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Lord Lucas: My Lords, I have two amendments in this group. The first is Amendment No. 76, which I am delighted to see the Government support. It is a purely technical amendment. I am pleased that my arguments have been accepted, partly in that amendment and partly in government Amendment No. 85.
So far as my Amendment No 83 is concernedI echo an amendment of my noble friendssome things ought to be set down in stone that we cannot envisage any emergency wanting to attack. They have been unamended for so long that I believe they form foundation stones and we should not start to allow people to dig them up by way of regulation.
I hope that we might find something morenot muchto add to this list. I should like to see something there which would give me comfort that our system of democracy would continue. The amendment proposed by the Government protects the operation but not the constitution of Parliament. So far as I understand the Bill as it stands at present, it will be possible to postpone elections indefinitely and to operate with a rump Parliament as, indeed, was done not so long ago. That was done less than 400 years ago. That is something one can imagine governments doing in an emergency as a way of controlling Parliament. I should like to be sure that there is an imperative somewhere in this to get back to elections and representative democracy. I do not see it at the moment. I do not understand my constitutional law well enough but I hope that my noble friend on the Front Bench will be able to find the answer to that before Third Reading.
Viscount Goschen: My Lords, as the basis of this Bill I see a presumption by the Government that it is possible to legislate oneself out of an emergency. The first thing that Ministers would want to do if an
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equivalent of the 9/11 disaster occurred here would be to reach for the statute book to rip out pages from it to try to create a situation where they could act more freely.
However, experience has shown usI take the 9/11 disaster as the best example of thisthat what was required in the 9/11 disaster was not immediate repeal of statutes in the US but rapid decision-taking, bringing into play emergency plans, co-ordination of rescue, the deployment of fighter cover to prevent attacks from other aircraft and so on. It was not a case of tackling the statute book to produce a quicker reaction to the disaster. I do not believe that many statutes should be affected by this Bill. I believe that there should be a list of what can be done. If we do not have that, we must have a list of what cannot be done. Surely what we are talking about here constitutes a fraction of the statute book that could realistically be used, or that one would want to use, in the event of an emergency. The number of legislative powers that might be set aside must be very small vis-à-vis the great bulk of statutes.
I cannot believe that the Government seriously have in mind the possibility of the Parliament Act or the Habeas Corpus Act being amended. Of course, those pieces of legislation were not envisaged in this regard. I am sure that the noble Baroness will say that and that her Government have no intention of repealing the Parliament Act 1911. None the less we must face the fact that the Bill we are being invited to consider and, in due course pass, allows those measures to be amended.
My noble friend Lord Lucas put it very well when he spoke of guaranteeing at a very minimum the operation of Parliament and of justice. As I say, I welcome the noble Baroness's earlier amendments but all they do is to prevent the physical incapacitation of Parliament rather than protect its make-up. For example, the Government could by regulation fundamentally alter the way in which Parliament works. They could set aside the House of Lords. They could do almost anything to the constitution. I certainly accept that those would be very rare eventualities. None the less, we are being asked to pass legislation that would allow this, and we should not do that. The House of Lords, as the revising Chamber, should make it clear that certain parts of the constitution, at the very least, should be off limits. I would very much prefer a list of statutes that could be amended or set aside.
If the Government are correct to claim that they are taking their emergency planning seriously in the consideration of the Bill, then surely they will have applied the resources that they possess to have a good trawl through the statute book and ask, "What could realistically be obstacles to rapid reaction to a disaster?" They should have done that. If they have, I see no reason whatever why they should not bring forward that list and say, "This is a list of statutes that we wish to be controlled by the Bill". If they refuse to do that, there can be no argument against guaranteeing in the Bill the sanctity of our constitution against attack.
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Baroness Falkner of Margravine: My Lords, we welcome Government Amendment No. 85 and are extremely pleased that it includes a specific reference to the Human Rights Act. We sympathise with the aims of Amendments Nos. 83 and 86 to safeguard basic civil and political rights against the abuse of power. We associate ourselves with the remarks of noble Lords who have just spoken.
We suspect that we shall be told by the Government that those safeguards are now mainly contained in the Human Rights Act and the European Convention on Human Rights, and are therefore stronger than the Bill of Rights 1688 or the Magna Carta. That is precisely why we welcome Amendment No. 85; but the Parliament Act 1911, referred to in Amendment No. 86, would benefit from the same ring-fencing as that in Amendment No. 85.
To achieve more broadly the aims of the noble Baroness, Lady Buscombe, we would require a British written constitution with an entrenched Bill of Rights. The Liberal Democrats strongly support such constitutional reform. It would bring us in line with most democratic Commonwealth countries, not least Canada, India and South Africa, as well as all the other member states of the European Unionbut I recognise that this is probably not the time to make that point. So, if Amendment No. 86 is not adopted, we would hope to see a strengthening of Amendment No. 85 at a later stage, but have deep sympathy with its aims.
Baroness Scotland of Asthal: My Lords, I am very conscious of the hour, but I wish to give a proper response to the issues that have been raised by noble Lords in this short debate. I agree that it is important for us to have proportionality in responding. Perhaps I may say to the noble Viscount, Lord Goschen, that that is the point of having a single Civil Contingencies Billso that we have a clear understanding of the limits and the nature of the steps that we will have to take, or may be permitted to take, or any future Government may be permitted to take, in responding to an emergency.
As we all know, emergency powers exist to make temporary changes to the law where effective response is prohibited by insufficient powers. We have considered in Committee, and now extensively on Report, the nature of those limitations. The Bill ensures that any such changes will be necessary, proportionate and compatible with the Human Rights Act and scrutinised by Parliament. So, noble Lords who foreshadowed that that would be my answer were absolutely right.
The possibility of temporarily amending legislation of constitutional importance was examined in detail by the Joint Committee. That committee undertook pre-legislative scrutiny of the Bill; and during debates in both Houses this matter has been discussed. Discussions have also taken place at official level with civil liberties groups. The Government remain convinced that the absence of an express power to amend such legislation, coupled with the clear expression of the purposes for which regulations
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can be made and the safeguards set out in the Bill, ensures that substantive amendments to constitutional legislation are not possible.
I know that we had a lot of debate about the Human Rights Act on the previous occasion. The Government have sought, as noble Lords will have noticed, to respond to the concerns expressed in Committee and in both Houses and where appropriate and possible to reflect that in the moves that we have made. There are those who would still arguesome would say argue properly and with forcethat the Human Rights Act provision that the Government now bring forward in Amendments Nos. 85 and 76 is not strictly necessary. We have taken the view that, as the piece of constitutional legislation expresses protection, it may be justified for the following reasons.
The Government believe that, unlike other constitutional legislation, the Human Rights Act sets out the relationship between the individual and the state that is at the heart of the operation of the emergency powers and fundamental to concerns about their possible misuse. We have listened carefully to that. It has always been the Government's intention that the emergency regulations should be entirely compatible with the Human Rights Act and should not be used to modify or suspend it. Since we were all at one on that issue, we tabled the amendments.
The Government remain convinced that nothing in the Bill would allow the Government or any future government acting under the provisions to disapply or amend the Human Rights Act. However, in the light of concerns expressed by civil liberties groups and in Parliament, the Government believe that an express provision to the effect that emergency regulations cannot disapply or modify any provision of the Human Rights Act would offer the certainty and reassurance that some seek.
It is important too that Part 2 of the Bill should similarly be incapable of being amended by emergency powers, in order to ensure that the tests and protections it contains cannot be amended. The Bill also expressly provides that emergency regulations cannot be used to modify Part 2. The Government intend to amend the Bill to move the prohibition from the clause on scope to the clause on limitations on emergency regulations where, as noble Lords argued vigorously in Committee, it sits more naturally. I think that this is the third occasion when I have hoped that I would give considerable pleasure to your Lordships' House by having, first listened so carefully; secondly, acted so swiftly; and, thirdly, perhaps done even more than that which was reasonably expected of us.
While the Government agree that the specific enactments referred to in Amendments Nos. 83 and 86 are likely to be considered "constitutional enactments", they do not think that there is merit in mentioning them expressly. While being of considerable constitutional and historical importance, they do not have the same wide-ranging and fundamental importance in protecting the individual from state action that would lead them to fall into the same category as the Human Rights Act. Given the purposes for which emergency powers can be made,
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as set out at Clause 23(1), it is difficult to think of a plausible scenario where the making of emergency regulations could engage the provisions in these other enactments.
We wish, however, to emphasise that there are other enactments of constitutional importance, which we believe could not be amended by way of emergency powers, such as the Government of Wales Act 1998 and the Scotland Act 1998, which are the legal bases for those two devolved administrations. However, we do not feel that it is necessary to mention such Acts expressly in a list, as the noble Viscount, Lord Goshen, would have us do. Any list would inevitably be an inaccurate attempt to list exhaustively all such "constitutional enactments". To extend the list further would be dangerousthe more so-called constitutional enactments which are expressly protected, the more likely a court is to conclude that the list is an exhaustive oneand would suggest that Parliament envisages constitutional enactments which are not specified being amended by way of emergency regulationswhich, I say for the record, we do not. Given that there is not a defined body of constitutional law on which everyone agrees in this country, that poses obvious difficulties.
I would be happy to discuss the effect of Magna Carta (1297) and why we do not suggest that it be given express protection; the Bill of Rights of 1688, which is mentioned in the amendments; the Habeas Corpus Act 1816 and the Parliament Act 1911. Section 7 of the Parliament Act provides that the Septennial Act should be amended to limit the life of a Parliament to five years. I would be happy to write in detail about why we think that those instruments should not be considered, but I hope that my general comments cover those matters and respond to the points raised by the noble Baroness, Lady Falkner, and other noble Lords who have participated in this debate.
I hope that noble Lords will feel that the strengthening that we all agree is necessary, which has already been provided in part in the provisions on Parliament and ensuring that it is there, together with this Human Rights Act 1998 provision and Amendments Nos. 76 and 85, go a considerable way to reassuring noble Lords that we have covered the issues that should properly be included.
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