Orders of the Day — Civil Contingencies Bill

House of Commons, 17 November 2004.

Clause 34 — Commencement

Ruth Kelly (Labour, Bolton West)

I beg to move, That this House disagrees with the Lords in the said amendment.

Michael Martin (Speaker, Glasgow Springburn)

With this we may discuss Lords amendments Nos. 50 and 51 and the Government motions to disagree thereto.

Ruth Kelly (Labour, Bolton West)

These amendments provide the vehicle for bringing part 2 of the Bill, on emergency powers, to an end three years after it has been brought into force. The Government are unable to agree with that approach. The idea of sunsetting part 2 of the Bill was originally raised by the Joint Committee that conducted pre-legislative scrutiny of the then draft Bill. The Government in their response made it clear that a sunset clause is relatively unusual and requires careful consideration. The issue was discussed at some length on Report and Third Reading in the other place.

The arguments against sunsetting are compelling. Sunsetting legislation is appropriate when the powers it contains are expected no longer to be needed after a certain period, or if their use should be reviewed by Parliament. This Bill does not meet either criterion. Time-limiting the Bill is clearly not appropriate. No one believes that emergencies will stop happening in three years' time. If part 2 of the Bill were to be repealed, something else would simply have to be put in its place. The purpose of review by Parliament on a triennial basis, it is suggested, is that—given the nature of the powers—Parliament should assess whether it is appropriate for them to continue to exist, in the light of the way in which they have been exercised. I understand that that was the main intent behind the amendment.

Provision for regular review by Parliament may be appropriate where the exercise of powers is of legitimate parliamentary interest but their exercise is not subject to parliamentary scrutiny, the intent being that some powers—given their nature—should not simply be handed over to a Government to exercise indefinitely in the manner of their choosing. That argument, however, does not apply to part 2 of the Bill. Any exercise of the powers it confers will undergo detailed parliamentary scrutiny.

I would also question the utility of review every three years, given that part 2 is a last resort option for dealing with only the most serious of emergencies, for which existing legislation proves insufficient. It is not intended for regular use. It is worth noting for example that there was a 29-year gap between the uses of the powers under the present legislation. It simply would not have been necessary or sensible to review the Emergency Powers Act 1920 every three years during that period.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

The Minister says—and she is right, because clause 27 applies—that there will be parliamentary scrutiny of the regulations. Will Parliament be able to amend the regulations through the process of scrutiny?

Ruth Kelly (Labour, Bolton West)

Yes. In a totally exceptional provision, it will be possible for Parliament to amend the regulations—for example, to impose additional limitations and constraints on their use by providing that the use of the powers should come to an end after a certain date.

Emergency regulations would be laid before Parliament as soon as was reasonably practical, once they had been made, and would require the assent of Parliament to continue in force. Any further set of regulations made after the lapse of the regulations would also have to go through the same process of parliamentary scrutiny.

Richard Shepherd (Conservative, Aldridge-Brownhills)

The Minister talks of detailed scrutiny, but the regulations would be in the form of an Order in Council and subject to the statutory instrument process. The detailed scrutiny would have to take place in 90 minutes. Or does the Minister know something that the House and the Standing Orders do not?

Ruth Kelly (Labour, Bolton West)

The hon. Gentleman raises an important and interesting point. I said that I would expect detailed scrutiny by Parliament to take place, and I accept that 90 minutes is indeed unlikely to be sufficient to debate regulations of such importance. It is likely that in the time of such an emergency there would be a call for a major debate on the subject of the crisis and the Government would respond to that and provide the appropriate time. The hon. Gentleman may question why we have not chosen to amend the Standing Orders to reflect that expectation. I would argue that it would not be appropriate to complicate the Standing Orders with varying procedures for different kinds of regulations. However, I place it clearly on the record that we would expect detailed scrutiny of the regulations to take place.

Oliver Heald (Conservative, North East Hertfordshire)

As the Minister will know, it has been thought right to have sunsetting for a small class of provisions, including the Anti-terrorism, Crime and Security Act 2001—an obvious example—and the Terrorism Act 2000, which repeated the provisions that used to be in the Northern Ireland (Emergency Provisions) Act 1973. Given that the Bill proposes to give, rightly, the most draconian powers to Ministers in an emergency, it surely also falls into that category and should be treated seriously.

Ruth Kelly (Labour, Bolton West)

The hon. Gentleman is not alone in trying to draw parallels between the Bill and the Acts that he mentioned. Indeed, several of their Lordships also attempted to draw such parallels. They argued that because a review mechanism was appropriate in those contexts, it would be appropriate in this case. I beg to disagree. The powers in this Bill are not intended to be used on a regular basis. The powers in the Acts to which the hon. Gentleman referred are not subject to parliamentary scrutiny when exercised. We are dealing with a different type of Bill: it is an enabling Bill and the exercise of the powers it contains would be subject to detailed parliamentary scrutiny. The other Acts that have been mentioned grant ongoing powers that can be evaluated after a certain period of time has elapsed.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

Following the point made by the hon. Member for Aldridge-Brownhills (Mr. Shepherd) about the nature of the scrutiny of the regulations once they are invoked by a Minister, we are concerned that those debates will be focused on the regulations before the House, rather than on the wider principle of whether the powers should have been used at all. We seek a review or a sunset provision because we want a review of the legislation as a whole, rather than the specific regulations that may have been invoked at a particular moment.

Ruth Kelly (Labour, Bolton West)

It is worth bearing in mind the fact that we envisage the powers being used only for the most serious situations. It is unthinkable that any emergency that such powers would be connected with would not be debated in full while that emergency was taking place, including the Government's handling of the situation and the use of emergency powers.

Oliver Heald (Conservative, North East Hertfordshire)

Of course the particular circumstances that arise would probably be debated, and the particular measures taken would also be debated, albeit ex post facto and at not very great length. The point that is being made—I hope that the Minister will address it—is that the powers and their appropriateness to the situation would not be the subject of such a debate. That is what we would like to see scrutinised every three years. What is wrong with that?

Ruth Kelly (Labour, Bolton West)

The true parallel to draw here is between the exercise of the regulations and the Anti-terrorism, Crime and Security Act 2001 and the Terrorism Act 2000, not between the Bill and those Acts. They do not all fall into the same category. The regulations would be subject to detailed parliamentary scrutiny and, as I was in the process of telling the House, I cannot conceive of their being used in practice without a full parliamentary debate or without scrutiny after the event of how they had been exercised in practice and of whether greater limitation should have been imposed on their use. There is no real parallel between the Bill and the Terrorism Act 2000 or the Anti-terrorism, Crime and Security Act, as this is a purely enabling Bill.

Richard Shepherd (Conservative, Aldridge-Brownhills)

But of course, the underlying anxiety is the very definition of what constitutes an emergency, which lies in the Government's hands and in the hands of the parliamentary majority that the Government normally have. With such a very loose definition of what constitutes an emergency, with the powers being so enormous and with the rights of scrutiny dependent on the Government—not necessarily this Government, because of course the Minister is arguing for a permanent Act—we want the greatest possible clarity about why all that is appropriate.

Ruth Kelly (Labour, Bolton West)

The hon. Gentleman should reflect on the fact that not only does Parliament have the power to amend the regulations, which is an exceptional provision and additional safeguard that strengthens the robustness of the scrutiny process, but the emergency regulations contain their own sunset clause: they lapse 30 days after they are made and fresh parliamentary approval must be required if further regulations are to be made. One could speculate about the composition of a Parliament that would somehow override the rule of law and the detailed safeguards in the Bill, but I would argue that that would be a function of the will of Parliament and the extremism of Members of Parliament, rather than anything to do with the functions of the Bill.

The Bill contains far more safeguards than its predecessors. It contains provision for detailed parliamentary scrutiny and amendment by Parliament of its provisions. It also contains in-built sunset clauses on the use of the regulations. In summary, the Government simply cannot agree to these Lords amendments. We are replacing a long-standing, generic framework that is entirely unsuitable for sunsetting, and effective arrangements for parliamentary scrutiny are already set out in the Bill in relation to the regulations made under it.

Oliver Heald (Conservative, North East Hertfordshire)

The Government have improved the Bill in the other place, and I pay tribute to the work of my noble Friend Baroness Buscombe, who led for the Opposition in the other place and was able to persuade the Government to do some things that I had found it very difficult to persuade them to do in the House. She has obviously got some silky skills that I have not yet acquired. It was good that the Government were prepared to tighten the definition of an emergency. Although I accept the point made by my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd), the definition is now better.

The Government now recognise the role of the voluntary sector—something that we have pressed for throughout our debates in Committee. The test for urgent directions under clauses 7 and 8 is more objective. That is good. Clause 7 directions will be made in writing—something that we pressed for in Committee. Again, that was a good change. The removal of clause 19(5)(a), which would have allowed a Minister to treat certain situations as coming under the definition of an emergency irrespective of whether they came within the categories set out in the Bill, and the recognition of the role of parliamentary and judicial scrutiny of emergency regulations under clause 22 were all to the good.

On these Lords amendments, however, we wish the Government to go further. In the other place, my noble Friend argued that clause 34 should contain the three new subsections in Lords amendment No. 50, to provide sunset provisions for part 2. After three years, part 2 would fall unless both Houses agreed to renew it, but if they agreed to a renewal, it would last for another three years. We are used to that approach in the context of emergency powers.

Despite the Minister's comments, it was agreed from the outset that the Anti-terrorism, Crime and Security Act 2001 should be subject to sunset provisions, as it contains some draconian powers in part 4 to allow the indefinite detention without charge of foreign nationals suspected of involvement with various terrorist bodies. Part 4 of that Act requires annual renewal by Parliament, and the provisions will expire altogether on 10 November 2006. Similarly, with the Northern Ireland situation, the Northern Ireland (Emergency Provisions) Act 1973 provided for annual approval by Parliament, and those provisions have been carried into the Terrorism Act 2000, so there are precedents.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

The Army Act 1992.

Oliver Heald (Conservative, North East Hertfordshire)

My right hon. and learned Friend mentions the Army Act 1992, and there are others. In fact, the Government are committed to such procedures. In a document that deals with the agenda for the future of regulation in this country, the then Minister for the Cabinet Office said:

"as part of their better regulation agenda, the Government are committed to using sunset clauses where appropriate."

Not only are there precedents, but the Government claim to have a policy to promote such provisions. We first made the proposal for a sunset provision in Committee. We have suggested various lengths of time that might be appropriate. The Government have refused to agree.

The powers in part 2 are draconian and warrant a sunset provision. We are not saying, as the Minister suggested, that civil contingencies legislation may no longer be necessary in three years' time, but the Minister acknowledges that, over time, the powers needed to tackle such situations change. That is why the Bill has been introduced. Given the effects of such a Bill on liberty, it is only right that the latest circumstances should be considered. After all, the reason why the Government introduced the Bill is: events and new circumstances.

Given that the Government accept that events and new circumstances can prompt and require a new response, it seems wrong that they are not prepared to follow that principle by accepting a sunset provision of the kind that we suggest. We will continue to press for such a provision to be included in the Bill, and I hope that Ministers, even in the short time available, will reflect on that and consider the seriousness of the powers that they are taking and how necessary it is to review them in due course.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

I would echo the comments made by the hon. Member for North-East Hertfordshire (Mr. Heald) about some of the improvements that have been made to the Bill, but we continue to have some concerns. The Liberal Democrats were open-minded in the debate that took place in the House of Lords. My colleague, Lord Avebury, made it clear that we were looking for some kind of review procedure, although not necessarily as proposed in the Lords amendment with which the Government now seek to disagree, but that we would not be happy if the provisions did not contain an ability independently to review the way in which the powers may be used. Unfortunately, the Minister in the House of Lords gave us nothing, so we made it clear that in lieu of there being no alternative, we would vote with the Conservatives to ensure that we kept the issue alive.

We suggested as an alternative the kind of procedure that is followed under the Terrorism Act 2000, whereby my noble Friend Lord Carlile has a statutory responsibility to review some of the provisions used under that Act. That is very useful. It has kept issues alive and on the political agenda that we fear would not otherwise have been kept alive so forcefully if the procedure had simply involved a Home Office Minister reporting on the powers under that Act. So we seek to support the principle of independent review in resisting the Government's attempts to remove the Lords amendments.

The Minister refers to the fact that part 2 should be used only in extremis, and we agree. We believe that it should be used in very few circumstances. Having gone to all the trouble to get the legislation on to the statute book, I for one would be delighted if it were 29 years before it is used. I would love to see the provisions not used at all, and to return on a triennial basis with a report simply making a nil return to say that the powers had not been used and that the legislation could therefore be allowed to continue.

Our fear, however, is that the powers in the Bill will not be used only in extremis. Ministers might be tempted to use them rather than go through the normal legislative procedures. Even in a case as serious as the attacks that took place in the United States on 11 September, we were able through the normal parliamentary procedures to introduce the Anti-terrorism, Crime and Security Act 2001. It was contentious, but it got through the House in reasonable time. Similarly, we responded to the foot and mouth crisis with legislation that is specifically about how we deal with animals in such a situation and that, I hope, will pre-empt the need for emergency regulations. Parliament has enacted legislation ahead of any potential crisis.

We want that approach to continue. The normal approach to an emergency should be either to foresee the emergency and have the legislation on the statute book so that the part 2 powers are not needed, or to come to the House to introduce legislation in the normal way, again so that the part 2 powers are not needed.

We believe that there might be a temptation—perhaps out of laziness or because Ministers do not want to use up their valuable slots for pre-emptive legislation—to fall back on the powers in the Bill. If such a mindset takes hold, the powers may be used inappropriately as an earlier port of call than they should be. We see them very much as a last resort that should be used in extremis. The triennial review proposed in the amendment would be a good way to address those genuine concerns.

If, as the Minister suggested, the powers were not used at all, the process involved in the amendment would be very speedy. The Government would say that they had not used the powers and the House would simply renew the legislation and provide the powers for the next three years. Off we would go. If the Government had used the powers, the amendments would allow us to hold an independent session in which all we would debate is whether the powers had been used appropriately. We would not be confronted by an emergency at the time of the debate.

Oliver Heald (Conservative, North East Hertfordshire)

Does the hon. Gentleman not agree that a great deal of thought has been given recently to how legislation should be dealt with? The report of the Constitution Committee in another place proposes much more post-legislative scrutiny. If we are dealing with draconian powers such as those in the Bill, they are the obvious candidates for such an approach. A sunset clause is the obvious way of forcing post-legislative scrutiny.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

The hon. Gentleman has expressed my sentiments effectively. We are at one on this. We are seeking to find a way of monitoring the Bill, because it is potentially so powerful. Because we fear that it will be used more frequently than is strictly necessary, we want to be able to return to it. The Minister suggests that we can do that when we are confronted with an emergency or discussing the detail of regulations that are there to deal with that emergency. However, to suggest that we will be calmly stepping back and reviewing all the possible legislative options that the Government could have used instead of the emergency legislation is fantastical. We will not do that. When the House is confronted with an emergency and a Minister says that we need emergency regulations, the reality is that the regulations will go through using the Government's majority. There simply will not be the scope to take the constitutional or long view that we would need to challenge Ministers as to whether they strictly need to use the part 2 powers in the Bill.

We need the opportunity to return to the powers every three years. As the hon. Member for North-East Hertfordshire said, the advantage of the sunset clause is that it would force such a review in a way that no other provision could. That is a sensible way forward in that it establishes the point of principle that such powers must be scrutinised separately from the debates around specific regulations.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I support my hon. Friend the Member for North-East Hertfordshire (Mr. Heald) and the hon. Member for Sheffield, Hallam (Mr. Allan).

The Minister conceded—indeed, she had to concede—that sunset clauses are unusual. They are unusual, but so are the powers in the Bill. It would be difficult to imagine a Bill that was more dramatic in the powers that it confers on the Executive. They powers are contained in clause 22(3) which, apart from anything else, states:

"Emergency may make provision of any kind that could be made by Act of Parliament or by the exercise of the Royal Prerogative".

The powers extend to

"the confiscation of property (with or without compensation)",

the prohibition of movements, the prohibition of assemblies, the deployment of the armed forces, the prohibition of travel, the prohibition of specified activities, disapplying or modifying any enactment, requiring a person or body to act in performance of a function, and so on and so on. In other words, the Bill gives to the Executive of the day powers of a wholly draconian—and I would say authoritarian—character.

The question is whether we should so conduct ourselves as to leave the Bill in perpetuity on the statute book or give ourselves the opportunity from time to time to review whether such a Bill should be on the statute book. I have no doubt that we should review it from time to time.

The hon. Member for Sheffield, Hallam made the point—he is entirely right—that Governments may well be moved to use the powers in circumstances that it is difficult to justify as falling strictly within the definition of clause 19. All of us know that Governments like to use powers that exist, and I ask myself whether the Government might not have been willing to use the powers for the confiscation of property without compensation if they had been able to do so when the foot and mouth crisis was at its height.

One has to ask oneself some uncomfortable questions. The first is, "Do you trust any Government?" or, if one wants to be more particular, "Do you trust this Government?" I remind myself of the circumstances in which we were taken to war in Iraq. We were told facts that turned out not to be accurate. I happen to believe that Ministers knew or ought to have known that they were not accurate, but that is a matter for historians or perhaps an impeachment motion in the House. My point is that to the question, "Do you trust the Government?", the only sensible answer has to be, "No, under no circumstances." If that is true, the House had better equip itself with a mechanism for reviewing the powers.

We have also asked why we should not have such a mechanism, but I did not hear the answer to that question. I heard lots of evidence of unwillingness, but that is a very different matter. That is not a justification; it is sheer unwillingness.

Are there any procedural difficulties? No, because Lords amendment No. 50 requires only a positive resolution in both Houses. That would take only an hour or two, but it would enable the political debate to focus on the Bill so that we can ask whether we need a different definition of an emergency, whether particular powers should remain on the statute book, and whether additional safeguards should be incorporated in statutory language. We are being denied that ability.

The Minister tells us that the regulations have their own inherent sunset clauses. That is true in part, but it will have not escaped her, no doubt sharp, eye that the regulations can be relaid time and time again. The sunset clause of which she spoke is not perhaps as robust a safeguard as she might have hoped that we would believe.

As you may have noticed, Mr. Speaker, I am becoming increasingly cantankerous with age. I find my distrust of Government is becoming more and more intense, especially since Iraq. I would not give any Government—least of all, this Government—the powers that are in this Bill and, in particular, in clause 22. I very much hope that we will have a sunset clause.

Richard Shepherd (Conservative, Aldridge-Brownhills)

The Damascene conversion that my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) has undertaken during his travels through the House illuminates the sky and gives us hope.

My difficulty with the Minister's words was her response that the measure would be inappropriate in the context of such a Bill. I am especially mindful that the Government have already derogated from the Human Rights Act 1998, which they enacted, and that that derogation may occur if our country faces an emergency that threatens the life of the nation. We are already in a position in which the Government may say that life is threatened, but they have managed their business in the years since that Act came into existence without recourse to the new permanent structure without end that they now want.

I accept the points made by the hon. Member for Sheffield, Hallam (Mr. Allan) because the Bill is detailed, comprehensive and iron-clad to such an extent that it is inappropriate for a democratic country and a democratic House. The route that he outlined matched my judgment on how emergencies should be dealt with. Legislation on such matters should be introduced on a case-by-case basis and considered in a day, as has often been the case during my time in the House. However, that process requires the danger or peril facing the life of the nation to be self-evident to such an extent that the House will accede to that legislation.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

My hon. Friend will remember the old Northern Ireland emergency legislation that had to be renewed annually. Will he remind himself and the House of the fact that the Labour party welcomed the opportunity to oppose that legislation year after year?

Richard Shepherd (Conservative, Aldridge-Brownhills)

I am grateful to my right hon. and learned Friend because the propositions of the Government could be tested annually on such occasions and, indeed, the then Opposition made full use of that opportunity.

Bill Cash (Conservative, Stone)

May I amplify my hon. Friend's point because he is anticipating something that I was going to say? Does he agree that the Terrorism Act 2000 supersedes and subsumes the Northern Ireland legislation to which my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) referred? A feature of this Government is their tendency towards permanence.

Richard Shepherd (Conservative, Aldridge-Brownhills)

My hon. Friend is right and his point forms a substantial part of my case. As the Minister well knows, the House unfortunately did not have the opportunity to discuss part 2 of the Bill, so all the powers that my right hon. and learned Friend the Member for Sleaford and North Hykeham cited are, in a sense, strange to a debate in which every hon. Member may speak. We are running at a gallop on the back of Lords amendments, which I shall support, although I think that they are inadequate. That explains why there is great reluctance to accept the Bill in such a permanent form.

Oliver Heald (Conservative, North East Hertfordshire)

My hon. Friend will recall that a great raft of amendments was not considered on Report because of the guillotine. The proposal before us was among the amendments that were not considered at the time. Does he agree that it is a sad reflection of the present situation that the other place must do our job?

Richard Shepherd (Conservative, Aldridge-Brownhills)

All that is true. In fact, the situation is worse than my hon. Friend described it, because the whole of part 2 was not considered.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

May I suggest to my hon. Friend that the inclusion of a sunset clause would allow the House to consider part 2 in detail for the first time? We were denied that opportunity under the guillotine to which my hon. Friend the Member for North-East Hertfordshire (Mr. Heald) referred.

Richard Shepherd (Conservative, Aldridge-Brownhills)

That is true. We would be able to consider the provisions after three years, although we have not yet been able to consider them for five minutes. We are considering a piece of primary legislation that will create a framework that will affect the rights for which the House has fought for centuries. We had annual Army Acts so that we could control the supply of money to the Crown to ensure that the Crown could not do that which we did not want. The same important point is relevant to the Bill. The Government should not shrug off our anxieties and complaints. They could bring forward individual pieces of legislation. They could have addressed our point. Although I think that there should be an annual review, I shall gladly support their lordships' amendments.

Bill Cash (Conservative, Stone)

I agree with many of the points that hon. Members have made. The Bill, with its power to deal with enactments with such a broad brush, is Orwellian in its range and depth. The permanence of the arrangements takes us way beyond "1984" into the indefinite future. There are profound reasons why we should object to such infringement of the liberty of the people of this country and Parliament.

I said that the Terrorism Act 2000 subsumed and superseded the temporary provisions imposed on Northern Ireland under the Acts passed between 1989 and 1996. However, when my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) talked about a standing army, he might not have known—although knowing him, I am sure that he did—that his point went straight to the heart of the Bill of Rights. The Bill of Rights is regarded as a permanent safeguard, but this Bill will not cover it. No doubt we shall later consider the interaction between the Bill and the Human Rights Act 1998, which is a temporary palliative because it may be amended or repealed, and the Bill of Rights, which any person in this country would regard as the bulwark of our liberty.

Article 6 of the Bill of Rights says:

"the raising or keeping of a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law".

That was why we required the Army Acts to which my hon. Friend the Member for Aldridge-Brownhills referred. The provision in article 9 is fundamental to the proceedings of the House. It says:

"the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament".

The Bill will override the most fundamental aspects of liberty and freedom in this country. As there is not at least a sunset clause to guarantee that the powers be reviewed regularly, I condemn the Bill's provisions for their lack of liberty and permanence and I condemn the intolerant, totalitarian thinking behind them. The Labour party is supposed to be the descendant of Tom Paine and "The Rights of Man". The Bill is a disgrace.

Ruth Kelly (Labour, Bolton West)

We have had a passionate and interesting debate, although I think that most of the arguments expressed by Conservative Members reflected their fundamental disagreement with the Bill itself, rather than their view that a sunset clause would be the most appropriate way to deal with the situation before us.

The Bill has been drafted to enable future emergencies to be covered flexibly under it. The provisions are sufficiently flexible to ensure that specific supply systems or facilities may be covered under the definition of an emergency when serious damage to human welfare is threatened. It also allows examples about which we are not yet aware to be addressed. However, specific powers will be contained in regulations issued under the Bill, so any debate on the Bill itself would be only a rerun of our debates throughout its consideration in the House and the other place.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

Does the hon. Lady appreciate that a debate on the Bill some three, six or nine years after it has come into force—after which we might know about circumstances in which it was used—would be different from today's debate, because we are currently discussing our fears due to the fact that we do not know the way in which the Bill will be used? We are asking for the opportunity to debate the Bill after we know how it has been used in practice.

Ruth Kelly (Labour, Bolton West)

The Bill itself does not restrict individual liberty. It is the provisions made by the regulations that may infringe or restrict civil liberties. I have outlined the safeguards, which are in the Bill and include detailed parliamentary scrutiny under the regulations.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

The hon. Lady is right when she says that individual prohibitions are contained in regulations, but she is bound to concede that the powers are created in clause 22(3). Whether Ministers should be able, through regulations, to do this and that does lie on the face of the Bill. It is that which we need to review.

Ruth Kelly (Labour, Bolton West)

The Bill, which we have debated for a while, has far more safeguards built into it than the Emergency Powers Act 1920, which it replaces. The triple lock is the cornerstone of the safeguards set out in the Bill. Three stringent tests must be met if emergency powers are to be used. First, the emergency must be serious and require immediate action. Secondly, it must be necessary to take emergency powers, such as when it is not possible to introduce a Bill in the usual way; that deals with one of the points raised by the hon. Member for Sheffield, Hallam (Mr. Allan). Thirdly, emergency regulations must be proportionate to the aspect or effect of the emergency at which they are directed.

A range of additional safeguards is on top of that triple lock—we shall debate that in other groups of amendments—as well as the automatic safeguards of the public test of reasonableness and the provisions of the European convention on human rights, which apply to all legislation.

Bill Cash (Conservative, Stone)

The hon. Lady refers to the test of reasonableness. Hopefully she will be aware of the case of Liversidge v. Anderson in the late 1940s, in which the question of reasonableness, which had been imported into regulation 18B of the defence regulations, came into question. Where is the test of reasonableness expressly stated in respect to the application of the powers? Furthermore, does she agree that Lord Diplock and a series of other judges said that the case of Liversidge v. Anderson was bad law? I asked in Committee for that to be examined, but I do not think that it was.

Ruth Kelly (Labour, Bolton West)

I have had no indication from business managers that there was insufficient time to discuss that in Committee. The public law test of reasonableness applied to the 1920 Act and will continue to apply. We would agree that the case the hon. Gentleman cites is bad law, but it is not necessary to provide for a test of reasonableness on the face of the Bill.

I outlined the additional safeguards on top of those that applied to the 1920 Act. We will go on to debate the need for emergency regulations to be compatible with the Human Rights Act and whether that is a sufficient safeguard. I would argue that it is, but that will be discussed in the next group of amendments.

John Bercow (Conservative, Buckingham)

The Bill envisages a vast and unwarranted arrogation of powers from Parliament to the Executive. Why does clause 20(3)(c) include Government Whips as the persons entitled to make regulations?

Ruth Kelly (Labour, Bolton West)

The hon. Gentleman will find that senior Ministers are able to carry that out in some circumstances.

John Bercow (Conservative, Buckingham)

I do not want to encroach on private grief, and, equally, far be it from me to settle the hon. Lady's disputes with Government Whips, but I hope she realises that reference to Government Whips includes senior Ministers and the other way around. The Government Whips would have that power under the terms of the Bill. They are rejoicing in it. It is up to her either to apologise for it or to explain it satisfactorily.

Ruth Kelly (Labour, Bolton West)

I remind the hon. Gentleman that a reference to senior Ministers includes Lords Commissioners.

John Bercow (Conservative, Buckingham)

I told the Minister that.

Ruth Kelly (Labour, Bolton West)

So the hon. Gentleman accepts that, and Lords Commissioners are indeed senior Ministers.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

They are not.

Ruth Kelly (Labour, Bolton West)

They certainly are. We are not talking about junior Ministers. There needs to be a fall-back position in case Her Majesty the Queen cannot act in a timely fashion. The process set out in the Bill has been followed in other cases.

Richard Shepherd (Conservative, Aldridge-Brownhills)

This is an important point, although relatively small. We understood that the inclusion of Treasury Ministers or Lords Commissioners was to allow for a direct reference to the Chancellor of the Exchequer. No one would have difficulty with that. However, the Bill as drafted includes the first three Whips from the Whips Office. There is something ludicrous about Whips who never speak in the House being able to amend primary legislation.

Ruth Kelly (Labour, Bolton West)

The Government are following conventional procedure when Her Majesty is unable to act in a timely fashion for whatever reason. I think the hon. Gentleman would agree that the inclusion of Lords Commissioners is not the core of the debate.

Oliver Heald (Conservative, North East Hertfordshire)

Will the Minister give way?

Ruth Kelly (Labour, Bolton West)

Perhaps the hon. Gentleman will allow me to address the point.

The question is whether the Bill should be subject to a sunset clause after a period of time or whether it falls into the same category as the Anti-terrorism, Crime and Security Act 2001. Let me explain the difference. Under the Act, things are being done—perhaps as we speak—such as the detention of foreign nationals who are suspected of being terrorists and the sharing of relevant confidential information between Customs and Excise or the Inland Revenue and the intelligence services. In other words, there is something to review—the action that has taken place under that Act—after two years of its operation. We hope that part 2 of the Bill remains unused for many years to come. The legislation that it replaces remained unused for 29 years.

Patrick Mercer (Conservative, Newark)

rose—

Ruth Kelly (Labour, Bolton West)

Perhaps the hon. Gentleman will let me finish my point. What would the review team review unless and until emergency regulations were made? The debate and the review would merely be a rerun of the debates in the course of the Bill's passage. If regulations are made, they will be scrutinised in depth by Parliament at that time.

The hon. Member for North-East Hertfordshire (Mr. Heald) suggested that the Cabinet Office and the Government are promoting the use of sunset clauses. I do not differ from him in that. In fact, I am the Minister with responsibility for better regulation and know about promoting the use of sunset clauses in government. Cabinet Office guidelines—I have taken the trouble to look them up—say that sunset clauses should be used where appropriate. They also set out a long list of when that might be appropriate. I shall read out just two items that might interest the hon. Gentleman were he making this point. Examples include—I say this to argue that they should not be used in future—measures extending the powers of the state or reducing civil liberties, reserve powers that may never be used or bodies that are set up but not immediately given any powers to do anything. One might argue that those are relevant to this debate; it could be argued that part 2 of the Bill extends the powers of the state or reduces civil liberties.

I would argue, however, that the need for any regulations made under the Bill to be approved by Parliament offsets any argument that the Bill itself should contain a sunset clause. I agree with the hon. Gentleman that sunset clauses are appropriate for the regulations, which is why I pointed out to the House that there is an in-built sunset clause; the regulations will lapse 30 days after they are made. The House can shorten that time if it wants to.

Another hon. Gentleman—I am afraid that I forget exactly who it was—argued that the existence of an in-built sunset clause does not prevent the Government from laying another set of emergency regulations. But if that were done, the whole process of parliamentary scrutiny would have to be gone through again; and the triple lock would apply; and the debate would have to take place; and in that debate there would undoubtedly be an evaluation of how the powers in the Act and the regulations had been used.

Oliver Heald (Conservative, North East Hertfordshire)

Does not the Minister understand the distinction, which I have been making throughout the debate, that if a Whip were, on a regular basis, stationing an armed person at the end of one's road to stop one's movement, one might want, after three years, to review the operation of the Act, as it may be that on one occasion that action was justified?

Ruth Kelly (Labour, Bolton West)

The hon. Gentleman does not seem to have much faith in the concept of Parliament, which is here to scrutinise the exercise of the regulations and decide whether the triple lock applies and whether the powers exercised are appropriate and reasonable. That is why the triple lock is set out, and Parliament has the power not only to debate but to amend the regulations to ensure that they are being used in an appropriate fashion.

I believe that Parliament can be quite effective in scrutinising the Government from time to time. I believe that Parliament would not be shy of criticising or constraining the Government were it, for example, to consider that a situation was not an emergency, that the range of powers should be narrowed or that the powers were being exercised in an unreasonable way that was not consistent with the nature of the emergency. I would not expect Parliament to be any less effective in scrutinising emergency regulations than it is in other cases; in fact, I would hope and expect it to be more effective and assiduous in scrutinising those regulations.

Bill Cash (Conservative, Stone)

I fear that in her response to my previous intervention the Minister completely failed to understand the point that I was making about the test of reasonableness, and she really must take it on board. Under article 18B of the defence regulations there was a test of reasonableness, but it was overridden in the view of Lords Diplock, Scarman and Reid as being bad law. That is the point; if we do not have an express test of reasonableness, the liberty of the subject is severely at risk. The Minister made the point that she wanted proper, effective scrutiny, but she walks away from it when it is offered.

Ruth Kelly (Labour, Bolton West)

I beg to disagree. There is a public law test of reasonableness in the Bill. It does not have to be shown in the Bill; it will still apply to the Bill. The safeguards set out in the Bill are far, far stronger than those that applied under the 1920 Act, legislation that was not used by any Government for 29 years. It lay on the statute book untouched.

The safeguards that we have built into the Bill are far stronger. They include a triple lock on the use of the powers, making sure that the legislation could not simply be taken through Parliament and that the use of the powers must be reasonable and proportionate. Those are strong safeguards, and there are additional ones built into the Bill; for example, one that will protect compatibility with the Human Rights Act 1998, which we are about to debate in the next group of amendments.

The Bill will not somehow become unnecessary after a period. Sunset clauses are appropriate if a situation is to come to an end after a short period. That is why we have included express provision for sunsetting in the use of the regulations. It is why we have also provided, exceptionally, for enhanced parliamentary scrutiny in the exercise of the regulations. It is why I argue, too, on behalf of the Government, that sunsetting for the Bill itself is not appropriate.

Clause 22 — Scope of emergency regulations

Ruth Kelly (Labour, Bolton West)

I beg to move, That this House agrees with the Lords in the said amendment.

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

With this we may discuss Lords amendment No. 42 and Lords amendment No. 46, with amendment (a) thereto.

Ruth Kelly (Labour, Bolton West)

The Government amended the Bill in the other place to reinforce three key areas of protection against the possible misuse of emergency powers: first, protection of fundamental rights; secondly, protection of the limitations and safeguards on the use of the powers; and thirdly, protection of parliamentary scrutiny and judicial review where those are affected by the emergency or by response efforts. I remind the House that that presents us with a particular challenge, balancing on one hand the rights of the individual and proper protections for our democratic institutions, and on the other the ability of Government to take action for the collective good in the most serious of emergencies. We now accept that the Bill has been improved by the other place, but because we believe that we have struck the right balance, we will not accept the Opposition's attempt to reintroduce proposals that were long debated in the other place and ultimately rejected.

It is important to be clear from the outset about the function of emergency powers and the safeguards in the Bill to prevent their misuse. Emergency powers exist to make temporary changes to the law, as we have just debated, where effective response is prohibited by insufficient powers or hindered by statutory requirements. Any regulations made will be temporary and can be made only for the purposes of preventing, controlling or mitigating an aspect or effect of the emergency in question. They must be necessary and proportionate, compatible with the Human Rights Act and will be scrutinised by Parliament.

The possibility of temporarily amending legislation of constitutional importance was examined in detail both by the Joint Committee that undertook pre-legislative scrutiny of the Bill and during debates in both Houses. Discussions have also taken place with civil liberties groups. The Government, too, are concerned that emergency powers should not be used to make substantive amendments that undermine the constitution of the United Kingdom. We are satisfied that the Bill cannot be used for that purpose, given the absence of any express power to do so. In the light of concerns expressed by civil liberties groups and by Members of both Houses, the Government looked again at the position of the Human Rights Act 1988. We remain convinced that nothing in the Bill would allow the Government to disapply or amend it. However, an express provision to the effect that emergency regulations cannot disapply or modify any provision in the Human Rights Act would offer the certainty and reassurance that is sought.

It has always been the Government's intention that emergency regulations should be entirely compatible with the Human Rights Act and should not be used to modify or suspend it. We believe that, unlike other pieces of constitutionally significant legislation, the Human Rights Act sets out the relationship between the individual and the state that is at the heart of the operation of emergency powers and fundamental to concerns about their possible use. Our acceptance of express protection in the case of the Human Rights Act must not be seen as casting doubt on the fact that emergency powers cannot be used to make substantive amendments to constitutionally important enactments, an issue discussed at length in Committee and in another place. We are convinced that the absence of specific protection for that Act would not allow its disapplication or modification.

Oliver Heald (Conservative, North East Hertfordshire)

The hon. Lady will know that, throughout our previous proceedings, we said that the provision that she has now made for the Human Rights Act was needed. It is hard to see why the same principle should not apply to habeas corpus or the Bill of Rights. Can she make a distinction between the Human Rights Act on the one hand and the Bill of Rights and habeas corpus on the other?

Ruth Kelly (Labour, Bolton West)

The Bill of Rights was passed to declare the rights and liberties of the people and to ensure the succession to the throne. With the passing of the Human Rights Act and the Regency Acts, those intentions are effectively protected. Many of the protections set out in the Bill of Rights have been overtaken by the Human Rights Act, and others, such as the protection given to Protestants to prevent them from being disarmed when "papists" are both armed and employed, contrary to the law, are no longer relevant. Other protections in the Bill of Rights, such as the prohibition on raising tax or keeping a standing army in peacetime without the consent of Parliament are simply not things a Government could claim are reasonable, necessary and proportionate under the terms of the Civil Contingencies Bill, given that the purpose of emergency powers is to provide temporary new powers to prevent, control or mitigate emergencies because existing powers are insufficient.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I welcome the fact that the Minister has told the House that the Human Rights Act will be protected, and cannot be amended under the Bill. That is good news. However, can powers and articles in the Human Rights Act be relied upon as a means of attacking the regulations made under the Bill? In other words, can the rights enshrined in the articles of the Human Rights Act be asserted against the regulations?

Ruth Kelly (Labour, Bolton West)

I certainly can provide the right hon. and learned Gentleman with that assurance. While we did not think it necessary to accept express protection for the Human Rights Act, we thought that so doing would provide additional certainty and reassurance to people who were concerned about how the Bill might be used. That is the spirit in which we acted, and our acceptance of that protection does not in any way undermine or cast doubt on the fact that emergency powers cannot be used to make substantive amendments to other constitutionally important enactments.

Bill Cash (Conservative, Stone)

I hope that the Minister does not disagree with the proposition that the Human Rights Act is not an entrenched constitutional provision. In fact, in the case of Simms and O'Brien, Lord Hoffmann, a great advocate of human rights, the former Lord Chancellor, Lord Irvine of Lairg, and the Home Secretary all said that the Human Rights Act could be amended or repealed. It is therefore not the entrenched provision that the Minister has sought to claim is a bulwark for liberty.

Ruth Kelly (Labour, Bolton West)

I do not agree with the hon. Gentleman's analysis. The reasons why the Government believe that express protection for constitutional enactments is unnecessary are set out in detail in our response to the report by the Joint Committee, and were outlined by the Under-Secretary of State for the Home Department, my hon. Friend the Member for Slough (Fiona Mactaggart) in Committee. They have also been set out in the other place.

In summary, legislation does not operate in isolation, and must be seen in the context of our wider constitutional law. There are two key presumptions—first, it is important to remember that a power to make secondary legislation would be interpreted in light of the purpose of the power. Secondly, in considering the scope of the power to modify enactments, it is important to acknowledge the status accorded to enactments of constitutional importance in recent judicial announcements. In that regard, Thoburn v. Sunderland city council, known as the metric martyrs case, is the clearest precedent. In the light of recent cases such as that one, the Government believe that the courts will expect Parliament to use clear language before delegating the power to make substantive amendments to the Human Rights Act or a provision of constitutional importance to the Executive. Applying those presumptions to the Bill, it does not expressly permit emergency regulations to modify enactments such as the Human Rights Act, and it makes it clear that the purpose of the power is to prevent, control or mitigate the emergency.

John Bercow (Conservative, Buckingham)

I understand very clearly that the Human Rights Act will stay on the statute book, but I seek the same assurance as my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg). After the passage of the emergency powers, will it remain a robust vehicle for protecting citizens' rights? Will the Minister confirm that, following the passage of such powers, citizens' rights to pursue cases under the Human Rights Act in respect of the application of those powers will remain unaltered and undiminished?

Ruth Kelly (Labour, Bolton West)

I can certainly confirm that that will be the case.

Richard Shepherd (Conservative, Aldridge-Brownhills)

The hon. Lady is making the case that the Human Rights Act is entrenched, so it is appropriate to name it in the Bill. However, it is not entrenched, because primary legislation passed by the House could do away with it. That route would be open to the Government if they were dissatisfied with the Habeas Corpus Act 1816, the Bill of Rights, the Act of Settlement 1700 or any of the measures listed in the amendment. We are seeking protection for what are considered fundamental steps in our march to liberty. There is nothing distinctive about the Human Rights Act apart from the fact, the hon. Lady suggests, that primary legislation is required to amend, change or repeal it. However, her case is not a good one, because the same argument applies to the other measures.

Ruth Kelly (Labour, Bolton West)

The hon. Gentleman, to give him his due, makes an extremely good point that the Human Rights Act is not entrenched, as it could be overturned by primary legislation. He also puts his finger on the fact that that could not be done with emergency powers. The House would have to debate the matter and use primary legislation to change the Act.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

I should know the answer, but will the hon. Lady confirm that the Government can derogate from the Human Rights Act without coming to the House? In other words, if an article in the Act is thought embarrassing in the context of the regulations, a Minister could derogate from it.

Ruth Kelly (Labour, Bolton West)

Let me reiterate the point about the safeguards in the Bill. The Human Rights Act could not be altered, as I understand it, through emergency regulation. If it becomes appropriate to change it and the way in which it operates, that would be done through primary legislation. At that point, I would expect protection for the Act to be reconsidered. If there were to be a derogation from the Act, there would have to be an order approved by both Houses, so that, too, is an essential safeguard in the Bill.

John Bercow (Conservative, Buckingham)

The Minister has made effective use of additional information timeously provided. She said that, in the circumstances envisaged, another Order in Council would be required, and she invoked that point as evidence that there would be parliamentary scrutiny. Can she confirm that that new Order in Council would be capable of debate?

Ruth Kelly (Labour, Bolton West)

I can confirm that the order would be subject to the safeguard to which the hon. Gentleman refers. It would be debated by both Houses and would have to be approved by both Houses. If not, it would fall. That is a critical safeguard.

We have accepted the arguments that were made in the other place that protection in the case of the Human Rights Act should be made explicit. We do not think that that is a necessary protection, but it is desirable to create some degree of certainty on the matter.

Richard Shepherd (Conservative, Aldridge-Brownhills)

I am grateful to the Minister, but we need greater clarity in respect of the point made by my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg). We are in a state of derogation, as a result of a ministerial decision—not a decision of the House, though the consequences were—that the life of the nation is currently threatened. On that basis, the Government set aside a contention in the Human Rights Act. All of this is outwith the cognisance of the Bill. That is what puzzles some of us and needs reconciliation. Primary legislation is indeed needed to change the Human Rights Act, but derogation from it is a ministerial, Executive or Crown function predicated on existing anti-terrorism laws and habeas corpus.

Ruth Kelly (Labour, Bolton West)

The hon. Gentleman is really making a point about the interaction between Parliament and the Executive in this and other cases and the application of the Human Rights Act, rather than about something that applies solely to the exercise of emergency powers. I have made it clear that, under the emergency powers, the Human Rights Act would have to be respected.

I said that derogation would have to be approved by both Houses. There would be a debate and Parliament would have to be content that it was appropriate. I set out earlier, and in the previous debate, the additional safeguards that are in the Bill, compared with the predecessor legislation. I would argue that the safeguards go much further than the previous legislation and are appropriate.

Lords amendments Nos. 41 and 46 provide protection for part 2. It is important that part 2 should similarly be incapable of being amended by emergency powers in order to ensure that the tests and protection that it contains cannot be amended. The Bill expressly provides that emergency regulations cannot be used to modify part 2. The Government have amended the Bill to move this prohibition from the clause on scope to the clause on limitations on emergency regulations, where it sits more naturally.

On amendment (a), the Government are convinced that no further pieces of legislation require express protection. Adding a list of constitutional enactments—we have already debated this point—to be protected from the amendment would only weaken the safeguards in the Bill. As a consequence of the way in which legislation is made, there is room for legitimate disagreement on which enactments contain provisions of constitutional importance, and we do not believe that it would be possible to prepare an accurate list of enactments that ought to be protected.

Take, for example, the devolution Acts. Some would argue that they are of great constitutional importance. Those less sympathetic to devolution may not agree. There are arguments both ways. The Acts alter the distribution of powers and the way that parts of the country are run. On the other hand, they do not affect the sovereignty of Parliament or the fundamental rights of individuals. There would be a danger that, if the list were not entirely comprehensive, a partial list in the Bill would undermine the protection of Acts that were not cited in it. Therefore we cannot accept the amendment on that point.

Oliver Heald (Conservative, North East Hertfordshire)

We welcome Lords amendment No. 42, which requires a person making emergency regulations to have regard to the importance of ensuring that Parliament, the High Court and the Scottish equivalent can conduct proceedings in connection with the regulations or actions taken under the regulations. The matter was raised in the other place by my noble Friend Baroness Buscombe and by other Conservative peers. It is good that the Government responded and Lords amendment No. 42 emerged. A little credit is due for that.

On Lords amendment No. 46, we have argued throughout the course of the Bill for the protection of a group of statutes to ensure that civil liberties are respected. On Report in this place, the debate was guillotined. In the other place, peers were able to find the time and minds were changed. The Government agreed to protect the Human Rights Act, saying that it was right to do that in the interests of certainty.

If it is right to do that for the Human Rights Act, we cannot understand the Government's approach when they say that it is not also right to do so in respect of the other important Acts of Parliament identified by the Joint Committee on Human Rights that we have suggested on previous occasions. The list has been narrowed by my hon. Friend the Member for Stone (Mr. Cash), who is proposing amendment (a). The Acts set out there are the bedrock of our constitution.

Ministers say that the provision is not required. They argue that, if there is no provision allowing amendment of constitutionally important legislation, it cannot take place. They said that about the Human Rights Act, and they changed their mind. If it is right to have that certainty and that declaratory effect for one important part of the bedrock of our constitution, why can we not do it for the others?

Richard Shepherd (Conservative, Aldridge-Brownhills)

In the Government's responses to the Joint Committee on Human Rights, they cited a Law Lords judgment about constitutionally important Acts, such as the Human Rights Act. In other words, they identified one of those constitutionally important Acts. The other Acts listed in amendment (a) are undoubtedly constitutionally important and of equal standing to the Human Rights Act within the framework of law. There cannot in logic be an argument against the inclusion of the specified Acts.

Oliver Heald (Conservative, North East Hertfordshire)

My hon. Friend is right. How can the Government say that it is necessary in the interests of certainty to list a particular Act, and then say, "Oh, but we'd like to retain the uncertainty in respect of others."? I agree that that is an illogical position.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

Amendment No. 46 seeks to make an important change to the Bill. My Liberal Democrat colleagues in another place would modestly lay some claim to having persuaded the Government to accept it. Throughout the course of the Bill we have argued for the importance of the Human Rights Act to be respected by it. During the Bill's passage through the House, we were able to secure another concession, so that in clause 20(5)(b)(iv) we now have a requirement for any regulations brought under part 2 to be certified as compliant with the Human Rights Act.

In a sense, amendment No. 46 is the other part of that—the braces to the belt. It states that any regulations introduced under part 2 must be compliant with the Human Rights Act, and that those regulations in turn cannot modify the Human Rights Act. That provides a certain amount of protection, such that any regulations under part 2 will have to be compliant with the Human Rights Act.

We believe that there is a particular status to the Human Rights Act. We as a party are constitutionalists: we argue in favour of a written constitution. We do not have one and we do not expect the country to develop one between now and the end of this parliamentary Session, so we seek to develop some notion of a constitution in the legislation that comes before us. Although I am not a lawyer, I paid close attention to the words in the other place of my noble Friend Lord Lester of Herne Hill, who is an eminent lawyer in that area. He advanced a cogent case for the particular position of the Human Rights Act 1998 in English legislation.

Bill Cash (Conservative, Stone)

rose—

Richard Allan (Liberal Democrat, Sheffield, Hallam)

I shall give way to someone who is a lawyer.

Bill Cash (Conservative, Stone)

Does the hon. Gentleman accept that some people do not believe that Lord Lester was right to assert that the 1998 Act is adequate to deal with all those contingencies? I hope that he will not fall into the same trap as Lord Lester, who asserted that that was why the Liberal Democrat Opposition would not support the official Opposition in the House of Lords yesterday.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

I accept the hon. Gentleman's point that disagreements remain. However, I must disappoint him by saying that the divergence on that particular issue between the Whigs in the Conservative party and the modern Liberal Democrats remains. We will not support amendment (a) because the nearest that we can get to a constitutional position is to continue to support and assert the supremacy of the 1998 Act, which acts as a kind of modern constitutional framework guaranteeing the rights of citizens in relation to the actions of the Executive.

We recognise that all legislation must be certified as compliant with the 1998 Act, which is a difference between the 1998 Act and other legislation referred to in amendment (a). The clearest way in which the part 2 provisions can proceed is to collect different Acts of Parliament, such as those in the amendment, and insert them into the Bill, but that will not give the ordinary citizen the safeguards that they are looking for on freedom from oppressive or inappropriate regulations. I accept the divergence of opinion and am sure that the hon. Gentleman will ably advance the argument for the inclusion of other legislation.

It is important that all those who are concerned about relations between the citizen and the state should seek to bolster and reinforce the 1998 Act rather than undermine it. Sadly, some of those who seek to challenge this Bill also sought to challenge the 1998 Act as an alien or foreign import. The provisions of the 1998 Act are important and all regulations should comply with them. Now that the 1998 Act cannot be altered by regulations, we have the best possible framework to guarantee the citizen's constitutional rights in respect of regulations. It would be better still if the Government were to introduce proposals on a written constitution meaning that the provisions of the 1998 Act cannot be overturned, even by a simple majority in Parliament. We would prefer such a constitutional system, but we have not got it. Amendment No. 46 takes us as near as we can get to clarity. Sadly, amendment (a) would not enhance that clarity, but it would dilute the 1998 Act's particular and special position.

Bill Cash (Conservative, Stone)

Let there be no doubt that what Lord Lester said in the other place yesterday and what the hon. Member for Sheffield, Hallam (Mr. Allan) has just said demonstrate the differences between us. Although the Government were pulled kicking and screaming to include the 1998 Act, the words that they sent to the Joint Committee on Human Rights when the Committee sought to include the 1998 Act in the first place were fairly derogatory.

The 1998 Act is inadequate in itself to deal with the questions. That brings us to an interesting issue, which is also exemplified by the Government's agreement to the charter of fundamental rights in the European constitution—dialogue is currently occurring between Strasbourg and Luxembourg on how to resolve that matter. The plain fact is that the charter of fundamental rights might have appeared in the Bill instead of the 1998 Act, or both of them might have been included. In both instances, it is assumed that the arrangements set out in those international treaties should effectively take supremacy over laws made in this Parliament according to constitutional arrangements that have developed over many centuries.

For example, we have just heard mention of habeas corpus. I have referred to the great authorities on that subject, in particular the chapter in Bradley and Ewing's "Constitutional and Administrative Law", which points out that, with respect to the question of habeas corpus, in the context of article 5(4) of the European convention on human rights, a divergence of view has developed. That divergence of opinion could be dealt with by amending section 31 of the Supreme Court Act 1981 to add the forms of relief that may be granted in an application for judicial review.

We should have grave reservations about displacing the Habeas Corpus Act 1816 in favour of provisions emanating from the European convention on human rights. The Government hope that the European constitution will go through, in which case the charter of fundamental rights would be incorporated and exclusively adjudicated upon by the European Court. That would move us into completely different territory, because it would override the provisions contained in these enactments.

We are getting into deep waters, and, thanks to my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd), I am glad that we have an opportunity to debate the matter at the last minute, because such debate has been excluded during the Bill's passage. I could enlarge on that matter, but we are running out of time, and I am extremely concerned that amendment (a) should make as much progress as possible.

Richard Shepherd (Conservative, Aldridge-Brownhills)

The hon. Member for Sheffield, Hallam (Mr. Allan) is right about Lord Lester, who was one of the progenitors of the 1998 Act and who, along with the Government, was instrumental in creating its form. My problem is not with the inclusion of the 1998 Act: Conservative Front-Bench Members and the hon. Member for Sheffield, Hallam know that I submitted to the Committee, of which I was not a member, a list of Acts, of which the 1998 Act was one, and the Committee debated it. The purpose of amendment (a) is to provide the key instances in which the Government would require primary legislation to undermine some of the contentions of those Acts.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

The fact that the Bill entrenches and protects human rights legislation is important, because it will enable judges to interpret regulations against the background of the articles in the human rights legislation, which provides a degree of protection. I shall not go on, because the Minister must reply.

Ruth Kelly (Labour, Bolton West)

I recognise the sincerity with which the points have been made in debate, but I argue that amendment (a) would weaken the protections inherent in the Bill, and, on behalf of the Government, I strongly feel that we should resist it.

The Government always intended the Bill to be compatible with the 1998 Act, and the hon. Member for Sheffield, Hallam (Mr. Allan) understands that point, but we welcome the additional certainty that has been created by its inclusion in the Bill. However hard one tries to agree a list of constitutionally important Acts that should be protected and put in the Bill, the list would quickly be superseded by other Acts and become redundant. Indeed, I believe that in some sense it could even subject the House to ridicule.

Perhaps more importantly, there is a real danger that any list of constitutional enactments, even were it agreed, will at some point be incomplete and partial. Such a list, which could not be amended, could lead a court to conclude that it was exhaustive and that Parliament envisaged that constitutional enactments not specified in the Bill could be amended by way of emergency regulation.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I was on the Committee, but have held back from saying anything until now. I would say this to the Minister: first, the list could be expressed as not being exclusive; and secondly, she has just given the best justification for a sunset clause.

Ruth Kelly (Labour, Bolton West)

Not at all. At any point in time—during an annual, a three-year or a five-year process—the list would, by its nature, be partial and incomplete, thereby weakening the safeguards inherent in the Bill. Once Parliament begins to list enactments that cannot be amended there is a real risk that a court could conclude that, notwithstanding the other provisions of the Bill, any enactment that is not on the list could be amended.

The Government remain convinced that the absence of an express power to amend constitutionally important legislation, coupled with the clear expression of the purposes for which regulations can be made and the safeguards in the Bill that I outlined, ensure that substantive amendments to such legislation are not possible by way of emergency regulation. I accept that that approach lacks the transparency of an express provision for each constitutional enactment in the Bill, and if we thought that we could protect them from inappropriate amendments by including them in the Bill, we would do so. Given that it is not possible to craft an amendment to the Bill that protects the constitutional fabric of the UK, it is better to rely on the implied effect of the Bill as drafted, which achieves the effect that we all wish for by ensuring that substantive amendments cannot be made to constitutional enactments.

I hope that I have made it clear to the House that any attempt to do otherwise would not offer the protection that we all seek, but could merely undermine the protection that is already there. Because this is such a serious matter, I would argue that it is very important that we do not accept the amendment on constitutional enactments and that the House accept the Government's position, which will ensure that the safeguards are maximised and that the constitution is as fully protected as possible.

Lords amendment agreed to.

Lords amendment No. 42 agreed to.

Clause 23 — Limitations of emergency regulations

Clause 2 — Duty to assess, plan and advise

David Jamieson (Labour, Plymouth, Devonport)

I beg to move, That this House disagrees with the Lords in the said amendment.

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

With this we may discuss Lords amendment No. 56. I inform the House that privilege is involved in Lords amendment No. 7. If the House agrees the amendment, I shall arrange for the necessary entry to be made in the Journal.

David Jamieson (Labour, Plymouth, Devonport)

The United Kingdom's resilience to disruptive challenges is already high. We have not been complacent. Since 11 September 2001, the Government have substantially increased the country's counter-terrorism efforts and improved contingency planning for and resilience to a range of emergencies. The amendments relate to the Government's powers to take effective action to protect the public and United Kingdom interests against acts of terror.

Amendment No. 56 comprises a group of changes in one amendment. Its purpose is to provide a clearer legal basis for regulating traffic to prevent or reduce the impact of vehicle-borne terrorist attacks, especially no-warning vehicle suicide bombings, with which, around the world, we have sadly become all too familiar. We need to be able to protect critical national infrastructure sites, iconic buildings, places hosting events such as intergovernmental conferences and diplomatic premises from the threat of vehicle-borne terrorist attacks. For some sites, traffic restrictions may have an important role to play as part of a counter-terrorist strategy.

We need traffic controls that put a distance between the detonation of a bomb and the target, to reduce the impacts of such an attack. Likewise, reducing speeds at which vehicles loaded with explosives can approach a target enhances defensive measures and can significantly lessen the impacts of an attack. Over the past three years a great deal of technical development has been undertaken to counter the threat of vehicle-borne suicide bombs.

The purpose of the Government's motion is to ensure that a clear legal framework is in place to control traffic and deploy the necessary measures. It amends the Road Traffic Regulation Act 1984 to enable anti-terrorist traffic regulation orders to be made by traffic authorities on the recommendation of the police; by providing for a Secretary of State override in order to direct a traffic authority to make such an order if it proves necessary; by enhancing existing police powers to control traffic in an emergency to cover terrorism or the prospect of terrorism; and by providing that traffic calming measures normally used to control vehicle speeds for road safety purposes, such as chicanes and pinch points, may also be used as anti-terrorist measures.

Our anti-terrorism efforts must not be hamstrung by doubts or hesitation about legal powers, the consequences of which could be devastating. It is therefore crucial that the measures be agreed today.

Lords amendment No. 7 relates to the Government's powers to require ports, airports and local authorities to purchase equipment designed to identify the presence of chemical, biological, radioactive or nuclear material—CBRN material—and to deploy it at ports and airports. As we demonstrated with the amendments relating to anti-terrorism traffic regulation orders, the Government are resolved to take the powers they need to combat terrorism.

I fully understand the points that were made in the other place. However, the Government already have the powers that their noble lordships have sought to confer on us with their amendment No. 7. Under the Airports Act 1986, the Secretary of State may give directions to the operators of airports in the interests of national security. The Aviation and Maritime Security Act 1990 gives the Government wide-ranging power to require port authorities to undertake screening and monitoring. Detailed requirements relating to maritime security have been adopted at an international level, particularly in the international ship and port facility security code, and at Community level, particularly in regulation 725/2004 on enhancing ship and port facility security. The requirements include provisions relating to security assessments for port facilities, provision of information and port facility plans. The provisions are enforced under the Ship and Port Facility (Security) Regulations 2004, under which ships and port facilities can be inspected to ensure that they comply with the Government's security requirements. Under clause 5 of the Bill an order could be made requiring local authorities—or any other category 1 responder—to perform their functions in a particular way. This could include the purchase and deployment of equipment that Lord Jopling suggested in the other place.

The powers that the amendment confers on the Government are therefore unnecessary and otiose. In addition, the new provisions could undermine the robust procedural safeguards set out in the existing powers. Existing legislation sets out in much greater detail the scope of the powers and the procedures to be followed when they are used. If left on the statute book, the provisions of their lordships' amendment would cause significant confusion.

I am sure that hon. Members will understand that, from the Government's point of view, the amendment simply would not make sense, and confusion over issues of implementing security arrangements are the last thing we would want.

Patrick Mercer (Conservative, Newark)

I am grateful for the opportunity to reply to the Minister, who has made a very clear case in terms of Lords amendments Nos. 56 and 7. If I deal with them in that order, I hope that that will be convenient.

I begin with Lords amendment No. 56. The Government continue to talk about a lack of complacency and a need for awareness of the new types of threat that we face today. It is reassuring, therefore, to hear that the threat of, in the colloquial phrase, suicide bombers is being looked at in more detail. It would be interesting to know exactly how far planning has gone within Government to counter the threat to, for example, the approach roads to critical national infrastructure sites, routes that are frequently used for chemical and radiological material, and other high profile targets and iconic targets around the country. Exactly what is being done to counter that threat?

The Minister will be well aware of the pressure, particularly from the private sector, for security industries to help the wider police family in resisting such a threat and of the difficulty that the private security industry has encountered in training operatives to spot terrorist reconnaissance and the build-up to a suicide-type attack. I should be extremely interested to hear from the Minister not just the theory of this but the practice.

I entirely take the Minister's points about Lords amendment No. 7. I pay tribute to Lord Jopling and the points that he raised in another place, because they do, so to speak, hold the Government's feet to the fire on a series of different measures on which it would be quite incorrect to suggest that nothing has been done yet, but which have yet properly to be implemented in all our ports and all the different points of entry to this country.

Lord Jopling suggests that special equipment needs to be installed to monitor the contents of lorries, and that we need further special equipment designed to monitor persons, ships, other conveyances or other objects for radiological—I think that should be "radioactive"—material. The amendments also require local authorities and other public bodies to obtain specific static or mobile equipment that is designed to identify the presence of chemical material, biological organisms or radioactive substances that might be used in a terrorist attack.

Undoubtedly, the Government have done something about this. I do not want to go into the details of Project Cyclamen, because if I were to do so it might provide aid and succour to the enemies of this country. It is fair to say, however, that many of Lord Jopling's points have been at least partially addressed by Project Cyclamen and the installation of various bits of specialist equipment.

How thorough has the deployment of that equipment been? Can the Minister say for certain that all airports are covered? I take the point about the Airports Act 1986 and the Aviation and Maritime Security Act 1990. The fact remains, however, that with the exception of some areas we are wide open to equipment being brought into this country. I have no doubt that trials in the near future will provide a focus for the subject under discussion today.

I should be interested to hear from the Minister how far Project Cyclamen has got, how successful its implementation has been, exactly how far the Minister intends to extend it and whether, indeed, our airports are as thoroughly covered as Lord Bassam suggests in his reply to Lord Jopling.

John Gummer (Conservative, Suffolk Coastal)

Those of us who represent major ports have concerns about my hon. Friend's point about not going into the details of Project Cyclamen. Does he agree that it is important that those who live in the vicinity of airports and seaports know enough about these matters to be secure in their minds that the work is being done properly? At the moment, they do not have such knowledge, which is a serious worry.

Patrick Mercer (Conservative, Newark)

I am grateful to my right hon. Friend for his intervention, which underlines exactly the point that I am trying to make. I do not want to expose what I regard as loopholes in our defences under the project, but the fact remains that there is much that would be reassuring and deterring if the Government were to deploy more knowledge.

In many ways, what Lord Jopling proposes would require the Government to bring that information to the surface. A provision

"requiring local authorities and other public bodies to obtain specific static or mobile equipment which is designed to identify the presence of chemical material or biological organisms or radiological substances which might be used in a terrorist attack"

would be particularly telling. For example, how much of that mobile equipment is currently in the hands of non-uniformed organisations? How much of it is in the hands of uniformed organisations whose personnel are not yet trained properly in how to use it? On top of that, how much have the Government thought about using the expertise of the 60,000-odd soldiers, sailors and airmen who are all trained to a greater or lesser extent in this field? I suggest that the answer is not very much at all.

The comments that Lord Bassam made in reply to my noble Friend Lord Jopling therefore leave me slightly baffled. Lord Bassam said:

"The resilience to disruptive challenges is already high. There is a strong tradition of effective planning and response at the local level and 30 years of Northern Ireland terrorism has established a capability within Government and an awareness among businesses and the public which puts the UK in a comparatively strong position. But we are not complacent. Since 11 September 2001, the Government have substantially increased the country's counter-terrorism efforts and have improved contingency planning and resilience to a range of emergencies.—[Official Report, House of Lords, 9 November 2004; Vol. 666, c. 782.]

I do not think so. Will the Minister tell us how many practical exercises the Government have carried out in resilience terms? I am not referring to table-top or command post exercises. How many practical exercises have there been of the sort that do not take place on a Sunday morning or in a barracks or another controlled area and in which there is a realistic level of civilian traffic, both pedestrian and vehicle, trains are running and there is a realistic amount of congestion to deal with? The answer is not one.

Will the Minister look closely at the amendments? I believe that they have great merit, and it appals me that Lord Bassam's reply concentrates on 30 years of terrorism in Northern Ireland and effective planning and response at a local level. All that is completely behind the curve.

Nicholas Winterton (Conservative, Macclesfield)

Following up the question of my right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer), is my hon. Friend not of the view that, if the Government were a bit more forthcoming with information and about the availability of technology and equipment that could trace and identify the sort of matter or products involved, including nuclear chemicals and other such materials, it would be not only a huge reassurance to those of us who represents constituencies with a major airport nearby—in my case, it is Manchester international airport—but a deterrent to those who might think of smuggling into this country the material that our noble Friend Lord Jopling sought to deal with in his amendments?

Patrick Mercer (Conservative, Newark)

I am most grateful to my hon. Friend for his intervention, which again underlines the point that I am trying to make. In Committee, we suggested to the Government that there should be an effective method of informing the public not only of the threat, but of what they should do in the event of the threat of an attack or an actual attack. The Government told us that that proposal was completely unnecessary, that it was scaremongering and that it would be doing the terrorist's job for him. Within weeks of making those comments, however, they issued a booklet—it did not go to every household in the country, although they tried to ensure that it did—trying to address precisely those points. As he says, they could go much further in terms of reassurance and in terms of the next leg of the argument—training the public in how to deal with the threat that is in front of them.

In conclusion, I would be extremely pleased to hear the Minister accept the points that my noble Friend Lord Jopling has made for the simple reason that the amendments would underline the inadequacy of the Government's response at the moment and require them to produce a wholly better and more cohesive policy in future.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

The Minister has set out a sensible case in respect of Lords amendment No. 56. We should spell out in legislation the way in which highways alterations will take place for the purposes of civil contingencies, and it is sensible to include such provision in the Bill.

Lords amendment No. 56 adds up to more than three pages of additional text in a 30-odd page Bill, so 10 per cent. of the Bill could be taken up in dealing with quite a minor issue. Having been in local government, I cannot help but reflect that, just as we love to spell out everything in traffic regulations in intimate and minute detail, down to the width of double yellow lines, when we come to try to define in law how we can make alterations for the purposes of anti-terrorism, we seem similarly to be required to spell everything out in minute detail to give appropriate legal authority. None the less, the provisions are unremarkable in what they are seeking to achieve.

On Lords amendment No. 7, the Liberal Democrats are running counter to the thrust of the debate so far today, in which we have been seeking to limit the Government's powers and tie their hands to a degree. Lords amendment No. 7 offers the Government an additional permissive power to make regulations. The Minister said they could already introduce such regulations, but the amendment, which was moved by Lord Jopling but had the support of my Liberal Democrats as well as the official Opposition, seeks to spell out the way in which the Government can make regulations in respect of the protective measures that need to be taken to prevent harmful materials from coming through ports and so on.

I thought that the Minister helped to strengthen the case for the amendment in his speech. He referred to all the existing measures that require ports and various other people to take the sort of measures that we are talking about. There is, however, quite a complex web of regulatory powers, and it might be helpful for a comprehensive Civil Contingencies Bill to spell out that the regulations affecting the ports authorities and everybody else should fall within the overall framework. They may have to meet other legal requirements anyway, but having one port of call would be helpful, and part 1 could effectively say to responders, "These are your duties and responsibilities." Including in those responsibilities protection, scanning and the purchase and provision of equipment for detecting the noxious substances might be helpful. It would not mean that those involved did not have other legal responsibilities; it would simply mean that the civil contingencies regulations were pulled together in one place.

The Minister may say that the Government will take such action anyway, but the purpose of the amendment is sensible; it seeks to highlight those issues and include them in the Bill. If we send back reasons why we disagree with the Lords—the Government will command the majority to ensure that that happens—I hope that the Government can give additional reassurances in discussions in another place that the issue is covered. The fact that it is covered in other disparate measures is not sufficient reason for it not to be mentioned in the big, comprehensive measure before us today, which seeks to cover all eventualities. Not including such reference will leave a gap that Lords amendment No. 7 tries sensibly to plug.

John Gummer (Conservative, Suffolk Coastal)

When the Minister replies to my hon. Friend the Member for Newark (Patrick Mercer), I hope that he will also bear it in mind that, on the other side of the issue, there is considerable disquiet about actions that are unnecessary, otiose or intrusive. I say again that it is outrageous that, for example, it would be impossible to drive around Grosvenor square. It is unacceptable that such a restriction should be imposed. I think that it is illegal, although I have found it impossible to get an answer from the Government as to whether a proper case has been made under present legislation. The situation is similar with regard to the road behind the embassy. If an embassy cannot operate in a way that enables the rest of the world to go about its business, we should ask ourselves whether it is in the right place. I wish we would apply the same criterion abroad, to avoid an unacceptable impact on the public.

I hope the Minister will reassure us that the measures will be used for their intended purpose, and not for purposes of aggrandisement or interference. Will he also have a look at measures that have already been implemented, which I consider both unnecessary and intrusive? As I have said, I should like him to look into the measures that we take abroad as well as those taken in this country, especially in regard to embassies.

Nicholas Winterton (Conservative, Macclesfield)

I want to follow up the points made by my right hon. Friend the Member for Suffolk, Coastal (Mr. Gummer). I fear that the powers in the Bill could well be misused. Let me put a specific question to the Minister, for whom I have had a high regard not just in his current role but in previous incarnations. As an Opposition Back Bencher, I should like an assurance from him.

Like my right hon. Friend, I am concerned about the proposals relating to roads. I am thinking of chicanes, concrete blocks and the blocking of roads. My right hon. Friend gave the example of Grosvenor square and the American embassy. I want to be certain that the proposed mammoth, massive, overwhelming powers will not be abused by Government or police, and will be used and maintained only in the event of ongoing need. Roads often remain blocked almost ad infinitum.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

Does the hon. Gentleman share my hope that the impact of the amendments will be such that a Secretary of State will have to make an order for works such as those in Grosvenor square, which will be challengeable in a court of law if people disagree with it? Surely that would be better than introducing these measures on an ad hoc basis.

Nicholas Winterton (Conservative, Macclesfield)

I can tell the hon. Gentleman that on this matter, at least, he and I are as one. I believe that such proposals should be made only in the context of an order. I seek a categorical assurance from the Minister that these mammoth powers will not be abused, and that the House will have an opportunity to comment on the Government's proposals. I do not suggest that the Government's powers to act in a proven emergency should be reduced, but the Minister should appreciate the view of Back Benchers in both Opposition parties that such huge powers should be used extremely sensitively and carefully.

David Jamieson (Labour, Plymouth, Devonport)

I thank those who have contributed to this short debate for their generally consensual approach to these important matters.

The hon. Member for Newark (Patrick Mercer) spoke of the new suicide threat. Over many years we have, sadly, become used to bomb threats that have generally involved a warning and in which the bombers, because they did not wish to lose their lives, did not take quite as many chances as suicide bombers do. We are now living in a new world, and we should all accept that.

I do not think that the hon. Gentleman or anyone else would expect me to respond to his points in detail. I cannot, for instance, tell him exactly what is being done in the privacy of the House. However, I can reply to his question about the use of wider security forces. In many cases the police co-operate with security guards and forces in ports who are not part of the national police force. Many people join in a concerted effort to create a secure environment around a particular establishment.

There seems to be some confusion about the proposed powers. The debate seemed to centre on how they would be used, which I suppose is inevitable in a debate like this, but our proposals relate not to what we will do with the powers but to where they should lie. The hon. Member for Newark asked about specialised equipment. As I said in my opening remarks, powers allowing the use of such equipment, and allowing the Secretary of State to insist on its use in ports, airports or other places of entry, are already contained in existing legislation. The hon. Member for Sheffield, Hallam (Mr. Allan) suggested that we should have just one port of call. I suppose we could have brought all the provisions together in this Bill, but the Bill as it stands is not comprehensive and would not supplant what is in other legislation. That is our difficulty.

As was implied by the hon. Member for Macclesfield (Sir Nicholas Winterton) and the right hon. Member for Suffolk, Coastal (Mr. Gummer), the protocols for implementation are terribly important. They are laid out much more clearly in other legislation. I think that, if used as the primary legislation to drive future action, Lords amendment No. 7 would prove inadequate. There are 1,000 ports in this country, and a single piece of legislation applying to them. That is understandable to those operating in ports, but airports are a different matter.

Powers already exist through my Department and through the Transport Security Directorate—TRANSEC—for the inspection of airports. We carry out such inspections with great thoroughness and rigour to ensure that the correct measures are taken, especially where there is the greatest danger. We take proportionate action: obviously larger ports involving sensitive goods or a considerable number of passengers will need much more attention than smaller, less significant ports.

The hon. Member for Newark asked about Programme Cyclamen. I am sure he will understand why I cannot give him a full answer. I cannot put operational deployment on the public record, but I should be happy to have a private discussion with the hon. Gentleman. He also asked about the role of the military. We use the military quite widely. As the existing military aid arrangements are well established and work extremely well, there is no need to place legal duties on the armed forces. The armed forces are closely linked with the civil regional resilience arrangements, and provisions in the new chapter in the strategic defence review, including the creation of civil contingencies reaction forces, will enhance their ability to respond to emergencies.

The hon. Gentleman asked what practical measures we have taken. Unfortunately, there is not enough time left in the debate for me to go through the three-page list of things that we have done; suffice it to say that many sensible, practical measures have been taken at both national and local level to ensure that we tackle the issue of terrorism. It is not a fixed feast; such matters are constantly renewed in the light of our knowledge and understanding of how the threat to us is changing.

The hon. Gentleman asked about exercises. We have in place a co-ordinated, cross-governmental programme for exercises, which covers a comprehensive range of domestic, disruptive challenges, including accidents, natural disasters and acts of terrorism. I can confirm that one such exercise is happening in my constituency over the weekend and during next week—[Interruption.] It is happening over several days, not just on a Sunday. Sometimes those are table-top exercises, but at other times they are full and live.

The right hon. Member for Suffolk, Coastal made a very good point—the hon. Member for Macclesfield made a similar one—about what is in existing law. In existing law, but not, I am afraid, in the amendment, there are some checks and balances; for example, a permanent fixture on a road would require a local inquiry. The local authority would be required to post a direction to say what was happening and, if necessary, a public inquiry would be held in some cases.

I shall conclude my remarks. The Opposition may want to push the motion to a vote and if I continue talking they will be unable to do so, but if there are any further points I shall be happy to respond to them in writing.

Clause 1 — Meaning of "emergency"

Ruth Kelly (Labour, Bolton West)

I beg to move, That this House agrees with the Lords in the said amendment.

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

With this it will be convenient to deal with Lords amendments Nos. 2 to 6, 29 to 36, 39, 40 and 48.

Ruth Kelly (Labour, Bolton West)

All these Lords amendments streamline the definition of emergency, sharpening the drafting, rather than making substantive changes. They were warmly welcomed in the other place, and I hope that hon. Members will agree that the definition is clearer and more concise as a result.

Lords amendment agreed to.

Lords amendments Nos. 2 to 6 agreed to.

Clause 2 — Duty to assess, plan and advise

Ruth Kelly (Labour, Bolton West)

I beg to move, That this House agrees with the Lords in the said amendment.

Michael Lord (Deputy Speaker, Central Suffolk and North Ipswich)

With this we may discuss Lords amendment No. 9.

Ruth Kelly (Labour, Bolton West)

The amendments relate to the role of the voluntary sector in contingency planning. The Government now accept that there is merit in capturing in statute the role of voluntary organisations. This, we believe, will create a climate of expectation that their skills, resources and expertise should be used to the full. The Government have worked closely with the voluntary sector to get the text of the amendments and the package of supporting regulations and guidance right. I therefore recommend the amendments to the House.

Patrick Mercer (Conservative, Newark)

I am grateful to the Minister for bringing forward the amendments. They represent a breakthrough. The voluntary sector was disgracefully neglected earlier and, in Committee, we could make no progress whatever with the Government on this point.

The work done by my noble Friend Lady Buscombe should be acknowledged. Her team has worked tirelessly and, at last, we have recognition for bodies such as the British Red Cross and others which have seen the example set by the Spanish Red Cross after the incident on 11 March. I am delighted that the Government have seen sense on this point.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

I simply wish to reinforce the point made by the hon. Member for Newark (Patrick Mercer) that it is very welcome that the Government have recognised the position of the voluntary sector. I know that it was a contentious and difficult issue, with different views being expressed within the voluntary sector. Bodies such as the Red Cross have been effective in keeping the issue alive, and the amendments reach a sensible compromise in making sure that the Bill formally recognises issues with which the voluntary sector will be intimately involved.

Mike Hancock (Liberal Democrat, Portsmouth South)

I am delighted that the Minister has reflected on what was said in Committee and on Report, but it is not good enough to accept that the voluntary sector is now part of the Bill unless the Government are also convinced that resources should be forthcoming to help the voluntary sector deliver on its side of any arrangements that it may come to. It is not good enough simply to write the sector into the Bill and then deny or refuse applications for the resources that will be needed by many organisations in the voluntary sector. I hope that the Government and the Minister will take that point on board.

Lords amendment agreed to.

Lords amendment No. 9 agreed to.

Clause 7 — Urgency

Ruth Kelly (Labour, Bolton West)

I beg to move, That this House agrees with the Lords in the said amendment.

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

With this we will take Lords amendment No. 18, Lords amendments Nos. 37, 38, 43 to 45 and the Government motions to disagree thereto, Government amendments (a) to (e) in lieu thereof, Lords amendment No. 47 and the Government motion to disagree thereto, and Government amendments (a) and (b) in lieu thereof.

Ruth Kelly (Labour, Bolton West)

The Bill originally required decision makers to think that provisions of emergency regulations were in due proportion to an emergency or that an urgent direction was needed. Concerns were raised about that approach in both this House and the other place, and their lordships have replaced those provisions with an objective test. In other words, their amendments provide that an urgent direction must be needed, and that urgent directions or emergency regulations must be in due proportion to the situations that they address.

We have re-examined the matter in the light of their noble lordships' concerns and worked hard to find a compromise position to which I hope that both sides of the House can sign up. Under parts 1 and 2 of the Bill, when determining whether there is an urgent need to dispense with the requirement to consult the Council on Tribunals, the maker of urgent directions will make judgments of fact or near fact, so he will be deciding whether there is an urgent need to issue a direction or whether there is insufficient time to consult the Council on Tribunals. We believe that that approach is appropriate, so we will accept the relevant Lords amendments.

We do not accept that it would be appropriate to apply such an approach to decisions made about the kinds of provision that should be included in emergency regulations made under part 2. Any decision made about the necessary scope of emergency powers, for example, will be more subjective. There will inevitably be a question of judgment. We think that it is appropriate for the Bill to recognise that fact and to indicate clearly who will be responsible for making such a judgment call. However, we think that we should raise the threshold of the test in such cases. We have thus tabled an alternative amendment that will raise the threshold from "thinks" to "is satisfied". That will require the maker of regulations not only to think that the provisions of regulations are appropriate, but to be satisfied, or pretty sure, of that fact. I urge the House to accept the compromise package.

Oliver Heald (Conservative, North East Hertfordshire)

Ministers in this House and the other place have gone a considerable way towards improving the nature of the test in part 1, which we welcome. References to Ministers thinking appear throughout the Bill, so I am glad that the inclusion of an objective test in part 1 is acceptable.

Part 2 of the Bill provides for draconian actions, so although the nature of the test in that part is more important, the Minister has not been able to go as far as we had hoped. We have argued that the proper way to deal with the matter would be to require belief on reasonable grounds. That would have included an objective element, but it would have also required the relevant Minister to justify his actions. The Government's proposal that a Minister would to have to be satisfied that something were appropriate rather than only thinking that represents a slightly stronger requirement, but it is not strong enough. We shall continue to support Lords amendment No. 37 because we are dissatisfied with the Minister's approach on the matter, although some improvements to the Bill have been made.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

Liberal Democrats in this House and the other place shared concerns similar to those expressed by the hon. Member for North-East Hertfordshire (Mr. Heald), and we made such arguments in Committee and on Report. However, on balance, we are inclined to accept the Government's proposal. The Minister has made the case that a Minister's judgment will ultimately apply, because we cannot avoid the fact that Ministers will make judgments for which they will be held to account about whether conditions prevail to such an extent that emergency regulations should be brought into play.

If we come to challenge a Minister through the legal process or in the House, it is important that the test is genuine so that he or she cannot say, "I thought the measures were appropriate, so you can't do anything to me. If I thought wrongly then tough luck." The threshold of the test is important, but we think that the new wording is satisfactory. The inclusion of the word "appropriate" in the Bill will mean that we will have something to get our teeth into when we come to testing a Minister. Although there are several ways in which the provisions could be phrased to give us more certainty, we must strike a balance somewhere. We think that the Government have conceded enough at this stage of the Bill's passage to satisfy us that the test will be sufficiently robust.

Douglas Hogg (Conservative, Sleaford and North Hykeham)

It would be churlish not to acknowledge that the Minister and the Government in general have made a useful concession. In a sense, one could accept it. However, my hon. Friend the Member for North-East Hertfordshire (Mr. Heald) desires to go with Lords amendment No. 37 and I am content to follow him.

There is no doubt that clause 22 provides for substantive powers. I reminded the House of the extent of those in our debate on the first group of amendments. The question is: what should trigger the exercise of those powers? The test of "thinks" was too low a threshold. The Minister was right about that. The question is whether there is a significant difference between the concept of being satisfied and that contained in amendment No. 37. I think that there is relatively little difference between the two tests. The test formulated in the other place sets a slightly higher threshold. In ordinary circumstances, I would not fall out about that, but if my hon. Friend thinks that it is a matter of principle, I shall support him.

Ruth Kelly (Labour, Bolton West)

Amendment No. 37 proposes an objective test, to be satisfied on reasonable grounds. I shall respond to the point about an objective test, unless the hon. Member for North-East Hertfordshire (Mr. Heald) has something to add.

Oliver Heald (Conservative, North East Hertfordshire)

If one requires a belief to be genuine, and also to have reasonable grounds to support it, the objectivity comes in the provision of the reasonable grounds. I accept that that is not what the amendment says, as I mentioned in my contribution, but it provides an objective test, something that we welcome.

Ruth Kelly (Labour, Bolton West)

I am glad that the hon. Gentleman makes that clear. In that case, an objective test would achieve the wrong results in certain situations and should be rejected.

Let me give an example. Consider the outbreak of a strain of flu that is fatal. Faced with a cluster of flu-related fatalities in an area, the Minister may quite reasonably take the view that there is a threat of serious damage to human welfare in that area, and that it is proportionate and necessary to use emergency powers to impose limits on public gatherings to limit the spread of the disease. If, after a week of laboratory tests and developments on the ground, it becomes clear that the new strain is not highly contagious and it was unnecessary to restrict public gatherings, amendment No. 37 would make the emergency regulations unlawful. Anyone affected by them could successfully challenge them and seek compensation, even though the Minister acted reasonably and appropriately.

Oliver Heald (Conservative, North East Hertfordshire)

The decision that would be considered would be the one made on a particular day. The hon. Lady refers to a week later on.

Ruth Kelly (Labour, Bolton West)

That is right, but the longer-term effect of the amendment would be that Ministers would delay taking reasonable and appropriate action to deal with an emergency until they were 100 per cent. sure that they knew what the emergency entailed. That cannot be right. The idea of an objective test, with the threshold set that high, is not appropriate. In addition, I do not accept that stipulating "on reasonable grounds" would solve the problem. As I said on different groups of amendments, it is not necessary for that to be specified. I do not expect the hon. Gentleman to want to re-run that particular argument now.

The "satisfied" test is a higher threshold than the "thinks" test and goes a long way towards meeting hon. Members' concerns. Let me give an example of when "satisfied" is a higher test than "thinks". If a Minister is informed of a credible threat of extensive life-threatening flooding in East Anglia, but there is a suggestion that the wind may change and the rain will fall elsewhere, he would have to balance and evaluate the evidence available. A Minister might meet the "thinks" test if he or she reasonably considered that the flood was likely to happen. The Minister might have some doubts, but if the flood were more likely to happen than not, and he or she had reached that conclusion reasonably on the basis of the available evidence, the "thinks" test would be met. However, to be satisfied that an emergency was about to happen, the Minister would have to be more certain. He or she would have to pretty sure that the flood was likely to occur and have no substantial doubts about the point.

The difference between the two tests is one of degree, but there is a difference, so I recommend the "satisfied" test to the House as meeting reasonable concerns.

It being three hours after commencement of proceedings, Madam Deputy Speaker put the Question already proposed from the Chair, pursuant to Order [this day].

Lords amendment agreed to.

Madam Deputy Speaker then proceeded to put the remaining Questions required to be put at that hour.

Lords amendment No. 18 agreed to.

Clause 22 — Scope of emergency regulations

Colin Pickthall (Labour, West Lancashire)

On a point of order, Madam Deputy Speaker. During the Division, there was a good deal of confusion between Portcullis house and the Chamber. A large number of us, hearing that the Division was off, turned back; that may have been our fault. But when we returned, at least two of us—my hon. Friend the Member for Sheffield, Hillsborough (Helen Jackson) and I—tried to get in the door downstairs behind the Chamber. The door was locked and our passes would not open it, despite the fact that the light was flashing green, so we could not get up to vote. Will you have that looked into?

Tony Worthington (Labour, Clydebank and Milngavie)

Further to that point of order, Madam Deputy Speaker. I was one of the first Members here for the last vote, and the monitors clearly showed that the Division was off. I then moved to Portcullis house and misled hon. Members by saying that the Division was off, which seemed a sensible thing to tell them, as it had been announced. That should be taken into account, in addition to the point made by my hon. Friend the Member for West Lancashire (Mr. Pickthall).

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

Perhaps I can clarify the situation for hon. Members. The Division on Lords amendment No. 10 was called off. The Division on Lords amendment No. 37 followed in quick succession. That, perhaps, explains some of the difficulty. I remind hon. Members that in proceedings such as these, Divisions can be called at any time. On the matter of the door, I will draw that to the attention of the Serjeant at Arms.

Lords amendment No. 38 disagreed to.

Oliver Heald (Conservative, North East Hertfordshire)

On a point of order, Madam Deputy Speaker. For our part, if you wanted to put the Government motions to disagree together, we would be content with that.

Sylvia Heal (Deputy Speaker, Halesowen and Rowley Regis)

I thank the hon. Gentleman for that suggestion, but I am required to put the motions separately. I shall go through them as quickly as I can.

Lords amendment Nos. 43 to 45 disagreed to.

Government amendments (a) to (e) in lieu of Lords amendments Nos. 37, 38, 43, 44 and 45 agreed to.

Lords amendment No. 47 disagreed to.

Government amendments (a) and (b) in lieu of Lords amendment No. 47 agreed to.

Remaining Lords amendments agreed to.

Committee appointed to draw up Reasons to be assigned to the Lords for disagreeing to certain of their amendments to the Bill: Mr. Richard Allan, Mr. Oliver Heald, Ruth Kelly, Ms Bridget Prentice and James Purnell; three to be the quorum of the Committee.—[Ms Prentice.]

To withdraw immediately.

Reasons for disagreeing to certain Lords amendments reported, and agreed to; to be communicated to the Lords