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Ruth Kelly: I remind the hon. Gentleman that a reference to senior Ministers includes Lords Commissioners.
Mr. Bercow: I told the Minister that.
Ruth Kelly: So the hon. Gentleman accepts that, and Lords Commissioners are indeed senior Ministers.
Ruth Kelly:
They certainly are. We are not talking about junior Ministers. There needs to be a fall-back
17 Nov 2004 : Column 1376
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.
Mr. Shepherd: 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: 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.
Mr. Heald: Will the Minister give way?
Ruth Kelly: 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 (Newark) (Con) rose—
Ruth Kelly: 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
17 Nov 2004 : Column 1377
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.
Mr. Heald: 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: 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.
Mr. Cash:
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
17 Nov 2004 : Column 1378
risk. The Minister made the point that she wanted proper, effective scrutiny, but she walks away from it when it is offered.
Ruth Kelly: 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.
Question put, That this House disagrees with the Lords in the said amendment:—
The House divided: Ayes 293, Noes 171.
AYES
Adams, Irene (Paisley N)
Ainger, Nick
Ainsworth, Bob (Cov'try NE)
Alexander, Douglas
Allen, Graham
Anderson, rh Donald (Swansea E)
Anderson, Janet (Rossendale & Darwen)
Atherton, Ms Candy
Baird, Vera
Banks, Tony
Barron, rh Kevin
Battle, rh John
Bayley, Hugh
Beard, Nigel
Begg, Miss Anne
Bell, Sir Stuart
Berry, Roger
Blackman, Liz
Blears, Ms Hazel
Boateng, rh Paul
Borrow, David
Bradley, rh Keith (Withington)
Bradley, Peter (The Wrekin)
Bradshaw, Ben
Brennan, Kevin
Brown, rh Nicholas (Newcastle E Wallsend)
Browne, Desmond
Buck, Ms Karen
Burgon, Colin
Burnham, Andy
Byrne, Liam (B'ham Hodge H)
Cairns, David
Campbell, Alan (Tynemouth)
Campbell, Mrs Anne (C'bridge)
Campbell, Ronnie (Blyth V)
Casale, Roger
Caton, Martin
Cawsey, Ian (Brigg)
Challen, Colin
Chaytor, David
Clark, Mrs Helen (Peterborough)
Clark, Dr. Lynda (Edinburgh Pentlands)
Clark, Paul (Gillingham)
Clarke, rh Tom (Coatbridge & Chryston)
Clarke, Tony (Northampton S)
Coaker, Vernon
Coffey, Ms Ann
Colman, Tony
Corbyn, Jeremy
Corston, Jean
Cox, Tom (Tooting)
Cranston, Ross
Crausby, David
Cruddas, Jon
Cryer, John (Hornchurch)
Cunningham, Jim (Coventry S)
Cunningham, Tony (Workington)
Curtis-Thomas, Mrs Claire
Darling, rh Alistair
Davey, Valerie (Bristol W)
David, Wayne
Davidson, Ian
Davies, rh Denzil (Llanelli)
Dawson, Hilton
Denham, rh John
Dhanda, Parmjit
Dismore, Andrew
Dobbin, Jim (Heywood)
Dobson, rh Frank
Donohoe, Brian H.
Doran, Frank
Dowd, Jim (Lewisham W)
Drew, David (Stroud)
Drown, Ms Julia
Dunwoody, Mrs Gwyneth
Eagle, Angela (Wallasey)
Eagle, Maria (L'pool Garston)
Edwards, Huw
Efford, Clive
Ellman, Mrs Louise
Etherington, Bill
Field, rh Frank (Birkenhead)
Fitzpatrick, Jim
Fitzsimons, Mrs Lorna
Flint, Caroline
Foster, rh Derek
Foster, Michael (Worcester)
Foster, Michael Jabez (Hastings & Rye)
Francis, Dr. Hywel
Gardiner, Barry
George, rh Bruce (Walsall S)
Gerrard, Neil
Gilroy, Linda
Goggins, Paul
Griffiths, Jane (Reading E)
Griffiths, Win (Bridgend)
Grogan, John
Hain, rh Peter
Hall, Mike (Weaver Vale)
Hall, Patrick (Bedford)
Hamilton, David (Midlothian)
Hanson, David
Harman, rh Ms Harriet
Havard, Dai (Merthyr Tydfil & Rhymney)
Healey, John
Henderson, Ivan (Harwich)
Hendrick, Mark
Hepburn, Stephen
Hesford, Stephen
Hewitt, rh Ms Patricia
Heyes, David
Hill, Keith (Streatham)
Hinchliffe, David
Hodge, Margaret
Hood, Jimmy (Clydesdale)
Hope, Phil (Corby)
Hopkins, Kelvin
Howarth, rh Alan (Newport E)
Howarth, George (Knowsley N & Sefton E)
Howells, Dr. Kim
Hughes, Beverley (Stretford & Urmston)
Hughes, Kevin (Doncaster N)
Humble, Mrs Joan
Hurst, Alan (Braintree)
Hutton, rh John
Irranca-Davies, Huw
Jackson, Glenda (Hampstead & Highgate)
Jackson, Helen (Hillsborough)
Jamieson, David
Jenkins, Brian
Johnson, rh Alan (Hull W)
Jones, Helen (Warrington N)
Jones, Jon Owen (Cardiff C)
Jones, Martyn (Clwyd S)
Joyce, Eric (Falkirk W)
Kaufman, rh Sir Gerald
Keeble, Ms Sally
Kelly, Ruth (Bolton W)
Khabra, Piara S.
Kidney, David
Kilfoyle, Peter
King, Andy (Rugby)
King, Ms Oona (Bethnal Green & Bow)
Knight, Jim (S Dorset)
Kumar, Dr. Ashok
Lammy, David
Laxton, Bob (Derby N)
Lazarowicz, Mark
Lepper, David
Leslie, Christopher
Levitt, Tom (High Peak)
Linton, Martin
Lloyd, Tony (Manchester C)
Love, Andrew
Lucas, Ian (Wrexham)
Luke, Iain (Dundee E)
McAvoy, Thomas
McCabe, Stephen
McCafferty, Chris
McDonagh, Siobhain
MacDonald, Calum
McFall, rh John
McGrady, Eddie
McGuire, Mrs Anne
McIsaac, Shona
McKechin, Ann
McKenna, Rosemary
Mackinlay, Andrew
McNulty, Tony
Mactaggart, Fiona
McWilliam, John
Mahmood, Khalid
Mallaber, Judy
Mann, John (Bassetlaw)
Marris, Rob (Wolverh'ton SW)
Marsden, Gordon (Blackpool S)
Marshall, David (Glasgow Shettleston)
Martlew, Eric
Meacher, rh Michael
Merron, Gillian
Michael, rh Alun
Miliband, David
Miller, Andrew
Mitchell, Austin (Gt Grimsby)
Moffatt, Laura
Moran, Margaret
Morgan, Julie
Morley, Elliot
Munn, Ms Meg
Murphy, Denis (Wansbeck)
Murphy, Jim (Eastwood)
Naysmith, Dr. Doug
Norris, Dan (Wansdyke)
O'Brien, Bill (Normanton)
O'Hara, Edward
Olner, Bill
O'Neill, Martin
Organ, Diana
Osborne, Sandra (Ayr)
Owen, Albert
Palmer, Dr. Nick
Perham, Linda
Picking, Anne
Pickthall, Colin
Pike, Peter (Burnley)
Plaskitt, James
Pollard, Kerry
Pope, Greg (Hyndburn)
Pound, Stephen
Prentice, Ms Bridget (Lewisham E)
Prentice, Gordon (Pendle)
Prescott, rh John
Prosser, Gwyn
Purchase, Ken
Purnell, James
Quin, rh Joyce
Quinn, Lawrie
Rammell, Bill
Rapson, Syd (Portsmouth N)
Raynsford, rh Nick
Reed, Andy (Loughborough)
Robertson, John (Glasgow Anniesland)
Robinson, Geoffrey (Coventry NW)
Roche, Mrs Barbara
Rooney, Terry
Ross, Ernie (Dundee W)
Roy, Frank (Motherwell)
Ruane, Chris
Ruddock, Joan
Salter, Martin
Sarwar, Mohammad
Savidge, Malcolm
Sawford, Phil
Sedgemore, Brian
Shaw, Jonathan
Sheerman, Barry
Sheridan, Jim
Shipley, Ms Debra
Simon, Siôn (B'ham Erdington)
Singh, Marsha
Skinner, Dennis
Smith, rh Andrew (Oxford E)
Smith, Angela (Basildon)
Smith, Geraldine (Morecambe & Lunesdale)
Smith, Jacqui (Redditch)
Smith, John (Glamorgan)
Smith, Llew (Blaenau Gwent)
Soley, Clive
Spellar, rh John
Starkey, Dr. Phyllis
Steinberg, Gerry
Stewart, David (Inverness E & Lochaber)
Stewart, Ian (Eccles)
Stinchcombe, Paul
Stoate, Dr. Howard
Strang, rh Dr. Gavin
Stringer, Graham
Stuart, Ms Gisela
Sutcliffe, Gerry
Tami, Mark (Alyn)
Taylor, rh Ann (Dewsbury)
Timms, Stephen
Tipping, Paddy
Todd, Mark (S Derbyshire)
Touhig, Don (Islwyn)
Trickett, Jon
Truswell, Paul
Turner, Dennis (Wolverh'ton SE)
Turner, Neil (Wigan)
Twigg, Derek (Halton)
Tynan, Bill (Hamilton S)
Vaz, Keith (Leicester E)
Vis, Dr. Rudi
Walley, Ms Joan
Ward, Claire
Wareing, Robert N.
Watson, Tom
Watts, David
White, Brian
Whitehead, Dr. Alan
Wicks, Malcolm
Williams, rh Alan (Swansea W)
Wills, Michael
Winnick, David
Winterton, Ms Rosie (Doncaster C)
Wood, Mike (Batley)
Woolas, Phil
Worthington, Tony
Wright, Anthony D. (Gt Yarmouth)
Wright, David (Telford)
Wright, Iain (Hartlepool)
Wright, Tony (Cannock)
Wyatt, Derek
Tellers for the Ayes:
Joan Ryan and
Mr. John Heppell
NOES
Ainsworth, Peter (E Surrey)
Allan, Richard
Amess, David
Arbuthnot, rh James
Bacon, Richard
Baker, Norman
Barker, Gregory
Barrett, John
Beggs, Roy (E Antrim)
Beith, rh A. J.
Bellingham, Henry
Bercow, John
Beresford, Sir Paul
Blunt, Crispin
Boswell, Tim
Brady, Graham
Brake, Tom (Carshalton)
Brazier, Julian
Breed, Colin
Brooke, Mrs Annette L.
Browning, Mrs Angela
Bruce, Malcolm
Burnside, David
Burstow, Paul
Burt, Alistair
Butterfill, Sir John
Calton, Mrs Patsy
Cameron, David
Campbell, Gregory (E Lond'y)
Carmichael, Alistair
Cash, William
Chapman, Sir Sydney (Chipping Barnet)
Chope, Christopher
Clappison, James
Clifton-Brown, Geoffrey
Conway, Derek
Cormack, Sir Patrick
Cotter, Brian
Davey, Edward (Kingston)
Davies, Quentin (Grantham & Stamford)
Djanogly, Jonathan
Dodds, Nigel
Donaldson, Jeffrey M.
Doughty, Sue
Duncan, Alan (Rutland)
Duncan, Peter (Galloway)
Ewing, Annabelle
Fabricant, Michael
Fallon, Michael
Field, Mark (Cities of London & Westminster)
Flook, Adrian
Forth, rh Eric
Foster, Don (Bath)
Fox, Dr. Liam
Francois, Mark
Gale, Roger (N Thanet)
George, Andrew (St. Ives)
Gibb, Nick (Bognor Regis)
Gidley, Sandra
Gill, Parmjit Singh
Gillan, Mrs Cheryl
Goodman, Paul
Gray, James (N Wilts)
Grayling, Chris
Green, Damian (Ashford)
Green, Matthew (Ludlow)
Greenway, John
Grieve, Dominic
Hague, rh William
Hammond, Philip
Hancock, Mike
Harvey, Nick
Hawkins, Nick
Hayes, John (S Holland)
Heald, Oliver
Heath, David
Heathcoat-Amory, rh David
Hendry, Charles
Hermon, Lady
Hogg, rh Douglas
Holmes, Paul
Horam, John (Orpington)
Hughes, Simon (Southwark N)
Jack, rh Michael
Jenkin, Bernard
Jones, Nigel (Cheltenham)
Kirkbride, Miss Julie
Kirkwood, Sir Archy
Knight, rh Greg (E Yorkshire)
Laing, Mrs Eleanor
Lait, Mrs Jacqui
Lamb, Norman
Laws, David (Yeovil)
Letwin, rh Oliver
Lewis, Dr. Julian (New Forest E)
Liddell-Grainger, Ian
Lidington, David
Lilley, rh Peter
Llwyd, Elfyn
Loughton, Tim
Luff, Peter (M-Worcs)
McIntosh, Miss Anne
Mackay, rh Andrew
Maclean, rh David
Malins, Humfrey
Maples, John
Maude, rh Francis
Mawhinney, rh Sir Brian
May, Mrs Theresa
Mercer, Patrick
Moore, Michael
Moss, Malcolm
Murrison, Dr. Andrew
O'Brien, Stephen (Eddisbury)
Osborne, George (Tatton)
Ottaway, Richard
Paisley, Rev. Ian
Pickles, Eric
Price, Adam (E Carmarthen & Dinefwr)
Prisk, Mark (Hertford)
Pugh, Dr. John
Reid, Alan (Argyll & Bute)
Rendel, David
Robathan, Andrew
Robertson, Angus (Moray)
Robinson, Mrs Iris (Strangford)
Robinson, Peter (Belfast E)
Roe, Dame Marion
Rosindell, Andrew
Russell, Bob (Colchester)
Sanders, Adrian
Sayeed, Jonathan
Selous, Andrew
Shepherd, Richard
Simmonds, Mark
Simpson, Keith (M-Norfolk)
Smith, Sir Robert (W Ab'd'ns & Kincardine)
Smyth, Rev. Martin (Belfast S)
Spicer, Sir Michael
Spink, Bob (Castle Point)
Steen, Anthony
Streeter, Gary
Stunell, Andrew
Swayne, Desmond
Syms, Robert
Taylor, Ian (Esher)
Taylor, John (Solihull)
Taylor, Matthew (Truro)
Taylor, Dr. Richard (Wyre F)
Teather, Sarah
Thomas, Simon (Ceredigion)
Thurso, John
Trend, Michael
Trimble, rh David
Turner, Andrew (Isle of Wight)
Tyler, Paul (N Cornwall)
Tyrie, Andrew
Watkinson, Angela
Weir, Michael
Widdecombe, rh Miss Ann
Wiggin, Bill
Wilkinson, John
Willetts, David
Williams, Roger (Brecon)
Wilshire, David
Winterton, Ann (Congleton)
Winterton, Sir Nicholas (Macclesfield)
Wishart, Pete
Yeo, Tim (S Suffolk)
Young, rh Sir George
Younger-Ross, Richard
Tellers for the Noes:
Mr. Hugo Swire and
Mr. Peter Atkinson
Question accordingly agreed to.
17 Nov 2004 : Column 1381
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