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My Lords, the Bill introduces across a whole range of public policy areas significant powers, some of them quite draconian. The noble Lord just said that the proposal in respect of abortion was unacceptable because it would have made a fundamental change. The truth is that we are making fundamental changes across the board. The proposed changes on mental health are, in my view, at least as fundamental as that on abortion proposed by the noble Baroness. Although the Minister might have reasons for not wanting to make that change, he cannot pray in aid that it was a fundamental change. This is happening across the whole of what we are doing and, frankly, that was not his best moment.
Because the changes being made in the Bill are so powerful, we believe that they need to be in place for as short a period as possible and that they need regular and effective review and renewal. Therefore, the amendments in my name raise two related issues. The first is how often that review should happen. Obviously, we welcome the fact that the Government have moved from a position where there was to be no review for two years to one where there will be a review after six months. However, we believe that the period should be shorter. The Civil Contingencies Act has a renewal date of 30 days. Some of the measures in the Bill could probably have been exercised under that Act and they would have been subject to that 30 days. We are not going as far as that, but the end of September is simply too late for Parliament to have its first chance formally to decide whether this very wide-ranging legislation should continue.
As to the form, we have several concerns. As the Bill stands, there is no role whatever for your Lordships’ House in respect of the legislation’s continuation and renewal. That is certainly unprecedented and completely unacceptable. The normal way of dealing with legislation that is time-limited and needs renewal is via the statutory instrument route, which obviously applies to both Houses equally. That was the case with the Anti-terrorism, Crime and Security Act 2001, the Prevention of Terrorism Act 2005 and the Terrorism Act 2006. The House of Lords and the House of Commons had exactly the same powers and they worked perfectly well. Your Lordships’ House is an extremely responsible body.
An exception to the principle of the two Houses having the same powers in respect of legislation was the EU withdrawal Bill—subsequently the EU withdrawal Act. It was agreed that, although there would be a meaningful vote in the House of Commons, there would be a meaningless vote in the House of Lords. That was on the basis of the circumstances being exceptional, as we were following the democratic mandate of a referendum. I opposed it at the time on the basis that it set a doleful precedent, but that view did not prevail.
Now, a second set of exceptional circumstances is being brought before your Lordships’ House in a very short period. I believe that the more often we see exceptional circumstances occurring, the less acceptable it is, if your Lordships’ House is to perform the function that it has done until now in respect of the renewal of legislation. We therefore propose that the former precedent of renewing a Bill by statutory instrument should be followed in this case.
However, in Amendment 12 we also suggest an alternative method of achieving the same involvement of your Lordships’ House by proposing that it mirrors what is proposed in the Commons. Personally, I would prefer us to go back to the traditional SI route but, in a spirit of generosity, if the Government would prefer to do it the other way, we are, reluctantly, prepared to accept that.
The other amendments in this group have been tabled by the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Falconer of Thoroton. They have our full support, and no doubt they will be spoken to more eloquently than I could, so I will not attempt that.
I would like to ask the Minister about a practical point, which I hope he will be able to accept. At Second Reading yesterday, my noble friend Lady Barker suggested that the Government should produce a grid to explain which clauses of the Bill have been implemented, and exactly how. That is a very good idea and I hope the Government can accept it, but could they go slightly further by having, as part of that grid, a list of all the other provisions introduced to deal with the coronavirus, but not necessarily under this Bill? I cite, for example, the power to close restaurants and all other places where people congregate, which was introduced under the Public Health (Control of Disease) Act 1984. That would be helpful not only for specialists, as it were, like us, but for those who want to find and then look at the legislative basis for decisions. For others, who just want to see where a particular provision that might affect them comes from, if the Government have a single source saying, “Here’s the whole raft of provisions that have been made and this is exactly where you can find them”, that would be extremely helpful for public information. Obviously, I hope the Government will agree to our more substantive amendments but, at the very least, I hope they can do this. I beg to move.
.My Lords, I support Amendments 11 and 12, which I think means that I support the idea of six-monthly reviews with debates in both the Commons and in the Lords. However, I rise to speak in particular to Amendment 10, tabled in my name. Regardless of how often the reviews take place or precisely who conducts them, surely one needs a degree of information from the Government. Clause 97 provides for that, but in an absolutely minimalist form. As I read it, all that is required is that the Government should explain which provisions have been switched on or switched off in the previous two-month period and that they should certify that they are content with the switching on and the switching off.
I have two points to make. The first concerns effective review in Parliament. As I said yesterday, my experience of reviewing exceptional counterterrorism powers suggests that one really needs at least some basic information from government on how the powers are being applied and how effective they are judged to be. There is also a point for the Government in this. Reports of this kind will provide them with an excellent opportunity to communicate to Parliament and to the wider public what they have done, why they have done what they have done, whether they believe that the measures are having some effect on the disease and, if so, why. I was encouraged to hear the Minister say yesterday in introducing the Bill that the Government would update Parliament regularly on how these powers have been used across the UK, but I suggest that that does not go far enough. In the Bill as written, things are not provided which go even that far.
My Amendment 10 is very modest, and deliberately so. I have sought not to invite the riposte that I am requiring some new power to collate or put forward statistics or that I would overburden an already burdened Civil Service. The Government will of course make their own assessments of whether these powers should be switched on or off and how effective they are. All I ask is that that assessment should be shared with Parliament in an appropriate way. It is a document that the Government will control, so it is very much up to them to decide in what form that communication should be made. If the amendment cannot be accepted, I ask the Minister at the very least to give an undertaking today that these reports will provide information about how the powers have been used across the United Kingdom, what measures may have been necessary to ensure compliance, and whether and why the various powers have been judged effective.
I have saved perhaps my best point until the end. Yesterday, the Minister raised by proxy the comments of my noble and learned friend Lord Judge, who sits beside me in spirit, if not physically. He contacted me this morning and has authorised me to say that if he had disregarded his own advice not to attend today, he would have supported my amendment. If I have not persuaded the Minister, I hope that the spirit of my noble and learned friend will have done so.
I support the amendment of the noble Lord, Lord Newby, in great detail. In the debate yesterday, we spoke about the seriousness of the situation that the country faces. We are all deeply conscious of it; despite that, we must not be lulled into simply abiding by the pressure of the moment and not consistently thinking our way through the detail of what we are now putting into law. In his statement to the nation the other night, the Prime Minister referred to three weeks. Whether that stands or not is to be debated, but to go from three weeks to six months, as the Bill now provides, is a very long gap. It would be wise to agree to this amendment for three months, which on their return allows this House and the other place to consider the nature of what has been applied, whether it is appropriate and whether it should be retained or removed. That would be a sensible time to allow for national consideration; let us hope we have gone through it by then.
My Lords, I have tabled an amendment that in effect allows the Commons to sunset some clauses but allow others to go on before the two years are up.
If I may, I will put the timing into context. This is an important debate, because it involves identifying Parliament’s role going forward. At the moment, there is a sunset clause in Clause 89 that will bring the whole Bill, and all the regulations made under it, to an end after two years, except that under Clause 90(2) a Minister has the power to extend any of the regulations beyond the two-year period, and he can do that by a statutory instrument that does not have to be approved by Parliament before it has effect. That statutory instrument can last for 40 days before Parliament gets a view on it, and those 40 days do not include periods of recess, dissolution or prorogation. Under the Bill, therefore, the two-year period is subject to extension, on Ministers’ say-so, for a limited period. Even if we get to a point where the 40 days were up, they can produce another order and extend for another period.
We support the Bill, because the country needs the Government to have these powers, but we do so on the basis that it is subject to parliamentary control. That is the position in relation to the two years.
I support the idea of six-monthly reviews. At the moment, after the six-month period, if the House of Commons rejects a Motion that the Bill continue after six months, under Clause 68 the whole Bill and the regulations have to be brought out of force by the Minister. The way the Bill is drafted at the moment, it is an all-or-nothing provision. That cannot be right as a matter of practicality. As we move towards the end of the emergency, which we will, some of these provisions will be required—for example, the continuation of statutory sick pay, and preventing evictions, because people will not have got back on their feet financially. However, other powers should definitely go—for example, Ministers’ powers to close down premises, events and gatherings—as the need for those powers goes.
It is wrong that there is no provision for Parliament to say, “We want some of these powers to continue, but not others”. My anxiety about the current position of the Bill is that it can be extended over two years without proper parliamentary scrutiny, and can be brought to an end early—on the six-month basis—only on an all-or-nothing provision. Can the Minister assure us, first, that there will be no extension beyond the two years without parliamentary approval? Secondly, will he give an undertaking that if Parliament indicates by a vote that it wants some of the provisions to come to an end—and by Parliament, I mean the Commons—the Government will respect such a vote?
As a signatory to the amendment moved by the noble Lord, Lord Anderson of Ipswich, I give it very strong support. I agree with everything that he said. He referred to his experience as the Independent Reviewer of Terrorism Legislation and to how valuable he found the transparency of reasons being given. That should send a very strong message to the Government about how important his amendment is.
I agree with everything I have just heard in support of these amendments. I hope your Lordships will allow me to say some of the things I would have said yesterday had I not been giving evidence to a Select Committee during the opening hour or two of the debate.
The UK is in lockdown. Of course, the pressure on the Government to act has been immense, but we are in very uncharted waters and tight sunset clauses are clearly appropriate. People are understandably fearful for their lives and their well-being, and the Government are right in response to that to try to flatten the peak to enable the NHS to cope and to address the fear that has grown in the wider public. The question now is not whether the lockdown was the right decision but for how long it can sustained. These amendments bear directly on that question.
I have two proposals that I think the Government might want to consider. They have a bearing on whether the sunset clauses might find themselves exercisable. We need to be clear why we have arrived in this position. The epidemiological evidence on which the lockdown decision was taken was very well summarised in the Imperial College paper, which shows that it is needed to prevent an 80% infection rate and between 250,000 and 500,000 impending deaths. What the paper does not contain is an analysis based on wider health outcomes or on wider economic and ethical considerations, as it readily acknowledges. In other words, the full health economics of this huge decision have not been developed or set out at all by the Government.
If, as is widely held, maintaining such a policy indefinitely is unsustainable socially and economically, it must follow, in the absence of an early vaccine or treatment, that an alternative policy will have to be put together very quickly. In order to establish that sustainable policy, we first need a wider analysis of the effects of the lockdown than we currently have in front of us on the basis of health economics, and in particular of the effect on morbidity and mortality that will come as a consequence of the disruption to economic life. Extensive research on earlier sharp interventions suggests that these effects could be very large, and this may be true for both the full and the partial lockdowns discussed in the Imperial paper.
A second piece of analysis that needs to be undertaken—
I very much apologise for interrupting the noble Lord, who is making an incredibly valuable speech, but after my amendment there is one more amendment, which was put down by the noble Baroness, Lady Ludford. We must get to it and debate it by 2.30 pm, which is jolly unfair, in a way. Can we get to that amendment and then perhaps have the Second Reading speech?
My Lords, my colleague and noble and learned friend Lord Falconer has provided a cue that enables me to talk briefly about Schedule 8 to the Bill, which would allow a patient to be detained in hospital—or sectioned, as the phrase is—under the provisions of the Mental Health Act, on the say-so of a single doctor. The Bill would also provide for a period of extension to be extended, if I understand correctly, by the decision of a single person.
To put these matters in context, we might look back to the late Victorian era, when a problematic member of a family could be incarcerated in an asylum at the insistence of that family. They could be left there for a lifetime, and forgotten by the family, who could thereby avoid the stigma of having mental illness in their midst.
That stigma has been alleviated, but it still exists. The sufferer of mental ill-health may be a fragile young person, whose aberrant behaviour has been in response to some dysfunctional family dynamics. To avoid the hazard of inappropriately sectioning a patient in such circumstances, it is now understood that a careful assessment is required, which must involve more than one expert and judgment. This is not a fail-safe procedure, and I have been told of its failure in some tragic circumstances. Sectioning a person under the Mental Health Act can injure a person for a lifetime. Therefore, I wish to sound a note of caution, if not alarm, at the provisions in Schedule 8 to the Bill.
This is one of only many hazards present in the Bill, and I wish to make a more general comment about such legislation. Some speakers in yesterday’s debate expressed astonishment and admiration at the speed with which the Bill has been assembled to meet an unexpected crisis. However, it must surely have been sitting on the shelf for a considerable length of time. It is the product of the kind of contingency planning that we can expect of any competent system of public administration. There is no lesser need for contingency planning to cope with the public health crisis than there is for detailed military planning. However, whereas military planning is bound to remain largely secret, there is no need for such secrecy in the plans to address a public health crisis. The contingency planning that underlines this Bill ought to be permanently in the public domain, and its clauses ought to have been considered in detail, in the absence of any need to invoke them.
My Lords, I think the House might be keen for the noble Lord to conclude his remarks so that we can proceed at pace with this emergency legislation and hear other noble Lords’ contributions.
My Lords, the Green group supports all the amendments in this group. I have two brief points to make.
Collectively, these amendments make this whole profoundly undemocratic, rushed but essential process that we have undertaken a little more democratic. Statistics show that in epidemics, death rates are lower in democracies than they are in autocracies. Those figures have been worked out over a range of epidemics. Democracy is an effective medicine. Your Lordships’ House has heard me comment often on what I see as the weaknesses of our democracy, both here and in the other place, but this is the best thing we have got. Let us not handicap it further: let us adopt these amendments and acknowledge that they bring the opportunity for more scrutiny and better decision-making through the involvement of more people.
I want to address particularly Amendment 7, about three-month reviews, and the timeframe for this. It was actually about three months ago, it is believed, that the coronavirus crossed the species barrier. This whole thing biologically started three months ago, somewhere in China—probably Wuhan. Two months ago, diplomats were just being flown out of Wuhan. Think about how fast things have moved. Just last night, we had a report from Oxford University—an epidemiological study that basically blew through and potentially redrew our entire understanding of what is happening right now.
Where we will be in three months’ time is utterly unknowable and may be massively different from where we are today. We need a proper, full debate in three months’ time. With regard to the other amendment and the ability of the other place to amend this legislation, we need a debate there so that it can put in and take out parts of it if they are not working. We cannot leave this for six months. That is more than double the time this entire situation has existed from its first biological moment. Six months is too long.
I agree with those remarks too. Is it your Lordships’ will that I make my second point, or have people heard enough from me? I will do my best to be as brief as I can.
I said that there was one crucial piece of work to be done on wider health economics. A second piece of work that needs to be undertaken derives directly from the Imperial paper; we know that this is a very dangerous disease for the elderly but that it appears to have a very low casualty rate among young people without underlying respiratory conditions. There is no immediate prospect of effective treatment—reinforcing by implication the unsustainability of the lockdown—and no early prospect of a vaccine. It seems to me that it must be worth considering any means we can to get towards more normal economic life, and therefore not needing these amendments, by permitting young people, who are sharply less vulnerable to severe outcomes, to return to their workplaces.
Those who did this—it would have to be on a voluntary basis—would need to accept that a very high proportion of them might become infected and therefore have herd immunity develop among them. In an indefinite lockdown, massive direct financial support for the elderly would need to be maintained.
Understandably, the Government have not had time to assemble or publish elementary data for such an approach, but I do not think it would be appropriate to maintain this legislation without these sunset clauses or demonstrating an attempt to develop such approaches. The weakness of the data, in any case, is not an argument against developing such policies, any more than it is an argument against the suppression policy. Much of the data on which the current policy is based is very uncertain.
My Lords, I am grateful to the noble Lord, Lord Newby, for introducing this group of amendments. It might be helpful if I start by putting the issues that he and other noble Lords have raised in the context of the Bill as a whole.
The powers in this Bill are extensive. They are there to support the efforts being made across the country to combat the outbreak of this disease. The purpose of the powers is to support public bodies and wider society in responding to a serious emergency. However, we have sought, in parallel, to provide an essential mechanism for controlling the use of those powers. A balance has had to be struck between protecting the public’s health and safeguarding individuals’ rights, and acting swiftly in response to fast-moving events while ensuring accountability and transparency.
A two-year lifespan for this Act has been chosen to ensure that its powers remain available for a reasonable length of time, with the option to extend the provisions in it by the relevant national authority. I underline to the noble Lord, Lord Newby, in particular that the Bill cannot be renewed after two years without a statutory instrument laid in both Houses, which must be agreed to by both. A reasonable worst-case scenario for this outbreak is that it could last for more than a year. We therefore judged that some of the provisions in the Bill may need to be in place for up to two years. We cannot guarantee that a period of less than 24 months will be enough; nor can we predict which powers will be required or for how long. That is why we may also need to extend some of the provisions beyond two years.
We must bear in mind that very large parts of this Bill are designed to support people in this time of greatest need. Without being able to predict exactly what those needs might be, or for how long people might require such support, we have to provide at the very least a good degree of certainty that we stand with them. The sunsetting and expiry provisions of the Bill therefore provide that reassurance and at the same time enable us to ensure that these changes are in place only for as long as they need to be.
The measures proposed aim to protect the public and enable life to continue as normally as possible during any significant disease outbreak, but we want the right amount of checks and balances to operate. We brought forward a government amendment to the Bill in the Commons, Clause 98, that will enable the House of Commons to take a view every six months on whether the provisions of the Act need to continue in force. Ministers will report to Parliament every two months on how we have used the powers in confronting this awful epidemic. There will be a meaningful debate in both Houses after 12 months and an affirmative instrument will need to be made for any renewal after 24 months—as I mentioned earlier. Therefore, we are ensuring that the support that people need will be there, but we are also clear that there will be regular reports and debates in Parliament to ensure proportionate accountability—proportionate in the sense that the accountability mechanisms do not make the management of this outbreak harder.
On the specifics of the amendments, I recognise that they are very thoughtful and well considered and provide the opportunity for the Committee to consider why the Bill as currently drafted is the right way forward. I understand the concerns behind Amendments 7, 8, 9 and 12, tabled by the noble Lord, Lord Newby, and the noble Baroness, Lady Barker. As they will know, these concerns were debated at considerable length in the other place on Monday; they were debated by policymakers and political leaders across the four nations of this kingdom. The conclusion that we and they have come to is that this is no ordinary emergency; it is an unprecedented threat on a global scale, and our response has to meet the scale of the challenge.
However, as the challenge is so great, there are many unknowns. For example, the epidemic might come in one or more waves, which might or might not have a seasonal factor and might or might not be controlled by a vaccine. These things are as yet unknown, and the Government’s clear view is that three months is simply not long enough to have measures in force and to be able to evaluate their impact.
Of course, we do not want to see people’s lives disrupted for months at a time, so, if we can, we will suspend provisions so that we can alleviate some of the burden on the citizen. Equally, however, people want to know that the payments, reliefs and easements that they have come to rely on will not be switched off too soon. A two-year lifespan with the option to renew for six months gives people such certainty and gives us enough time to make serious progress on halting this epidemic. The requirements to report to Parliament for a one-year anniversary debate and for a six-monthly review all add up to a significant safeguard. Adding in the powers to suspend or revive burdensome but necessary provisions builds in an additional layer of protection.
I can also give the Committee an assurance that the Government will publish an accurate and up-to-date account on our website of which provisions we have in force and what plans we might have to review and/or change that status. The noble Lord, Lord Newby, proposed that the website report should be comprehensive. I believe I can give him that reassurance. There will be a comprehensive report on the workings of the Bill, both legislative and practical, and of all other actions that the Government have seen fit to take. This will be presented to Parliament every two months—I emphasise that we are committed to transparency. The grid he mentioned about the powers in the Bill being switched on and off will be published on the website. The least that the Government can do in these extraordinary circumstances is to make sure that the public and Parliament are fully informed of what is and is not happening.
Similarly, while I have a great deal of sympathy with the intention behind Amendment 11, tabled by the noble and learned Lord, Lord Falconer, I believe equally that the level of accountability, scrutiny and parliamentary control over the Government’s use of delegated powers in the Bill is much greater than normal. It needs to be—these are far-reaching powers. It is right that the House of Commons should review this legislation and bring to bear on that debate the experience of their constituents. Of course, this House has every right to call for such debates too, but as it has noted many times in the past, that role does not need to be legislated for: the House can order its own business as it chooses. I therefore do not believe the noble and learned Lord’s amendment is necessary.
The noble and learned Lord asked me to consider the possibility that Parliament should be able to turn off some powers and not others. What I say to that is that we owe it to those to whom we are accountable to use these powers to their full effect if we need to do so. I appreciate that giving Members of Parliament the opportunity to tweak the legislation, rather than make a binary choice, seems attractive and rational. The counterargument is that the package is an agreed, integrated whole that commands cross-party support in all four parts of the UK, and that consideration is one that I believe trumps that of the noble and learned Lord. We must strive to retain that unity of action and of purpose while at the same time acknowledging Parliament’s role in making that judgment.
The Government have no intention of using these powers without accounting to Parliament, and nor can we do so. The requirement to seek Parliament’s approval is not bound by procedure: we are always going to have to account for our actions. If Parliament is sitting we will use the draft affirmative procedure to seek any extension to these powers beyond two years and we will, of course, always respect any vote or view expressed in the House of Commons.
The noble Viscount, Lord Hanworth, and my noble friend Lord Tyrie made powerful points about the Mental Health Act. As a former Health Minister, I completely understand those points. These are exceptional powers and I re-emphasise that none of them will be introduced unless the advice comes from health experts and the scientists that they are necessary to invoke. If they are invoked, in relation to the Mental Health Act, I can assure both noble Lords that the appeals process will still apply, that we will use this temporary derogation only for as long as we have to and that we will account for its use.
I just want to reassure my noble friend Lord Tyrie that his other points have been well noted.
I therefore believe that, as drafted in the Bill, the scheme meets the balance of objectives that I outlined. Amendment 10, tabled by the noble Lord, Lord Anderson, and the noble Baroness, Lady Ludford, seeks to make a broadly similar point to the previous amendment: that the Government should explain themselves fully in how these powers have been, are being and will be used. Of course, that is exactly the purpose of the clause as drafted. I hope that the past few weeks have shown how willing Ministers across the UK have been in opening themselves up to scrutiny.
I took full note of the proposals made by the noble Lords, Lord Newby and Lord Anderson. At first blush, they do not seem at all unreasonable but I reserve the right to take advice on how far we can go. I do not think that the amendment will add to the wish, or indeed the obligation, on the part of the Secretary of State to explain why he has drawn the conclusions he has. However, for the record, I reiterate that the Government will provide evidence and explanation in justifying the conclusions set out in these two-monthly reports.
I hope that these remarks are helpful. None of us wants to see the wrong balance struck between the powers conferred on government and Ministers’ accountability to Parliament. However, we believe that the balance struck in the Bill is the right one, with the safeguards that we need to bring it about. I therefore urge noble Lords not to press the amendments.
My Lords, I thank the Minister for his assurances about the website and the comprehensive information that it will contain. That is extremely helpful. On behalf of the noble Lord, Lord Anderson, let me say how grateful both he and I are for that half-assurance, which we think is more than half an assurance, on the justification that the Government are about to give on a two-monthly basis.
On the amendment in the name of the noble and learned Lord, Lord Falconer, I loved the Sir Humphrey argument that it could not be changed because everybody had agreed what was in it. Well, they agreed what was in it; no doubt the Scots and the Welsh did not, with the following breath, say, “But don’t you dare suggest that parts of it can be disapplied, or give the Commons such a vote.” It was an argument, but I am not sure that I found it completely convincing.
On the amendments that we put forward, the fact that there is an SI provision for the end of the two years only makes the case for having an SI provision after six months. The Minister did not seek at any point to explain why the Lords should be treated differently from the Commons. I see that the concern in the Commons was to get a better position from the Commons; our position is to make our arguments. I am afraid that I am not convinced by those arguments but, equally, I realise that this is not the point at which we should test the opinion of the House. I therefore beg leave to withdraw the amendment.
Amendment 7 withdrawn.
Clause 89 agreed.
Amendments 8 and 9 not moved.
Clause 90 agreed.
Clauses 91 to 96 agreed.
Amendment 10 not moved.
Clause 97 agreed.
Amendments 11 and 12 not moved.
Clause 98 agreed.
Clause 99 agreed.