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Ruth Kelly: The hon. Gentleman should reflect on the fact that not only does Parliament have the power to
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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.

Mr. Heald: 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.

1.15 pm

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
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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.

Mr. Hogg: The Army Act 1992.

Mr. Heald: 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:

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.

Mr. Allan: 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.
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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
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whether the powers had been used appropriately. We would not be confronted by an emergency at the time of the debate.

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