Clause 19 - Power to make emergency regulations

Civil Contingencies Bill – in a Public Bill Committee at 3:30 pm on 3rd February 2004.

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Photo of Patrick Mercer Patrick Mercer Conservative, Newark 3:30 pm, 3rd February 2004

I beg to move amendment No. 37, in

clause 19, page 12, line 35, leave out paragraphs (b) and (c) and insert

'or

(b) one of Her Majesty's principal Secretaries of State, whose sole responsibility relates to civil contingencies'.

Photo of Joe Benton Joe Benton Labour, Bootle

With this it will be convenient to discuss amendment No. 95, in

clause 19, page 12, line 36, leave out paragraph (c).

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

Amendment No. 37 stands in my name and the names of hon. Friends. Amendment No. 95 was tabled by the Liberal Democrats, and I have no doubt that they will give it due cognisance in its own right.

It is clear from amendment No. 37 that we believe that too many people can say too many things about too many parts of the Bill. Clause 19(3) states:

''In this Part ''senior Minister of the Crown'' means—

(a) the First Lord of the Treasury (the Prime Minister),

(b) any of Her Majesty's Principal Secretaries of State''.

My contention is that this part of the Bill will allow the powers to be used far too broadly by far too many Ministers under far too many different conditions. This problem has consumed the United States, which has amended its constitution as a result of the events of 11 September 2001. It will come as no surprise to anyone in this Committee that the Americans have chosen to establish one Minister, one Secretary of State, one director who will be in charge of this style of operation. It has given powers to one individual, Tom Ridge, and his Department of Homeland Security. The amendment would mean purely and simply that there would be one figure, one focus, one part of government that would be able to deal with these problems and invoke these powers.

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

The hon. Gentleman cites the American example, of which he approves. I am curious to know what would happen if Tom Ridge is unfortunately taken out in some incident and someone else has to take over. How would that work?

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

That is an extremely helpful intervention. A pre-established chain of command in the Department of Homeland Security takes exactly that point into account. In the event that Secretary Ridge is killed or injured or becomes unavailable to make decisions, it is fully established that the next person will step up. Given our earlier discussion, I believe that we have no such clear chain of command, and that is my criticism of this part of the Bill in particular. The point will be made a little more clearly in amendment No. 95, on which I am sure the hon. Gentleman will comment. However, unless we make it clear that there should be one focus for the powers before us, there is a danger that they might be invoked in a series of different situations. Clausewitz said that war was the province of confusion, and it is probably fair to say that emergencies will be exactly the same.

This country has probably been preparing for traumatic disaster since we first contemplated the possibility of poison gas being used on our population in the 1930s. We certainly made such preparations during the cold war. None the less, we have no experience of emergencies on the scale that we are discussing, which is why the Bill seems perfectly acceptable. However, nations that have been through such traumas—I am thinking particularly of America—suggest that power should be in the hands of one person. The Government should accept the amendment so that the power before us lies entirely in the hands of a senior Minister of the Crown, such as the First Lord of the Treasury—in other words, the Prime Minister. If not, they could think about establishing the post of Secretary of State for homeland security, or whatever else they might like to call it. That could be a job for the Deputy Prime Minister. As they stand, however, the proposals are wholly unacceptable and wide of the mark. The great problem is that the decision-making process will lead to misunderstandings and further delays in times of emergency.

Subsection (3)(c) relates to other Ministers who may be able to invoke the powers before us and refers specifically to

''Commissioners of Her Majesty's Treasury.''

I do not, for one moment, want to cast aspersions on the powers or suitability of the Whips, and their noble office is well represented here today. However, there is no question in my mind but that such powers must not be dispersed willy-nilly so that they can be used by the Whips Office in an emergency. That may be a tradition, but it is one that we can well do without, and it should certainly not constitute a precedent, because it would become one only once it had been tried. I therefore believe that we need a Secretary of State or a Minister for homeland security and that, in a state of emergency, the powers before us should, on no account, be devolved down to a bunch of Whips.

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

I rise to speak to amendment No. 95, which is in my name and that of my hon. Friend the Member for Orkney and Shetland. It directly targets the Whips, rather than any Department for homeland security—we know no fear on these Benches, although perhaps we have no future. The amendment takes up points that were ably made by the hon. Member for Aldridge-Brownhills (Mr. Shepherd) on Second Reading, when the provisions were called into question.

The wording of subsection (3) is wonderfully arcane and obscure. There is the reference to

''the First Lord of the Treasury'' although I am glad to see that, as a result of some modernisation process, we can now also call him the Prime Minister. That is a major innovation, which I am sure that Committees could have debated over months and years. However, the reference to

''Commissioners of Her Majesty's Treasury'' remains as obscure as ever. When I looked at the Bill, I wondered who they were and assumed that they were civil servants. I looked at the explanatory notes to see whether they clarified matters, and paragraph 39 says

''the Commissioners of Her Majesty's Treasury (the functions of the Treasury are customarily carried out by the Commissioners)''.

That is all we have by way of explanation.

I went to find the list of Ministers and, lurking quietly at the back, is page 112, which is entitled ''Government Whips'', so I found out who the Lords Commissioners are. The hon. Member for Lewisham, East (Ms Prentice) is not one, but—and I am happy to be corrected if I am wrong—the Lords Commissioners are the Parliamentary Secretary to the Treasury, the right hon. Member for North-West Durham (Ms Armstrong); the Treasurer of Her Majesty's Household, the hon. Member for Coventry, North-East (Mr. Ainsworth); the Comptroller of Her Majesty's Household, the hon. Member for Glasgow, Rutherglen (Mr. McAvoy)—I say nothing bad about him; and the Vice Chamberlain of Her Majesty's Household, the hon. Member for Poplar and Canning Town (Jim Fitzpatrick), who assisted me with a private Member's Bill last year, so he is all right. There are then five other hon. Members—the hon. Members for Eastwood (Mr. Murphy), for Nottingham, East (Mr. Heppell), for Enfield, North (Joan Ryan), for West Carmarthen and South Pembrokeshire (Mr. Ainger) and for Halton (Derek Twigg). As I understand it, those nine are the Commissioners of Her Majesty's Treasury. My reading of the Bill, therefore, is that any of the nine could exercise these extraordinarily comprehensive powers.

Photo of Jim Dowd Jim Dowd Labour, Lewisham West

I am not certain that the hon. Gentleman is correct. I was a Lords Commissioner for four years, and my feeling was that list was made up of the First Lord, the Chancellor of the Exchequer, and the five Lords Commissioners—just those seven. It did not include the Officers of the Royal Household, whose names the hon. Gentleman read out.

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

I am grateful to the hon. Gentleman. Standing Committees exist precisely to elicit information about who is and who is not a Lords Commissioner. I am sure that we shall find out in the course of the debate. I hope that the Under-Secretary can respond on that point. In that case, it is even more extraordinary that the more junior members of the Whips Office—those who are more junior than the Officers of Her Majesty's Household—can exercise these powers.

The powers can be exercised by those in the Whips Office, but that does not include even the Chief Whip or those at the top level. The Whips may be perfectly able, but they are not normally held accountable to the House. They do not speak to the House in their own right and they would never introduce regulations in normal circumstances. The Bill is clear that the regulations will be brought into play in an emergency and then must be brought to the House of Commons within seven days. Therefore, those people must stand up and justify why the regulations have been introduced. It seems extraordinary that those who normally never conduct such parliamentary business should be given that power.

We can argue about Secretaries of State. The hon. Member for Newark (Patrick Mercer) may have a point that, unless there is a major crisis in theatreland, it is hard to see why the Secretary of State for Culture, Media and Sport should make emergency regulations. However, at least all Secretaries of State regularly make regulations and justify what they do to the House and, in the public's view, are accountable in the ordinary sense of the word. Whips are not normally publicly accountable, which is why it seems extraordinary to include them in the Bill.

I should appreciate clarification from the Under-Secretary as to the extent of the power. It may be more restrictive than I first imagined and only seven of those individuals would be given the power, rather than the nine whom I listed. However, the Government will have to make a powerful case for moving down the chain of command to the Commissioners of Her Majesty's Treasury, when however many Secretaries of State are available as well as, potentially, the First Lord of the Treasury. It would be much better if the Government conceded that it would be better if the Bill named the Prime Minister and the principal Secretaries of State and left it there.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Defence)

I agree with the hon. Gentleman. I cannot understand this arcane power, but no doubt the Under-Secretary will explain it in due course.

Several hon. Members ridiculed this aspect of the Bill on Second Reading, but—I hope that this is not a ridiculous point—what is to prevent the Whips Office from deciding that a couple of dozen of the usual suspects who might vote for or against the foundation hospital Bill or another difficult piece of legislation should suddenly be called to go firefighting in Scotland for a fortnight? That may sound ridiculous, but how would the Whips be accountable to the rest of Parliament or to others? At least Ministers are accountable to Parliament and the electorate, but the inner and dark workings of the Whips Office are

different. Many of us have no idea how it works, and many of us do not want to know. Is this part of the Bill a hangover from the bad old days, or does it have a real, proper and current purpose?

Photo of Mr Michael Trend Mr Michael Trend Conservative, Windsor 3:45 pm, 3rd February 2004

On Second Reading, one of my right hon. Friends said that Whips whose names we barely know might have the power to make draconian regulations. That is a good point, which should be returned to. I understand that if we were confronted by an emergency, the public might take comfort from seeing the Prime Minister or one of the Secretaries of State, many of whom are recognisable, on television saying, ''This is a great emergency.'' Sadly, many senior politicians are not recognisable to the public these days, but one of those who are could say, ''This is a serious emergency,'' and carry the country with them. It would be a bad idea to have someone that no one has ever heard of, and who is mysterious even to some Members of this House, to do the necessary public relations job on the television and in the media generally. I am persuaded, as are other hon. Members, that there may be some historic reason for that. If so, is it still appropriate?

I return to a point made by my hon. Friend the Member for Newark about the Department of Homeland Security model, although I do not have a view on whether that would be desirable. Under that system, there is continuity of civil servants. One department considers one thing and nothing else and ensures that there is proper co-ordination and joined-up government. Can the Under-Secretary reassure us that there would be continuity of advice if the Prime Minister were not available and the power went first to one principal Secretary of State and then to another? In the grave circumstances under which an emergency might be declared, it would be risible if the relevant people in the Prime Minister's office said, ''Oh, well we can't deal with it, it has to go to the Secretary of State for Trade,'' or something, and then the papers had to be shuffled across Whitehall, and that Department said, ''Oh, no, it had better go to the Secretary of State for Education. He or she is the only person in town at the moment.''

It would be a comfort to know that, if we are not to have a separate Department of State to deal with possible emergencies, some fundamental continuity of advice will be given by the civil service. I can understand why we might change the primary player—we might choose a different protagonist to deliver the message—but surely the advice must come from one consistent and coherent body. It cannot be shuffled around the Cabinet responsibilities of the various Secretaries of State.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

I am reminded that in the days of ''Protect and Survive'' and of discussions about what we would plan for and who was to get to the bunker, it was always assumed that rats and cockroaches would survive a thermonuclear attack. Is it the view of the Government's draftsmen that the Lords

Commissioners of Her Majesty's Treasury are somehow similarly genetically resilient? Of course, I do not seek to draw any further parallels between those species.

I am mildly curious about the reasons behind the term ''Principal Secretaries of State'', and would be grateful if the Under-Secretary would clarify that. I have never before come across that term in legislation, but I imagine that it would include the Chancellor of the Exchequer, the Home Secretary and the Foreign Secretary. Is that the case? If there are principal Secretaries of State, presumably there are minor Secretaries of State. Should not they get the power before the Whips?

Photo of John Horam John Horam Conservative, Orpington

I follow the point made by my hon. Friend the Member for Windsor (Mr. Trend) about what one might call the Government's collective wisdom and continuity. We are dealing with a practical situation, which has occurred before. There have been many emergencies before, which are always dealt with in a particular manner. Usually, the Home Secretary, the Deputy Prime Minister or the Prime Minister quickly set up a committee, including relevant Ministers who are thought appropriate based on the emergency situation. That is paralleled by a set of civil servants, who mirror the roles of the departmental heads on the committee.

In relation to the clause, the explanatory notes state: ''In practice''— we should focus on the practicalities—

''the exercise of these powers will principally be the responsibility of the Secretary of State for the Home Department as the member of the Cabinet with responsibility for domestic security and resilience, acting by collective agreement.''

That is the usual way in which things are done. In fact, most of the other Departments that we are considering in relation to the provision sprang from the Home Department.

In Victorian times, the Home Department dealt with health—but not education—and most of what we now consider social services. If I remember rightly, in Disraelian times there were about 12 members of the Cabinet—as opposed to 24 today—and the Home Secretary had considerable powers. At that time, the only eccentric point, if I recall my studies of the period rightly, was that there was a Minister for the Horse, which was a rather strange animal to have in the Cabinet. The Minister for the Horse in Disraelian times was the Earl of Avon—not the one we think of, but perhaps his relative. There were strange arrangements at that time, but there was a small number of Cabinet Ministers because the Home Secretary dealt with a large number of responsibilities in his remit.

Photo of Oliver Heald Oliver Heald Shadow Leader of the House of Commons

I do not know whether my hon. Friend heard the sotto voce intervention from the other side that there is a Minister for the Horse: the former First Minister of Wales, who deals with hunting.

Photo of John Horam John Horam Conservative, Orpington

Splendid. Time has moved on, but we have a similar situation today. I am glad to hear it. None the less, the natural person to deal with emergency situations is the Home Secretary. If he is not available for some reason, the Office of Deputy

Prime Minister has latterly sprung up—it has not long been in existence—and the Deputy Prime Minister would normally be considered an appropriate person. That was certainly the case under the Conservative Government—although there was not a Deputy Prime Minister until the latter stages. If he was not available, the Prime Minister would normally deal with such matters.

I remember the emergency related to BSE, which was a big problem during the latter years of the Conservative Administration. I was involved because I was in the Department of Health at the time and my Secretary of State, the right hon. Member for Charnwood (Mr. Dorrell) and the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg), who was Minister of Agriculture, Fisheries and Food, were both involved. The immediate response of the Government in those circumstances was to set up a committee under the leadership of Lord Heseltine to look at the situation. The members of that committee took decisions on a collective basis. That is the way that Government have operated for as long as I can remember.

My hon. Friend the Member for Windsor is right. That is the way that things are done, and I do not see why we need to provide for something different in the clause, when there is a perfectly practical way of operating that has stood the test of time and includes the right people automatically. I do not see why a legal framework should be set up to set out a series of alternatives that are unnecessary.

Photo of Oliver Heald Oliver Heald Shadow Leader of the House of Commons

The debate on Second Reading relating to this issue was characterised by a great deal of complacency on the part of Ministers. The obvious point has been made that the recently published Phillis report found that there is poor co-ordination between Departments and agencies, the Central Office of Information, the Cabinet Office and No. 10. That shows up most starkly when there are Government-wide crises, such as the outbreak of foot and mouth in 2001. The Police Federation has called for clear and unambiguous issues pertaining to jurisdiction, remit, lines of control and lines of communication to be set up, and has talked about permitting proper and effective co-ordination. Yet on Second Reading, the Minister fell back on long-standing practices and frameworks in a most surprising way, given his usual commitment to modernisation and the cutting edge—big conversations, and that sort of thing. That was slightly disappointing. Is the Minister seriously saying that he would prefer to have the Whips and the Deputy Prime Minister making these decisions, rather than a Secretary of State whose specific role would be to look after civil contingencies? If the Minister or Under-Secretary is saying that, it needs some explaining, because it sounds staggeringly complacent in a world that has changed since 11 September 2001.

It is incumbent upon the Ministers to explain why they are so against having one Secretary of State with the power to decide matters of homeland security. One suspects the reason for it is Whitehall turf. [Interruption.] I am getting close to the horse. One suspects that it is to do with the Home Office and other

Departments wanting to retain their own areas. I call on the Minister to explain why he is so determined to stick to the old, tried and tested, long-standing practices, as he put it, when he is usually for the modernisation of everything.

I would like to say something about the Whips, and, in particular, pay tribute to the hon. Member for Lewisham, West, whom I shadowed for a couple of years doing Friday Whip. I must say it was very enjoyable and we worked very co-operatively together, although I think he blocked every Bill we wanted. There may be some role for senior Whips to perform, but it is not the passing of emergency legislation, and I agree with my right hon. and learned Friend the Member for Sleaford and North Hykeham who, on Second Reading, said:

''What possible reason should there be for a group of Whips, whose names we barely know, having the power to lay draconian regulations such as those I have described. That is preposterous, and I can think of no sensible reason why it should be the case—other than tradition, perhaps, but I know of no sensible tradition that would maintain such nonsense.''—[Official Report, 19 January 2004; Vol. 416, c. 1039.]

We have had an interesting discussion about the five, the seven, and the nine—it reminded me of Enid Blyton meets ''Lord of the Rings''. The Minister needs to have another look at this. We do not want the Whips creating a state of emergency, particularly following recent events in the Labour Party.

Photo of Fiona Mactaggart Fiona Mactaggart Parliamentary Under-Secretary (Home Office) 4:00 pm, 3rd February 2004

Let me first deal with the issue of whether we require a Department of Homeland Security, or a Minister with responsibility for homeland security. It is worth reflecting on our recent experience of dealing with terrorism, and our efforts in strengthening a system that has already been tested. That is what we are seeking to do in this Bill, rather than experimenting with a new model and a lengthy process of reorganisation. It is quite clear where responsibility lies—as the hon. Member for Orpington (Mr. Horam) pointed out, the fundamental responsibility here is with the Home Secretary, who leads in the Cabinet. He is supported by the Minister for Local Government, Regional Governance and Fire, the Minister for Citizenship and Immigration, and the Minister for the Cabinet Office and Chancellor of the Duchy of Lancaster, who is responsible for the civil contingencies secretariat. That is the team. It draws together the experience of the Home Office in its counter-terrorism and resilience work, the experience of the Office of the Deputy Prime Minister in its work with various emergency services and their provision on the ground, and the co-ordinating responsibility of the Cabinet. That team is supported by all other Ministers, who take responsibility for ensuring that their Departments are ready to fulfil their lead responsibilities.

The hon. Member for Sheffield, Hallam intervened to ask whether there might ever be a point when the Secretary of State for Culture, Media and Sport might be called on for help. It occurred to me that it was possible—although I am stretching it—that her

responsibilities for broadcasting might make her particular expertise relevant at a certain point, but that is deeply unlikely.

Our view is that resilience must be embedded within all Government organisations; putting it into a separate silo risks particular Departments not taking responsibility for their own resilience and marginalising events that are by their very nature not day-to-day but extraordinary, although they unfortunately feel more day-to-day at present. It is important to ensure that the way in which the Government go about their business includes the preparation for the extraordinary at every level.

Photo of Mr Michael Trend Mr Michael Trend Conservative, Windsor

I may be hopelessly out of date, or I may just believe part of the mythology of Government that has never been true, but it was always thought that Cobra would spring into action in the case of national and civil emergency. The Prime Minister has used it in some circumstances. Does it still exist and is it the catch-all committee in which various parties would meet to make decisions in the case of a serious emergency?

Photo of Fiona Mactaggart Fiona Mactaggart Parliamentary Under-Secretary (Home Office)

There are a series of committees and arrangements within the Government that bring Ministers together along with their civil servants in order to ensure that continuity and coherence—a point made earlier by the hon. Member for Windsor—is maintained. That is mainly done through the civil contingencies secretariat, which was established in July 2001and which is based within the Cabinet Office, reports to the Prime Minister through the security and intelligence co-ordinator and supports the Government's aim to improve the UK's resilience to disruptive challenges by working with others, inside and outside Government, on anticipation, preparation, prevention and resolution. That is the body that performs the role to which the hon. Gentleman refers.

The civil contingencies secretariat provides the continuity of advice that all hon. Members in their interventions have said is important in dealing with civil emergencies. It is worth noting that the power to make emergency regulations lies primarily with the Crown. Under clause 19(1) an Order in Council by her Majesty provides the first step to initiating that power. When debating later clauses, it might be tempting to forget that important provision, whereby regulatory power first lies with the Crown, with its resilience and character that raises it above the hurly-burly of political debate.

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

That was a helpful point from the Under-Secretary. Could she clarify for the record and the Committee generally how that would work in practice, and the extent to which an Order in Council involves independent scrutiny as opposed to the Secretary of State making an order and having it rubber-stamped by the Crown? Some people will feel that the latter is the reality and remain concerned.

Photo of Fiona Mactaggart Fiona Mactaggart Parliamentary Under-Secretary (Home Office)

I cannot comment in detail about the precise way in which that happens, but I am certain that the Order in Council, which involves Her Majesty, has the character of the Crown being engaged. The Queen acts in all circumstances on the advice of Government. That advice is given at Cabinet level and is made by Order in Council.

The overwhelming majority of responders to the consultation stressed how much they value regulations being made by Order in Council so that the role of the Queen is the pre-eminent and important role. The Crown is the person from whom the procedure should normally operate and that mechanism gives people more confidence if it is properly used. Her Majesty and at least two Privy Councillors must approve the Order. Approval is usually indicated orally and assent is signified by the Clerk to the Privy Council.

Let us remember that that is the way in which the matter will usually be dealt with. The amendments are secondary and the other people who may have the power to make regulations will do so only if clause 19(1) cannot be fulfilled. I hope that that reassures the Committee because that is what will usually happen. The Committee is aware that the Crown is resilient and that there are clear procedures to sustain it in times of emergency. The further provision whereby other people may use the powers that are provided under clause 19(3) to make emergency regulations will not normally be used. In normal cases, emergency regulations will be made under clause 19(1).

Why are the people in clause 19(3) identified? The aim is to ensure that regulations are made by proper people. We do not take the view that only a specific, identified Minister should have the power, and I have explained why. The most resilient way of dealing with emergencies is to embed them within all Departments. Our view is that emergencies should be dealt with by a senior Minister and they are listed as

''the First Lord of the Treasury . . . any of Her Majesty's Principal Secretaries of State, and''— this caused most amusement on Second Reading and occasionally in the Committee—

''the Commissioners of Her Majesty's Treasury'' which is how the Treasury is traditionally referred to in legislation. By tradition, the powers can be exercised only when two of the Commissioners of Her Majesty's Treasury agree.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Defence)

May I assist the Under-Secretary by referring to what she said on Second Reading? She said:

''Lords Commissioners are included in the Bill because there might be emergencies in which the primary interests affected are the responsibility of the Treasury, such as a terrorist attack on the Bank of England. In those circumstances, the Chancellor would be the person who one would normally expect to take progress forwards. The Chancellor and the Prime Minister are normally referred to in legislation in such a way.''—[Official Report, 19 January 2004; Vol. 416, c. 1179.]

I am afraid that that is at complete variance with the clause that we are considering. In the clause, the Prime Minister is referred to in subsection (3)(a) and the Chancellor in subsection (3)(b). Why on earth do we need a catch-all phrase to refer to them in subsection (3)(c)?

Photo of Fiona Mactaggart Fiona Mactaggart Parliamentary Under-Secretary (Home Office)

The aim is to ensure that the Chancellor is included. The phrase ''Principal Secretaries of State'' in subsection (3)(b) does not include the Chancellor. That is why subsection (3)(c) has been included. The Treasury Instruments (Signature) Act 1849 requires action to be taken by at least two Commissioners. Hon. Members raised concerns about wild behaviour, which we all know is completely unlikely. It would require at least two Commissioners to behave in that way at the same time. The hon. Member for Meirionnydd Nant Conwy asked what was to prevent Whips from sending dissident chaps off to the other end of the country when they were about to vote inconveniently, and the answer to that is the triple lock that is part of the Bill.

The first person to sign would always be Her Majesty; the second would be the appropriate Secretary of State. The provision is not an attempt to extend the power beyond that; it is merely a reflection of the way in which the Treasury is usually referred to in legislation.

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

If the purpose is simply to include the Chancellor of the Exchequer, I do not understand why subsection (3)(c) does not specify the Chancellor of the Exchequer. If there is a specific function for the Commissioners of Her Majesty's Treasury, who are able to sign away money—I think that the Under-Secretary referred to that; the regulations might cost money—I do not understand why that could not be built into legislation. As it stands, it seems that the Commissioners of Her Majesty's Treasury—the Whips—could sign an emergency regulation without any principal Secretary of State, or the Prime Minister or anyone else being involved.

Photo of Fiona Mactaggart Fiona Mactaggart Parliamentary Under-Secretary (Home Office)

Let us be quite clear. They could do that only in circumstance in which the Crown was not able to do so.

Photo of Fiona Mactaggart Fiona Mactaggart Parliamentary Under-Secretary (Home Office)

Exactly. That is a powerful stop. The aim is to ensure that responsibility lies where it should. I have explained why we do not feel that there needs to be a special Minister, but I have also pointed out that the prime Minister with responsibility in this area will be the Home Secretary, and that usually we would expect the Home Secretary to be the person who, in most circumstances, would make emergency regulations. That will not be true in every circumstance, because there will be circumstances in which the lead Minister is an appropriate different Minister. To define the senior Ministers of the Crown in a way that seems to highlight particular Ministers and not others in a way that might, in any way, diminish the key role of the Home Secretary would be inappropriate. That is why we have created a construction that ensures that the list of people who are counted as senior Ministers of the Crown is comprehensive. Our aim is to ensure that decisions should be made where responsibility lies.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Defence) 4:15 pm, 3rd February 2004

The Under-Secretary has been generous to the Committee in giving way, although her voice is obviously beginning to fail her. She referred to the Commissioners of Her Majesty's Treasury as being how a Chancellor would normally be represented in legislative form. I do not expect an answer today and I am not putting the Under-Secretary on the spot, but it would help the Committee if, for our next sitting, she produced references to other legislation in which similar provision exists. In other words, we need to see other provisions under which those Commissioners—Whips—are entitled to make orders and other legislation.

Photo of Fiona Mactaggart Fiona Mactaggart Parliamentary Under-Secretary (Home Office)

I have asked about the matter: there are 12,905 references to the Treasury and each reference has this meaning. I have already followed up the point that the hon. Gentleman makes. Our aim is to ensure that the regulations are made by the Crown. If the Crown is not available, and that would cause serious delay, there should be the ability for them to be dealt with by a senior Minister. We are discussing what a senior Minister is and I do not believe that the amendments assist us in doing that. [Interruption.] I will continue to resist the amendments, despite the tuneful sound that is making me almost inaudible.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

We have had an extremely interesting discussion of the two amendments. On amendment No. 95, Whips clearly should not be involved in such decision making. We have had a clear case outlined as to how that amendment might be useful and might tighten the legislation.

I shall direct most of my remarks to amendment No. 37. The Under-Secretary gave the lie to her statements when she said that we have already been tested. I would be fascinated to know when we were tested. Certainly, we have been tested by the Irish Republican Army for 30-odd years and we have been tested while our intelligence services demonstrated excellence in interdicting, in the main, Islamist fundamentalist terrorists, but we have not been tested in the traumatic way in which the Americans were tested. Is that not the point of the Bill? Is it not the point of the powers that, for once, the Government are trying to be proactive, do something before the worst happens and put powers in place before we have the emergency visited on us? It is simply wrong for the Under-Secretary to say that we have already been tested; we have not.

When previous Governments thought that we might be tested along such lines, their response was wholly different. Before the second world war, it became clear that weapons of mass destruction might be used against these isles. Therefore, a Department with responsibility for civil defence sprang into being, with a single Minister in charge of it. Interestingly, the American response to traumatic incident was to create something similar—a Department of Homeland Security, with a single figure in charge of it.

The fact that the Under-Secretary had to illuminate the matter by telling us the number of people who might be required to give us an answer in the event of such an emergency is extremely worrying. One of the

Ministers to whom she referred is the Minister in charge of counter-terrorism, yet interestingly, when we had a problem with terrorism on the airlines during the Christmas period, the Secretary of State for Transport, not that Minister, spoke about sky marshals.

Does not that make the point—I firmly and honestly believe this—that the Government are happy to jog along complacently with these impractical measures, despite the fact that we have before us an extremely practical Bill? I believe, hope and pray that the Bill will be extremely practical, but my hon. Friend the Member for North-East Hertfordshire has mentioned the Government's disjointed approach in respect of the Phillis report, and, as we have said before, Project Unicorn points to the lack of cohesion between central Government and the private sector. The Government are happy to sit in complacency and try to cope with those problems, hoping and praying that a traumatic incident of the sort that forced America to go down this line will not happen here.

I fully recognise from the Under-Secretary's comments that it is most unlikely that we will make any progress on the matter. I hope that it will not take an incident of the style and shape of 11 September to create a difference in the Government's approach to the problem. I hope also that it will not take 2,000 people being killed for the Government to realise that this part of the Bill is wrong. Despite those comments, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

I beg to move amendment No. 97, in

clause 19, page 13, line 10, at end insert—

'(v) is satisfied that the regulations are compatible with the provisions of the Human Rights Act 1998'.

Photo of Joe Benton Joe Benton Labour, Bootle

With this it will be convenient to discuss amendment No. 109, in

clause 22, page 15, line 31, at end insert—

'(c) require a person to act in breach of human rights provided for by the Human Rights Act 1998.'.

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

This is another important area—the relationship between the Bill and the Human Rights Act 1998 was discussed extensively during the proceedings of the Joint Committee. Liberal Democrat Members have been very supportive of the Human Rights Act. We were pleased to see it incorporated in UK law, and we want to ensure that any subsequent legislation is fully compatible with it.

The scope of the Bill in terms of the provisions that can be brought into play through emergency regulations, which we will discuss when we come to clause 21, covers many situations in which human rights could be infringed. Therefore, we felt it more important than ever that the Bill explicitly tie itself to operating within the framework of the Human Rights Act.

Let us consider in particular the Joint Committee's deliberations and the Government's response. Interference with property rights without compensation, which we will come to later, is a classic area about which the Committee expressed concern.

The Government's response was very clear: citizens are safeguarded by the fact that any regulations must be compatible with their rights under the European convention on human rights. In other words, when the Committee raised queries about such areas, the Government cited compatibility with the convention as the primary safeguard for the citizen.

The Joint Committee went further and considered many different questions, some of which have been resolved. The Government made significant concessions by agreeing that the regulations would not be introduced as secondary legislation. That is a very important constitutional point, in that Parliament retains the power to make primary legislation that is incompatible with the convention, but does not delegate to the Executive the power to make incompatible secondary legislation. That is an important distinction in terms of parliamentary sovereignty.

However, we are still left with some uncertainty about the extent to which a Minister might bring forward incompatible regulations. By seeking to include in the Bill a responsibility in terms of the power—in other words, by hedging the power with an explicit reference to the Human Rights Act—the amendment would ensure that any regulations that were introduced had explicitly to comply with the Human Rights Act from the initial stages.

In paragraph 32 of the response to the Joint Committee, the Government have come up with an interesting philosophical argument as to why they rejected any explicit reference to the Human Rights Act. It is worth quoting:

''The Government considers that to make express provision of this kind in this particular Bill would potentially undermine the application of the Human Rights Act. Making express provision in this case might cast doubt on the application of the Human Rights Act to other legislation where no express provision was made. In the light of this, the Government rejects this aspect of the recommendation.''

I find that a curious argument: one has to refer to the Human Rights Act either everywhere, if it is to be referred to at all, or nowhere. I fail to see why that argument should necessarily stand up in court. Why should a court strike down one piece of legislation or have a problem with it because another piece of legislation explicitly refers to the Human Rights Act?

Photo of Oliver Heald Oliver Heald Shadow Leader of the House of Commons

Does the hon. Gentleman agree that that argument is also completely at odds with the recent case of Thoburn v. Sunderland city council, in which Lord Justice Laws said that the Human Rights Act has a special status as a constitutional enactment and that there is to be no implication of repeal, which means that a future Act could change the law only if it expressly overruled something in the Human Rights Act.

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

I am grateful to the hon. Gentleman for that point. It is always helpful to have examples quoted. I am sure that when the Bill reaches another place, this will be one of the areas that learned colleagues up there will go into in considerable depth by citing specific cases. There is clearly some difference of opinion on the extent to which the Government's

defence holds up. They can say that such a change would somehow cast doubt—that is a strong phrase to use—on compliance regarding other legislation, but I think that that would not be supported by case law.

On the point about whether the regulations will be compliant and whether Ministers will certificate them as being compliant in the normal manner—all legislation that we consider is effectively certificated by a Minister to say that it is compliant—the Government's response at paragraph 37 is as follows:

''The Government agrees that the Minister responsible for the Parliamentary debate on the regulations in each House should make a statement as to whether he considers that the regulations are compatible with the Convention rights. This reflects the undertaking that the Government have already given to volunteer statements of compatibility in relation to instruments that are subject to the affirmative resolution procedure. The statement will generally be made in the explanatory memorandum which is prepared for the debate or, should the urgency of the matter mean that no explanatory memorandum is available, by the Minister in charge of the debate.''

All the way through, the Government have said that their intention would be to introduce only regulations that are compatible with the Human Rights Act, which means the convention but also any derogations from it. Compliance with the Act means compliance with the UK version of the European convention on human rights; it is not a reference to the convention in its entirety. We accept that derogations are made in exceptional circumstances and are perfectly legitimate in UK law. We can argue about whether we approve of them, but they are legitimate.

The Government have said that they intend to comply with the Human Rights Act. They have said that they intend to introduce statements of compatibility when the regulations come before Parliament after the specified seven days, or however many days it takes. We feel that it would be more comprehensive, and a strong statement of the Government's intentions, to include at this stage a provision that states that those emergency regulations will be brought forward only if the Government are satisfied that they are compatible with the Human Rights Act. That is a very important safeguard, which the public will be looking for.

When we are dealing with exceptional legislation, the process is difficult. We have to consider the matter in the context of all the other powers that exist. The Bill can effectively rip up any other legislation, if that is deemed necessary. In those circumstances, we believe that an exceptional case can be made for the Bill containing such an explicit statement referring to compatibility with the Human Rights Act. I hope that the Minister can at least reiterate the Government's commitment to emergency regulations that are compatible with the Human Rights Act. She may be able to go a little further than the Government have so far in making the matter explicit in the Bill.

Photo of Oliver Heald Oliver Heald Shadow Leader of the House of Commons

Amendment No. 109 relates to clause 22 and it would forbid emergency regulations from requiring a person to act in breach of human rights as provided for in the Human Rights Act.

4.30 pm

Public consultation on the draft Bill showed strong support for emergency regulations to be treated as primary legislation for the purposes of the Human Rights Act, but the Government in their response decided against it. Perhaps they believe that it would be the wrong way to provide for accountability. Many organisations, such as Network Rail, the Association of Chief Police Officers and others, said that, ''As an organisation that has to respond to emergencies, we agree that it is undesirable if emergency regulations are held up by injunctions.'' There was quite a lot of discussion of that sort during the consultation.

The Government, in their response to the Joint Committee, explained that they did not agree with the idea of exempting constitutional Acts of Parliament from modification or disapplication under clause 21(3), which we will come to later. That inconsistency has lead the Law Society and others to voice their concern that the European convention on human rights should not be infringed. They would like the Government to explain how they perceive the provision in relation to the 1998 Act.

In moving the amendment, which would forbid requiring a person to act in breach of human rights under emergency powers, we are looking for the Minister to set out the Government's approach to the 1998 Act and why they believe it is unnecessary to make more specific provision for it in the Bill.

In the recent case of Thoburn v. Sunderland city council, Lord Justice Laws said that the 1998 Act has a special status as a constitutional enactment, that there is no implication of repeal to be taken from a later Act and that explicit provision would have to be made for a repeal or partial repeal to occur. In those circumstances, it is hard to see how the Government can continue to say that, ''If we were to say something explicit in the Bill, in later Bills we would have to say the same thing.'' Why?

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Defence)

I, too, am concerned about that area of the Bill. Every Bill that we discuss in Parliament includes the section 19 certificate. Several certificates have been challenged, and some successfully of late, so we cannot read too much into them. The challenges may be for the best of reasons, but it does not allay the fears of many groups dealing with civil liberties and many people in Parliament.

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

The hon. Gentleman makes the point about groups dealing with civil liberties that have made strong representations. Liberty and Justice submitted many comments on that area of the Bill, but they had difficulty doing so because the Committee website listed the dates for discussion of various provisions incorrectly. Information has been submitted on the area under discussion.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Defence)

I was aware of that. We must be careful when considering the types of actions—the scope of the regulations under clause 21—that can be taken. Clause 19 deals with the powers, but we must consider their scope as well. Clause 21(3)(b) to (e), (g) and (h) could all breach human rights—again, probably with

good reason. For example, the confiscation of property with or without compensation, the destruction of property, animal life or plant life with or without compensation, and the prohibition of freedom of movement are all important matters, which many of us feel are constitutionally part of our everyday civic rights.

Paragraph (j) is an interesting provision to

''disapply or modify an enactment (other than a provision of this Part) or a provision made under or by virtue of an enactment''.

Much has been said about whether that gives the Government authority to disapply the Human Rights Act. It is perfectly possible to use that paragraph to disapply the Human Rights Act. Any lawyer with even a sketchy knowledge of human rights would say that that is true. It is true. It may never become the intention of this or any other Government, but it is there. The paragraph uses the term ''an enactment''.

Then we have the apologia on behalf of the Government from the parliamentary counsel, whose ears must have been itching a bit on Second Reading. Before I deal with the parliamentary counsel, I should say that the Joint Committee, a Committee of both Houses, heard a great deal of evidence from Liberty, various civil rights groups and others, people not always taken with civil rights issues, who felt some alarm about paragraph (j). It said:

''In the wrong hands, this''— that is paragraph (j)—

''could be used to remove all past legislation which makes up the statutory patchwork of the British constitution.''

I suggest that the Government think again about the clause. Many of us would feel happier if the amendment were included in the Bill, because it would bolster the Government's assurances on Second Reading.

The Government have offered the view that Parliament would not permit interference with a constitutional enactment, saying that they

''cannot envisage any circumstances in which that power would lawfully enable us to make a substantive amendment to a constitutional enactment.''—[Official Report, 19 January 2004; Vol. 416, c. 1113.]

However, for Parliament to rely merely on the assurances of parliamentary counsel is not, with respect, good enough. If it is wise to give broad powers to cope with unforeseen events, it is also wise to consider the possibility that a future Government may seek to abuse them. Parliament should not rely too much on the predictions of parliamentary counsel as to what it may or may not do in the future. Conversely, and I ask the Under-Secretary to think about this point, if the Government and parliamentary counsel cannot foresee that it would ever be necessary to make substantive amendments to constitutional enactments, they can have no objection to this limitation on the scope of emergency regulations.

Amendment No. 97 is a proper amendment. We talked about the triple lock. This is a different assurance, but it is exceedingly important because, even on a cursory reading of clause 21, we find several potential breaches of the Human Rights Act. I ask the

Under-Secretary to assure the Committee again that paragraph (j) will not be used to disapply the Human Rights Act and that that Act will loom large throughout the Bill and, in so doing, to consider accepting amendment No. 109.

Photo of Fiona Mactaggart Fiona Mactaggart Parliamentary Under-Secretary (Home Office)

I assure the Committee that we are committed to operating the Bill, and we do not believe that it is possible to do so other than in conformity with the Human Rights Act. For that reason, I recognise the force of amendment No. 97, moved by the hon. Member for Sheffield, Hallam, that a statement of conformity at the point of making regulations could be a useful mechanism to ensure that the intention is fulfilled. In principle, I accept the intention of his amendment, although I would ask him not to press the present formulation. Throughout this process we have made clear our belief that emergency regulations must comply with the Human Rights Act. The Bill already achieves that, but we accept that an explicit statement of this kind will help to make that clearer, and we welcome it.

That brings me on to the reasons for resisting the other amendment. I think these two matters do go together—we are resisting specific statements of this kind. We entirely agree that emergency regulations should not require other people—such as the police or armed forces—to perform acts incompatible with the Human Rights Act. However, the Human Rights Act does not just apply to actions taken by the public authorities themselves, it applies to actions that a public authority requires another person to do. It already prevents regulations being used to require another person to do something which breaches convention rights, and it is unnecessary to restate this on the face of the Bill in the way that this amendment seeks.

The hon. Member for Meirionnydd Nant Conwy raised the question of whether the Bill could be used to amend the Human Rights Act. He will have seen the letter on the Human Rights Act circulated by my hon. Friend the Minister for the Cabinet Office and Chancellor of the Duchy of Lancaster in the pack that he received earlier today. Our view is that this is not possible, and that the Bill must always be read in the framework of the constitution. Were we to read this Bill in isolation, were there no such thing as the Human Rights Act, it is possible that the provisions cited by the hon. Gentleman could be operated in a way that might breach the Human Rights Act. However, it is not possible to assume that the Human Rights Act does not exist—it does, and it is necessary to read this Bill in conjunction with section 6 of that Act, which provides that it is an unlawful act to do any act which is incompatible with the convention rights. An ''act'', for this purpose, includes the making of secondary legislation. We are resisting amendments that seek to restate something that is inherent in legislation. The suggestion made by the hon. Member for Sheffield, Hallam to make that clearer by requiring a statement of conformity is helpful, and re-emphasises the necessity of conformity. However, the

other amendment is otiose—a word I was challenged to use earlier, and I have succumbed to that challenge—and we shall continue to resist it.

Photo of Mr Michael Trend Mr Michael Trend Conservative, Windsor

I am sorry, I became a bit muddled in the closing passages of the Minister's speech. She has my heartfelt sympathy for her present condition. Was it that she has some sympathy with amendment No. 109, and will look at it again, but has none with amendment No. 97, or the other way round?

Photo of Fiona Mactaggart Fiona Mactaggart Parliamentary Under-Secretary (Home Office) 4:45 pm, 3rd February 2004

I realised that I was sinking beneath the waves of coughing, but not that I was becoming so unclear. I have sympathy with the motives of both amendments. I resist amendment No. 109 on the grounds that it is unnecessary to include such a provision because it is inherent in the Bill when read in conjunction with the Human Rights Act. However, although I cannot accept amendment No. 97 as drafted, I accept the intention behind it, which is to require a statement of conformity in such circumstances, and I hope to table a suitable amendment on Report.

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

That was an extremely helpful response. We are interested in the point at which the statement comes forward. The Government have fully accepted the principle of a statement coming forward and the Minister's response that they will consider introducing a provision requiring a statement to be made at this stage is precisely what we are looking for, so it would be only sensible to withdraw the amendment as graciously as the Minister responded to it. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

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

There is an outstanding question to which the Under-Secretary did not respond earlier. I do not want to detain the Committee and this question may be one for a note. The Under-Secretary was asked about the Lords Commissioners, and I am not entirely satisfied as to whom we are talking about in subsection (3). That has not yet been resolved, but a note from the Minister would be acceptable instead of her having to respond to the question now.

Photo of Fiona Mactaggart Fiona Mactaggart Parliamentary Under-Secretary (Home Office)

There are seven Lords Commissioners of the Treasury: my right hon. Friends the Prime Minister and the Chancellor, and my hon. Friends the Members for West Carmarthen and South Pembrokeshire, for Enfield, North, for Halton, for Eastwood and for Nottingham, East.

Question put and agreed to.

Clause 19 ordered to stand part of the Bill.

Clause 20Conditions for making emergency regulations