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Mr. Cash: I am here at the bitter end because I remain deeply concerned about the potential impact of the way in which these powers could be used in terms of the liberty of the subject—not an expression that should be used lightly. But in this particular context, and in view of the rejection of the inclusion in the list beyond the Human Rights Act 1998 of habeas corpus and the duration of Parliament, to give but two particularly important provisions, I remain deeply concerned about the way in which these powers could be misused. In particular, as I have already said, there is no express test of reasonableness, and impermanence is imported into the arrangements, which is unsatisfactory.

With regard to the nature of the decisions that could be taken, even Law Lords have recently, in relation, I think, to the Rehman case, said that political decisions in matters of this kind would be best taken by Ministers rather than by the Lords of Appeal in Ordinary where there are extremely delicate questions about the liberty of the subject in relation to issues of national security. That is where the interface comes between emergency powers on the one hand and questions of national security on the other, because the two are likely to interlock. I simply make the point that the Human Rights Act in itself, irrespective of what the noble Lord Lester of Herne Hill said a few days ago, is inadequate to cover the various difficulties and dangers to the liberty of the subject that I believe are inherent in the proposals.

It is a step in the right direction to have a review by a senior Privy Councillor, but I repeat what I said in an intervention, that under no circumstances whatever should that person come from a political background. I say that because, having regard to the case law that has developed in relation to decisions of the most sensitive nature that I have just described, the view is taken that these are and should be political decisions and that that question has been adjudicated by the courts themselves. In this particular context, there would be a greater degree of independence if no person who held the job came from a political background.

I appreciate that my Front-Bench colleagues and the Liberal Democrats have now concluded that exchanges between the two Houses have reached their final stage. Nevertheless, I fear that the powers could be misused, and I think that the fact that the Government's programme motion impinged on Report, which is in many respects the most important stage in any Bill's consideration—it is particularly important in dealing with a Bill such as this one—was disgraceful.

Mr. John Gummer (Suffolk, Coastal) (Con): Will my hon. Friend remind the House of the distinction that he made between the need for political decision making in the sense of the Minister making a decision and the need for non-party political independence in terms of the Privy Councillor?

Mr. Cash: Absolutely. My right hon. Friend puts it extremely well. On emergency powers and national security, the decision to invoke the powers is bound to be political at that point. Any question of review would need to be balanced with a degree of independence that
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would be guaranteed only by ensuring that any subsequent decision on the review was taken by a person without a political background.

I have made my reservations clear. There will not be another Division on these matters, but they will continue to evolve. Given the permanence of the issues and the incredible importance of getting them right, at least we have fought as hard as possible to ensure that they are dealt with in the right framework for future generations.

Ruth Kelly: I thank the hon. Members for North-East Hertfordshire (Mr. Heald) and for Sheffield, Hallam (Mr. Allan) for the way in which they have approached the Bill and the graciousness with which they have received the Government's proposals, which I have just set out. I also thank the hon. Members for Macclesfield (Sir Nicholas Winterton) and for Stone (Mr. Cash) for recognising that the Government have gone at least some way towards meeting their concerns, even if they have not been met in full.

I understand that there is some natural concern about how the review will be carried out and who will be appointed to lead it. The intention is that a single Privy Councillor will lead the review, but they will of course be assisted by a review team in carrying it out. The review will be independent, and the United Kingdom has a strong track record of appointing independent senior figures to carry out inquiries. In any event, to maximise the lessons learned, the Government would want to appoint someone who could step back from the situation. The report would be published and there would be a debate, and one of the issues debated would surely be the nature of the review itself.

Mr. Paul Tyler (North Cornwall) (LD): I accept what the Minister is saying, but will she draw a distinction between what has been described as a political background, which is not the critical issue, and mindset, context and the way in which the process will be achieved, which will be much more important? Somebody's background will perhaps be irrelevant, as somebody who is not of a political background can have very strong political views. The critical issue is the context and process, not the background.

Ruth Kelly: I completely agree. As I have set out, it would be extremely important for the Government to appoint someone who could step back from the situation. Of course, that ability comes from the personal specifications of the person who is carrying out the review and their willingness and freedom from political influence. It is such concerns that would inform the Government in their choice of Privy Councillor. The Government would of course discuss on Privy Council terms and consult the principal parties, thereby meeting the concerns of the hon. Member for Macclesfield. I hope that those assurances will satisfy nearly, if not all, Members.

I am sorry that doubt has been expressed about whether the Bill has been debated and consulted on enough. I am fairly new to it, but there has been considerable discussion—not least during pre-
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legislative scrutiny—and, as usual, the amount of time agreed between the political parties was not subject to much dispute.

Mr. Heald rose—

Ruth Kelly: The hon. Gentleman may agree to differ with me on that.

4 pm

Mr. Heald: In fact we divided on every programme motion, although we have the highest opinion of the Government Whip involved.

Ruth Kelly: I thank the hon. Gentleman for making that clear. In any event, I think there was considerable scrutiny both in Parliament and outside. We do not follow this course lightly, and I believe that it will create a much more substantial and flexible framework than the one that it replaces.

Mr. Allan: The pre-legislative scrutiny was very helpful, and the Committee stage worked well. The problem arose on Report. The bottleneck relates to time in the Chamber, and that is where the dispute remains. If we learn anything from the process, it will be about expanding the time available to Members who cannot take part in pre-legislative scrutiny and the Committee stage.

Ruth Kelly: I hear what the hon. Gentleman says, but my hon. Friend the Member for Slough (Fiona Mactaggart), the Under-Secretary of State for the Home Department, made it a personal priority to respond fully in writing to points to which she could not respond on Report. I hope that that helped Members to some extent.

Mr. Heald: On a point of order, Madam Deputy Speaker. Members throughout the House, apart from Ministers, have expressed concern about the Report stage, when large parts of the Bill could not be discussed. Would it be possible for you to bring that to the attention of the Chairman of Ways and Means—the Deputy Speaker—who, on occasion, is called on to give evidence to the Procedure Committee, the House of Lords Constitution Committee and other bodies?

Madam Deputy Speaker (Sylvia Heal): I think I understand the hon. Gentleman's sentiments, and I assure him that the matters he has raised never escape the attention of the Chairman of Ways and Means.

Ruth Kelly: Or, indeed, the attention of Ministers. I have certainly heard what has been said today.

I thank Members on both sides of the House for the scrutiny that they have devoted to the Bill. I think that it has improved significantly as a result, and I believe that the review process will go a long way towards meeting the last remaining concerns.

Lords amendment disagreed to.

Committee appointed to draw up Reasons to be assigned to the Lords for disagreeing to their amendments Nos. 49B and 50B: Mr. Allan, Mr. Heald, Ruth Kelly, Ms Bridget Prentice and James Purnell;
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Ruth Kelly to be the Chairman of the Committee; Three to be the quorum of the Committee.—[Ms Bridget Prentice.]

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