New clause 1 - Performance of functions and jurisdiction of the courts

Civil Contingencies Bill – in a Public Bill Committee at 4:30 pm on 10th February 2004.

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'Where Her Majesty, a Minister of the Crown or other person or any of them performs functions under Part 2 of this Act they shall carry out those functions only in circumstances in which they have reasonable cause to believe that the exercise of those functions are essential in the national interest and nothing in this Act shall be construed as ousting the jurisdiction of any court in determining that or any other matter arising under this Act.'.—[Mr. Heald.]

Brought up, and read the First time.

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

I beg to move, That the clause be read a Second time.

The new clause was tabled by my hon. Friend the Member for Stone and was designed as a check on the

Executive. I should be interested to hear the Minister's response to the new clause, after which I will see if I have any further questions.

Photo of Douglas Alexander Douglas Alexander Minister of State (Cabinet Office) and Chancellor of the Duchy of Lancaster

That prompts the question of what is the point of MPs standing in elections when they can act like the Government anyway? I shall endeavour to answer the hon. Gentleman's rather elliptical introduction to the new clause.

The Government agree with the sentiments underlying the amendment, but perhaps unsurprisingly in the context of our discussions this afternoon, we are unable to accept it. We have discussed at length the checks and balances that limit the exercise of powers conferred by part 2, and particularly how the triple lock and the Human Rights Act 1998 will operate to restrict the exercise of emergency powers. It is not clear what the additional restrictions suggested by the new clause, which says that the powers must be exercised only when that is

''essential in the national interest''

would add to the safeguards. I will be intrigued to hear the hon. Gentleman's contribution.

Concerns have been raised about the ability of the courts to review the exercise of emergency powers. Access to the courts is a fundamental principle of the United Kingdom's constitution. Even in an emergency, a person should be able to challenge the legality of an action that adversely affects them. However, there is nothing in the Bill to limit that. The fact that the Bill does not expressly require the powers conferred by the Bill to be exercised reasonably, as I sought to describe earlier, is not an attempt to oust the courts' jurisdictions. Modern case law makes it categorically clear that the courts will require any power of that nature to be exercised reasonably, regardless of the terms on which the power is conferred.

If the Government thought that there could be any doubt about the ability of the courts to review any unreasonable action undertaken under the Bill, they would expressly require the powers to be used in a reasonable fashion, but there is no doubt on that point.

Photo of Oliver Heald Oliver Heald Shadow Leader of the House of Commons 4:45 pm, 10th February 2004

I am grateful for that. This is the point that my hon. Friend the Member for Stone was particularly keen to get at; what does the Minister's state of mind have to be to trigger the performance of the functions referred to? The point that my hon. Friend was making about Liversidge v. Anderson was that, even in Lord Atkin's judgment—the Minister accepts that that is the correct way of looking at the matter—the Minister has to have reasonable cause for his thinking; he does not have to genuinely believe on reasonable grounds. That is the essence of my hon. Friend's point. I would be grateful for a bit more detail on what, in the Minister's view, is the reasonable state of belief required from a Minister in carrying out the functions. He has talked about the concept of reasonableness, but we should tie that down in a bit

more detail. I ask the Minister to say a bit more about whether the belief has to be a genuine belief on reasonable grounds in order to enable the Minister, or Her Majesty, to carry out the functions referred to in line 3.

As regards the national interest, the Minister and his colleague will know that I have been teasing out the following point in recent discussions: under the 1920 Act, there was the idea of the essentials of life; the Act was about providing to the community the essentials of life in circumstances in which they had been deprived of them. In the Bill, the definitions are much broader and the powers much wider. We are told about the trigger mechanisms and the ways in which the Bill provides protection but, overall, is the purpose of the Bill still the same as that of the 1920 Act—that is, to ensure that an emergency can be dealt with by ensuring that the essentials of life are made available to those deprived of them? If not, and the purpose is now wider, will the Minister explain why? I am sure that that was what my hon. Friend was getting at in using the expression

''that the exercise of those functions are essential in the national interest''

in his new clause.

We want the Bill to be used only in circumstances that are grave and affect the national interest, and in which the community has been deprived of the essentials of life. In other words, we want to know whether the essential aims of the Bill are no different from those of the 1920 Act, and whether the Bill is a modernisation, or an updating; we want to know whether it is looking at the same issues, but in a modern context.

Photo of Douglas Alexander Douglas Alexander Minister of State (Cabinet Office) and Chancellor of the Duchy of Lancaster

Let me endeavour to answer both those points. Last night, while checking that the reply to a query put to me by the shadow Attorney-General was accurate, I found myself a reading public law case book. One of that book's comments was that we should no longer be haunted by the decision made in Liversidge v. Anderson, although I fear that it continues to haunt some of our deliberations and discussions. On the point about reasonableness, I repeat what I said earlier: we have considered the implications of Liversidge v. Anderson and of subsequent case law. We are satisfied that it is now accepted that the dissenting judgment of Lord Atkin is good law, and that the courts will inquire about the reasonableness of the Minister's belief.

In relation to the specifics of this Bill, there was a question about what reasonableness of belief would mean in the context of particular ministerial deliberations. Clearly, there would be a genuine, objectively reasonable belief; that would be a matter for the deliberation of the courts in circumstances following the judgment exercised by the Minister.

I am not convinced that the hon. Gentleman's case for the need for an element of national interest adds much to the definition of emergency that we have set out, which clearly modernises the essentials of life and the terms on which the whole Bill is founded. The commodities of life were described in the 1920 Act in terms of issues such as locomotion. It is appropriate to

modernise the framework of civil protection, but also to ensure that there is a rigorous and clear definition of emergency. Much of the Committee's recent discussions has covered exactly that point.

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

I have no doubt that we will wish to return to this subject on Report. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.