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Viscount Goschen: My Lords, access to justice, access to Parliament and the proper functioning of justice and Parliament were major themes in Committee. I, too, am delighted to see that the Minister has tabled the amendment. It is a major improvement. If I had drafted it, it would not have been as elegant, but I think I would have gone further than,

and would have ensured that nothing done under such an order should hinder the operation of Parliament and the courts. None the less, it would be churlish to go too far on those lines. With this amendment and with the previous amendment, deleting one of the biggest "get out of gaol free" cards that the Secretary of State had awarded himself, the Bill has certainly been improved.

Baroness Buscombe: My Lords, I shall also speak briefly in support of the amendments. I was keen to see what the Minister was going to do to strengthen access to justice. In particular, we were all concerned about judicial review. The amendments will support the strengthening of access to judicial review. I join my noble friend in saying that this is a significant improvement to the Bill and its intent. By that, I am very pleased. Notwithstanding that, I shall look forward to debating later amendments in connection with ensuring that we have proper safeguards, in addition to this strengthening of access to justice. We need further safeguards before our fears with regard to the wide-ranging provisions of the Bill are entirely allayed.

Lord Elton: My Lords, perhaps I may join the general welcome to this regard for the protection of the law in Parliament, which is entirely in the right direction.

Baroness Scotland of Asthal: My Lords, it gives me considerable pleasure to give pleasure to noble Lords twice in one evening. I think that I have rarely had unanimity of view expressed with such great enthusiasm. I genuinely thank each of the noble Lords who have been so generous as to make those comments.

The Government do not feel able to support Amendment No. 69, but we took into account very seriously all that was said during our last debate. It was clear that we all had the same intent; namely, we wanted to ensure that these matters were strengthened as much as possible within the law.

Emergency regulations could, where it is necessary and proportionate to do so, contain provision aimed at protecting or restoring public access to justice. Clause 22(2)(1) creates a clear presumption that emergency regulations should protect or restore the performance of public functions, which includes the justice system where that is required.
 
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It is however conceivable that in some emergencies, such as a highly infectious epidemic, it may be necessary to place restrictions on travel and assemblies in order to control the spread of disease, which may affect the ability of the courts to operate. We discussed the nature of that difficulty in Committee. A blanket obligation to protect or restore public access to justice might prevent such action being taken and thus weaken efforts to contain such an outbreak. Such a provision in the Bill would fail to differentiate between the seriousness of the cases to be heard too. Those were issues that we discussed. I absolutely welcome the fact that that matter has been taken on board by everyone.

I hope that Amendment No. 77 demonstrates how keen the Government are to reassure the House that emergency regulations themselves will be subject to appropriate parliamentary and judicial safeguards. We propose to amend the Bill to put the maker of the regulations under a duty to consider what steps can be taken to protect or to preserve the ability of Parliament to scrutinise the regulations and action under them, and the ability of the High Court, and the Court of Session in Scotland, to entertain challenges to them.

The courts will expect the maker of the regulations to act reasonably. So the amendment would mean that a failure reasonably to make emergency regulations to protect Parliament or access to the courts would mean that the Government were acting outside of the law.

It may assist noble Lords if I provide two examples of how we see this operating. If parliamentarians have been exposed to an infectious disease and it is necessary to quarantine them or to close the Palace of Westminster, it should be possible to do so. But the maker of the regulations should consider what provision can be made to allow Parliament to continue functioning; for example, by quarantining MPs in a building that has videoconferencing facilities. If a cloud of radioactive material is heading towards London and it is necessary to evacuate, the maker of the regulations should be able to do so. But he must consider what steps should be made to protect Parliament and the operation of the courts.

In these circumstances, the regulations may need to requisition property elsewhere for Parliament to use and to give High Court judges a priority place in the list of evacuees. The Government hope that the House will appreciate that this approach will ensure appropriate provision is included in the regulations to ensure Parliament and the courts can scrutinise them and actions taken under them. It will also ensure that where action needs to be taken that may affect Parliament or the courts that is necessary to respond to the emergency, that can also be done.

Perhaps I may assure the noble Baroness, both in relation to this and on the last occasion, that the Government well remember spending 18 years as Her Majesty's loyal Opposition. We are as anxious as she that any government to come after us, no matter what the complexion, should carry out and discharge their duties as we would jointly wish them to do. Therefore we are happy to strengthen these powers. Like the noble Baroness, and noble Lords on the Liberal
 
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Democrat Benches—who have such noble aspirations for government in the next millennium—we want to ensure the administration.

Lord Lucas: My Lords, I am grateful to the noble Baroness and I take great comfort from the way she has expressed this power and how it is to work. I see no trouble with it. I should also say that I am most grateful to her officials, Mr Hargreaves and his team, who spent a considerable amount of time with me and were unfailingly helpful and courteous. No doubt they played a large part in giving birth to the amendment, which I shall now withdraw.

Amendment, by leave, withdrawn.

Clause 21 [Conditions for making emergency regulations]:

Lord Phillips of Sudbury moved Amendment No. 70:


"( ) The fourth condition is that not less than four Privy Councillors from a standing panel appointed by the Prime Minister to be comprised of not more than twelve shall agree with the relevant senior minister of the Crown that conditions for making emergency regulations have been satisfied."

The noble Lord said: My Lords, I regret that I have not been able to take part in the deliberations on the Bill thus far. In all the proper concern about the extraordinary powers that this legislation will bestow on Ministers and the government in an emergency situation, one aspect strikes me as still inadequate and capable of improvement. I refer to the trigger: the definition of an emergency. Our debate just now on the grouping under Amendment No. 58 provided a good example of how imprecise is that definition. I accept that it is bound to be imprecise if you try to define in a form of words circumstances unknown at some point in the future. Inevitably you will be drawn to a formulation which admits of various interpretations.

Where extreme powers are to be bestowed, and I do not think that anyone would suggest that we have ever in our history brought forward a piece of legislation that gives such wide powers, surely they must be warrantable only if they are applied to extreme circumstances. Clauses 22 to 24 provide powers for a Minister or a government to confiscate property, to limit assembly and movement, to disapply or modify any Act of Parliament, and let us not forget the power to prohibit other specified activities. The remit is total.

I suggest that rather than endlessly waltz around the definition of an "emergency", one should have in the Bill a provision such as I have suggested in Amendment No. 70 which would require a check before an individual Minister could say, "I determine that there is an emergency", and proceeds—as the Minister could on his or her own authority—to issue emergency regulations. I propose that there should be a standing panel of Privy Counsellors, appointable and removable by the Prime Minister, to comprise a group of not more than 12. Before any Minister could declare an emergency, he or she must have the consent of at least four members of the standing panel to the fact that it is an emergency under the Bill.
 
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That is an extremely pragmatic endeavour to provide some reassurance that the Bill will only be used properly and in a sensible way. But I think that its pragmatism is a virtue. As a lawyer, I have to say that there are times when we put too great a strain on words, which is why in this amendment I have provided a mechanism rather than a form of words.

Some may say that the mechanism is too feeble. I have intentionally drafted it so that in extreme circumstances, where it might be difficult to locate members of the standing panel, one can none the less proceed on the say-so of four of them. I have a certain confidence that if asked by a Minister to endorse an emergency, the Privy Counsellors on that panel would act with propriety and good sense.

In the other place, the Conservative Front Bench tabled an amendment to set up an emergency powers panel comprised of Privy Counsellors—a Joint Committee from both Houses—but that was for a slightly different purpose, which was to vet the emergency regulations when they were passed. As the Bill has provisions for both Houses to endorse emergency regulations, I do not believe that that amendment was sufficiently helpful.

This has nothing to do with the regulations which may be passed pursuant to an emergency having been declared; this is simply and solely to ensure that there will be public confidence in the judgment of the Minister who is claiming that the emergency exists.

Where we are legislating for an unprecedented delegation of powers to individual Ministers, we need to be at our most cautious—indeed, at our most sceptical—a point made by other noble Lords. As the noble Baroness, Lady Buscombe, said a few moments ago, it is not at all adequate for us to assume that we will all be the same nice, sensible people that we now are. If we cannot legislate in a Bill such as this for the exceptional government and the exceptional House, we are missing the point.

One has only to think of what happened in the United States in the wake of 11 September where the so-called Patriot Act, consisting of some 342 clauses, was passed in a matter of a few hours by the Senate with only a handful of amendments put forward—none of which were properly debated, let alone passed—to realise that in extreme circumstances legislative assemblies can be carried along by public fervour and fear. For those reasons, this modest but practical check on starting the whole process should commend itself to the Government.

The Government may say, "Well, we have got the triple lock". But, of course, the triple lock does not apply at all to the onset of these powers. In forming a view as to whether or not there is an emergency, the Minister is not bound in any way by the triple lock. That comes later with regard to the emergency regulations.

Once passed, the regulations will come into immediate effect. It is true that unless both Houses of Parliament endorse them they will die, but none the
 
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less they will come into immediate effect. For example, if one was thinking of mobilisation on a grand scale, there could be a huge amount of activity in the country before Parliament got round to considering the emergency regulations in debate.

I do not need to tell the House that we have defeated a statutory instrument only four times in the 20th century. We know very well that the nature of secondary legislation is heavily weighted in favour of the Government of the day and that we cannot amend it. This is of course why it is always passed except in the rarest of circumstances.

For these reasons, with some diffidence—I am well aware that we are to some extent in uncharted waters—but with a sense that this may help to make it a better Bill, I propose the amendment. I shall be interested to hear what other Members of the House and the Minister have to say in response to it. I beg to move.


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