Clause 25 - Duration

Civil Contingencies Bill – in a Public Bill Committee at 3:15 pm on 10th February 2004.

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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) 3:15 pm, 10th February 2004

I beg to move amendment No. 121, in

clause 25, page 17, line 11, at end insert

', or

(c) when a senior Minister of the Crown determines that the conditions specified in section 20 are no longer satisfied.'.

Photo of Joe Benton Joe Benton Labour, Bootle

With this it will be convenient to discuss the following amendments: No. 122, in

clause 25, page 17, line 12, leave out from end to beginning of line 14.

No. 105, in

clause 25, page 17, line 15, at end add—

'(3) Where emergency regulations are made and thereafter new regulations are made, the series of regulations shall lapse after 90 days and new regulations shall not be made thereafter under this Part in respect of the emergency.'.

No. 106, in

clause 26, page 17, line 40, at beginning insert

'Subject to section 25(3) of this Act'.

No. 124, in

clause 26, page 17, line 40, leave out from end to beginning of line 42.

No. 129, in

clause 26, page 17, line 41, leave out paragraph (a).

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) 3:30 pm, 10th February 2004

Amendment No. 121 is an unusual example of us offering to give the Minister and the Crown more, rather than less, power. Normally we spend our time in these Committees trying to strike out powers exercisable by Ministers and saying that everything should be in regulations, but under these circumstances we think that it would be appropriate for a Minister to have the power to end their extra-constitutional and extra-parliamentary activity, that is, the emergency regulations that they brought into play. As we read the clause, there are only two circumstances in which the regulations would lapse: at the end of 30 days, which we accept as a sensible safeguard, or at a time specified in the regulations—in other words, if the regulations themselves state that the power exists only for, say, 15, 20 or 25 days.

We think that a third option should be available to Ministers. They should be able to say, ''Okay, we haven't reached the 30 days''—or the 25 days—''but the emergency is over.'' We can imagine circumstances in which an emergency is predicted to be more severe than it turns out to be. In those circumstances, it would be sensible for a Minister to be able to say after five or 10 days that the regulations had lapsed. That would put an extra limitation on the force of the emergency regulations and would be helpful in this context. I hope that the Minister can accept amendment No. 121 in the helpful spirit in which it is intended, and that he will respond positively.

The spirit of amendment No. 121 might be acceptable, but I suspect that amendments Nos. 122 and 124 are less acceptable. They would remove the ability to make new regulations after 30 days and to extend the powers beyond that time. We think that that is an important area to explore. We understand that the emergency regulations, as introduced outwith Parliament by the Executive, have to be brought to Parliament within seven days. That is entirely sensible and under normal circumstances, in which the Government have a parliamentary majority, one would expect Parliament to approve those emergency regulations, but we do not want continued extensions to the emergency regulations. If the Executive were able to get parliamentary approval for that, it would not be unconstitutional. However, we believe that that is a far less satisfactory solution than specifying that, after the initial period for which the emergency regulations have been in force, primary legislation must be sought. The example I cited before is the Anti-terrorism, Crime and Security Act 2001, which was a parliamentary constitutional response to the events of

11 September, and passed through both Houses of Parliament quite rapidly.

In seeking to remove the Government's ability to extend their emergency regulations, we do not seek to deny them the ability to continue with the kinds of powers that they need in an emergency. Instead, we are suggesting that the powers should be dealt with only through primary or secondary legislation, in the normal way, rather than by extending emergency regulations again and again. We think that there would be a temptation to do that. The Government could cite a lack of parliamentary time or the fact that getting the provisions through Parliament would be more difficult and that it would be more straightforward simply to approve an extended emergency regulation. We are trying to assist the Government by leading them out of the valley of temptation into pastures in which they would have to come forward with primary or secondary legislation—that is a mixed biblical reference. Essentially, we are trying to limit Ministers' options in those circumstances.

Amendment No. 121 offers Ministers an additional power and I hope that the Minister approves of that. It is a power to self-limit. Amendments Nos. 122 and 124 are quite clearly trying to limit Ministers. We think that the limitation would be sensible and would ensure that parliamentary sovereignty is maintained.

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

I shall speak to amendments Nos. 105, 106 and 129. The point is the same: there should not be an unlimited period of emergency regulations. Amendment No. 105 would mean that, for one emergency, there would be a maximum of 90 days of emergency regulations. If the Government wanted to continue with the powers after that, they would have to introduce a Bill, but 90 days gives them adequate time to do that. It would be wrong, as the hon. Member for Sheffield, Hallam (Mr. Allan) has said, to allow Ministers to continue with emergency regulations over very extended periods of time.

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)

In support of the hon. Gentleman, it is worth noting that the 2001 Act, which is substantial and involves significant legal issues, was passed well within 90 days.

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

I entirely accept that. We all have some experience of emergencies, if not necessarily of that kind. When there is a need, Parliament can act relatively quickly and 90 days is more than adequate for that purpose. It is incumbent on the Minister to explain why he wants more time.

Many concerns have been expressed about the Bill and the wide-ranging nature of the powers that the Government are taking. We are not used to emergency powers. We do not have bush fires lasting for 100 days or repeat earthquakes, and our floods do not last for hundreds of days. The Minister needs to come up with something major to justify more.

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

What challenging words to rise to, Mr. Benton.

The hon. Member for Sheffield, Hallam challenged me to join him in pastures new by accepting his amendment, but I fear that I may disappoint him.

[Interruption.] I welcome the opportunity to discuss the period of duty—I may be a sinner repenting, but not in these clauses.

Although I welcome the opportunity to discuss the time for which emergency regulations will be in force, the Government cannot support the amendments. When emergency regulations are made, an assessment will be carried out as to how long it is likely to be necessary to keep them in force. If it seems at the outset that it would be necessary and proportionate to maintain the regulations in force for a matter of days or weeks only, the regulations will provide for that. In subsection (1)(b), the Bill expressly recognises that regulations may themselves specify a date on which they cease to have effect. In other cases, however, the regulations will lapse automatically 30 days after the day on which they are made.

The Government will not be idle in the period between making the regulations and their automatic lapse. We will keep the situation under review. If it becomes apparent that there is no need to maintain the regulations in force and that it would be reasonable to revoke them, the Government will do so. It is therefore unnecessary to provide for that in the Bill. The Government will review the continued operation of emergency powers as a matter of course and they will be accountable to Parliament for so doing. It is unnecessary expressly to provide that the regulations may be revoked, given that section 14 of the Interpretation Act 1978 provides that where an Act confers a power to make regulation, it implies a power to revoke them.

If, at the end of the period of 30 days it is clear that provisions are still needed, the Government will have a number of options. If it is apparent that an emergency will continue for a substantial length of time, the Government could bring forward appropriate primary legislation to replace the emergency regulations whenever possible. However, that may not always be the best approach. The nature of an emergency can change over time, and its effects and implications are clearly unpredictable. It may not always be desirable to attempt to construct appropriate primary legislation, as it may risk being overtaken by events. In such circumstances, a further set of emergency regulations could be made.

Concern has been expressed about whether a subsequent set of emergency regulations would be subject to parliamentary approval. Under the 1920 Act, emergency regulations could be maintained in place by way of a monthly royal proclamation and without further parliamentary approval, but the Government agree that that is not the right approach in the modern day. Any new set of emergency regulations should be subject to further parliamentary debate. The Bill provides for that.

Subsection (1) provides that emergency regulations will lapse 30 days after they have been made. Subsection (2) makes it clear that a new set of regulations may be made thereafter; but any such regulations would be subject to the provisions for parliamentary scrutiny laid down in clause 26. Clause

26 applies when emergency regulations are made; there is nothing that limits its application to the first set of emergency regulations. The Bill is therefore clear on that point. There is no need to provide expressly that a second set of regulations should be subject to parliamentary scrutiny; nor does subsection (2) cast any doubt on that point.

The hon. Member for Sheffield, Hallam raised the understandable concern of how many times emergency regulations may be remade. The Government considered whether a limit should be included in the Bill. However, we rejected that approach on the ground that it would be arbitrary and inflexible. What would the limit be? For example, the amendment offered by the hon. Member for North-East Hertfordshire suggests three times, but some emergencies may last a little longer, perhaps by only a couple of days or weeks. It would not be sensible to remove emergency regulations that had been approved by Parliament and put in their place primary legislation that might be needed only for a short time—perhaps only a few days.

It has been suggested that anti-terrorism legislation was a useful precedent, but considering the length of time it took to pass that legislation, it is questionable whether in those circumstances, where the emergency situation might continue for a matter of days, it is better to start a process of securing primary legislation. In addition, there may be emergencies that initially appear short term, but turn out to be longer lasting. In such circumstances the Government might find themselves with insufficient time to bring forward primary legislation to deal with the situation, but forced to allow emergency regulations to lapse.

The Government consider that there are adequate safeguards in the Bill to ensure that emergency powers are not maintained for a longer period than is necessary. Each set of regulations will have to meet the triple lock, which has clearly been debated on a number of occasions in this Committee. In particular, it must still be necessary to make provision to deal with the emergency. The emergency regulations would be subject to parliamentary approval every 30 days.

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 Minister for not calling my amendment No. 121 otiose. I think that that was the substance of what he said in response. The Interpretation Act, which my hon. Friend the Member for Orkney and Shetland says is a wonderful thing, means that what a Minister giveth, a Minister also taketh away—the Minister can simply say that the emergency regulations are no longer necessary without this being specified in the Act. That is a helpful addition to my legal knowledge, although I still think it would be helpful to have it spelled out in this piece of primary legislation.

On the other points that he made about the potential to repeat, we will be debating the introduction of those emergency regulations when we get to clause 26. The extent to which parliamentary scrutiny genuinely still takes place remains an issue of concern, certainly on this side. Going back to the point I made in moving the amendment, parliamentary scrutiny is limited by the fact that Governments will have a majority and will be able to get repeat approval

for their regulations, so we prefer to see the scope of this procedure locked down even more. However, I will certainly consider the points that the Minister made in what was a helpful response to this group of amendments and I would not seek to press the amendment.

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

We are not satisfied that the Minister so readily rejected amendment No. 105. This Bill gives very wide-ranging powers, the sort of powers that are strictly unusual in our country, a free country. The sort of powers we are talking about could include taking people's property away without compensation; destroying property, animal life or plant life without compensation; or prohibiting or enabling the prohibition of, people's movements. This is about soldiers at the end of the street.

Is the Minister seriously saying that he, as the Minister, is entitled to say to us, ''We are going to take these wide-ranging powers and, because it might be slightly inconvenient for the Government, we are not prepared to put any limit on the length of time that this can go on''? He starts off with 30 days, he may want another 30 days, and so on, but 90 days is a good long time for a country like ours to have these sorts of regulations in place. For the Minister to say that we may not be able to make a prediction and that when we reach 90 days we may not have time to pass primary legislation, is lazy complacency which will not do. [Interruption.] Well, it is a lazy complacency and it is the sort of thing that Governments want to get away with. With a massive majority like theirs, they think that they can swan along, not giving a concession on anything, and that our great, free country just has to put up with it. If there were a Labour majority of five, 10 or something of that sort, they would make concessions on these matters, because this is against liberty. It is against all the things for which this country stands. They should put a limit on it and it is time that they did.

I want to return to this and I am going to withdraw the amendment so that I can.

Photo of Douglas Alexander Douglas Alexander Minister of State (Cabinet Office) and Chancellor of the Duchy of Lancaster 3:45 pm, 10th February 2004

I am saddened and disheartened that the civility that has characterised our discussions seems to be departing in the death throes of the Committee stage.

The point that has been made is important and it merits a serious response. What unites the Liberal Democrats and the Conservatives is not a recognition of contempt for Parliament on my side of the Room but a contempt for democracy on their side. The fundamental grievance that unites the hon. Members for Sheffield, Hallam and for North-East Hertfordshire is that the British people deliberated and decided to give the House of Commons a Labour majority. They have inner rage and frustration about that. The only point of common acceptance between them is their indignation and anger that any Government can have a majority as large as that of this Labour Administration.

It was entirely disingenuous of the hon. Member for North-East Hertfordshire to suggest that there are not the appropriate democratic safeguards on a

Government seeking to implement emergency regulations. I would have thought that in his calmer moments he would have recognised that the 30-day limit, with its obligation then to come back to Parliament, gives the safeguard for democracy and liberty that he spoke about in such overblown terms at the end of his contribution. I cannot accept his fundamental premise that somehow the workings of democracy stop when there is not a Conservative majority in the House of Commons. On that basis, he is fundamentally wrong.

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

Does the Minister really want to live in a country where we can carry on with emergency regulations of this sort for years with no end date in sight? That is not good enough. Ninety days is good enough. If he then wants to introduce a Bill, that is fine.

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

I assure the hon. Gentleman that I am confident that the triple lock, which remains in place, and the fact that we will come back to Parliament every 30 days on the basis of the regulations, give the safeguards that the British people reasonably expect. It ill behoves him to suggest that there are motives on this side of the Room that are not apparent. We have said that there will be a triple lock, which is a stronger set of guarantees than ever existed under previous Conservative Administrations—or, indeed, previous Labour Administrations.

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

I will not give way at this stage, as I want to develop my argument.

We are keen to ensure that the appropriate safeguards are embedded in this legislation. That is why we introduced the triple lock. I have no favour with an argument that suggests that, given the particular composition of the House of Commons at any particular time, the appropriate democratic safeguards—that these regulations come back to the House of Commons after 30 days—are somehow invalidated.

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

I feel that I have to protect the Minister. In the future, things may not be as they have been during his time. At present, there is a massive Labour majority, but a time may come when a different party is in power.

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

I do not think that it will be the Liberal Democrats.

We must pass good laws with proper protections. I am not satisfied that that is the case, so I will press for a separate Division on amendment No. 105.

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)

To close the discussion on amendment No. 121, the Minister's contribution deserves a brief response because he threw accusations of contempt of Parliament at opposition parties. It is worth returning to some of the contexts of the Bill that we set out on Second Reading, because they are particularly relevant.

Parliament might not always be in the hands of democratic, rational parties. We would not have

particular concerns about any of the parties that are currently represented in this Committee. However, in some of our closest neighbouring European states, parties that are on the verge of being dangerous, undemocratic forces have achieved power and authority, and we need to protect against them.

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

An illogicality has crept into the hon. Gentleman's contribution. What statutory safeguards is he seeking in this legislation to ensure against the democratic wishes of the British people as expressed in a future general election? What safeguard could we possibly have against the choice that the British people might make at any point in the future as to who they choose to elect to the House of Commons?

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 Minister should read his history books or look at some of the political circumstances that prevail today. Parties gain significant power, seek to use any statutory ability that they have to create states of emergency and then use that to take yet more power unto themselves. We have concerns about the legislation that we are currently debating not because we think that it would be used by the kinds of parties that are represented in this Committee, but because there is the potential for it to be abused at some future date if a party with less well-intentioned motives gains a position of power and authority. We were reminded on Second Reading that the Nazi party in Germany gained power through democratic means. It gained power through the ballot box to a certain degree and then used statutory powers to extend its ability to get into the organs of the German state. We are talking about powers and legislation that might last 50, 60, or 70 years. I cannot predict that at no future point will a party under our current electoral system be able to gain sufficient power and authority to seek to use emergency powers in an abusive fashion. I remain concerned about that and we are trying to limit emergency powers by limiting the scope for their potential abuse by anyone at a future date.

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

Does the hon. Gentleman agree that if we do not attempt to limit the powers to what is reasonable we might as well as give up? The whole point of this exercise is to try and pass reasonable laws that provide reasonable powers to what, I hope, is a reasonable Government.

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 is correct. The counter-argument is just to trust the Government, which will supposedly be okay as it will always be elected by a majority. It is perfectly reasonable that in our amendment we have sought to ensure that the Government do not have the ability to abuse emergency regulations. The hon. Gentleman's proposal of a 90-day measure is entirely sensible, and I will support his amendment if he moves it. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Joe Benton Joe Benton Labour, Bootle

With this it will be convenient to discuss the following amendments:

No. 125, in

clause 26, page 17, line 42, leave out 'affect anything' and insert 'render unlawful'.

No. 130, in

clause 26, page 17, line 42, leave out 'affect anything' and insert 'render unlawful'.

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 amendments concern a legal point. We think that there is a distinction to be drawn between the current wording, which says that anything that has happened under the regulations would not be affected at a later date, and wording that says that anything that happens in the parliamentary process does not render the regulations unlawful. It is important to make that distinction.

We can foresee circumstances where regulations have been made, Parliament takes a different view when it meets after the seven-day interval, and a question mark is thrown over the regulations. The ''rendering unlawful'' formula is intended to ensure that servants of the Crown who are engaged in this—whether they are members of the armed forces or of the blue light services, such as doctors—have the protection that they need, as they are simply carrying out their duties quite properly under the regulation. We do not want their actions to be rendered unlawful. However, to say that any subsequent decision of Parliament shall not affect anything, as the original wording does, goes too far.

Earlier, in our animal health and foot and mouth examples, emergency regulations have ordered the destruction of animals, but Parliament has then taken a different view. It may be appropriate in those circumstances for compensation to be given that reflects the fact that regulations were struck down by Parliament. We would not want vets or anyone else involved to be declared to be acting unlawfully, but we do want things to be affected. The amendment is a genuine attempt to reflect the intention of the legislation, which is to ensure that we protect people who are carrying out the regulations, without going so far as to render everybody incapable of taking action, especially where action may be justified on the basis that Parliament took a different view about emergency regulations. The sovereign, sensible, rational Parliament, elected by the British people, might take a different view about the emergency regulations from the one that the Minister took when he drafted them.

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

The Government entirely agree that lapse of the regulation should neither render as unlawful action that which has been properly taken in reliance on the regulation, nor adversely affect the rights of those who have been affected by such action. The amendments would not achieve that result however, and I cannot accept them for that reason.

Concerns have been raised that the provision would somehow cast doubt on a claim for compensation in relation to action undertaken under the regulations. That is simply not the case. If a public authority exceeds its powers under the regulations, or if the regulations themselves are defective in some way—for example, they do not provide for compensation in circumstances where it is required under the Human Rights Act 1998—an individual who is adversely

affected can seek redress in the courts. Lapse of the regulations will not affect that, as the right to seek redress derives not from the regulations but from public law. However, it is appropriate to make express provision to ensure that things that are lawfully done under the regulations are not affected by lapses of the regulations. That is the purpose of clauses 25(2)(a) and 26(4)(b).

Those provisions will apply to action taken by public authorities under the regulations, but will also relate to things done by or in relation to other persons. Thus, if an individual has received compensation under the regulations or exercised a right of appeal conferred by the regulations, a lapse will not affect that payment or that appeal. If a person has been convicted of a criminal offence under the regulations, a lapse will not affect that conviction.

The wider wording used in the Bill—that a lapse of the regulations

''shall not affect anything done by virtue of the regulations''—

achieves that end, but it is not clear that the narrower wording suggested in the amendments that a lapse shall not ''render unlawful''

''anything done by virtue of the regulations''

would serve, for example, to preserve any payment of compensation or appeal rights. There may be a common agreement as to the intention, but we cannot accept the amendment.

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

The Minister referred to the public law basis on which compensation was to be made. Will he explain what he meant by that?

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

The right to seek redress is established in common law, rather than specifically on compensation. For example, the European convention on human rights allows for redress against public bodies. I think that that addresses the specific point raised by the hon. Gentleman.

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 response and we will study the record. At this stage, it would not be helpful to press the amendment. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 105, in

clause 25, page 17, line 15, at end add—

'(3) Where emergency regulations are made and thereafter new regulations are made, the series of regulations shall lapse after 90 days and new regulations shall not be made thereafter under this Part in respect of the emergency.'.—[Mr. Heald.]

Question put, That the amendment be made:—

The Committee divided: Ayes 7, Noes 9.

Division number 8 Adults Abused in Childhood — Clause 25 - Duration

Aye: 7 MPs

No: 9 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Clause 25 ordered to stand part of the Bill.