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Viscount Goschen: My Lords, what would happen if, for example, there was an outbreak of a disease and London had to be isolated but people did not want to be isolated? The police and the Army would be deployed to prevent people acting in a certain way, but would they be armed and say, "But we can't shoot you". How would that work?

Baroness Scotland of Asthal: My Lords, I need to be absolutely clear. In that kind of situation, there would be no shoot to kill policy. I notice that the noble Viscount looks surprised. This Government believe that that would be inappropriate. I absolutely accept that noble Lords opposite may take a different view.

Viscount Goschen: My Lords, with the leave of the House, perhaps I may respond. I know that this is the Report stage but the noble Baroness drew conclusions about what I was saying. It has been said over and over again that we are not talking about the Government or the Opposition or our view; we are talking about what a future administration might do. I was merely trying to draw out from the noble Baroness what the limit of the powers would be. The noble Baroness appeared to say that it would not be possible for the Government to enforce such a situation with armed force.

Baroness Scotland of Asthal: My Lords, we are absolutely clear that nothing in the Bill will entitle any government—not this Government, nor noble Lords opposite—to act, using emergency legislation, in a way that would be incompatible with convention rights. We have made that absolutely clear. No Government using this legislation would be able to do that. We were very clear that that was something that we would not wish people to be able to do.
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This is not an amendment, as I hope I have made clear, that we feel able to support or to accept. Emergency powers are for responding to the most serious of emergencies and must be deployed as quickly as possible in order to prevent matters becoming worse. The noble Baroness, Lady Buscombe, was absolutely right about that. I can understand the logic of the position that she and those opposite have taken in travelling that journey. It is the same journey that we ourselves have travelled and we came to the conclusion that it would not be a practicable alternative.

The need to form such a panel and bring it together to discuss the proposed regulations in any meaningful way would cause considerable delay to their implementation. Perhaps I may suggest that its value, given that there would be a government majority in any case, may be limited. However, the Government are very sympathetic to the principle of wider consultation, with representations from the key parties, if emergency powers are to be used, but do not believe that establishing a dedicated "emergency powers panel" is the best way forward.

In response to the question posed by the noble Lord, Lord Lucas, on the current procedure, I hope that the House is aware that there is a long-standing convention that in times of emergency the Government will seek to build consensus across the political spectrum. The Prime Minister regularly briefs senior figures from all the major political parties on a Privy Council basis. That was the process adopted by the previous government and governments before that. It is a very longstanding practice. I do not believe that any noble Lords on any Bench, irrespective of whether they are in government or opposition, would doubt that that will continue. I acknowledge the long experience in opposition of the noble Lord, Lord McNally—long may he enjoy that position and I would not seek to deprive him of it for a second. He does it so well.

Those tried and tested procedures allow the Government to take the views of senior parliamentary figures in a flexible and efficient way, tailored to the needs of the situation in hand. The regulations will be scrutinised by Parliament and the Government will be accountable to Parliament for their actions throughout any use of emergency regulations. These tried and tested arrangements offer a more meaningful and effective approach to parliamentary scrutiny. It is not clear what a committee of Privy Counsellors would add to the process and there are obvious weaknesses with the proposal.

We too have the greatest respect for the judiciary. The judiciary's role is quite clear in terms of judicially reviewing the acts of government, but it would be difficult if we were to ask the same judges to make the decisions that we then ask some other brother judges to review. It would not be a practicable position.

We believe that these arrangements will work. There is nothing in our history to indicate that they will not inure to our benefit long term. The one thing that we have to rely on so far is that when this country has found itself in acute difficulty, our historical experience has been that political parties in this country pull together for the
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benefit of our nation. That is something on which the citizens of this country have been able confidently to rely for many generations. There is nothing that I have seen in the current generation of politicians to make me believe that the citizens of this country will not continue to be capable of relying on their good sense in that regard.

Lord Phillips of Sudbury: My Lords, I am grateful to the noble Baroness for her response. I am also very grateful to the six or seven Peers who contributed to this mini debate. I shall study closely what everyone has said, particularly the Minister. She said that we have a tradition of consultation and so on. I echo what has been said by many speakers on all sides of the House that this is a very particular piece of legislation, bestowing uniquely wide powers and, therefore, to rely upon age-old decencies is perhaps indecent for us as legislators. Having something in the Bill that requires this initial check may—in my view, it does—seem warranted.

I understand the point that the noble Baroness, Lady Buscombe, made about speed. A standing panel with only four people needed to give consent should enable that issue to be dealt with. I understand that after 11 September, the United States did not use a single one of the Patriot Act powers, but relied exclusively on pre-existing law.

Finally, under the Emergency Powers Act 1920, in order for an emergency to be deemed to arise, there is a royal proclamation, the sort of check that everybody who spoke, bar the noble Baroness, Lady Buscombe, would favour.

I shall read what has been said. I may have a word with the Minister outside the Chamber and, if necessary, revert to the final stage of the Bill. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 22 [Scope of emergency regulations]:

Lord Elton moved Amendment No. 71:

On Question, amendment agreed to.

[Amendment No. 72 not moved.]

Lord Elton moved Amendment No. 73:

On Question, amendment agreed to.

[Amendment No. 74 not moved.]

Baroness Buscombe moved Amendment No. 75:

The noble Baroness said: My Lords, I shall be reasonably brief on this group of amendments. In moving Amendment No. 75, I shall also speak to Amendment No. 86.

I hope that, to a large extent, the amendments speak for themselves. They are different amendments which cover a similar point. Amendment No. 75 would remove Clause 22(3)(j). A similar amendment was debated at length in Committee. We felt very strongly, and,
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notwithstanding the improvements to the Bill and the concessions which the Government have made, for which we are extremely grateful, we continue to feel deeply concerned at the extraordinarily wide power in Clause 22(3)(j).

The power to,

is just too broad. Notwithstanding the fact that the Minister has given us some confidence in terms of increasing safeguards with regard to access to judicial review, we remain firmly of the view that access to judicial review will be protected only if those Acts which allow access to judicial review have not been ousted. Even now, I am not convinced that we can be assured of that.

Amendment No. 86 would approach that challenge in a different way. I recall my noble friend Lord Goschen suggesting that perhaps we should have a list of Acts that should be protected under the legislation from Clause 22(3)(j). We thought long and hard between Committee and Report about the Acts which might be included. We are also aware of the fact that that approach was considered at length by the Joint Committee when considering the draft Bill.

I know that concerns were expressed about which Acts could be included. Our concern is to ensure that the very core of our freedoms is protected. That is why we have included the Habeas Corpus Act 1816, Section 7 of the Parliament Act 1911 and the Bill of Rights 1689.

I am intrigued that the Government have brought forward an amendment now on Report to protect the Human Rights Act. In our debate on Second Reading, I put to the Minister the need to protect that legislation. I was told that night, and indeed was informed in a letter from the Minister dated 19 July, that such protection was not necessary. In the letter, the Minister stated:

I shall not take your Lordships' time tonight to revisit paragraph 34 in detail. However, the Government went to enormous lengths in paragraph 34, and again in response to my concerns about the Human Rights Act, to assure us that it was simply not necessary to protect the Human Rights Act or other constitutional enactments.

I would urge noble Lords—perhaps following the debate, if they have not already—to read paragraph 34. Notwithstanding my legal background, I find some parts of it jolly difficult to understand. I am rather pleased that perhaps the Government have not entirely understood it either. Now, the Government have decided that the Human Rights Act should be protected. They have clearly thought long and hard about the issue and moved away from the reasoning that was set out in such detail in paragraph 34.
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While I accept that the Government have decided to change their mind, I do not understand why they have done so with regard to human rights, but have continued to refrain from listing other core Acts which should be protected by this legislation.

The Government may say that since they have listed the Human Rights Act, there is no need to list the Habeas Corpus Act, but we would not agree. The Government may say that habeas corpus is subsumed by the Human Rights Act, in which case there is no point in arguing that derogation from the Habeas Corpus Act is possible. However, we are certainly of the understanding that derogation from the ECHR is possible in time of national emergency, but that derogation from the Habeas Corpus Act is not. Moreover, the Habeas Corpus Act provides a specific and well understood procedure as against the Human Rights Act, which requires judicial interpretation which we suggest would be a much more drawn-out process.

I am trying in a sense to pre-empt what the Minister will say in response to our amendments. However, we remain strongly of the view that we should clearly protect within the Bill these core Acts, core freedoms and core constitutional enactments. I beg to move.

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