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Mr. Kevan Jones: I am listening carefully to the right hon. and learned Gentleman's tales of woe and dread. However, was he not a member of a Government who, although they did not have such powers, acted in a political way in the coalfields during the 1984 miners' strike, when whole areas were cordoned off and people were prevented from travelling? I did not hear him complain in support of the miners then.
Mr. Hogg: The hon. Gentleman really must not damage the importance of the argument by making such trivial observations.
Mr. Hogg: I will not give way to the hon. Gentleman again.
We are talking about powers seriously to diminish the rights of the citizen and to enlarge the influence and authority of the Executive, and right hon. and hon. Members must ask themselves whether that is right. We should also bear in mind the fact that the Bill enables the Minister to extend the list of events that are classed as an emergency—that, too, is done by the regulatory procedure. These powers are very wide reaching.
Let us ask ourselves what could be done under the power to disapply or modify an enactment, which I, like the hon. and learned Member for Medway, construe as a power to amend any statute, including the human rights legislation.
The Parliamentary Under-Secretary of State for the Home Department (Fiona Mactaggart): Will the right hon. and learned Gentleman give way?
Mr. Hogg: If I may just finish this point, I will of course give way to the hon. Lady.
For example, the Bill would permit a Government to amend the Homicide Act 1957 so that soldiery who shoot individuals under Executive order would be protected from the usual civil or criminal consequences of the act. To give another example, there are, as the hon. and learned Member for Medway said, many aliens in Her Majesty's Prison Belmarsh. They have been there for two years under powers given by this House—I voted against them—that were confined to aliens. But if
that legislation were modified, under the Bill, so as to apply to UK citizens, we would find ourselves in a position whereby UK citizens could be similarly held in detention in Belmarsh. Where is the protection against that?
Fiona Mactaggart: Perhaps I could draw the right hon. and learned Gentleman's attention to paragraph 34 of the Government's response to the Joint Committee's report on the draft Bill, which says that parliamentary counsel advised that these powers would not give the Government the power to overrule on constitutional matters. That means, for example, that the Human Rights Act 1998 could not be overruled.
Mr. Hogg: Let me remind the Minister of paragraph 76 of the explanatory notes, which I shall read in its entirety in order to provide the full flavour of the Government's official position:
- "It has been suggested that the limits on the exercise of the power imposed by the Human Rights Act are illusory on the basis that the regulations could disapply the substantive provisions of the Human Rights Act."
- "Clause 21(3)(j) enables regulations to 'disapply or modify an enactment or a provision made under or by virtue of an enactment'."
- "This argument does not appear to be persuasive. Having taken Parliamentary Counsel's advice"—
- "on how the normal principles of the construction of delegated powers would apply to this particular provision, it is not possible to envisage circumstances in which this power would lawfully enable regulations to make a substantive amendment to a 'constitutional enactment'."
The next question is whether the definition of an emergency is properly drawn. The hon. and learned Member for Medway talked about his constituents on their trains, and I have no doubt that he is right, although I will not go as far as that. It is clear, however, that the definition goes much further than that which is allowed by the European Court of Human Rights. For example, a riot in a single city would clearly trigger the powers, as would a flood and, most certainly, the events in Northern Ireland over the past 30 years. The definition of "emergency" is far too broad: we should construct it so narrowly that it touches only on matters of extreme gravity that threaten the security of the nation.
Mr. Allan: Does the right hon. and learned Gentleman share my concern that in trying to bring together the two different purposes of the Bill—
planning for an emergency and the Government's taking of emergency powers in extremis—we have ended up confusing, rather than helping, matters? It would be much better to have a separate, narrower definition for part 2, leaving the provisions to do with flooding, animal welfare, and so on in part 1.
Mr. Hogg: The hon. Gentleman is entirely right—perhaps that point should be addressed more fully in Committee.
I turn to the identity of the individuals who can make the regulations. My hon. Friend the Member for Stone (Mr. Cash), in a potent intervention, suggested that, for the purposes of the Bill, what the Prime Minister thinks is right is right. However, let us start by looking at who can make the regulations. Leaving aside senior Ministers, I see that they include the Commissioners of the Treasury—that is, a group of Whips. What possible reason should there be for a group of Whips, whose names we barely know, having the power to lay draconian regulations such as those which I have described? That is preposterous, and I can think of no sensible reason why it should be the case—other than tradition, perhaps, but I know of no sensible tradition that would maintain such nonsense.
Mr. Llwyd: Might that have something to do with the tuition fee argument?
Mr. Hogg: It might, and I shall have other things to say about that on another occasion.
I want to make a constructive suggestion. Leaving aside the fact that it can be the Whips who exercise the draconian powers I have mentioned, what is clear is that the power can be vested in a single Minister, acting without proper consultation and not acting in a bipartisan manner. I suggest that when the Bill is further considered we should see whether we can construct a model that would enable a bipartisan approach to be taken with regard to the regulations. My hon. Friend the Member for North-East Hertfordshire (Mr. Heald) pointed the way, and I shall point it a little more fully. Why not provide, in the first instance at least, for a special committee of the Privy Council, drawn from members of this House and the other place, comprising numbers that reflect the political composition of this House so that there can be no allegation of unfairness? Why not say that, whenever possible, that committee should be asked to approve the regulations before they are ever laid? There may be circumstances in which the urgency is such that that cannot happen, but there will be many cases when it would be possible to take the view of a specially constituted committee of the Privy Council, and that would be enormously valuable. Historically, that is what the Order in Council procedure was about.
Simon Hughes: Does the right hon. and learned Gentleman agree that we have established a recent precedent for such a committee? We set up a committee of Privy Councillors to look into anti-terrorism measures, and it has done so. That committee provides a second lock and, more importantly, a second group of people with the keys to the lock, which is perhaps what interests outside the Chamber are looking for.
Mr. Hogg: My only dissent from that is that the committee to which the hon. Gentleman refers is
essentially a reviewing committee rather than an authorising committee, but there is a precedent, which I acknowledge and on which I would care to rely.Let me say something about what the Bill does not protect. As the hon. and learned Member for Medway said, the Bill does not in any way protect human rights. I have already made the point that the protection contained in the Bill, in the opinion of parliamentary counsel, is pretty sparse. There is some protection in clause 22(3), which effectively says that one shall be entitled to maintain industrial action and not be obliged to serve in the Army. That is good news as far as it goes, but I want the Bill to contain a statement about the human rights to life, freedom from duress, freedom from arbitrary imprisonment and entitlement to due process. I cannot see any good reason why that should not be the case.
Let me say something about parliamentary scrutiny. It is true that the Bill does something to improve on ordinary scrutiny because it provides that all the regulations shall be made by the affirmative procedure. Of course, Standing Order No. 16 makes it plain that in the generality of cases that procedure will take 90 minutes. So in the ordinary case, in which law will be substantially changed, the regulations will be approved by the House in 90 minutes.
We find in the Bill that there will be amendments in respect of some of the orders, but there is nothing to tell us who will make those amendments. I know Governments very well: I sat on the Government Front Bench for a very long time. I can say, therefore, what will happen. Governments will monopolise the power to table amendments. The rest of us will not be able to, even the Opposition Front Benchers. If we are to have such order-making powers, subject to the affirmative procedure, that procedure must be proper. We must not have timetabled debates and be subject to 90 minutes of debate. All of us must surely have the right to table amendments.
I have another point, which goes to duration, as referred to in clause 25. The Bill provides that orders will be in force for 30 days. Surprise, surprise, however, it also provides that fresh regulations may be laid. It could be that there is a succession of regulations, one set after another, in substantially the same or the same form. We would have government by regulation, without, necessarily, any limit of time. I hope that when the Bill goes into Committee, the Committee will take on itself an obligation to subject the regulating power to a time limit so that regulations cannot extend for, perhaps, more than 90 days; and if Governments want the powers, they will have to seek primary legislation as their source.
I sense that the House feels that there is a need for a Bill of this kind, and I agree. I am bound to say, however, that I approach it with a heavy heart, because I have a very strong feeling that we are putting in place legislation that will be relied on in justification for acts that are unjust and arbitrary. The least we can do at this stage is to try to incorporate truly effective safeguards. That is our duty, and I hope that the House will do it.
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