Standing Committee F
Tuesday 10 February 2004
(Morning)
[Sir John Butterfill in the Chair]
9.30 am
The Chairman: May I point out to hon. Members that they should not rely on the time shown on the clock, which is at least four minutes out? I suggest that people look at the Annunciator screens if they want to know the correct time—I hope that that displays the correct time. Clause 21
Scope of emergency regulations
Mr. Oliver Heald (North-East Hertfordshire) (Con): I beg to move amendment No. 86, in
clause 21, page 14, line 44, leave out paragraph (j).
The Chairman: With this it will be convenient to discuss the following:
Amendment No. 116, in
Amendment No. 117, in
Amendment No. 82, in
Amendment No. 120, in
Amendment No. 87, in
New schedule 1—Enactments not to be modified by emergency regulation—
'Magna Carta 1297
Bill of Rights 1688
Crown and Parliament Recognition Act 1689
Act of Settlement 1700
Union with Scotland Act 1707
Union with Ireland Act 1800
Parliament Act 1911
Parliament Act 1949
Life Peerages Act 1958
Emergency Powers Act 1964
European Communities Act 1972
House of Commons Disqualification Act 1975
Ministerial and Other Salaries Act 1975
Column Number: 244
British Nationality Act 1981
Supreme Court Act 1981
Representation of the People Act 1983
Government of Wales Act 1998
Human Rights Act 1998
Northern Ireland Act 1998
Scotland Act 1998
House of Lords Act 1999
Civil Contingencies Act, Part II and Schedule 5 (Enactments not to be modified by Emergency Regulation) [2004]'.
Mr. Heald: It is good to be in a different Room and notice the wide chasm that has opened up between the Opposition and Government. I am sure that that is an encouraging feature.
The three Conservative amendments—Nos. 86, 82 and 87—are all concerned with the disapplication or modification of enactments. The first place in which that arises is clause 21(3)(j), which gives the power to disapply or modify enactments by emergency regulations. Amendment No. 86 would remove that power; amendment No. 82 would leave the power in place, but not permit the Human Rights Act 1998 to be disapplied or modified; and amendment No. 87 would protect the Human Rights Act and other constitutional enactments from disapplication or modification.
The amendments are based on the comments from expert bodies, such as the Law Society, Justice, and Liberty, and on the views of the Joint Committee when it considered the draft Bill. The principle that there are fundamental human rights that must be respected and that, even in a state of emergency, there are some rights that should never be infringed is shared across the Committee. However, the Government take the view that it is not necessary to make the sort of provisions that I am suggesting.
Emergency regulations can be made over a broad range of areas. The powers in the Bill seem to be designed to give the Government scope to cope with unforeseen circumstances. Yet, when it comes to the question of entrenching or not allowing the disapplication or modification of the Human Rights Act and other constitutional measures, we are asked to rely on the following assurance in the Government's response, which said that
''we cannot presently envisage circumstances in which this power would lawfully enable us to make a substantive amendment to a constitutional enactment.''
What is sauce for the goose is sauce for the gander however, and if the Government are to have such wide-ranging powers on the basis that the unforeseen must be catered for, it seems odd that they are not prepared to put their money where their mouth is when it comes to protecting some of our most important constitutional enactments. It does not seem right to rely on the Minister's assurance. Circumstances change, Ministers change, and we should design good law. If we want to exclude the disapplication or modification of the Human Rights Act, we should do so. I note that the Government response says that
''it may be safe to assume that Parliament intended to confer the power to interfere with such a statute if the interference is trivial.''
Column Number: 245
It is not as though the Government are saying that they will not touch any of these Acts because they are inviolate. They are saying that they want to be able to touch them and interfere with them by using emergency regulations, provided that, in their opinion, the change that they make is trivial. That is not very encouraging.
Either there is a class of entrenched or constitutional Acts, or there is not. Lord Justice Laws has suggested that there is and the Minister, in the Government response, seemed to accept that although it is a recent thing, there is such a class of Acts. The current wording of the Bill does not reflect that sort of thinking, but we believe that it should, which is why we tabled a group of amendments to protect the Human Rights Act 1998 in one way or another. Amendment No. 117 would also protect our basic constitutional Acts.
The Government say that it is very hard to define what a constitutional Act might be. The Liberal Democrats, perhaps aided by Justice and Liberty, have produced a new schedule that includes the obvious ones. If the Government are concerned that one or two others should be included, I suggest respectfully that they adopt the same principle that applies throughout the rest of the Bill, which is, if in doubt, put it in.
Mr. Richard Allan (Sheffield, Hallam) (LD): I wish to speak to amendments Nos. 116, 117, 120 and new schedule 1, which were inspired by Justice and Liberty, as well as the principles of justice and liberty. The amendments would—as the hon. Member for North-East Hertfordshire (Mr. Heald) said about his amendments—define a series of constitutional Acts that cannot be modified under an emergency regulation. We have already established that emergency regulations can be wide ranging. Although we are seeking to ensure that a category of legislation cannot be interfered with through the use of emergency regulations, that does not mean that we would limit the power of Parliament to alter or adjust those Acts. We believe that it is appropriate to do that through primary legislation. We cannot see why the circumstances under which the Acts that we have defined in new schedule 1 could or should be amended in the context of an emergency regulation, which by definition has a duration of only seven days until it must be considered by Parliament. In other words, Parliament may amend some of those Acts if it proves necessary, but it should do so explicitly in the context of emergency regulations.
The Joint Committee considered the issue in some detail and came up with its own list of Acts of Parliament, but the Government in their response, to which the hon. Member for North-East Hertfordshire referred, declined to accept its recommendation. It is worth looking at the Government's response to tease out the key issues. They said that they agreed in broad terms that constitutional legislation should be excluded, but they have given us dubious comfort, in the context of the amendments, in telling us that parliamentary counsel says that the power in question
Column Number: 246
could not be exercised in the way that we fear that it would be exercised. The problem that has given rise to the amendments is this: we do not take sufficient comfort in the advice of parliamentary counsel to accept that the Bill as drafted excludes constitutional Acts from potential interference through emergency regulations.
I should like to highlight one point in particular. The Government said—to paraphrase part of their response—that, ''We make legislation by tacking all kinds of bits into Acts. Therefore it is hard to pick out the constitutional ones. We may have constitutional bits at the core, but there will be all sorts of other stuff tacked on to the sides.'' Sadly, there is probably some truth in that. The Government specifically referred to the European Communities Act 1972, which is one of the Acts to be excluded that we list in new schedule 1. They said:
''Even in an enactment of undeniable constitutional importance as, for example the European Communities Act, it is possible to conceive of appropriate amendments.''
In other words, in one sense they are saying, ''We do not wish to interfere with the constitutional legislation'', but in their response they say that there may be circumstances in which they would wish to do that. I assume that that is because they envisage some odd bits on the edge of the 1972 Act that they may wish to interfere with, but they do not envisage that they might secede from the European Union through emergency regulations. However, we have to think of Governments of all political persuasions potentially being in power. We would not wish the definition of a state of emergency—that is, the device of emergency regulations, rather than primary legislation—to be the reason for secession from the European Union. It is precisely that kind of fundamental constitutional measure that we want to avoid.
|
