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Lord Elton: My Lords, in the last little debate, the Minister made it clear that what lies at the back of all our minds is the danger of the misconduct of some future government. Therefore, I should like to leave in the mind of the noble Lord, Lord Phillips, between now and Third Reading, that possibly giving the nomination of the panel to the leader of the putative dangerous government in years ahead is like giving the key to the burglar. Could he not think rather of some arm's-length body, such as a panel of High Court judges to be chosen by the Lord Chief Justice? I leave that thought in his mind.

Viscount Goschen: My Lords, as we have said throughout the consideration of this Bill, this is an extraordinary case of Parliament effectively lending its powers to the Administration for the period of a week, during which they can do absolutely anything—apart, of course, from making people who are on strike go back to work. Apart from that, they can do anything. I suppose that they could shoot the people who were striking; that would come to the same thing.

But seriously, any other power can be commanded by the government. So however we consider the matter, we are being invited to sign the most substantial blank cheque imaginable in parliamentary terms. I agree with the noble Lord, Lord Phillips, that some form of counter-signature on that blank cheque at the time would be an additional safeguard. I am quite sure that the Minister will say that this is a question of speed, that we shall have to act incredibly quickly, and that if that process was delayed too long we would be up against the seven days after which Parliament must consider the matter. However, there are ways to get around that.

High Court judges might be asked to consider the matter within four hours, for example, with Ministers being able to act up to that point. It is possible to get hold of a judge at very short notice. If special arrangements were made, I am sure that one could find enough members of a nominated panel in time—be they Privy Counsellors, High Court judges, or whoever.
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With regard to the proposal for Privy Counsellors to be involved, one could say that in the Prime Minister, the Chancellor of the Exchequer, the Home Secretary and the Lord Chancellor, there were four Privy Counsellors there already—and they could say, "Right, we've got our permission". The proposal would have to be drawn a bit wider than that. But in principle I support the intention behind the amendment and hope that we can make some progress before the next stage.

The Lord Bishop of Worcester: My Lords, I, too, feel a good deal of sympathy with what the noble Lord, Lord Phillips, seeks to do. However, as currently worded, I could not repose as much trust in the proposal as I should want. I have said before that I find many provisions in this Bill quite chilling, and I do not have too much difficulty thinking of how these powers could be abused. But I do not think that it would do to have a panel of 12 of which only four even need to be consulted and need to say "yes". What would be the level of public confidence, given a situation in which four members of the panel had been sought by the Government and had said "yes", only to find a few days later that six others who had not been consulted were all against it?

I hope, even at this late hour, that the Government might be prepared to consider an amendment such as this. In the process, there would have to be a good deal more discussion and negotiation to make the noble Lord's intention, with which I am totally sympathetic, possible to fulfil in practice.

Baroness Buscombe: My Lords, I echo the words of my noble friend Lord Lucas, as the amendment raises questions about what happens in practice in the event of an emergency, and about how quickly matters are put in place. I have to say, with great reluctance, that I cannot support the amendment. It is the kind of amendment to which we on the Front Bench of Her Majesty's Opposition have given a lot of consideration. We thought long and hard about how we could add more safeguards to the Bill, which has such extraordinarily wide powers. On one level, it seems to make sense to insist that at least four Privy Counsellors, but perhaps not more than 12, should be involved in the early stages.

However, we rather reluctantly came to the conclusion that, if we had an event like 9/11, it would be important that a responsible Minister would be able to act quickly and respond, without having to scrabble around to find the other Privy Counsellors and make sure that he or she had at least three on board. The event could happen at any time of night or day; it might be unseasonable, in the sense that Privy Counsellors could be away.

We want sufficient safeguards in the Bill, which is why we have yet to debate, for example, the sunset clause and our concern that any Act can be disapplied, now with the exception of the Human Rights Act. We want to be sure that there are sufficient safeguards to allow us to feel confident that the Secretary of State or the Prime Minister of the day will act responsibly in an emergency. I entirely understand where the noble
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Lord, Lord Phillips of Sudbury, is coming from, but, with some regret, we are not able to support the amendment.

Lord McNally: My Lords, I am pretty confident that my noble friend will not press the amendment. He says, "Hmm", but he will be on his own if he does. I was at first reluctant when he suggested the amendment to me. When noble Lords have sweated long in the vineyard, it is a bit unfair for others to come in with afterthoughts. However, I thought it worth putting forward as a probing amendment, not least because a theme running through the Bill is that no one doubts the good intentions of the current range of Ministers.

However, there is a certain impatience on the government Benches about what they will have to do in an emergency. One thing that separates democracies from authoritarian states is that they still manage to hold to certain basic principles, even in emergencies. That is what makes them what they are. Therefore, the Government have to be very careful about writing powers into legislation. The Minister charmingly referred to concerns about the rights of opposition. Quite often, those on both the Conservative and government Benches cite their vast experience in dealing with certain matters. However, we have more opposition experience than either of them. Therefore, I think that we speak with a certain authority when we claim to be protecting the rights of the Opposition.

But our most serious concern—again, we have tabled this as a probing amendment in order to hear the response—is that, in dealing with these emergencies, we should not succumb to the politics of fear which would lead us to stampede across the basic liberties that we all hold dear.

Baroness Scotland of Asthal: My Lords, I absolutely agree with the sentiments expressed by the noble Lord, Lord McNally. That is why we took such a long time to scrutinise the Bill. The Joint Committee did a wonderful job, and we are taking a great deal of time now because we all want to get this matter right. These are important powers that we shall need to use in the event of an emergency when we are dealing with situations in extremis. Most of us do not want the circumstances in which the powers would be used ever to come about, but we have to prepare properly. Therefore, I absolutely agree with the noble Lord on that issue.

Many of the things feared by the noble Lord, Lord Phillips, have been provided for in the Bill in a way that would prevent them happening. For example, the noble Lord raised the question of the Patriot Act, but that is not in accordance with our constitutional and court arrangements, and the whole structure of the Bill would make that impossible. One has to bring forward regulations as soon as reasonably practicable and only for so long as necessary. The regulations can be discharged if their utility is proven long before the seven-day period comes into being. In Committee, I gave
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examples of when we have done that in the past. What we have just done together on Report—for example, strengthening the need to bring back Parliament—will mitigate against the fears of the noble Lord, Lord Phillips.

The noble Lord is wrong to say that parliamentary scrutiny will not be sufficient in part because the regulations cannot be amended. Given the exceptional nature of the powers, we do not think that it is appropriate for Parliament to be able to amend the regulations. That is to be found in Clause 27, and I wanted to lay that issue to rest.

I also want to take issue with the noble Viscount, Lord Goschen, on the question of the right to authorise the use of lethal force. I am sure that he made his comments half in jest, but I think that it is the second time that this matter has been raised. Emergency regulations must be compatible with convention rights. The convention protects the right to life. It is not possible to derogate from the right to life except in relation to deaths resulting from lawful acts of war. Thus the regulations could not authorise a shoot to kill policy or anything similar. Of course, the usual rules of engagement would apply to armed police troops performing functions in the emergency, and those allow the reasonable use of force.

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