Civil Contingencies Bill

HL Deb 09 November 2004 vol 666 cc843-76

8.40 p.m.

Consideration of amendments on Report resumed.

Clause 19 [Meaning of "emergency"]:

Lord Lucas moved Amendment No. 58: Page 12, line 32, leave out "threatens serious damage to" and insert "seriously threatens

The noble Lord said: My Lords, in moving Amendment No. 58, I should like to speak to Amendments Nos. 59, 60, 61, 66 and 67 as well.

Amendments Nos. 58 and 59 do the same thing in different places. Amendment No. 60 is misdrafted and should have been sitting along with Amendments Nos. 61, 66 and 67, removing the words "damage to". They are all of a piece, replacing the words "threatens serious damage to" with "seriously threatens".

I take these amendments extremely seriously. Ever since I have been involved with this Bill and its draft. I have been worried that the gateway to an event becoming an emergency is left too open. The noble Baroness was quite correct in the way in which she described this in Committee. Quite a remote threat of something extremely serious can trigger the Bill. I do not think I am fussed about that; it is the way of expressing it, the words that are used and what breadth is attributable to them.

I suppose that I had turned over a lot of alternatives in my mind as well as listening to all the thoughts that were expressed in the Joint Committee; I had not arrived at any comfortable conclusion when the noble Baroness put down her own amendment, using words that seem perfect, changing the wording in subsection (1)(c) to "seriously threatens". I find that much more satisfactory.

It is very important that the wording in the Bill is right legally but that, at the same time, it is expressed in a way which sounds right to ordinary people. The Bill may have to be, in extremis, interpreted and understood without the help of constitutional lawyers. Although we had a fascinating discussion earlier on various principles of administrative law, they meant absolutely nothing to me. Your average general will never begin to understand what is meant by that, whereas I think that they will understand "seriously threatens". That encapsulates the concepts of whether it is a serious threat and whether it is threatening serious damage very nicely in one phrase, which allows those two aspects of a potential emergency to be balanced and for a conclusion to be drawn in language and understanding which is in common usage.

It is far too easy, in English usage, to interpret the phrase "threatens serious damage to" as meaning, "Does it threaten serious damage to?", not "Is it a serious threat?". It is very easy to threaten serious damage to something. You just say, "I will do it". That is a threat, but it is not a credible threat. None the less, it is something which "threatens serious damage to" in the use of English.

I find that looseness worrying. This is the gatekeeping phrase. When we come to the other aspects of the triple lock in Clauses 20 and 22, we are referred to, an aspect or effect of the emergency". By that time, it has been assumed that there is an emergency and the likelihood of an emergency coming to pass is no longer relevant. It is a question of whether this "aspect or effect" of it will be dealt with by the regulations.

So we lose our grip on proportionality and our grip on what is necessary if we let through in the wording of Clause 19 something that is inherently unlikely, but none the less extremely damaging, without being able to look at it together and say that it "seriously threatens" human welfare or the environment. That is a formulation that I would be happy to live with. I would not be happy to live with "threatens serious damage to". I am very grateful to the noble Baroness for having provided this solution to my little dilemma. I wish to encourage her to take that solution and apply it to the rest of the clause. I beg to move.

Baroness Buscombe

My Lords, I rise to support the amendment, to which my name has been added. My noble friend Lord Lucas has picked up a very sensible use of language. As he said, the wording is already used in Clause 19(1)(c). It is quite clear that a number of noble Lords, including those on these Benches, are still concerned about the scale of emergency that should sensibly trigger the provisions of the legislation.

These are simple amendments, but they would enormously improve the drafting of the Bill and help to allay our remaining fears about the operation of Part 2. The definition of "emergency" is still too wide and needs to be tighter so that the powers are not abused or used too readily.

As I said repeatedly in Committee, I am not talking only about this Government. One has to contemplate governments of the future who may be more willing to invoke these draconian measures. They are draconian and we should not pretend otherwise. Nor should we underestimate the extent of these powers. I hope, therefore, that the Government have given serious thought to the small changes that the amendment proposes. If they were accepted, the Opposition would feel much happier with the clause.

While thinking through some of the issues, I looked again at the Joint Committee's report on the Draft Civil Contingencies Bill. At that stage, the Joint Committee was concerned about the generality of the overarching definition of "emergency". Notwithstanding the fact that the Government have responded in a number of ways to the Joint Committee's concerns, the spirit of what the Joint Committee was trying to convey is still with us. "Emergency" is still defined incredibly broadly in the legislation. It continues to give rise to a number of questions that merit further explanation.

As the definition is still wide, there is ample scope for ambiguity and misinterpretation of events. For example, the Joint Committee referred to the possibility of questioning whether we are talking about major accidents or serious economic crises. We no longer have to concern ourselves with the question whether we are talking about a serious economic crisis, but we are looking for a way of trying to raise the threshold of what is sensibly meant by the term "emergency".

I hope that the Minister has thought about this matter. I hope that she will accept and take as a compliment the fact that we believe her wording in Clause 19(1)(c) really does raise the threshold of what is meant by an emergency. I hope, therefore, that the Minister will consider the amendment seriously.

Viscount Goschen

My Lords, it sounds like a tiny point of drafting. If one had heard the debate in isolation, one might have thought that this was about pedantic drafting, but it is not. I agree with my noble friend that this is an extremely important amendment.

What we are talking about must be the combination of the likelihood of an event happening and the seriousness of the damage that that event would cause if it did happen. It must be the product of those two things. I certainly agree with my noble friend that, the way the Bill stands at the moment, the level of the damage is specified but not the level of threat. The combination has to comprise a very serious situation in order for such potentially draconian powers to be triggered.

I certainly support my noble friend's amendment. I would go further than him: I am concerned about emergency powers being invoked because of an event that could be absolutely catastrophic to the planet but which constituted a very, very remote threat, for example, an asteroid collision. There may be a millionth of one per cent chance that such an event would happen, but if it did happen it would not be especially good news.

I hope that the Minister has listened to the arguments that have been put forward. I would even prefer the expression, "seriously threaten serious damage", but that would be much clumsier than the term suggested in my noble friend's amendment. I support the amendment.

Lord Elton

My Lords, the noble Baroness is persuaded of the importance of seeing that the powers are not improperly used through the use of the triple lock in which she has asked us to repose our confidence. However, every lock has a little piece that slides over it. I think that it is called the scutcheon or the escutcheon. This is what my noble friend is proposing. His amendment would add just that little bit more security. It would also make the situation much more easily understood by the man in the street or, as my noble friend would probably say, the general on the Clapham omnibus. I hope that the Government accept the amendment.

Lord McNally

My Lords, I hope that Ministers recall the serious mauling of Clause 19 in Committee and the concerns that were expressed then and that at this stage their briefs are not too rigidly written. The amendment seems to me entirely constructive. I hope that Ministers will show flexibility in trying to meet the concerns that have been expressed.

Baroness Scotland of Asthal

My Lords, I hope that I will not disappoint the noble Lord, Lord McNally. I well remember our interesting debates in Committee; in fact, I think they will stay for ever in my memory.

I say to the noble Baroness, Lady Buscombe, and to the noble Lord, Lord Lucas, that we take these issues seriously. We understand the concerns that they have expressed. We also understand the desire expressed elegantly by the noble Lord, Lord Elton, that there should be a little bit extra security if it can be managed. We understand those sentiments. However, regrettably, I am not able to agree. I shall explain why.

I preface my comments with a reminder to the House—the noble Lord, Lord Lucas, will remember this well as he was a member of the Joint Committee that considered the matter—that the Joint Committee in considering this very part of the Bill queried the use of, and the reference to, a serious threat in the draft Bill. Your Lordships will remember that previously the damage was not referred to. The Joint Committee prayed in aid the suggestion that the Government should amend the draft Bill to ensure that damage comprised serious damage. That is what we have done in Clause 19(1)(a) and 19(1)(b). That was done in response to that recommendation.

As your Lordships mentioned, we have for drafting reasons taken a slightly different approach towards the reference to threats to security in Clause 19(1)(c). I thank the noble Baroness, Lady Buscombe, for her warm words in relation to that matter. Your Lordships will find the reference to the text of the consultation on page 8 of the Joint Committee's recommendations.

I should state clearly that the Government agree that emergency powers should be used only in the most serious of emergencies that have large scale effects. I do understand the comments made by the noble Viscount, Lord Goschen, regarding the need for that to be emphasised. The Government believe that this is inherent in the language of the Bill. A threat of serious damage to human welfare in the UK, a part or region implies very strongly the scale of incident in question. A disruption to the supply of electricity affecting only a few hundred people is not a threat of serious damage to human welfare in the UK, a devolved territory or an English region. The loss of electricity to a wide area housing millions of people on a long-term basis may, however, be such a threat, given that it would clearly threaten human life and disrupt essential services and supplies.

Even in such a serious emergency, where the risk of serious damage to human welfare is obvious, there are very clear limits regarding what may be done if it is determined that use of emergency powers is appropriate as existing powers are insufficient. The Bill is very clear that regulations can be made only if they are needed urgently, aimed at preventing, controlling or mitigating the emergency and are both necessary and proportionate in the circumstances.

It is important to continue to keep those requirements at the forefront of one's mind when discussing the seriousness of the events regarding which emergency powers may be invoked. The Bill sets out an overlapping range of tests of which seriousness is just one part. Even if it is clear that an event is very serious it may not be possible to invoke the powers to make specific provisions if one or more of these tests is not satisfied. Clause 19 is very much just the starting point in considering whether, and how, the powers may be used.

I turn to Amendments Nos. 58 and 59. To require the list of events and situations listed in Clauses 19(2) and 19(3) seriously to threaten human welfare or the environment, as opposed to seriously threaten damage to these, would shift the emphasis away from the significance of their effects and onto the seriousness of the threat itself. Any use of emergency powers will be based upon a reasonable assessment of both the likelihood of an event occurring and the consequences of it doing so. Ultimately, however, it is the potential consequences and not the level of threat itself that must trigger the use of the powers. I was grateful for what I have taken as the assent given by the noble Viscount, Lord Goschen, in relation to that principle, although the judgment that an event may cause "serious damage" must be reasonable.

It is important to keep in mind that the tests in Clause 19 are just the starting point for a set of overlapping safeguards. Even if a situation or event is said to meet the tests in Clause 19, it must also require the urgent making of emergency regulations as existing powers are insufficient. Any regulations made must be proportionate to that situation. It is simply not the case that an emergency is said to exist and unlimited powers are taken on that pretext. The tests in the Bill must be satisfied.

In some cases the threat may not be that serious but the consequences, as we discussed in Committee, may be so grave as to justify the use of the powers. On that occasion we used the example of what would happen if there was a nuclear device where the consequences would be overwhelming. The seriousness of the consequences would be the key factor in determining whether action is necessary. The likelihood of the threat materialising may be debatable, but the consequences of inaction would be disastrous.

9 p.m.

As to Amendments Nos. 60 and 61, it has been suggested that the requirement for an event or situation threatening serious damage to the environment falling within the definition of emergency should be removed. That would mean that any event or situation within Clause 19(3) could constitute an emergency. Thus contamination of land by radioactive matter would automatically satisfy Clause 19(3) without any consideration as to its effect. It would therefore automatically satisfy the requirement at Clause 19(1)(b) as a threat of serious damage to the environment of the UK, a part or a region and thus remove one of the layers of the test to be satisfied before emergency regulations can be invoked.

Amendments Nos. 66 and 57 are on very much the same theme. They remove the requirement for an event or situation threatening damage to human welfare before an order under Clause 19(4)(b) could be made and instead require it to simply threaten human welfare. That would not alter the meaning of the clause, but it would, if I may respectfully say so, reduce its clarity. Clearly, disruption to supply, systems, facilities and services can be said to threaten welfare only if they threaten to damage it in some way.

We have talked at length about this issue. I can certainly reassure noble Lords that we have given the matter a great deal of thought. We think that the balance is about right and that the Joint Committee was right to suggest that we should include damage. We do not think that it would be appropriate to expunge that criterion now, and the test for the threat to security is the same as that for the human welfare and environment categories because it still provides that the threat must have serious consequences before the test is met.

The drafting is slightly different for the category of security and for human welfare and the environment. We think that the way in which we have done that is now appropriate. I would invite the noble Baroness and the noble Lord on consideration of those matters to feel perhaps a little more content than they did before.

Lord Lucas

My Lords, I shall read very carefully in Hansard what the noble Baroness has said. My impression is that she has outlined one substantial difference between us, which is that she believes this clause should be triggered by a remote threat of a substantial event. In extremis, I do not think that one of Mr Öpik's asteroids should trigger the powers of the Bill. Although the noble Baroness keeps saying "proportionality", it is proportionality not to the event as a whole but to an aspect or effect of that event.

So, once you have got to those clauses, you have assumed that this thing is actually going to happen. You are measuring whether the measures you are taking will be effective to prevent or deal with the consequences of a nuclear explosion in central London or wherever it is, and just in the absolute and not in anyway connected with the likelihood of that event occurring.

Therefore, the triple lock does not operate in the way the noble Baroness is trying to allege that it does. I really think that we must concentrate our thoughts on Clause 19. I suspect that I will accept her comments—I shall certainly look at them—on my subsidiary amendments. Perhaps they are not necessary, which is fine. But she has not attempted to outline at all the reasoning behind the different wording in paragraphs (a), (b) and (c); she has just said, "That is the way we prefer it". No justification has been forthcoming, nor has any illustration of the consequences of accepting my first two amendments in terms of particular situations which she would wish to have triggering these powers. That would not then work because of the change in wording. I find that extremely unsatisfactory.

I hope that the noble Baroness may feel able to advance some further thoughts before we get to Third Reading. I am very happy to listen to serious argument on why I am wrong and she is right, but just the mere assertion that the Government are right will not get us any further. If that is where we remain, we will certainly see this issue again at Third Reading. For now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 59 to 62 not moved.]

Baroness Scotland of Asthal moved Amendment No. 63: Page 13, line 13, leave out paragraph (a).

The noble Baroness said: My Lords, in Committee, there was a lot of discussion about the ability to amend the definition in a limited, fashion under Clause 19(4). That raised a lot of concern. The Government therefore propose that the purpose of Clause 19(4)(a) is to allow the Government to specify more precisely whether a particular event or situation, or a particular class of event or situation, falls within or outwith the definition of emergency. That would, in situations where such an event or situation is expected, enable Parliament to have a say on whether it might be appropriate to exercise emergency powers. That would allow the Government to determine the mood of Parliament on using the powers and for Members to highlight any concerns that they may have.

In Committee, I used the example that we were faced with when dealing with the millennium bug in December 1999. As I indicated in Committee, the Government have reconsidered whether that is absolutely necessary. The Government believe that, on reflection, although it may add some value, it is not essential and is unlikely to be used in practice given that, by their nature, emergencies tend to arrive with little warning. With that in mind, and following concerns raised in Committee, the Government are content to remove Clause 19(4)(a) from the Bill. That renders unnecessary Amendment No. 64. Therefore, with the permission of the noble Lord, Lord Lucas, no doubt supported by his Front Bench, I shall not deal with Amendment No. 64 on the basis that that is not a matter that needs to trouble them.

On Amendment No. 65, although the Government are happy to concede on the earlier point, we must resist the removal of Clause 19(4)(b), which contains the power to make limited updates to the definition of emergency. Perhaps I may explain that a little further. As we all know, emergency powers legislation exists to provide a legislative safety net, in part from recognition that legislation may become outdated as time goes by. If the definition for when it can be used becomes itself outdated, it will no longer be able fully to perform this function.

One need only look at how much things have changed since the days of the 1920 Act. The rapid development of technology; changes in lifestyle; the patterns of employment; the growth of new means of production; and the networks of supply and delivery since 1920 are startling. If we consider only what has happened in the past five years, the speed of change is startling.

In the 1920s, before the NHS, it is unlikely that disruption to health services would in itself be considered so serious as to trigger emergency powers. The same could not be said of disruption to systems of communication or the supply of money. With the pace of change seemingly ever increasing, we feel that it would be irresponsible not to allow for the updating of the list of specified means of supply, systems, facilities and services to ensure that it reflects future developments whose disruption may threaten human welfare.

Clause 19(4)(b) allows for this, but only for this—it does not do anything more than that. It does not allow for wholesale changes to the definition of emergency to be made that would subvert the limits of the definition in Clause 19(1) to (3). Any changes would require the approval of Parliament. It would not necessarily mean that emergency powers would be used if and when such an event occurred; that would depend on the circumstances. But it would allow the Government to indicate that they were considering their use if the worst happened in the kinds of scenarios in question.

On Amendment No. 68, consequential amendments may be required if the powers in Clause 19(4)(b) are exercised to ensure that any change to the definition of "emergency" can be followed through in the other parts of the Bill. Thus, were Clause 19(2) to be amended to remove the reference to disruption of an electronic system, for example, it might also be appropriate to remove the reference in Clause 21 to regulations being made for the purpose of protecting or restoring such systems.

The power is limited to making provision that is consequential on an order under Clause 19(5) and is subject to the affirmative resolution procedure. It is very difficult to see how an amendment to any of the safeguards set out in the Bill could ever be said to be "consequential" on such an order, allowing as it does only the limited ability to update the list of items that can be said to constitute an emergency if the safeguards are met.

I hope that I have said enough to reassure noble Lords that this is a limited and proportionate power which would be used appropriately and would be subject to parliamentary scrutiny through the affirmative resolution procedure. I beg to move my amendment and invite the noble Lord, Lord Lucas, not to resist.

Lord Lucas

My Lords, I agree that Amendment No. 63 is better than Amendment No. 64, tabled in my name. I thought that I was offering an olive branch in Amendment No. 64; I am delighted to receive an olive tree in return. I am quite content with that.

Provisions such as paragraph (b) belong in primary legislation. I shall be very much guided by what other noble Lords say, but we are dealing with fundamental matters and I cannot see how those categories would change fast. It is argued that the ability in 50 years' time to include an unforeseen issue that might become important will save us primary legislation. However, in 50 years' time we should have primary legislation. The downside is that we have very limited protection, even under the current constitution regarding the House of Lords. If we believe Mr Hain, it will be attacked in the Labour Party manifesto, and our ability to deal with secondary legislation will be severely curtailed.

Under those circumstances we would be very unwise to agree to this critical legislation being added to or even subtracted from by secondary legislation. It is possible to imagine what might be added to the list. In Australia one might add the beer supply; in France one might add the wine supply; in this country one might add the supply of football. If the legislation were less serious, I would be relaxed about it. It is a crucial part of the Bill. It says what is meant by "human welfare, which is one of the main avenues to using the Bill. We owe it more respect than to say, "We think it might change in 30 years' time, and to accommodate that possible and unlikely event we will leave the list open to trivial or malicious change under other circumstances". It does not seem right or proportional.

Baroness Buscombe

My Lords, I was delighted to see Amendment No. 63. Noble Lords will know that we had a very extensive debate on the issue in Committee. I was deeply concerned about the wording of Clause 19(4)(a), which would have enabled the Secretary of State to, provide that a specified event or situation, or class of event or situation, is to be treated as falling, or as not falling, within any of paragraphs (a) to (c) of subsection (1)". It was an extraordinarily broadly defined approach to an amazingly wide-ranging power. It was a blanket power for the Secretary of State to act at will. I am very pleased. The Minister had assured me that she would write to me on the issue, but how much nicer it is to see an amendment that does the trick instead. I wish to add to my noble friend's words of appreciation to the Minister for listening to us on Clause 19(4)(a). I am delighted to see Amendment No. 63.

On Question, amendment agreed to.

9.15 p.m.

The Deputy Speaker (Baroness Pitkeathley)

My Lords, I remind the House that as Amendment No. 63 has been agreed to I cannot call Amendment No. 64 because of pre-emption.

[Amendments Nos. 65 to 68 not moved.]

Clause 20 [Power to make emergency regulations]:

Lord Lucas moved Amendment No. 69: Page 14, line 15, at end insert "and ( ) protecting or restoring public access to justice

The noble Lord said: My Lords, in moving Amendment No. 69, I shall speak also to Amendment No. 77. The Minister has been extremely kind to table Amendment No. 77 in my name, as I had nothing to do with the drafting of it. It is really her amendment. I appreciate the honour enormously. I am going to have to listen to what the Minister has to say about the amendment.

With my limited legal knowledge, it seems to me that it answers the question that I posed, which is how we make sure that due consideration is given to the necessity of having the courts in operation for the protection of the public and Parliament in operation for the scrutiny of the legislation. I would appreciate it if the Minister could explain how her drafting bites, but I look forward to supporting her, and I do not intend to press Amendment No. 69. I beg to move.

Viscount Goschen

My Lords, access to justice, access to Parliament and the proper functioning of justice and Parliament were major themes in Committee. I, too, am delighted to see that the Minister has tabled the amendment. It is a major improvement. If I had drafted it, it would not have been as elegant, but I think I would have gone further than, must have regard to the importance", and would have ensured that nothing done under such an order should hinder the operation of Parliament and the courts. None the less, it would be churlish to go too far on those lines. With this amendment and with the previous amendment, deleting one of the biggest "get out of gaol free" cards that the Secretary of State had awarded himself, the Bill has certainly been improved.

Baroness Buscombe

My Lords, I shall also speak briefly in support of the amendments. I was keen to see what the Minister was going to do to strengthen access to justice. In particular, we were all concerned about judicial review. The amendments will support the strengthening of access to judicial review. I join my noble friend in saying that this is a significant improvement to the Bill and its intent. By that, I am very pleased. Notwithstanding that, I shall look forward to debating later amendments in connection with ensuring that we have proper safeguards, in addition to this strengthening of access to justice. We need further safeguards before our fears with regard to the wide-ranging provisions of the Bill are entirely allayed.

Lord Elton

My Lords, perhaps I may join the general welcome to this regard for the protection of the law in Parliament, which is entirely in the right direction.

Baroness Scotland of Asthal

My Lords, it gives me considerable pleasure to give pleasure to noble Lords twice in one evening. I think that I have rarely had unanimity of view expressed with such great enthusiasm. I genuinely thank each of the noble Lords who have been so generous as to make those comments.

The Government do not feel able to support Amendment No. 69, but we took into account very seriously all that was said during our last debate. It was clear that we all had the same intent; namely, we wanted to ensure that these matters were strengthened as much as possible within the law.

Emergency regulations could, where it is necessary and proportionate to do so, contain provision aimed at protecting or restoring public access to justice. Clause 22(2)(1) creates a clear presumption that emergency regulations should protect or restore the performance of public functions, which includes the justice system where that is required.

It is however conceivable that in some emergencies, such as a highly infectious epidemic, it may be necessary to place restrictions on travel and assemblies in order to control the spread of disease, which may affect the ability of the courts to operate. We discussed the nature of that difficulty in Committee. A blanket obligation to protect or restore public access to justice might prevent such action being taken and thus weaken efforts to contain such an outbreak. Such a provision in the Bill would fail to differentiate between the seriousness of the cases to be heard too. Those were issues that we discussed. I absolutely welcome the fact that that matter has been taken on board by everyone.

I hope that Amendment No. 77 demonstrates how keen the Government are to reassure the House that emergency regulations themselves will be subject to appropriate parliamentary and judicial safeguards. We propose to amend the Bill to put the maker of the regulations under a duty to consider what steps can be taken to protect or to preserve the ability of Parliament to scrutinise the regulations and action under them, and the ability of the High Court, and the Court of Session in Scotland, to entertain challenges to them.

The courts will expect the maker of the regulations to act reasonably. So the amendment would mean that a failure reasonably to make emergency regulations to protect Parliament or access to the courts would mean that the Government were acting outside of the law.

It may assist noble Lords if I provide two examples of how we see this operating. If parliamentarians have been exposed to an infectious disease and it is necessary to quarantine them or to close the Palace of Westminster, it should be possible to do so. But the maker of the regulations should consider what provision can be made to allow Parliament to continue functioning; for example, by quarantining MPs in a building that has videoconferencing facilities. If a cloud of radioactive material is heading towards London and it is necessary to evacuate, the maker of the regulations should be able to do so. But he must consider what steps should be made to protect Parliament and the operation of the courts.

In these circumstances, the regulations may need to requisition property elsewhere for Parliament to use and to give High Court judges a priority place in the list of evacuees. The Government hope that the House will appreciate that this approach will ensure appropriate provision is included in the regulations to ensure Parliament and the courts can scrutinise them and actions taken under them. It will also ensure that where action needs to be taken that may affect Parliament or the courts that is necessary to respond to the emergency, that can also be done.

Perhaps I may assure the noble Baroness, both in relation to this and on the last occasion, that the Government well remember spending 18 years as Her Majesty's loyal Opposition. We are as anxious as she that any government to come after us, no matter what the complexion, should carry out and discharge their duties as we would jointly wish them to do. Therefore we are happy to strengthen these powers. Like the noble Baroness, and noble Lords on the Liberal Democrat Benches—who have such noble aspirations for government in the next millennium—we want to ensure the administration.

Lord Lucas

My Lords, I am grateful to the noble Baroness and I take great comfort from the way she has expressed this power and how it is to work. I see no trouble with it. I should also say that I am most grateful to her officials, Mr Hargreaves and his team, who spent a considerable amount of time with me and were unfailingly helpful and courteous. No doubt they played a large part in giving birth to the amendment, which I shall now withdraw.

Amendment, by leave, withdrawn.

Clause 21 [Conditions for making emergency regulations]:

Lord Phillips of Sudbury moved Amendment No. 70: Page 14, line 23, at end insert— ( ) The fourth condition is that not less than four Privy Councillors from a standing panel appointed by the Prime Minister to be comprised of not more than twelve shall agree with the relevant senior minister of the Crown that conditions for making emergency regulations have been satisfied.

The noble Lord said: My Lords, I regret that I have not been able to take part in the deliberations on the Bill thus far. In all the proper concern about the extraordinary powers that this legislation will bestow on Ministers and the government in an emergency situation, one aspect strikes me as still inadequate and capable of improvement. I refer to the trigger: the definition of an emergency. Our debate just now on the grouping under Amendment No. 58 provided a good example of how imprecise is that definition. I accept that it is bound to be imprecise if you try to define in a form of words circumstances unknown at some point in the future. Inevitably you will be drawn to a formulation which admits of various interpretations.

Where extreme powers are to be bestowed, and I do not think that anyone would suggest that we have ever in our history brought forward a piece of legislation that gives such wide powers, surely they must be warrantable only if they are applied to extreme circumstances. Clauses 22 to 24 provide powers for a Minister or a government to confiscate property, to limit assembly and movement, to disapply or modify any Act of Parliament, and let us not forget the power to prohibit other specified activities. The remit is total.

I suggest that rather than endlessly waltz around the definition of an "emergency", one should have in the Bill a provision such as I have suggested in Amendment No. 70 which would require a check before an individual Minister could say, "I determine that there is an emergency", and proceeds—as the Minister could on his or her own authority—to issue emergency regulations. I propose that there should be a standing panel of Privy Counsellors, appointable and removable by the Prime Minister, to comprise a group of not more than 12. Before any Minister could declare an emergency, he or she must have the consent of at least four members of the standing panel to the fact that it is an emergency under the Bill.

That is an extremely pragmatic endeavour to provide some reassurance that the Bill will only be used properly and in a sensible way. But I think that its pragmatism is a virtue. As a lawyer, I have to say that there are times when we put too great a strain on words, which is why in this amendment I have provided a mechanism rather than a form of words.

Some may say that the mechanism is too feeble. I have intentionally drafted it so that in extreme circumstances, where it might be difficult to locate members of the standing panel, one can none the less proceed on the say-so of four of them. I have a certain confidence that if asked by a Minister to endorse an emergency, the Privy Counsellors on that panel would act with propriety and good sense.

9.30 p.m.

In the other place, the Conservative Front Bench tabled an amendment to set up an emergency powers panel comprised of Privy Counsellors—a Joint Committee from both Houses—but that was for a slightly different purpose, which was to vet the emergency regulations when they were passed. As the Bill has provisions for both Houses to endorse emergency regulations, I do not believe that that amendment was sufficiently helpful.

This has nothing to do with the regulations which may be passed pursuant to an emergency having been declared; this is simply and solely to ensure that there will be public confidence in the judgment of the Minister who is claiming that the emergency exists.

Where we are legislating for an unprecedented delegation of powers to individual Ministers, we need to be at our most cautious—indeed, at our most sceptical—a point made by other noble Lords. As the noble Baroness, Lady Buscombe, said a few moments ago, it is not at all adequate for us to assume that we will all be the same nice, sensible people that we now are. If we cannot legislate in a Bill such as this for the exceptional government and the exceptional House, we are missing the point.

One has only to think of what happened in the United States in the wake of 11 September where the so-called Patriot Act, consisting of some 342 clauses, was passed in a matter of a few hours by the Senate with only a handful of amendments put forward—none of which were properly debated, let alone passed—to realise that in extreme circumstances legislative assemblies can be carried along by public fervour and fear. For those reasons, this modest but practical check on starting the whole process should commend itself to the Government.

The Government may say, "Well, we have got the triple lock". But, of course, the triple lock does not apply at all to the onset of these powers. In forming a view as to whether or not there is an emergency, the Minister is not bound in any way by the triple lock. That comes later with regard to the emergency regulations.

Once passed, the regulations will come into immediate effect. It is true that unless both Houses of Parliament endorse them they will die, but none the less they will come into immediate effect. For example, if one was thinking of mobilisation on a grand scale, there could be a huge amount of activity in the country before Parliament got round to considering the emergency regulations in debate.

I do not need to tell the House that we have defeated a statutory instrument only four times in the 20th century. We know very well that the nature of secondary legislation is heavily weighted in favour of the Government of the day and that we cannot amend it. This is of course why it is always passed except in the rarest of circumstances.

For these reasons, with some diffidence—I am well aware that we are to some extent in uncharted waters—but with a sense that this may help to make it a better Bill, I propose the amendment. I shall be interested to hear what other Members of the House and the Minister have to say in response to it. I beg to move.

Lord Elton

My Lords, in the last little debate, the Minister made it clear that what lies at the back of all our minds is the danger of the misconduct of some future government. Therefore, I should like to leave in the mind of the noble Lord, Lord Phillips, between now and Third Reading, that possibly giving the nomination of the panel to the leader of the putative dangerous government in years ahead is like giving the key to the burglar. Could he not think rather of some arm's-length body, such as a panel of High Court judges to be chosen by the Lord Chief Justice? I leave that thought in his mind.

Viscount Goschen

My Lords, as we have said throughout the consideration of this Bill, this is an extraordinary case of Parliament effectively lending its powers to the Administration for the period of a week, during which they can do absolutely anything—apart, of course, from making people who are on strike go back to work. Apart from that, they can do anything. I suppose that they could shoot the people who were striking; that would come to the same thing.

But seriously, any other power can be commanded by the government. So however we consider the matter, we are being invited to sign the most substantial blank cheque imaginable in parliamentary terms. I agree with the noble Lord, Lord Phillips, that some form of counter-signature on that blank cheque at the time would be an additional safeguard. I am quite sure that the Minister will say that this is a question of speed, that we shall have to act incredibly quickly, and that if that process was delayed too long we would be up against the seven days after which Parliament must consider the matter. However, there are ways to get around that.

High Court judges might be asked to consider the matter within four hours, for example, with Ministers being able to act up to that point. It is possible to get hold of a judge at very short notice. If special arrangements were made, I am sure that one could find enough members of a nominated panel in time—be they Privy Counsellors, High Court judges, or whoever.

With regard to the proposal for Privy Counsellors to be involved, one could say that in the Prime Minister, the Chancellor of the Exchequer, the Home Secretary and the Lord Chancellor, there were four Privy Counsellors there already—and they could say, "Right, we've got our permission". The proposal would have to be drawn a bit wider than that. But in principle I support the intention behind the amendment and hope that we can make some progress before the next stage.

The Lord Bishop of Worcester

My Lords, I, too, feel a good deal of sympathy with what the noble Lord, Lord Phillips, seeks to do. However, as currently worded, I could not repose as much trust in the proposal as I should want. I have said before that I find many provisions in this Bill quite chilling, and I do not have too much difficulty thinking of how these powers could be abused. But I do not think that it would do to have a panel of 12 of which only four even need to be consulted and need to say "yes". What would be the level of public confidence, given a situation in which four members of the panel had been sought by the Government and had said "yes", only to find a few days later that six others who had not been consulted were all against it?

I hope, even at this late hour, that the Government might be prepared to consider an amendment such as this. In the process, there would have to be a good deal more discussion and negotiation to make the noble Lord's intention, with which I am totally sympathetic, possible to fulfil in practice.

Baroness Buscombe

My Lords, I echo the words of my noble friend Lord Lucas, as the amendment raises questions about what happens in practice in the event of an emergency, and about how quickly matters are put in place. I have to say, with great reluctance, that I cannot support the amendment. It is the kind of amendment to which we on the Front Bench of Her Majesty's Opposition have given a lot of consideration. We thought long and hard about how we could add more safeguards to the Bill, which has such extraordinarily wide powers. On one level, it seems to make sense to insist that at least four Privy Counsellors, but perhaps not more than 12, should be involved in the early stages.

However, we rather reluctantly came to the conclusion that, if we had an event like 9/11, it would be important that a responsible Minister would be able to act quickly and respond, without having to scrabble around to find the other Privy Counsellors and make sure that he or she had at least three on board. The event could happen at any time of night or day; it might be unseasonable, in the sense that Privy Counsellors could be away.

We want sufficient safeguards in the Bill, which is why we have yet to debate, for example, the sunset clause and our concern that any Act can be disapplied, now with the exception of the Human Rights Act. We want to be sure that there are sufficient safeguards to allow us to feel confident that the Secretary of State or the Prime Minister of the day will act responsibly in an emergency. I entirely understand where the noble Lord, Lord Phillips of Sudbury, is coming from, but, with some regret, we are not able to support the amendment.

Lord McNally

My Lords, I am pretty confident that my noble friend will not press the amendment. He says, "Hmm", but he will be on his own if he does. I was at first reluctant when he suggested the amendment to me. When noble Lords have sweated long in the vineyard, it is a bit unfair for others to come in with afterthoughts. However, I thought it worth putting forward as a probing amendment, not least because a theme running through the Bill is that no one doubts the good intentions of the current range of Ministers.

However, there is a certain impatience on the government Benches about what they will have to do in an emergency. One thing that separates democracies from authoritarian states is that they still manage to hold to certain basic principles, even in emergencies. That is what makes them what they are. Therefore, the Government have to be very careful about writing powers into legislation. The Minister charmingly referred to concerns about the rights of opposition. Quite often, those on both the Conservative and government Benches cite their vast experience in dealing with certain matters. However, we have more opposition experience than either of them. Therefore, I think that we speak with a certain authority when we claim to be protecting the rights of the Opposition.

But our most serious concern—again, we have tabled this as a probing amendment in order to hear the response—is that, in dealing with these emergencies, we should not succumb to the politics of fear which would lead us to stampede across the basic liberties that we all hold dear.

9.45 p.m.

Baroness Scotland of Asthal

My Lords, I absolutely agree with the sentiments expressed by the noble Lord, Lord McNally. That is why we took such a long time to scrutinise the Bill. The Joint Committee did a wonderful job, and we are taking a great deal of time now because we all want to get this matter right. These are important powers that we shall need to use in the event of an emergency when we are dealing with situations in extremis. Most of us do not want the circumstances in which the powers would be used ever to come about, but we have to prepare properly. Therefore, I absolutely agree with the noble Lord on that issue.

Many of the things feared by the noble Lord, Lord Phillips, have been provided for in the Bill in a way that would prevent them happening. For example, the noble Lord raised the question of the Patriot Act, but that is not in accordance with our constitutional and court arrangements, and the whole structure of the Bill would make that impossible. One has to bring forward regulations as soon as reasonably practicable and only for so long as necessary. The regulations can be discharged if their utility is proven long before the seven-day period comes into being. In Committee, I gave examples of when we have done that in the past. What we have just done together on Report—for example, strengthening the need to bring back Parliament—will mitigate against the fears of the noble Lord, Lord Phillips.

The noble Lord is wrong to say that parliamentary scrutiny will not be sufficient in part because the regulations cannot be amended. Given the exceptional nature of the powers, we do not think that it is appropriate for Parliament to be able to amend the regulations. That is to be found in Clause 27, and I wanted to lay that issue to rest.

I also want to take issue with the noble Viscount, Lord Goschen, on the question of the right to authorise the use of lethal force. I am sure that he made his comments half in jest, but I think that it is the second time that this matter has been raised. Emergency regulations must be compatible with convention rights. The convention protects the right to life. It is not possible to derogate from the right to life except in relation to deaths resulting from lawful acts of war. Thus the regulations could not authorise a shoot to kill policy or anything similar. Of course, the usual rules of engagement would apply to armed police troops performing functions in the emergency, and those allow the reasonable use of force.

Viscount Goschen

My Lords, what would happen if, for example, there was an outbreak of a disease and London had to be isolated but people did not want to be isolated? The police and the Army would be deployed to prevent people acting in a certain way, but would they be armed and say, "But we can't shoot you". How would that work?

Baroness Scotland of Asthal

My Lords, I need to be absolutely clear. In that kind of situation, there would be no shoot to kill policy. I notice that the noble Viscount looks surprised. This Government believe that that would be inappropriate. I absolutely accept that noble Lords opposite may take a different view.

Viscount Goschen

My Lords, with the leave of the House, perhaps I may respond. I know that this is the Report stage but the noble Baroness drew conclusions about what I was saying. It has been said over and over again that we are not talking about the Government or the Opposition or our view; we are talking about what a future administration might do. I was merely trying to draw out from the noble Baroness what the limit of the powers would be. The noble Baroness appeared to say that it would not be possible for the Government to enforce such a situation with armed force.

Baroness Scotland of Asthal

My Lords, we are absolutely clear that nothing in the Bill will entitle any government—not this Government, nor noble Lords opposite—to act, using emergency legislation, in a way that would be incompatible with convention rights. We have made that absolutely clear. No Government using this legislation would be able to do that. We were very clear that that was something that we would not wish people to be able to do.

This is not an amendment, as I hope I have made clear, that we feel able to support or to accept. Emergency powers are for responding to the most serious of emergencies and must be deployed as quickly as possible in order to prevent matters becoming worse. The noble Baroness, Lady Buscombe, was absolutely right about that. I can understand the logic of the position that she and those opposite have taken in travelling that journey. It is the same journey that we ourselves have travelled and we came to the conclusion that it would not be a practicable alternative.

The need to form such a panel and bring it together to discuss the proposed regulations in any meaningful way would cause considerable delay to their implementation. Perhaps I may suggest that its value, given that there would be a government majority in any case, may be limited. However, the Government are very sympathetic to the principle of wider consultation, with representations from the key parties, if emergency powers are to be used, but do not believe that establishing a dedicated "emergency powers panel" is the best way forward.

In response to the question posed by the noble Lord, Lord Lucas, on the current procedure, I hope that the House is aware that there is a long-standing convention that in times of emergency the Government will seek to build consensus across the political spectrum. The Prime Minister regularly briefs senior figures from all the major political parties on a Privy Council basis. That was the process adopted by the previous government and governments before that. It is a very longstanding practice. I do not believe that any noble Lords on any Bench, irrespective of whether they are in government or opposition, would doubt that that will continue. I acknowledge the long experience in opposition of the noble Lord, Lord McNally—long may he enjoy that position and I would not seek to deprive him of it for a second. He does it so well.

Those tried and tested procedures allow the Government to take the views of senior parliamentary figures in a flexible and efficient way, tailored to the needs of the situation in hand. The regulations will be scrutinised by Parliament and the Government will be accountable to Parliament for their actions throughout any use of emergency regulations. These tried and tested arrangements offer a more meaningful and effective approach to parliamentary scrutiny. It is not clear what a committee of Privy Counsellors would add to the process and there are obvious weaknesses with the proposal.

We too have the greatest respect for the judiciary. The judiciary's role is quite clear in terms of judicially reviewing the acts of government, but it would be difficult if we were to ask the same judges to make the decisions that we then ask some other brother judges to review. It would not be a practicable position.

We believe that these arrangements will work. There is nothing in our history to indicate that they will not inure to our benefit long term. The one thing that we have to rely on so far is that when this country has found itself in acute difficulty, our historical experience has been that political parties in this country pull together for the benefit of our nation. That is something on which the citizens of this country have been able confidently to rely for many generations. There is nothing that I have seen in the current generation of politicians to make me believe that the citizens of this country will not continue to be capable of relying on their good sense in that regard.

Lord Phillips of Sudbury

My Lords, I am grateful to the noble Baroness for her response. I am also very grateful to the six or seven Peers who contributed to this mini debate. I shall study closely what everyone has said, particularly the Minister. She said that we have a tradition of consultation and so on. I echo what has been said by many speakers on all sides of the House that this is a very particular piece of legislation, bestowing uniquely wide powers and, therefore, to rely upon age-old decencies is perhaps indecent for us as legislators. Having something in the Bill that requires this initial check may—in my view, it does—seem warranted.

I understand the point that the noble Baroness, Lady Buscombe, made about speed. A standing panel with only four people needed to give consent should enable that issue to be dealt with. I understand that after 11 September, the United States did not use a single one of the Patriot Act powers, but relied exclusively on pre-existing law.

Finally, under the Emergency Powers Act 1920, in order for an emergency to be deemed to arise, there is a royal proclamation, the sort of check that everybody who spoke, bar the noble Baroness, Lady Buscombe, would favour.

I shall read what has been said. I may have a word with the Minister outside the Chamber and, if necessary, revert to the final stage of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 22 [Scope of emergency regulations]:

Lord Elton moved Amendment No. 71: Page 14, line 41, leave out from "provision" to "for" in line 42.

On Question, amendment agreed to.

[Amendment No. 72 not moved.]

Lord Elton moved Amendment No. 73:

Page 14, line 44, leave out from "provision" to "for" in line 45.

On Question, amendment agreed to.

[Amendment No. 74 not moved.]

Baroness Buscombe moved Amendment No. 75: Page 15, line 46, leave out paragraph (j).

The noble Baroness said: My Lords, I shall be reasonably brief on this group of amendments. In moving Amendment No. 75, I shall also speak to Amendment No. 86.

I hope that, to a large extent, the amendments speak for themselves. They are different amendments which cover a similar point. Amendment No. 75 would remove Clause 22(3)(j). A similar amendment was debated at length in Committee. We felt very strongly, and, notwithstanding the improvements to the Bill and the concessions which the Government have made, for which we are extremely grateful, we continue to feel deeply concerned at the extraordinarily wide power in Clause 22(3)(j).

The power to, disapply or modify an enactment…or a provision made under or by virtue of an enactment is just too broad. Notwithstanding the fact that the Minister has given us some confidence in terms of increasing safeguards with regard to access to judicial review, we remain firmly of the view that access to judicial review will be protected only if those Acts which allow access to judicial review have not been ousted. Even now, I am not convinced that we can be assured of that.

Amendment No.86 would approach that challenge in a different way. I recall my noble friend Lord Goschen suggesting that perhaps we should have a list of Acts that should be protected under the legislation from Clause 22(3)(j). We thought long and hard between Committee and Report about the Acts which might be included. We are also aware of the fact that that approach was considered at length by the Joint Committee when considering the draft Bill.

I know that concerns were expressed about which Acts could be included. Our concern is to ensure that the very core of our freedoms is protected. That is why we have included the Habeas Corpus Act 1816, Section 7 of the Parliament Act 1911 and the Bill of Rights 1689.

10 p.m.

I am intrigued that the Government have brought forward an amendment now on Report to protect the Human Rights Act. In our debate on Second Reading, I put to the Minister the need to protect that legislation. I was told that night, and indeed was informed in a letter from the Minister dated 19 July, that such protection was not necessary. In the letter, the Minister stated: The reasons for the Government's view that express protection for constitutional enactments, such as the Human Rights Act, is unnecessary are set out in brief in the Government's response to the report of the Joint Committee (at paragraph 34)".

I shall not take your Lordships' time tonight to revisit paragraph 34 in detail. However, the Government went to enormous lengths in paragraph 34, and again in response to my concerns about the Human Rights Act, to assure us that it was simply not necessary to protect the Human Rights Act or other constitutional enactments.

I would urge noble Lords—perhaps following the debate, if they have not already—to read paragraph 34. Notwithstanding my legal background, I find some parts of it jolly difficult to understand. I am rather pleased that perhaps the Government have not entirely understood it either. Now, the Government have decided that the Human Rights Act should be protected. They have clearly thought long and hard about the issue and moved away from the reasoning that was set out in such detail in paragraph 34.

While I accept that the Government have decided to change their mind, I do not understand why they have done so with regard to human rights, but have continued to refrain from listing other core Acts which should be protected by this legislation.

The Government may say that since they have listed the Human Rights Act, there is no need to list the Habeas Corpus Act, but we would not agree. The Government may say that habeas corpus is subsumed by the Human Rights Act, in which case there is no point in arguing that derogation from the Habeas Corpus Act is possible. However, we are certainly of the understanding that derogation from the ECHR is possible in time of national emergency, but that derogation from the Habeas Corpus Act is not. Moreover, the Habeas Corpus Act provides a specific and well understood procedure as against the Human Rights Act, which requires judicial interpretation which we suggest would be a much more drawn-out process.

I am trying in a sense to pre-empt what the Minister will say in response to our amendments. However, we remain strongly of the view that we should clearly protect within the Bill these core Acts, core freedoms and core constitutional enactments. I beg to move.

Lord Lucas

My Lords, I have two amendments in this group. The first is Amendment No. 76, which I am delighted to see the Government support. It is a purely technical amendment. I am pleased that my arguments have been accepted, partly in that amendment and partly in government Amendment No. 85.

So far as my Amendment No 83 is concerned—I echo an amendment of my noble friends—some things ought to be set down in stone that we cannot envisage any emergency wanting to attack. They have been unamended for so long that I believe they form foundation stones and we should not start to allow people to dig them up by way of regulation.

I hope that we might find something more—not much—to add to this list. I should like to see something there which would give me comfort that our system of democracy would continue. The amendment proposed by the Government protects the operation but not the constitution of Parliament. So far as I understand the Bill as it stands at present, it will be possible to postpone elections indefinitely and to operate with a rump Parliament as, indeed, was done not so long ago. That was done less than 400 years ago. That is something one can imagine governments doing in an emergency as a way of controlling Parliament. I should like to he sure that there is an imperative somewhere in this to get back to elections and representative democracy. I do not see it at the moment. I do not understand my constitutional law well enough but I hope that my noble friend on the Front Bench will be able to find the answer to that before Third Reading.

Viscount Goschen

My Lords, as the basis of this Bill I see a presumption by the Government that it is possible to legislate oneself out of an emergency. The first thing that Ministers would want to do if an equivalent of the 9/11 disaster occurred here would be to reach for the statute book to rip out pages from it to try to create a situation where they could act more freely.

However, experience has shown us—I take the 9/11 disaster as the best example of this—that what was required in the 9/11 disaster was not immediate repeal of statutes in the US but rapid decision-taking, bringing into play emergency plans, co-ordination of rescue, the deployment of fighter cover to prevent attacks from other aircraft and so on. It was not a case of tackling the statute book to produce a quicker reaction to the disaster. I do not believe that many statutes should be affected by this Bill. I believe that there should be a list of what can be done. If we do not have that, we must have a list of what cannot be done. Surely what we are talking about here constitutes a fraction of the statute book that could realistically be used, or that one would want to use, in the event of an emergency. The number of legislative powers that might be set aside must be very small vis-à-vis the great bulk of statutes.

I cannot believe that the Government seriously have in mind the possibility of the Parliament Act or the Habeas Corpus Act being amended. Of course, those pieces of legislation were not envisaged in this regard. I am sure that the noble Baroness will say that and that her Government have no intention of repealing the Parliament Act 1911. None the less we must face the fact that the Bill we are being invited to consider and, in due course pass, allows those measures to be amended.

My noble friend Lord Lucas put it very well when he spoke of guaranteeing at a very minimum the operation of Parliament and of justice. As I say, I welcome the noble Baroness's earlier amendments but all they do is to prevent the physical incapacitation of Parliament rather than protect its make-up. For example, the Government could by regulation fundamentally alter the way in which Parliament works. They could set aside the House of Lords. They could do almost anything to the constitution. I certainly accept that those would be very rare eventualities. None the less, we are being asked to pass legislation that would allow this, and we should not do that. The House of Lords, as the revising Chamber, should make it clear that certain parts of the constitution, at the very least, should be off limits. I would very much prefer a list of statutes that could be amended or set aside.

If the Government are correct to claim that they are taking their emergency planning seriously in the consideration of the Bill, then surely they will have applied the resources that they possess to have a good trawl through the statute book and ask, "What could realistically be obstacles to rapid reaction to a disaster?" They should have done that. If they have, I see no reason whatever why they should not bring forward that list and say, "This is a list of statutes that we wish to be controlled by the Bill". If they refuse to do that, there can be no argument against guaranteeing in the Bill the sanctity of our constitution against attack.

Baroness Falkner of Margravine

My Lords, we welcome Government Amendment No. 85 and are extremely pleased that it includes a specific reference to the Human Rights Act. We sympathise with the aims of Amendments Nos. 83 and 86 to safeguard basic civil and political rights against the abuse of power. We associate ourselves with the remarks of noble Lords who have just spoken.

We suspect that we shall be told by the Government that those safeguards are now mainly contained in the Human Rights Act and the European Convention on Human Rights, and are therefore stronger than the Bill of Rights 1688 or the Magna Carta. That is precisely why we welcome Amendment No. 85; but the Parliament Act 1911, referred to in Amendment No. 86, would benefit from the same ring-fencing as that in Amendment No. 85.

To achieve more broadly the aims of the noble Baroness, Lady Buscombe, we would require a British written constitution with an entrenched Bill of Rights. The Liberal Democrats strongly support such constitutional reform. It would bring us in line with most democratic Commonwealth countries, not least Canada, India and South Africa, as well as all the other member states of the European Union—but I recognise that this is probably not the time to make that point. So, if Amendment No. 86 is not adopted, we would hope to see a strengthening of Amendment No. 85 at a later stage, but have deep sympathy with its aims.

Baroness Scotland of Asthal

My Lords, I am very conscious of the hour, but I wish to give a proper response to the issues that have been raised by noble Lords in this short debate. I agree that it is important for us to have proportionality in responding. Perhaps I may say to the noble Viscount, Lord Goschen, that that is the point of having a single Civil Contingencies Bill—so that we have a clear understanding of the limits and the nature of the steps that we will have to take, or may be permitted to take, or any future Government may be permitted to take, in responding to an emergency.

As we all know, emergency powers exist to make temporary changes to the law where effective response is prohibited by insufficient powers. We have considered in Committee, and now extensively on Report, the nature of those limitations. The Bill ensures that any such changes will be necessary, proportionate and compatible with the Human Rights Act and scrutinised by Parliament. So, noble Lords who foreshadowed that that would be my answer were absolutely right.

The possibility of temporarily amending legislation of constitutional importance was examined in detail by the Joint Committee. That committee undertook pre-legislative scrutiny of the Bill; and during debates in both Houses this matter has been discussed. Discussions have also taken place at official level with civil liberties groups. The Government remain convinced that the absence of an express power to amend such legislation, coupled with the clear expression of the purposes for which regulations can be made and the safeguards set out in the Bill, ensures that substantive amendments to constitutional legislation are not possible.

I know that we had a lot of debate about the Human Rights Act on the previous occasion. The Government have sought, as noble Lords will have noticed, to respond to the concerns expressed in Committee and in both Houses and where appropriate and possible to reflect that in the moves that we have made. There are those who would still argue—some would say argue properly and with force—that the Human Rights Act provision that the Government now bring forward in Amendments Nos. 85 and 76 is not strictly necessary. We have taken the view that, as the piece of constitutional legislation expresses protection, it may be justified for the following reasons.

The Government believe that, unlike other constitutional legislation, the Human Rights Act sets out the relationship between the individual and the state that is at the heart of the operation of the emergency powers and fundamental to concerns about their possible misuse. We have listened carefully to that. It has always been the Government's intention that the emergency regulations should be entirely compatible with the Human Rights Act and should not be used to modify or suspend it. Since we were all at one on that issue, we tabled the amendments.

The Government remain convinced that nothing in the Bill would allow the Government or any future government acting under the provisions to disapply or amend the Human Rights Act. However, in the light of concerns expressed by civil liberties groups and in Parliament, the Government believe that an express provision to the effect that emergency regulations cannot disapply or modify any provision of the Human Rights Act would offer the certainty and reassurance that some seek.

It is important too that Part 2 of the Bill should similarly be incapable of being amended by emergency powers, in order to ensure that the tests and protections it contains cannot be amended. The Bill also expressly provides that emergency regulations cannot be used to modify Part 2. The Government intend to amend the Bill to move the prohibition from the clause on scope to the clause on limitations on emergency regulations where, as noble Lords argued vigorously in Committee, it sits more naturally. I think that this is the third occasion when I have hoped that I would give considerable pleasure to your Lordships' House by having, first listened so carefully; secondly, acted so swiftly; and, thirdly, perhaps done even more than that which was reasonably expected of us.

While the Government agree that the specific enactments referred to in Amendments Nos. 83 and 86 are likely to be considered "constitutional enactments", they do not think that there is merit in mentioning them expressly. While being of considerable constitutional and historical importance, they do not have the same wide-ranging and fundamental importance in protecting the individual from state action that would lead them to fall into the same category as the Human Rights Act. Given the purposes for which emergency powers can be made, as set out at Clause 23(1), it is difficult to think of a plausible scenario where the making of emergency regulations could engage the provisions in these other enactments.

We wish, however, to emphasise that there are other enactments of constitutional importance, which we believe could not be amended by way of emergency powers, such as the Government of Wales Act 1998 and the Scotland Act 1998, which are the legal bases for those two devolved administrations. However, we do not feel that it is necessary to mention such Acts expressly in a list, as the noble Viscount, Lord Goshen, would have us do. Any list would inevitably be an inaccurate attempt to list exhaustively all such "constitutional enactments". To extend the list further would be dangerous—the more so-called constitutional enactments which are expressly protected, the more likely a court is to conclude that the list is an exhaustive one—and would suggest that Parliament envisages constitutional enactments which are not specified being amended by way of emergency regulations—which, I say for the record, we do not. Given that there is not a defined body of constitutional law on which everyone agrees in this country, that poses obvious difficulties.

I would be happy to discuss the effect of Magna Carta (1297) and why we do not suggest that it be given express protection; the Bill of Rights of 1688, which is mentioned in the amendments; the Habeas Corpus Act 1816 and the Parliament Act 1911. Section 7 of the Parliament Act provides that the Septennial Act should be amended to limit the life of a Parliament to five years. I would be happy to write in detail about why we think that those instruments should not be considered, but I hope that my general comments cover those matters and respond to the points raised by the noble Baroness, Lady Falkner, and other noble Lords who have participated in this debate.

I hope that noble Lords will feel that the strengthening that we all agree is necessary, which has already been provided in part in the provisions on Parliament and ensuring that it is there, together with this Human Rights Act 1998 provision and Amendments Nos. 76 and 85, go a considerable way to reassuring noble Lords that we have covered the issues that should properly be included.

I shall write in greater detail about the specific nature of the other matters, because it might be more convenient for the House. My general comments encompass the other issues.

Lord Monson

My Lords, whereas the Minister has argued fairly successfully that Magna Carta, the Habeas Corpus Act and the Bill of Rights are subsumed for the purposes of the Bill into the Human Rights Act 1998, does she not agree that the same does not apply to Section 7 of the Parliament Act 1911? Extending the life of a Parliament would not conflict with the Human Rights Act.

Baroness Scotland of Asthal

My Lords, I am not suggesting that all those constitutional Acts are subsumed within the Human Rights Act. The reason that we have made the specific concession in relation to the Human Rights Act is that it includes juxtaposition between the individual and the state, and that relationship. The issues that have exercised people at Second Reading, in Committee and now on Report are how those powers will be used and how we can challenge the powers taken by the state and exercised against the individual. We see the strength of including in the Bill the provision in these amendments.

However, our other constitutional legislation, which is equally important, is also not affected or amended by the Act; nor do we believe that any government could so construe it. For the record and for the purposes of interpretation, I make it clear that, in crafting this Bill, that is the interpretation that this Government intended to be used in interpreting the provisions. It does not include any constitutional arrangements.

The only reason that we are not including a list is that we may inadvertently leave something out; then you have the sceptre of lawyers. I can see that, if I were not standing at this Dispatch Box, at some stage I might be standing at another Bar, where I might be advocating that Parliament must have intended to exclude or include something—because otherwise why did it not so provide? That is a common debate in which noble Lords would not wish people to engage. There should be no doubt that this Bill does not seek to amend constitutional Acts which have not been specifically referred to here. That is the general rule. I would not like to breach it because I am afraid of what might happen if we did.

Lord Northbrook

My Lords, before the Minister sits down, she said that Magna Carta came into force in 1297; I thought that it was 1216.

Baroness Scotland of Asthal

My Lords, if Earl Russell were with us, he would tell us precisely which date is right.

Noble Lords

My Lords, it is 1215.

Baroness Scotland of Asthal

My Lords, I almost feel like asking "Any more offers?" We may be about to get a "going, going, gone". I have just received a briefing paper which refers to "Magna Carta (1297)". We learn something new every day.

Baroness Buscombe

My Lords, I shall be extremely brief. I thank the Minister for her response to our amendment. We thought long and hard about having a very modest approach to this amendment. We were tempted by the list that was recommended by the Joint Scrutiny Committee on the draft Bill. But, for all the reasons that the Minister has explained, we have sought to minimise that list to ensure that we could circumscribe it very tightly to those Acts that control the life of Parliament and underpin the role of the judiciary and the monarchy.

I am sorry that the Minister has not felt able to respond to our amendments. I accept her argument that her amendment to protect the Human Rights Act is not, in her view, strictly necessary. That is helpful to our debate because, if the Government are going to protect the Human Rights Act, surely there is little harm if they respond to our wishes to protect the Bill of Rights and habeas corpus, perhaps on the same basis, which would be a great comfort to all noble Lords. Notwithstanding the fact that the Government may not consider protection of those Acts strictly necessary, we do. We take this matter extremely seriously.

I shall read what the Minister has said in Hansard. Given that we are only one week away from Third Reading, I urge her to write as quickly as possible to set out in further detail the reasons why she feels unable to respond positively to our amendments. I urge her to take on board the fact that this is not an amendment that will go away easily. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Lucas moved Amendment No. 76: Page 15, line 46, leave out "(other than a provision of this Part)

On Question, amendment agreed to.

Lord Bassam of Brighton moved Amendment No. 77: Page 30, leave out lines 33 to 35.

On Question, amendment agreed to.

Clause 23 [Limitations of emergency regulations]:

Baroness Buscombe moved Amendments Nos. 78 to 80:

Page 16, line 20, leave out from "only" to end of line 21.

Page 16, line 22, leave out "that the provision is"

Page 16, line 25, leave out "that the effect of the provision is"

On Question, amendments agreed to.

Baroness Buscombe moved Amendment No. 81:

Page 16, line 31, leave out from "service" to end of line 33.

The noble Baroness said: My Lords, I shall attempt to be brief. This amendment is to Clause 23, which deals with the limitation of emergency regulations. As I outlined in Committee, this clause currently prevents the Government doing two things: the first is requiring a person to take part in military service and the second is interfering with strike action. We object to the latter category.

We on these Benches see no reason why the Government are choosing to make such an exception. There are many reasons why we feel that this provision should not be part of the Bill. We are talking about situations where something awful will happen, is happening or is about to take place. In such a situation, ambulance drivers, firemen and workers on the London Underground may very well be essential to minimising the damage, treating the injured and transporting people to and from the area of the emergency. However, any such operations would be severely hindered if the union connected to those actions was out on strike. In such situations, it is essential to have trained professionals manning the essential services and the current drafting of the Bill may well mean that that does not happen.

During the debate on 21 October, many of your Lordships questioned the Government on why this provision is an exception in the Bill. In his reply, the Minister made an attempt to justify the inclusion of such a provision. The main thrust of that argument was that it is a historic exception. That is due to the fact that it was contained in the 1920 Act. Perhaps I may say that that is a rather hollow argument: the Government are repealing the Act and many of the provisions contained within it.

10.30 p.m.

We have also heard that we should put our faith in those on strike to do the right thing and return to work should such a situation occur. I am sure that that is the case, but we must remember that we may well be talking about people's lives. It is quite worrying to have to rely on blind faith that individuals will do the "right thing".

That is particularly the case after my noble friend Lord Luke brought some interesting statistics to my attention regarding strikes during the Second World War. Noble Lords may think that when the country was going through some of its very darkest times, people would not even think to strike or place a further strain on their country. However, figures from the Office for Central Statistics show that during 1941, 1,077 working days were lost to strikes; that figure was 1,530 in 1942 and by 1944 it stood at 3,696. Those were supposed to be the days when people could be relied on to "muck in" and help out whenever help was needed. I hope that the Government will think again about this provision. I look forward to hearing what the Minister has to say. I beg to move.

Lord Lucas

My Lords, I have two amendments in this group. Amendment No. 82 merely suggests, "Well, if we are going to have this provision, let us make sure it works". I gave an illustration in Committee about what would happen if we had a strike by HGV drivers and none the less the Government required goods to be moved and therefore had to relax legislation in order to enable other people to drive heavy goods vehicles.

The noble Baroness wrote to me. That part of her letter ended, It is possible however that it may be necessary and proportionate to relax some conditions relating to the use of HGVs, perhaps those relating to licences or to working hours, providing it is safe to do so in the circumstances. There is nothing in the Bill that would prevent this, providing all the safeguards had been met". At the moment, the Bill clearly reads, Emergency regulations may not … enable … any activity in connection with, a strike". If one is enabling people who are not normally permitted to drive HGVs to drive HGVs, "in connection with a strike"—it is only because the strike is happening that it is necessary to do that enabling—how does that not fall within this condition?

I intend this as an entirely helpful amendment. I shall not pursue it. But I urge the noble Baroness to think about whether she has got that right. I cannot see how, on picking out that aspect of Clause 23(3), it does not have the effect that I think it does. It is therefore a danger to a proper response to an emergency situation where a strike is involved. The intention of my amendment is to remove that possibility.

I shall not labour over Amendment No. 84. I merely put it down to draw out an answer on whether penalties in existing legislation could be amended if the circumstances were right. But the noble Baroness has replied to me that, yes, they can, which I accept.

Viscount Goschen

My Lords, in Committee, my noble friend Lord Lucas asked the Minister not only whether people could be prohibited from doing a particular function but also whether they could be directed to do a particular function. As I recall, the answer was that, yes, they could.

Therefore, we have the bizarre prospect that, in the event of Tube drivers going on strike and their services being urgently required, the only group of people in the whole land who could not be directed to drive Tube trains would be Tube drivers. Lorry drivers or main line rail drivers could be directed to drive them. That strikes me as a provision in the Bill that could be envisaged and useful, but is being denied to the administration of the day.

I find that particularly strange. When we considered this issue in Committee I asked the Minister whether, during the recent firemen's strike, the Government had envisaged or at least considered bringing forward legislation that would make such strikes illegal. I did not receive an answer. It has been reported that the Government did consider whether such provisions should or could be brought forward, and made that known to the Fire Brigades Union.

In the light of those circumstances, it seems irresponsible for the one power that could be so useful in extremis to be denied to the administration. I urge the Government to accept the amendment moved by my noble friend Lady Buscombe.

Lord Monson

My Lords, Amendments Nos. 81 and 82 seek to rectify an anomaly whose possible unintended consequences were well pointed out in Committee when we discussed this issue at considerable length. However, Amendment No. 84 addresses a totally different topic. It is obvious that the noble Lord, Lord Lucas, has done a vast amount of research on this Bill and it is clear that he feels that, under the Bill, the Minister could by regulation increase the maximum sentence for a given offence from, say, three months to 14 years. I hope that the noble Baroness can reassure us that that is not in fact the case. If not, we shall certainly have to come back to it at the next stage.

Lord McNally

My Lords, I still have the same problems that I had in Committee about the amendment moved by the noble Baroness, Lady Buscombe. We have an exclusion that has lasted for more than 80 years, through some very perilous times. Indeed, her quotation of statistics from the Second World War does not support her argument. When the nation faced its greatest peril, we retained the freedom to withdraw labour as one of the basic freedoms in a free society. There is also the difficulty I mentioned in Committee; that in the past governments have found that you cannot coerce people to work. Often they have got into even deeper water when they have tried to do so.

I have mentioned before that, not in an emergency situation but in a broader context, the Government should look at no strike agreements in certain industries in order to underpin public service. But I do not see that as a part of emergency powers, rather as a more sensible approach to industrial relations in certain sectors.

Members on these Benches would still find it very difficult to support the amendment.

Baroness Scotland of Asthal

My Lords, I agree with the last comments of the noble Lord, Lord McNally. Since the 1920 Act has been in force, governments have had to use emergency powers on 14 occasions, notwithstanding the limitation of the no strike action provision. Each occasion has been one in response to industrial action. It is perfectly possible to do what needs to be done to respond to an emergency and yet continue to allow people the freedom we have in this country to withdraw labour where it is within their right to do so. I hear, too, what the noble Lord has said about no strike agreements, but that is a matter outwith the Bill. However, I understand why he raised the point.

We do not agree with the amendments and the Government cannot support them. Allowing the use of emergency powers to prohibit strikes would risk straying into the realm of political interference rather than emergency response. The Government have made it very clear that emergency powers are to be used as a mechanism for dealing with the most serious threats to human welfare, the environment and security only, and only in a responsible and proportionate manner. We have deliberately crafted the Bill to avoid the possibility of powers being used for political purposes.

Allowing the prohibition of strike action would weaken that position and open up the possibility of the powers being used for the wrong reasons. The Government and Parliament have made very clear throughout the passage of the Bill that that is something that must be avoided at all costs.

The right to withdraw labour within the law is, as the noble Lord, Lord McNally, said, a fundamental right that should be protected even during emergencies. Of course I have heard what the noble Lord, Lord Monson, the noble Viscount, Lord Goschen, the noble Baroness, Lady Buscombe, and the noble Lord, Lord Lucas, have said about that matter.

Deliberate endangerment of human life or property, or causing illness or injury, are matters for criminal law, be it in normal times or in the midst of emergencies. Existing industrial relations law ensures that those who wilfully and maliciously go on strike where they know, or have reasonable cause to believe, that the probable consequence of doing so will be to endanger human life or cause serious bodily injury, or to expose valuable property to destruction or serious injury, commit an offence. This places a very real limit on the potential effects of industrial action.

This reflects the Government's position, as set out in the Bill, that existing legislation should always be used where it will be effective. We come back to the point made by the noble Lord, Lord McNally, which was echoed by the noble Viscount, Lord Goschen, in relation to the 1911 incident. In fact, in the end, people used the legislation that was already in being.

The Government accept that industrial action may have a disruptive effect on services. The Bill ensures that they can act to mitigate the worst effects of a particularly disruptive strike without resorting to its prohibition. The legislation it replaces contains an identical prohibition and has been used effectively for just such purposes.

The Government believe that as long as industrial disputes remain within the law they are matters for employees and employers. The emphasis must be on their resolution. The Government taking sides and interfering in a draconian manner would be likely only to inflame the situation.

As to Amendment No. 82, I have responded already to the comments made by the noble Lord, Lord Lucas. We believe that the amendment is unnecessary. Its effects are already achieved in the current drafting of the Bill. However, I thank the noble Lord for raising these issues. I understand the care that he has given to these matters and the importance that he attaches to them.

As the noble Lord, Lord Lucas, is not pressing Amendment No. 84, I hope he will understand if I do not respond to it. I therefore invite the noble Baroness not to press the amendment.

Lord Monson

My Lords, why cannot the noble Baroness respond to Amendment No. 84?

Baroness Scotland of Asthal

My Lords, I am not going to respond to it because the noble Lord, Lord Lucas, whose amendment it is, has not sought to speak to it and does not invite me so to do. If the noble Lord, Lord Monson, or any other noble Lord, had spoken to it, I would of course have responded in full. If the noble Lord did speak to it, I apologise to him. I do not recall him doing so.

Lord Monson

My Lords, I did.

Baroness Scotland of Asthal

My Lords, I apologise for not responding. I thought the noble Lord had raised only general issues.

Amendment No. 84 deals with emergency regulations. These can be made only for the purpose of preventing, controlling or mitigating an aspect or effect of the emergency. They must be needed urgently, existing legislation must be insufficient—so, if there is already legislation that can cover the emergency, these regulations should not be used but that legislation should be—and they must be in due proportion to the aspect or the effect of the emergency that they are aimed at. These tests apply to any attempt temporarily to amend existing legislation using emergency powers.

It is difficult to envisage situations where these tests might be reasonably considered to be met in relation to extending penalties set out in the existing legislation. There may however be occasions where it may be more important to deter certain activities than it perhaps is in times of normality. For example, during a major fuel shortage hoax calls may result in ambulances and fire engines being sent to non-existent incidents, wasting limited fuel resources that may be necessary to respond to real emergencies. It may be necessary and proportionate in those circumstances to increase the penalties for such offences in order to increase the deterrent effect and to reflect the increased seriousness of the offence. That is why we say that it would be appropriate to deal with the matter as we have drafted it.

10.45 p.m.

Baroness Buscombe

My Lords, I thank the Minister for her response, although I am disappointed by it. I appreciate that there are criminal laws in place whereby, if individuals go on strike knowing that they will endanger life, for example, they are committing a criminal offence. What if they are already out on strike when an unprecedented act takes place? That would mean that they did not have the mens rea to commit a criminal offence, to put it in legal terms, but the reality would be that they were already out on strike. In that case, surely it would be sensible to have some protection in place to ensure that those people were then brought back into operation.

I cite an example that I used in Committee and at Second Reading. Individuals working in the fire service use highly technical equipment, and they are the only individuals who know how to use it. Let us suppose that we had an act such as 9/11; for a start, it would be jolly hard to understand how we can talk about having a proportionate response to such an act. We would want to act with speed and efficiency, without the possibility that at that time we might be compromised by having people out on strike, who we could not feel that we could lean on to use equipment that might save lives. Maintaining the freedom to withdraw labour in such instances could seriously threaten lives in a way that is not per se criminal—because an act might take place without any warning.

I wish that noble Lords who are not in support of the amendment had heard what I said with regard to the strike figures during World War II. It is depressing to think that just because the right to withdraw labour has been on the statute books since 1920, it should remain. Surely the point of the debate is that we are being told by the Government that for all sorts of reasons we must repeal that 1920 Act and other emergency legislation—that we need to be flexible, responsive and take account of the world that we are living in today. In that light, I do not understand why the Government feel comfortable ignoring the amendments. However, the hour is late; I will seriously consider returning with the amendment at Third Reading, but now I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 82 to 84 not moved.]

Lord Bassam of Brighton moved Amendment No. 85: Page 16, line 42, at end insert— (5) Emergency regulations may not amend—

1. (a) this Part of this Act, or
2. (b) the Human Rights Act 1998 (c. 42)."

[Amendment No. 86 not moved.]

Clause 25 [Establishment of tribunal]:

Baroness Buscombe moved Amendment No. 87:

Page 17, line 35, leave out "he thinks it" and insert "this is"

On Question, amendment agreed to.

Schedule 2 [Minor and Consequential Amendments and Repeals]:

Lord Bassam of Brighton moved Amendment No. 88: Page 30, leave out lines 33 to 35.

The noble Lord said: My Lords, the Delegated Powers and Regulatory Reform Committee in its 30th report drew to the attention of the House the new Section 22D(5)(d) of the Road Traffic Regulation Act 1984, now included in Schedule 2 to the Bill. The provision would allow an anti-terrorist traffic regulation order to provide that a constable may authorise an employee of a traffic authority to do anything that the constable could do by virtue of this subsection.

I explained in Committee that this provision was seen as affording a degree of flexibility in the partnership between the police and local traffic authorities in dealing with terrorist threats. However, in the light of the committee's comments about Section 22D(5)(d), I said the Government would review the need for it and table a suitable amendment on Report if necessary.

Although the proposed new paragraph would afford a degree of flexibility, we have been mindful in our further considerations of the Committee's concerns on the sensitivities of exercise of powers by employees of a traffic authority which are otherwise exercisable by a constable. Having given the matter some further thought, we have concluded that the provision is not absolutely essential and could be dispensed with.

The amendment removes proposed new Section 22D(5)(d) from the new provisions to be inserted into the Road Traffic Regulation Act 1984. I beg to move.

On Question, amendment agreed to.

Baroness Buscombe moved Amendment No. 89: After Clause 35, insert the following new clause—