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It being one hour after the commencement of proceedings, Mr. Deputy Speaker put the remaining questions required to be put at that hour, pursuant to Order [this day].

Lords amendments Nos. 51 and 52 disagreed to.
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Clause 22

Scope of emergency regulations

Lords amendment: No. 41

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

Mr. Deputy Speaker (Sir Michael Lord): With this we may discuss Lords amendment No. 42 and Lords amendment No. 46, with amendment (a) thereto.

Ruth Kelly: 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
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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.

Mr. Heald: 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: 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.

Mr. Hogg: 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: 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.

Mr. Cash: I hope that the Minister does not disagree with the proposition that the Human Rights Act is not
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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.

2.15 pm

Ruth Kelly: 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.

Mr. Bercow: 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?

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