Select Committee on Delegated Powers and Deregulation Twelfth Report

Letter from the Clerk to the Home Office

As you know, the Committee will consider this Bill for the first time next Wednesday, 29 March, and the Chairman, Lord Alexander of Weedon QC, is grateful to the Home Office and the Northern Ireland for providing their memorandum on the delegated powers so soon after its First Reading in the Lords. The Committee is certain to spend more than one meeting deliberating on this important bill. With this in mind, and not wishing to pre-judge the views of the Committee as a whole, the Chairman thought it would be helpful for the Home Office to have notice at this stage of two matters on which it is likely that the Committee will want further information.

The first matter arises in the light of concerns which have been expressed that the powers envisaged in the Bill could be exercised, or implemented, in breach of the Human Rights Act (HRA). These include concerns about the restrictions placed on freedom of expression and assembly by clause 12 of the Bill. To assist the Committee in its consideration of these issues the Chairman would like to know whether, in considering whether a section 19 statement of compatibility could be granted Home Office Ministers considered that the Bill conformed with the four principles enunciated by Lord Lloyd of Berwick in his Inquiry into Legislation Against Terrorism 1996 (Cm 3420)?

For ease of reference, Lord Lloyd, in accepting that permanent anti-terrorist legislation was necessary recognised that the creation of permanent measures, which did not accord suspects their usual rights and created offences which were additional to existing criminal ones, could breach human rights standards. He therefore adopted the following four principles which he believed would need to be adhered to in creating such legislation:

  • that it should approximate as closely as possible to ordinary criminal law and procedure;

  • that it should create additional offences and powers only where necessary to meet an anticipated threat, and should balance the need for security with respect for individual rights;

  • that it should impose additional safeguards alongside additional powers;

  • that it should comply with the UK's international obligations.

Second, the Chairman imagines that the Committee will wish to pay particularly close attention to Clause 96 (power to make regulations for promoting the preservation and maintenance of order). This is on the face of it an exceptionally wide-ranging, indeed virtually unlimited, power. Unfortunately at this point the explanatory memorandum is brief, and does not explain in detail why the Government thinks the power - which is covered by the urgency procedure - is necessary, or give examples of how it might be used.

The relevant paragraphs of the memorandum are as follows:

    "Clause 96 replicates section 49 of the EPA. It enables the Secretary of State to make regulations to promote the preservation of the peace and the maintenance of order. These regulations would allow the Secretary of State to make orders or give directions for specified purposes. It is an offence to fail to comply with regulations or an order or a direction made under this power.

    Given the wide range of matters which could be included in regulations and orders or directions made under them by virtue of this clause, it is right that the power continues to be subject to the affirmative resolution procedure. By clause 122(7)(b) orders made under any regulations would not be made by statutory instrument."

The Chairman would be grateful for a supplementary memorandum covering both matters.

22 March 2000

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