Civil Contingencies Bill

---

[back to previous text]

Mr. Allan: The amendments concern a legal point. We think that there is a distinction to be drawn between the current wording, which says that anything that has happened under the regulations would not be affected at a later date, and wording that says that anything that happens in the parliamentary process does not render the regulations unlawful. It is important to make that distinction.

We can foresee circumstances where regulations have been made, Parliament takes a different view when it meets after the seven-day interval, and a question mark is thrown over the regulations. The ''rendering unlawful'' formula is intended to ensure that servants of the Crown who are engaged in this—whether they are members of the armed forces or of the blue light services, such as doctors—have the protection that they need, as they are simply carrying out their duties quite properly under the regulation. We do not want their actions to be rendered unlawful. However, to say that any subsequent decision of Parliament shall not affect anything, as the original wording does, goes too far.

Earlier, in our animal health and foot and mouth examples, emergency regulations have ordered the destruction of animals, but Parliament has then taken a different view. It may be appropriate in those circumstances for compensation to be given that reflects the fact that regulations were struck down by Parliament. We would not want vets or anyone else involved to be declared to be acting unlawfully, but we do want things to be affected. The amendment is a genuine attempt to reflect the intention of the legislation, which is to ensure that we protect people who are carrying out the regulations, without going so far as to render everybody incapable of taking action, especially where action may be justified on the basis that Parliament took a different view about emergency regulations. The sovereign, sensible, rational Parliament, elected by the British people, might take a different view about the emergency regulations from the one that the Minister took when he drafted them.

Mr. Alexander: The Government entirely agree that lapse of the regulation should neither render as unlawful action that which has been properly taken in reliance on the regulation, nor adversely affect the rights of those who have been affected by such action. The amendments would not achieve that result however, and I cannot accept them for that reason.

Concerns have been raised that the provision would somehow cast doubt on a claim for compensation in relation to action undertaken under the regulations. That is simply not the case. If a public authority exceeds its powers under the regulations, or if the regulations themselves are defective in some way—for example, they do not provide for compensation in circumstances where it is required under the Human Rights Act 1998—an individual who is adversely

Column Number: 297

affected can seek redress in the courts. Lapse of the regulations will not affect that, as the right to seek redress derives not from the regulations but from public law. However, it is appropriate to make express provision to ensure that things that are lawfully done under the regulations are not affected by lapses of the regulations. That is the purpose of clauses 25(2)(a) and 26(4)(b).

Those provisions will apply to action taken by public authorities under the regulations, but will also relate to things done by or in relation to other persons. Thus, if an individual has received compensation under the regulations or exercised a right of appeal conferred by the regulations, a lapse will not affect that payment or that appeal. If a person has been convicted of a criminal offence under the regulations, a lapse will not affect that conviction.

The wider wording used in the Bill—that a lapse of the regulations

''shall not affect anything done by virtue of the regulations''—

achieves that end, but it is not clear that the narrower wording suggested in the amendments that a lapse shall not ''render unlawful''

''anything done by virtue of the regulations''

would serve, for example, to preserve any payment of compensation or appeal rights. There may be a common agreement as to the intention, but we cannot accept the amendment.

Mr. Heald: The Minister referred to the public law basis on which compensation was to be made. Will he explain what he meant by that?

Mr. Alexander: The right to seek redress is established in common law, rather than specifically on compensation. For example, the European convention on human rights allows for redress against public bodies. I think that that addresses the specific point raised by the hon. Gentleman.

Mr. Allan: That was a helpful response and we will study the record. At this stage, it would not be helpful to press the amendment. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 105, in

clause 25, page 17, line 15, at end add—

'(3) Where emergency regulations are made and thereafter new regulations are made, the series of regulations shall lapse after 90 days and new regulations shall not be made thereafter under this Part in respect of the emergency.'.—[Mr. Heald.]

Question put, That the amendment be made:—

The Committee divided: Ayes 7, Noes 9.

Division No. 8]

AYES
Allan, Mr. Richard Carmichael, Mr. Alistair Heald, Mr. Oliver Horam, Mr. John
Llwyd, Mr. Elfyn Mercer, Patrick Trend, Mr. Michael

NOES
Alexander, Mr. Douglas Campbell, Mr. Alan Dowd, Jim Jackson, Helen Lazarowicz, Mr. Mark
Mactaggart, Fiona Prentice, Bridget Quinn Lawrie Turner, Mr. Neil

Column Number: 298

Question accordingly negatived.

Clause 25 ordered to stand part of the Bill.

Clause 26

Parliamentary scrutiny

Patrick Mercer: I beg to move amendment No. 113, in

clause 26, page 17, line 18, leave out paragraph (a) and insert—

'(a) these regulations shall be put to a Joint Committee of both Houses of Parliament consisting of members of the Privy Council chosen to reflect the political balance of the House of Commons (to be known as the Emergency Powers Committee), before their acceptance, to provide an initial parliamentary check.

(aa) a senior Minister of the Crown shall then, as soon as is reasonably practicable, lay the regulations before Parliament, provided that he believes on reasonable grounds that he has used his best endeavours to consult the Emergency Powers Committee.

(ab) a senior Minister of the Crown may dispense with the requirements of paragraph (a) above if he thinks it is necessary to do so by reason of urgency.'

The amendment would replace the phrase in subsection (1)(a)

''a senior Minister . . . shall as soon as is reasonably practicable lay the regulations before Parliament''

with the phrase

''these regulations shall be put to a Joint Committee of both Houses''—

hereinafter referred to as the emergency powers committee—

''consisting of members of the Privy Council . . . to reflect''

the membership of the House of Commons

''before their acceptance, to provide an initial parliamentary check.''

It is clear that if a traumatic disaster of the sort that we are trying to legislate for overcomes the country, speed will be extremely important. We understand from the Minister and from the way in which the regulations have been articulated that speed is crucial.

The purpose of trying to establish an emergency powers committee is that proposed ministerial regulations could be investigated quickly and, when necessary, the committee could act as a proxy for Parliament. That should provide a quick but effective check in the hands not of a senior Minister, but of a picked number of extremely experienced, thoughtful and practical people who, if the Government nominate them beforehand, train them and give them due warning, could act as a most useful democratic check in such circumstances.

It is particularly useful to see what happens in the United States, albeit that its constitution is completely different from ours. Had such a committee been available to Mr. Bush in the aftermath of the attacks on 11 September, he would have found its advice and the necessary checks and balances imposed by such a committee extremely useful. That is why we have come up with this concept—

4 pm

Sitting suspended for a Division in the House.

Column Number: 299

4.15 pm

On resuming—

Patrick Mercer: I shall start where I left off. The idea of the emergency powers committee is to act as a check and balance and to be a sounding board for the Government in times of great emergency. Above all else, it should assist the Government in a balanced way, but quickly.

My experience of our discussions so far is that any idea that is intended to assist the Government with fresh thinking or any form of initiative, and which is practical rather than semantic, falls on deaf ears. I am sure that that will not be the case with this amendment as it is both practical and democratically important. I am extraordinarily optimistic that the Minister will acquiesce.

Mr. Allan: There is a lot of merit in the ideas put forward by the hon. Member for Newark, particularly in relation to the kind of dire emergencies that have been described. Every effort should be made to seek cross-party agreement on any regulations laid under the Bill. The specific and privileged role of Privy Councillors is important. Having already discussed Orders in Council, we are again grappling with arcane parts of the British constitution. Privy Councillors could have a significant role, and perhaps, more so when events are developing in a dangerous fashion. It is entirely appropriate to consider whether the Government can assure us that they would, at least, seek to involve a wider range of people than themselves, and to take alternative counsel.

Following a slightly heated exchange earlier, we recognise that the authority to take action in such situations duly rests with the elected Government but it would be in their interests to involve others, particularly Privy Councillors, and that would give emergency regulations additional force.

 

---

Prepared 10 February 2004