether the Bill is necessary in the first place. It is a question not of making regulations but of getting people to do things. It is so out of the imagination that it is almost too hard to know what to do about it.

Photo of Lord Garden Lord Garden Liberal Democrat

I have no doubt that the Bill is necessary. It is also urgent, but we need to get it right. I have been deeply impressed by the care with which Members of the Committee have considered its detail.

I cannot support the amendment. The Emergency Powers Act 1920 uses the words "occurred" and "about to occur", so we are hardly changing the world. It is difficult to understand why we would not want to use emergency powers if we could prevent the loss of life in anticipation of an emergency that we were pretty sure was coming.

I fully understand what was said about hoaxes—we know all about them from the IRA. However, we have to assess the degree of risk and the best counter-measures. I therefore cannot support the amendment.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

The noble Lord, Lord Garden, has been succinct in saying why we need such measures. He is right that the phraseology is similar to that used in the 1920 Act, with which we have been comfortable for a considerable time. We know what it means. Prevention is always far better than the cure. We would want to take action as speedily as possible to obviate the need to take more drastic action later.

An example that is not so far fetched would be if there were a realistic anticipation of an infectious disease. We would want to take preventive action as a matter of emergency to ensure that the population was safe. We would have to section off an area, set up quarantine, get additional vaccinations, and requisition buildings, all of which would be essential to ensure that the population was kept safe. That is a good and sensible thing to be able to do.

The noble Lord, Lord Lucas, is on the right side of the argument. He talked about the blurring, and we need it to be clear that we can do something about prevention. We do not want people to be worrying about whether they have to wait before something arrives before they are legally entitled to take preventive steps. We want people to be clear that if there is evidence that prevention is necessary, the provisions will enable measures to be taken.

It is for those reasons that we cannot accept either of the amendments. Amendment No. 102 would alter the drafting of Clause 21(2) to allow regulations to be made if a Minister is satisfied that an emergency "appears to be" occurring rather than that one "is about to occur".

I hope that we have reassured the noble Lord, Lord Dixon-Smith, that the provision has been well and accurately expressed.

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

The noble Baroness said that such decisions would be taken on the basis of evidence. I very much agree with that, but it seems to me that the Bill provides that such action can be taken if the Minister thinks it should. Is she coming round to our way of thinking that perhaps the Bill ought to be tightened up, and that any action that is taken should be on the basis of evidence, not because the Minister thinks it should?

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

It is implicit that Ministers have to act reasonably, and must do so on the information provided. All the discussions that we have had about reasonableness bite when considering those issues. Ministers are not entitled to go on a frolic of their own and make decisions for which there is no basis, or make decisions that no reasonable person who was properly directing himself as to the facts could possibly make. That would be outside the bounds and ambit of reasonableness. We work on the basis that Ministers behave like reasonable human beings. I know that that may be a challenging concept, but I assure your Lordships that it is one with which I struggle daily.

Photo of Lord Dixon-Smith Lord Dixon-Smith Shadow Minister, Environment and Transport

I am grateful to the noble Baroness for her reasonable explanation. I heard what my noble friend Lord Lucas said, without particular surprise, but I thought that we should discuss the issue as the implications are serious. Such problems have unquestionably existed in the past with the IRA, which has been mentioned.

With regard to the remarks of my noble friend Lord Onslow, I believe that thinking about what can go wrong is always interesting and instructive. I remember that some of the most productive times in my local government experience were spent on just such matters. I am not talking about problems on a national scale, but one can imagine scenarios if, for example, someone wanted to defraud the system. Thinking of ways in which to defraud an organisation is intriguing, and Members of the Committee would be surprised at the number of ways in which to do that. There are just as many ways in which to create disaster or the illusion of disaster. I have to defer to the reminder of the noble Lord, Lord Garden, that the phraseology is already in the 1920 Act. I must admit that I did not look to see whether it was.

This has been a useful discussion. I am somewhat reassured. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendment No. 102 not moved.]

Clause 21 agreed to.

Clause 22 [Scope of emergency regulations]:

Photo of Lord Elton Lord Elton Conservative

moved Amendment No. 102A:

Page 15, line 6, leave out from "provision" to "for" in line 7.

Photo of Lord Elton Lord Elton Conservative

In moving Amendment No. 102A, I shall speak also to Amendment No. 104A. I apologise for the late tabling of the amendment— although, as everyone's attention has already been directed to these few lines in the Bill, I hope that I have not created extra work. I also apologise for pre-empting a number of other amendments. However, at this stage, I do not propose to treat this as more than a probing amendment.

My question to the Minister is short and simple. We have been considering the regulation maker, who is, at the moment, faceless and anonymous. I sometimes think that, in the light of the potential damage that this Bill could do, we might give him a pseudonym such as "Adolf", "Benito" or "Joseph", for instance. I do not consider that he is necessary in the Bill at this stage. What would be changed in the events, once the machinery had been put in motion, if those words were omitted from Clause 22(1) and it read simply,

"Emergency regulations may make any provision for the purpose of preventing, controlling or mitigating", and so on? If subsection (2), in particular, read,

"emergency regulations may make any provisions for the purpose of",

(a), (b), (c) and (d), it would leave Adolf, or whoever, out of the equation, it would shorten the Bill, which is always a good thing, and it would make no difference whatever to the consequences if judicial review was called upon. I beg to move.

Photo of Baroness Turner of Camden Baroness Turner of Camden Labour

I must inform the Committee that if this amendment is carried, I cannot call Amendments Nos. 103 and 104.

Photo of Baroness Buscombe Baroness Buscombe Shadow Minister, Home Affairs, Shadow Minister (Home Affairs), Shadow Minister (Home, Constitutional and Legal Affairs) , Shadow Minister (Digital, Culture, Media and Sport)

I am very happy for my noble friend to pre-empt my Amendments Nos. 103, 105, 140 and 142, to which I will now speak.

I should say straightaway that I almost prefer my noble friend's amendments to mine. However, I wish to speak to my amendments. The Committee may notice that they are similar to amendments which we tabled in Committee in relation to Part 1 of the Bill. I have used this opportunity to table these amendments because I was not satisfied with the answers that we were given in relation to Part 1. Perhaps my noble friend has provided us with a solution.

Indeed, I made it clear during the debate on Part 1 that I slightly preferred the suggestion put by the noble Lord, Lord Stoddart, that perhaps we should be discussing "based on the evidence"—not least because this Government are very fond of talking about acting in response to evidence, consultation and so on.

My amendments are simple but go to the heart of the concerns that we on these Benches have in regard to the Bill. Clause 22 details the scope of emergency regulations. All the way through the clause, the current drafting allows emergency regulations to be made when the person making the decision—we assume the Minister—"thinks" he should be making such a decision. Our amendments seek to change the reference from "thinks" to a more appropriate one of "reasonable belief".

To put these amendments into context, emergency regulations will be made only in the gravest of situations. They will be made in the heat of the moment and possibly when events are still occurring. We believe that it is essential that the Prime Minister, or whoever is making these regulations, has a clear head and can take a reasoned view on the best course of action. The term "thinks" does not seem to be a strict enough test to invoke these powers.

Reasonable belief that the regulations are for the purpose of controlling the emergency or protecting human life would seem to be a more appropriate threshold for these substantial powers. "Reasonable belief" would ensure that the person making the decision is acting on information that they have been given and facts that they know to be correct or the best information available at the time. The term "think" is much looser. It seems not to imply that there has to be any evidence before these powers can be used.

Another particularly important point—one that we made in similar amendments to Part 1—is that we prefer the term "reasonable belief" as it would allow any retrospective scrutiny to look at decisions made during a time of crisis and for them to be judged by this well used legal test.

I have looked at this issue with care since our earlier debates in Committee. I have found that the term "thinks" is used in delegated legislation. But here we are talking about crucial primary legislation. There are examples in primary legislation. Indeed, I know that my noble friends debated this point hard during the passage of the Planning and Compulsory Purchase Bill because they believed then that the word "thinks" was not a good enough safeguard and that there should be a clear, unequivocal test of reasonableness on the face of the Bill.

I heard what the Minister said in relation to Amendment No. 101—that it is implicit that Ministers have to act reasonably—but given our concerns, of which the Minister is aware, in relation to judicial review, and given our concern in relation to what will happen in practice, however many safeguards we may feel are in the Bill or are pressing to place on the face of the legislation, we believe—this is probably pertinent to much of what noble Lords have said during the debate—that we should put in place as many safeguards as possible.

The Bill is all about unprecedented acts; it is about taking care with regard to what might happen out there at any time, perhaps something which at this present moment may seem inconceivable to noble Lords. It is a tough job for all of us—a real challenge—and that is why this is so important. Although technically it may not be necessary to say "reasonable", I believe that in practice it would make a great deal of sense.

Photo of Lord Archer of Sandwell Lord Archer of Sandwell Labour

Not for the first time—if I may say this within the rules of order—I congratulate the noble Lord, Lord Elton. He has achieved with a degree of elegance what we have all been searching for.

I say that for two reasons. First, normally brevity is the soul of good draftmanship and the fewer words the better; secondly, it solves the problem that I attempted to raise under Amendment No. 100. The noble Lord has applied Occam's Razor and eliminated the intermediate metaphysical entity, the Minister's mind. It seems to me that he has achieved exactly what we are trying to do and, subject to anything my noble friend may say, I cannot see why the result should not be judicially reviewable.

Photo of The Earl of Onslow The Earl of Onslow Conservative

I support the noble and learned Lord, Lord Archer, in abolishing the Minister's metaphysical, mythical entity. That must be removed at all possible costs.

I completely support the view of my noble friend Lord Elton. It is clear, it is precise and you know exactly what you are doing. There is no subordinate clause, no qualification; it is clear. The noble Baroness has given some indication that she will look at this issue a little differently following the amendment of the noble and learned Lord, Lord Archer, but I urge upon her the clarity, brevity and complete comprehension that my noble friend Lord Elton seeks.

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

I, too, congratulate the noble Lord, Lord Elton, on his elegant language and on trying to get rid of tautology in legislation. Perhaps we ought to make him a consultant to the drafting committees on these various Bills; in that way, we might get some better Bills.

We keep coming back to whether a Minister "thinks". Everyone who has spoken is clearly concerned about the use of this word rather than a much tidier and better understood word. I hope that the noble Baroness will give more consideration to this than has been given so far. Will she please recognise the depth of feeling throughout the House on this particular word—one single word—and not reject it out of hand at this stage? Will she at least give the House the assurance—the promise—that she will think very seriously about this and, it is to be hoped, come back with her own amendments on Report?

Photo of Baroness Falkner of Margravine Baroness Falkner of Margravine Liberal Democrat

We, too, support the amendment. It would be a good thing to, ipso facto, instil a basis for reviewing the situation and the action taken on the basis of fact rather than judgment, irrespective of how sound Ministers' judgment may occasionally be.

Photo of Viscount Goschen Viscount Goschen Conservative

The strength of the argument put by my noble friend Lord Elton is witnessed by its universal support and by the fact that it has taken us only 11 minutes so far to come to a conclusion, compared with about an hour on Tuesday. I hope that the noble Baroness will simply stand up and agree. Surely it must be right to remove, as far as possible, all references to the Minister "thinking". It is such a dubious concept that it should not be in the Bill, whereas my noble friend has offered a solution that is simple, concise and to the point.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I hate to disappoint, but on this occasion I just might. I should, however, like to give some clear comfort. I do not detract from anything I said earlier in terms of Ministers having to behave reasonably. It is very important not to see the Bill in isolation, because it does not operate in a vacuum.

The powers conferred by Part 2 will be subject to the additional limitations by virtue of the generally applicable legal principle. The key here is the public law. This requires any public authority, which includes Ministers and Her Majesty, to exercise their powers in a reasonable way. One of the aspects of the duty to act reasonably is that all relevant considerations and evidence must be taken into account. It will not be open to the maker of the regulations to ignore vital evidence or to decide, capriciously, to make emergency regulations. This kind of conduct will be unlawful and any regulations made on this basis can be challenged in the courts.

One of the very first things that Ministers will need in an emergency is information. What is happening? When is it happening? What do we need to do to prevent or to mitigate the emergency? It is inconceivable that Ministers would not seek out all available information before exercising emergency powers. It is even more inconceivable that Ministers would ignore information before them when taking that decision. If they were to do so, they would be acting improperly—we would say ultra vires: outwith their authority. Any such act would be capable of challenge.

No damage to human welfare has yet occurred, nor has the event or situation which threatens damage to human welfare. The fact that there are very limited issues when this may happen does not detract from that importance. We should look at the Bill within that context. That is what the law says now and that is what would be implicit in these provisions.

Of course I understand the nature of the amendment of the noble Lord, Lord Elton, but the reason I restate those principles with what I hope is sufficient clarity is that it goes to all the amendments raised by the noble Baroness. One could write a number of learned articles about the point of law, and we could talk about semantics, but that is the position we have at the moment, and it is clear.

Photo of The Earl of Onslow The Earl of Onslow Conservative

The noble Baroness is actually arguing for the amendment of my noble friend Lord Elton. She is saying that they are doing all these things anyway; that is part of the public law and no Minister may act in any other way. Therefore, my noble friend's amendment must fall into place. The noble Baroness is saying that Ministers think—that is part of their duty and part of their legal duty. So she has just given a super argument for accepting my noble friend's amendment—at least, I thought so.

Photo of Lord Lucas Lord Lucas Conservative

Will the noble Baroness clarify the difference between the words in Clause 20 and those in this clause? In Clause 20, Ministers are "satisfied". Ministers are often satisfied—that seems an entirely reasonable word. But to have a Minister "think"—is that not what civil servants are for? What is the difference between the application of the two words?

Photo of Lord Elton Lord Elton Conservative

I suggest that we hear the rest of the noble Baroness's argument before we tear it to shreds.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I regret to tell Members of the Committee that Ministers do think. They think all the time because they have the burden of exercising a discretion, devising policy and making decisions. So it is absolutely critical that the Minister thinks and does not allow all the thinking to be done by civil servants, no matter how skilled.

The fact that the Minister has to be satisfied goes to the nature of the information and evidence that is put before the Minister so that the Minister can feel confident that in the exercise of the Minister's discretion there is sufficient information to be satisfied that this is an appropriate thing to do.

As far as using the word "thinks" is concerned, it identifies that this is a discretion which has to be exercised by the Minister as opposed to anybody else. That gives the lead-in for the way to review. The Minister is allowed to "think" only if the Minister "thinks" reasonably. We are able to review what the Minister thinks by trying to see whether there are things which any reasonable person, properly applying themselves to that issue, would have taken into account and what they would not have taken into account had they behaved reasonably. That is where the reasonableness test comes.

This jurisprudence has been developed over a very long time, right back to Ridge v Baldwin in 1968, in which Lord Reid made his great pronouncement, and to 1980 in Inland Revenue Commissioners v Rossminster with Lord Diplock. I am sure that this is first year administrative law; the noble Baroness, Lady Buscombe, probably remembers only too well the famous words of Lord Denning. He could always be relied on to get it right. Right back in 1976, in the case of Congreve v Home Office, he said:

"It would be a misuse of the power conferred on him by Parliament: and these courts have the authority—and I would add, the duty—to correct a misuse of power by a Minister or his department, no matter how much he may resent it or warn us of the consequences if we do . . . When a Minister is given a discretion—and exercises it for reasons which are bad in law—the courts can interfere so as to get him back on to the right road".

The courts have been putting us back on to the right road ever since.

Those principles have been developed well in our jurisprudence. They are protected in our law and are there better to support the way in which the exercise should be carried out. I would be very worried indeed if we eradicated thinking from ministerial office. It would make my life a lot easier, but the country would not be in safer hands as a result. Abrogation of thought is certainly not what I would advocate.

These provisions are structured to enable judicial review to take place and matters to be reviewed, and they preserve the sanctity of the law and the jurisprudence that we have now. I can see the attraction of the simplicity suggested by the noble Lord, Lord Elton, but we do not think that it is necessary. I caution noble Lords: if we start putting it clearly that Ministers have to behave reasonably in situation X, lawyers may come along and say, "Does that mean that on another occasion where it does not specifically say that the Minister has to act reasonably that the Minister can act unreasonably and go off on a frolic of his own?". I would rather that my ministerial colleagues did not do that. These rules should bite on every single decision that a Minister makes whether in this Bill or elsewhere.

Photo of Lord Avebury Lord Avebury Shadow Minister, Foreign & Commonwealth Affairs

The excursion that the Minister has just entertained us with by explaining how Ministers exercise their responsibilities and describing the contribution made by Lord Denning to the solidification of the courts' oversight of the ministerial exercise of discretions was useful. However, I am left with the feeling that the Minister would not be absolved from the duty of thinking if the words were not actually present in the clause.

When I listened to the Minister it occurred to me how this would actually work in practice. If a Minister, as she said, in exercise of the responsibilities conferred on him or her by this Act ignores material evidence, fails to consider evidence that should have been considered, or falsely reaches a conclusion from the evidence that is available, that could be challenged by the courts. As the Minister assured us, that could take place during the period of operation of the emergency regulations. However, I am anxious about how the courts would be able to deal with this in the time-scale available to them of the three months during which the emergency regulations last. Knowing how long it takes to mount a case of judicial review, the mischief that was caused by the misapplication of the Minister's discretion will have continued all the way through the period of the emergency regulations. By the time it reaches the courts it will be too late to provide remedies for the aggrieved persons.

One thing could be considered, although this is off the top of my head and might be dealt with in the next stage of the Bill. Suppose that such circumstances did arise, the case came before the courts, the court decided that the issue should be looked at and a hearing was arranged. At the end of the three months, if the courts had not yet examined that exercise of ministerial discretion, would it not be right to provide that there was no power to renew the regulations? When we come to that part of the Bill, we will see that regulations may be renewed at the end of the period an indefinite number of times. Therefore, the mischief that we are considering and trying to make provision against would then continue until the courts, some time later, had reached their decision.

Will the Minister think about that suggestion? She has given us some useful and valuable assurances about the rights of the courts to protect the individual during the period of emergency regulations. To make that protection really effective, the courts would have to have the ability to look at the complaint during the operation of the regulations and, if necessary, suspend the regulations themselves.

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

I am very disappointed that the Minister will not make some concession about the word "thinks". Of course we want Ministers to think, but I often think things. I might say, "I think that", but then I look at the evidence and see that my thinking is defective. I would like to draw the Minister's attention to a programme that is unfortunately no longer with us—"Yes, Minister". So very often the Minister thought something, but Sir Humphrey came along and put a different point of view. He saw the implications of what the Minister was thinking and often said, "How on earth can we persuade the Minister that his thoughts are not good?".

Thinking is simply not good enough. Every experience that we have teaches us that when we act, especially in an emergency, we have to act on evidence and not on what we are thinking at that moment. I appeal to the Minister once again to take this matter away and have a think about it. She may then come round to our way of thinking. That is all I ask.

Photo of Lord Lucas Lord Lucas Conservative

That is the crucial difference between "thinks" and "is satisfied". To think, one has to make use of what is in one's head but one does not have to turn one's mind outward. To be satisfied one has to make reasonable inquiry. "I think we're going to win the next election" and "I am satisfied we're going to win the next election" are clearly different statements. We are saying that the Minister does not have to consult anyone, but merely has to act on the basis of what is already in his head—he decides that these are the right things to do. If we let the Bill go through as drafted, that is what we are saying we agree with.

Having had experience of this sort of thing, I wonder whether the noble Lord, Lord Garden, has an opinion about whether he would wish Ministers to be able to do things off the top of their heads. Or would the noble Lord prefer them to sit down for five minutes with their civil servants and talk about what the real world was actually like? Should we have a Bill that allows them not to seek evidence and not to be satisfied or one that requires them to have made inquiry and be satisfied before they make these regulations?

Photo of Lord Garden Lord Garden Liberal Democrat

I have been asked a question, but I am not sure of the procedures of the House. I have great confidence in Ministers having worked with many from different sides of the House. "Thinks" has a technical meaning in all of this. It involves the taking of advice from experts. The things that we are talking about are so serious that it is inconceivable to me that Ministers would take decisions in an enclosed room without taking advice. I am not as worried as others in the House about this matter.

Photo of Baroness Buscombe Baroness Buscombe Shadow Minister, Home Affairs, Shadow Minister (Home Affairs), Shadow Minister (Home, Constitutional and Legal Affairs) , Shadow Minister (Digital, Culture, Media and Sport)

When I finished speaking about my proposed amendment I should have made it clear that I prefer the amendment of my noble friend Lord Elton. All that the Minister has said adds weight to the sensibility of my noble friend's amendment. As regards the word "thinks" being implicit, my noble friend's amendment would remove any equivocal reaction on the Minister's part in responding to this legislation.

The noble Lord, Lord Avebury, discussed rather more eloquently than I what would actually happen in practice. The difficulty we have as regards this entire matter is the timescale for judicial review given that the mischief may have occurred before we gain access to judicial review. Certainly for my part that remains a matter of deep concern. I believe that my noble friend's amendment would help enormously to remove some of our concerns with regard to this part of the Bill.

Photo of Viscount Goschen Viscount Goschen Conservative

Before the noble Baroness replies, I refer to the one aspect of her argument that I did not understand. I can understand the arguments against including such words as "reasonable" and "satisfied"—the noble Baroness has made those arguments on previous amendments—namely, that if they are not included in every single clause there is a difficulty with saying that a Minister is acting unreasonably and so on. However, if we envisage the noble Baroness as one of the people who might take these decisions—although we rehearsed on Tuesday the fact that she is not a Lord Commissioner—and she was sitting in her department when a tidal wave headed up the Thames, the question of what powers were available would arise. Under my noble friend's Amendment No. 102A, the power would be:

"Emergency regulations may make any provision for the purpose of preventing, controlling or mitigating an aspect", and so forth. What is missing there? What limitations are there on how the Minister could act? I cannot see any. If the Minister wants to act to ensure that people are removed from their homes, the gas is turned off, or whatever, she could do that under the terms of my noble friend's amendment. We would not need the words "reasonably" or "satisfied"; she could take that action. I do not see that any lawyer or civil servant could tell the Minister that she could not take that action because the clause would state so clearly that she could.

Photo of Baroness Scotland of Asthal Baroness Scotland of Asthal Minister of State, Home Office, Minister of State (Home Office) (Criminal Justice and Offender Management)

I return to the word "thinks". We are talking about a decision being made and the fact that, on the basis of the information which the Minister has, he or she believes that the regulations are now needed. That is what becomes reviewable. The Minister is in effect saying, "I have decided that on this basis I will do as follows".

We must take account of the point made by the noble Lord, Lord Avebury. I hope noble Lords understand that judicial review does not have to be a lengthy process; it can be a very speedy process indeed. A 24-hour duty High Court judge is available 365 days of the year. If the need arises, it is possible to make an application for decisions to be made, particularly if they concern a great emergency, within a matter of hours. That is what one has to understand. I respectfully suggest that for the duration of these regulations there will be time for expedited applications to be made if that is necessary.

I remind your Lordships what the process is. These regulations would have to be laid as soon as reasonably practicable. There would then be a lapse of seven days, but if the matter was not affirmed by both Houses within seven days, the regulations would lapse in their entirety. If it is affirmed by both Houses, it can then last for only 30 days before the whole process has to be gone through again.

I remind your Lordships that we have a very peculiar procedure with the affirmative resolution procedure adopted in relation to this Bill; that is, contrary to other procedures we can amend the order for regulations because of the emergency nature of the matter. Therefore, it is not the case, as we so often find in other affirmative regulation procedures, of the measure being accepted in toto—the good and the bad rather like a curate's egg—and you cannot identify parts that you can amend. In this case we can amend. The whole process is fast, efficient, effective but also capable of being reviewed judicially.

Much care has been taken over the way in which these provisions have been drafted. I understand the comments made by the noble Lord, Lord Stoddart, but I hope that what I have just said about being able to amend the regulation satisfies him that it is possible to do that on an emergency basis, and that it can be done reasonably.

I accept entirely that the noble Baroness, Lady Buscombe, prefers the drafting of her noble friend Lord Elton. However, we do not believe that the amendment of the noble Lord, Lord Elton, would deal with the matters as effectively as the current drafting of the Bill.

Photo of Lord Elton Lord Elton Conservative

This has been an interesting debate. I reply to it as a former Home Office Minister who on frequent occasions debated with Lord Denning and who learnt from him that one of the basic principles is never to put in an enactment words that are not necessary. The noble Baroness said that my amendment was not necessary. However, it is not up to me to prove that; it is up to her to prove that her words are necessary. I continue to think that they are probably not.

The noble Baroness started out some time ago by setting out in detail the context in which we have held this debate. I accepted the five points she made with one exception. She said it was inconceivable that a Minister would not seek out all information before seeking powers. We had a debate earlier this afternoon—my noble friend Lord Onslow and I and others took part—in which we recognised that it was perfectly conceivable that an emergency might be declared for improper reasons and that Ministers might behave improperly. Therefore, I do not think that that matter is inconceivable. At that point the noble Baroness was interrupted but returned to the fray to say that Ministers do think and must be satisfied, which I entirely accept.

However, the question really is the one that my noble friend Lord Goschen put—and it is almost the only one that needs to be asked—namely, what would happen in fact in the case of judicial review if my amendment were accepted and the noble Baroness's words were left out? The noble Baroness said that the Bill would not be as effective. She said that what triggered the right to judicial review was the requirement on the Minister to think and have good reason.

As I say, I have sat in the noble Baroness's place before and I hope I do no one a disservice if I take some blame for the position she is in because I put my amendment down yesterday afternoon. I suspect that that occurred long after the noble Baroness's speech had been written. Her speech was mostly concerned with defending the word "thinks" as being necessary in the context of the rest of the words in the paragraph. However, I have taken out other words and I honestly think that judicial review would be as feasible in the words I have because the Minister would simply be rehearsed on why he thought the conditions of the Bill had been met. He does not need to be mentioned. The words are not necessary and therefore I hope that the noble Baroness will persuade me otherwise at the next stage, and will do so also in regard to similar words in the following clause.

In the mean time, with graceful thanks for the quite undeserved compliments that have been showered on me from all other quarters of the Committee but not from the noble Baroness, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 103 to 106 not moved.]

Photo of Baroness Buscombe Baroness Buscombe Shadow Minister, Home Affairs, Shadow Minister (Home Affairs), Shadow Minister (Home, Constitutional and Legal Affairs) , Shadow Minister (Digital, Culture, Media and Sport)

I shall speak only to Amendment No. 125 in the group. The Committee may recognise a number of the amendments from a similar group on our first day. After carefully reading the Minister's answers in cols. 1221–22 of Hansard on money and financial institutions, I am satisfied about why such matters have been included in the Bill and do not wish to take up further time on the point.

However, I wish to probe the Government on Amendment No. 125, which concerns Clause 22(3)(h). Subsection (3) deals with what emergency regulations may cover; the list is extensive. Paragraph (h) allows the Government to,

"prohibit, or enable the prohibition of, other specified activities".

The subsection details wide-ranging powers. Why do the Government think that they need such a vague piece of drafting in it? What sort of activities do they have in mind with regard to the paragraph? Will the Minister please give some examples of what could come under that provision? I beg to move.

Photo of Lord Archer of Sandwell Lord Archer of Sandwell Labour

I hope that my Amendment No. 110 still belongs to the group. Had the situation been otherwise, I am not sure that it would have belonged to the group at all, as perhaps it should not logically be grouped with the noble Baroness's amendment. I hope that I will not introduce an irrelevant note in speaking to Amendment No. 110.

My point is that we do not really need to discuss the limits on where the power should be drawn, because—if my amendment is not accepted—there are no limits on the powers. Subsection (3) begins:

"Emergency regulations may make provision of any kind that could be made by Act of Parliament".

Nothing limits those words. The list in subsection (3) begins with the words, "in particular", so the items there seem simply to be examples for the purpose of clarification. They do not limit the breadth of the opening words. As the noble Lord, Lord Lucas, pointed out, those words seem to open the power up to infinity.

Of course, there are conditions precedent to the power to make regulations. As we are all now very much aware—we have been dreaming about them for the past two days—they are set out in Clauses 20 and 21. But if they are satisfied, the floodgates are open. Because an Act of Parliament may change the law in any way in which Parliament thinks fit, the regulations may do anything. If the answer is that the safeguards are set out in the conditions precedent—presumably, for example, in Clause 21(3), on it being necessary to make provision for dealing with the emergency—that imposes no requirement that the regulations be effective or appropriate for that purpose.

If it is said that the safeguard lies in the need for affirmative resolution, to which we devoted a certain amount of the Committee's time two days ago, what is the point of setting out at length in Clause 22 the limitations on the scope of the regulations? Why not simply say that the regulations may contain anything that can be got past the two Houses in a debate on the affirmative resolution? What is the point of anything in Clause 22 if it can all be disposed of in that one sentence? It is like taking a Minister through the rule book and then saying, "But, of course, you may do whatever you like". My noble friend is very persuasive, but I cannot wait to hear what she says in reply.

Photo of The Earl of Onslow The Earl of Onslow Conservative

This is about the most worrying thing that one has heard on the whole Bill. If I understand the provision right, it basically says that the Minister can do anything he likes—period. He can alter the constitution, change the law—he can do literally anything he likes. No emergency allows the concept of unfettered autocracy like this. No ruler of England has ever, in the history of this country since the heptarchy, had those powers. We should not give them to anyone. They are terrifying. No emergency is worth giving that amount of power from the people to Ministers.

Photo of Lord Lucas Lord Lucas Conservative

That is quite clearly the truth of what we are doing. We are giving the entire power of Parliament into the hands of the executive, subject only to saying, "Can we have it back in five or seven days? Can we be involved later?". It is extraordinary. It is a tribute to the power of fear that we have been brought to the point, following 9/11 and all that has come after it, at which we are prepared to contemplate reserving nothing for ourselves as legislators, and giving away discretion over absolutely everything, as my noble friend said. That is the substance of the Bill; that is to what the Commons has given its assent; that is what we are asking to be dealt with.

I want to pick up my earlier point about paragraph (j), on whether the words "in particular" at the beginning of subsection (3) make the protection in the latter half of the paragraph ineffective.

Photo of Lord Stoddart of Swindon Lord Stoddart of Swindon Independent Labour

I support previous speakers in their view that, unamended, the provisions give the Government absolute power. It is true that Amendment No. 110 seeks to limit what the Government can do, but paragraph (h) removes that protection, as it says that the Government can do anything they like anyway. There is no doubt that the provisions are very dangerous. Although one accepts that any existing form of government we care to contemplate might not act in a dictatorial way, there are circumstances in which other groups may do otherwise. In a Bill of this sort, it cannot be right that a government be given absolute powers—whoever that government are, whatever political view they take, whatever political colour they may be—because they are powers that ought not to be in the gift of people without proper parliamentary control and agreement. I sincerely hope that the Minister can reassure us that our fears are unfounded, but I very much doubt that he can.

Photo of Lord Elton Lord Elton Conservative

We are almost having the clause stand part debate, so I merely endorse the very grave considerations raised by the provisions, and repeat the request for a great deal more iron cladding of the reservations modestly expressed in the previous clause.

In addition, the words "subject to" should appear pretty regularly referring to those parts of the Bill which contain sunset provisions in relation to this. It may be superficial. It may be that the courts would rule without those words. I am now slightly on the other side of the argument I was on a moment ago. Although in those terms such words may not be necessary, in terms of a stark reminder to the Minister of the obligation he is under and the threat he is under if he misconducts himself, that should be on a piece of paper which is put on his desk when he is asked to do something.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

Certainly, I understand the concerns expressed by the noble Earl, Lord Onslow, which rather overshadow the way in which the Committee considers the whole of the Bill. No one likes the situation that might emerge whereby any government have to take emergency powers and enact draconian measures by regulation.

However, Clause 22 tries to be more specific. I am grateful to the noble Baroness, Lady Buscombe, for making the concession that she can now understand why perhaps it is no longer necessary to amend the parts of the Bill which she originally thought would need amending. Clause 22 sets out what may be included in emergency regulations if the situation which is anticipated meets the definition of "emergency" in Clause 19 and it is necessary and—another important word here, particularly in view of our earlier debates—"proportionate" for action to be taken in order to prevent, control or mitigate a particular aspect of an emergency.

I shall deal, first, with Amendment No. 110 tabled in the name of my noble and learned friend Lord Archer. We cannot accept the amendment. However, I think that everyone would accept that by their very nature, emergencies are unpredictable. Some of what needs to be done in order to mount the most effective response may not be clear in advance. To attempt to construct an exhaustive list of actions that would cover every possible scenario in which emergency powers may be needed now and in the future would be not only unfeasible but, it may be reasonably argued, could put us at risk.

Photo of Lord Archer of Sandwell Lord Archer of Sandwell Labour

I am grateful to my noble friend for giving way. If these emergencies are so unpredictable that we cannot make a list of what is required to be done, why make half a list in Clause 22?

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

Not unreasonably, because we can anticipate some of those situations. That is exactly why we have the clause. However, it is important to leave ourselves with the space to say that there are situations that we cannot predict or imagine, perhaps because of technological or other changes. The noble Baroness asked me a reasonable question; that is, what other specific activities might we need to account for. There may be things such as rationing, which is not contained in the list. But there may well be other measures that at this point we cannot anticipate and predict. Any government would be—

Photo of Lord Elton Lord Elton Conservative

Does that mean that the power would not be in the Bill to deal with such unforeseen instances? Surely, we are providing legislation to deal with what cannot be foreseen. Merely to list what we happen to foresee now seems to weaken the Bill under the law of—the noble Baroness will correct my pronounciation—expressio unius est exclusio alterius: if one thing is included in the Bill, by inference the other does not need to be included.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

I am trying to imagine what the debate would have been like if we had not attempted to anticipate some of the things that might happen and some of the actions that might be necessary. The items listed give a very clear indication but I am sure that the noble Lord can see that we cannot anticipate every event. It is just not possible to do that. That is why the legislation is framed in the way that it is.

Photo of Lord Avebury Lord Avebury Shadow Minister, Foreign & Commonwealth Affairs

If the noble Lord can foresee that there may be an emergency which would require the Government to impose rationing, why was that not included in one of the paragraphs (a) to (q)?

Photo of Lord Lucas Lord Lucas Conservative

Exactly, as the noble and learned Lord, Lord Archer said. But, surely one of the things that we must anticipate is that the Government will decide that in order to limit an emergency it is necessary to kill a substantial quantity of citizens. If, say, a nasty virus is confined to Winchester, they might wish to destroy the population of Winchester to prevent the rest of us dying. That would be an entirely reasonable thing to do. It would not be a comfortable provision to find in legislation. By listing in this way, they are somehow making the Bill seem less objectionable. If they just included the bare, absolute power, we might more generally realise what it is we are being asked to do.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

It is interesting that the debate is turning in this way. I feel more secure with an identity or vision of what it is that we may have to do. It is for that reason, because we are taking a reasonable and common sense approach, that we framed the legislation in the way we have. I draw attention to the Emergency Powers Act 1920. This is in contrast to the way in which that piece of legislation is framed. That Act gave no indication as to what kind of provision was made. As I made clear, the list is designed to assist parliamentarians in scrutinising the Bill.

Photo of The Earl of Onslow The Earl of Onslow Conservative

What the noble Lord is doing is rather like "The Charge of the Light Brigade": half a list, half a list, half a list onwards. But the list is then completed, as was said by the noble Baroness, Lady Buscombe, by the inclusion of paragraph (h) which immediately makes the list otiose because it says that he can do anything. If I can do this, this, this and this and anything else I want to do, why have any list at all?

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

The range of possible emergencies makes it impossible to predict, let alone list, all the activities that may have an effect. No doubt new activities will emerge over time. Having a power to prohibit or enable the prohibition of other activities is therefore necessary, and I think is sensible. It "future-proofs" and ensures the comprehensiveness necessary to facilitate effective responses in all possible scenarios. All regulations made, including prohibiting activities, must be necessary—they have to go through a necessity test—and proportionate in the circumstances. More importantly, they are subject to scrutiny by Parliament and must be compatible with the ECHR. Those important hedging, fencing, conditioning and qualifying measures have to be in place. That is why the legislation is framed and phrased in this way.

I find it rather surprising that noble Lords think, in the circumstances, that we should either list everything we can possibly imagine or not have any list and just state a power which is absolute and widespread. I suppose, in the nightmare scenario envisaged by the noble Earl, Lord Onslow, that is more of a nightmare than is currently the situation. I find that very surprising.

Photo of Baroness Buscombe Baroness Buscombe Shadow Minister, Home Affairs, Shadow Minister (Home Affairs), Shadow Minister (Home, Constitutional and Legal Affairs) , Shadow Minister (Digital, Culture, Media and Sport)

That is the whole point behind my amendment. Perhaps I have been a little too subtle. This part of the list says that he or she can do anything they want to do and it need not be specified.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

I am sure that the noble Baroness is very subtle in the structure of her argument. Certainly, her amendments are very subtle, but I made the important point that all of the regulations that would fall to be considered have to be necessary and proportionate. They are subject to parliamentary scrutiny and have to be compatible in terms of the ECHR. That all provides an effective check on the way in which the legislation is framed and designed to work.

Photo of The Earl of Onslow The Earl of Onslow Conservative

The noble Lord said that the regulations would be compatible with the ECHR. Later in the Bill is a provision for the Government to repeal any Act they like, and so that would "uncompatibilise" them. While I am on my feet, I also note paragraph (q), which states:

"make different provision for different circumstances or purposes", and that is also pretty wide. The noble Lord cannot see what we are getting at.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

Of course we can see where the noble Earl is coming from, and we are explicit in terms of the European Convention on Human Rights. I can well understand the general feeling that lies behind the concerns expressed on the Benches opposite and behind some of the concerns raised on our side of the Chamber. But the important point is that there is effective scrutiny and checking here. We are trying to be as helpful as we can in listing as many situations as we consider reasonable, although clearly there will be others. However, ultimately we have to rely on the strength of our system and the process of scrutiny because those are extremely important.

The list in Clause 22(3) gives an indication of other provisions that may be required, and it is very valuable in that respect. We can debate the issue raised in particular by the noble Earl, Lord Onslow, when we reach Amendment No. 136.

We cannot accept the amendments. I am grateful that the noble Baroness has, in part, accepted our argument and I hope that she will reflect further on the important points that have been made in response to Amendment No. 125. I also trust that my noble and learned friend Lord Archer will think further about his Amendment No. 110.

Photo of Baroness Buscombe Baroness Buscombe Shadow Minister, Home Affairs, Shadow Minister (Home Affairs), Shadow Minister (Home, Constitutional and Legal Affairs) , Shadow Minister (Digital, Culture, Media and Sport)

I am grateful to the Minister for his response to my amendment. I am also grateful to the noble and learned Lord, Lord Archer, for his amendment, which I believe entirely complements and further articulates or amplifies the point that I have been trying to make. We have had a good debate. At this stage, it is sensible to say that we should agree to disagree. I shall think about what the Minister said. I am not satisfied but, for now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Lord Bassam of Brighton Lord Bassam of Brighton Government Whip, Government Whip

I beg to move that the House do now resume. After we have dealt with the Companies (Audit, Investigations and Community Enterprise) Bill, we will take the Statement and return to the Civil Contingencies Bill after that. For that reason, I am unable to suggest a time at which the Committee stage should resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.