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Mr. Carmichael: Before we move on, may I ask the Minister whether he is satisfied that my interpretation of clause 24(2)(c) is correct? One can disregard subsection (1) for whatever reason, and if one does so it does not really matter. In that case, why should we have subsection (1) at all?
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Mr. Alexander: The provision reflects the fact that we are trying to strike a balance between the need to move with great expedition and a recognition of the enduring role of the Council on Tribunals. However, I accept the hon. Gentleman's point about the vital caveat that Ministers would remain accountable to Parliament for any decisions taken in relation to tribunals or indeed actions taken under the regulations. We have adopted that approach to ensure that the regulations established in the tribunal have legal certainty, which is surely a matter that we can all agree on, and it would be inappropriate for the regulations establishing tribunals to be struck down months or indeed years after they have been set up. A fundamental question is what would then happen to the judgments made by tribunals in the meantime, and in that regard, it is important to bring the maximum degree of legal certainty to a tribunal's operations.
Mr. Heald: On duration—obviously, we are going to have a full debate on it in a moment—clause 25 provides that the emergency regulations shall last for 30 days unless they are renewed. Surely, it will take longer than that to set up a tribunal—or is that not the case? Is the Minister thinking that, as the firemen are going in or the Army is dealing with a terrorist situation, a tribunal will be set up almost immediately, within a matter of days? Furthermore, when the emergency regulations lapse, does the tribunal lapse at the same time? How does that work?
Mr. Alexander: I return to one of my core propositions: it is difficult to anticipate every circumstance that could arise. We would certainly anticipate that, in the circumstances that I have described, it would be possible to establish a tribunal in respect of quarantine restrictions fairly quickly, but I do not wish to be drawn on how quickly a tribunal could be established without being clear as to what the particular circumstances are.
Although regulations create a tribunal, the Interpretation Act 1978 will not continue in existence a tribunal created by emergency regulations after those regulations collapse. It is therefore likely that further legislation would be needed to continue in existence any tribunal created by emergency regulation. That deals with the hon. Gentleman's substantive second question.
Question put and agreed to.
Clause 24 ordered to stand part of the Bill.
Clause 25
Duration
Mr. Allan: I beg to move amendment No. 121, in
The Chairman: With this it will be convenient to discuss the following amendments: No. 122, in
clause 25, page 17, line 12, leave out from end to beginning of line 14.
No. 105, in
clause 25, page 17, line 15, at end add—
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No. 106, in
No. 124, in
clause 26, page 17, line 40, leave out from end to beginning of line 42.
No. 129, in
clause 26, page 17, line 41, leave out paragraph (a).
3.30 pm
Mr. Allan: Amendment No. 121 is an unusual example of us offering to give the Minister and the Crown more, rather than less, power. Normally we spend our time in these Committees trying to strike out powers exercisable by Ministers and saying that everything should be in regulations, but under these circumstances we think that it would be appropriate for a Minister to have the power to end their extra-constitutional and extra-parliamentary activity, that is, the emergency regulations that they brought into play. As we read the clause, there are only two circumstances in which the regulations would lapse: at the end of 30 days, which we accept as a sensible safeguard, or at a time specified in the regulations—in other words, if the regulations themselves state that the power exists only for, say, 15, 20 or 25 days.
We think that a third option should be available to Ministers. They should be able to say, ''Okay, we haven't reached the 30 days''—or the 25 days—''but the emergency is over.'' We can imagine circumstances in which an emergency is predicted to be more severe than it turns out to be. In those circumstances, it would be sensible for a Minister to be able to say after five or 10 days that the regulations had lapsed. That would put an extra limitation on the force of the emergency regulations and would be helpful in this context. I hope that the Minister can accept amendment No. 121 in the helpful spirit in which it is intended, and that he will respond positively.
The spirit of amendment No. 121 might be acceptable, but I suspect that amendments Nos. 122 and 124 are less acceptable. They would remove the ability to make new regulations after 30 days and to extend the powers beyond that time. We think that that is an important area to explore. We understand that the emergency regulations, as introduced outwith Parliament by the Executive, have to be brought to Parliament within seven days. That is entirely sensible and under normal circumstances, in which the Government have a parliamentary majority, one would expect Parliament to approve those emergency regulations, but we do not want continued extensions to the emergency regulations. If the Executive were able to get parliamentary approval for that, it would not be unconstitutional. However, we believe that that is a far less satisfactory solution than specifying that, after the initial period for which the emergency regulations have been in force, primary legislation must be sought. The example I cited before is the Anti-terrorism, Crime and Security Act 2001, which was a parliamentary constitutional response to the events of
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11 September, and passed through both Houses of Parliament quite rapidly.
In seeking to remove the Government's ability to extend their emergency regulations, we do not seek to deny them the ability to continue with the kinds of powers that they need in an emergency. Instead, we are suggesting that the powers should be dealt with only through primary or secondary legislation, in the normal way, rather than by extending emergency regulations again and again. We think that there would be a temptation to do that. The Government could cite a lack of parliamentary time or the fact that getting the provisions through Parliament would be more difficult and that it would be more straightforward simply to approve an extended emergency regulation. We are trying to assist the Government by leading them out of the valley of temptation into pastures in which they would have to come forward with primary or secondary legislation—that is a mixed biblical reference. Essentially, we are trying to limit Ministers' options in those circumstances.
Amendment No. 121 offers Ministers an additional power and I hope that the Minister approves of that. It is a power to self-limit. Amendments Nos. 122 and 124 are quite clearly trying to limit Ministers. We think that the limitation would be sensible and would ensure that parliamentary sovereignty is maintained.
Mr. Heald: I shall speak to amendments Nos. 105, 106 and 129. The point is the same: there should not be an unlimited period of emergency regulations. Amendment No. 105 would mean that, for one emergency, there would be a maximum of 90 days of emergency regulations. If the Government wanted to continue with the powers after that, they would have to introduce a Bill, but 90 days gives them adequate time to do that. It would be wrong, as the hon. Member for Sheffield, Hallam (Mr. Allan) has said, to allow Ministers to continue with emergency regulations over very extended periods of time.
Mr. Allan: In support of the hon. Gentleman, it is worth noting that the 2001 Act, which is substantial and involves significant legal issues, was passed well within 90 days.
Mr. Heald: I entirely accept that. We all have some experience of emergencies, if not necessarily of that kind. When there is a need, Parliament can act relatively quickly and 90 days is more than adequate for that purpose. It is incumbent on the Minister to explain why he wants more time.
Many concerns have been expressed about the Bill and the wide-ranging nature of the powers that the Government are taking. We are not used to emergency powers. We do not have bush fires lasting for 100 days or repeat earthquakes, and our floods do not last for hundreds of days. The Minister needs to come up with something major to justify more.
Mr. Alexander: What challenging words to rise to, Mr. Benton.
The hon. Member for Sheffield, Hallam challenged me to join him in pastures new by accepting his amendment, but I fear that I may disappoint him.
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[Interruption.] I welcome the opportunity to discuss the period of duty—I may be a sinner repenting, but not in these clauses.
Although I welcome the opportunity to discuss the time for which emergency regulations will be in force, the Government cannot support the amendments. When emergency regulations are made, an assessment will be carried out as to how long it is likely to be necessary to keep them in force. If it seems at the outset that it would be necessary and proportionate to maintain the regulations in force for a matter of days or weeks only, the regulations will provide for that. In subsection (1)(b), the Bill expressly recognises that regulations may themselves specify a date on which they cease to have effect. In other cases, however, the regulations will lapse automatically 30 days after the day on which they are made.
The Government will not be idle in the period between making the regulations and their automatic lapse. We will keep the situation under review. If it becomes apparent that there is no need to maintain the regulations in force and that it would be reasonable to revoke them, the Government will do so. It is therefore unnecessary to provide for that in the Bill. The Government will review the continued operation of emergency powers as a matter of course and they will be accountable to Parliament for so doing. It is unnecessary expressly to provide that the regulations may be revoked, given that section 14 of the Interpretation Act 1978 provides that where an Act confers a power to make regulation, it implies a power to revoke them.
If, at the end of the period of 30 days it is clear that provisions are still needed, the Government will have a number of options. If it is apparent that an emergency will continue for a substantial length of time, the Government could bring forward appropriate primary legislation to replace the emergency regulations whenever possible. However, that may not always be the best approach. The nature of an emergency can change over time, and its effects and implications are clearly unpredictable. It may not always be desirable to attempt to construct appropriate primary legislation, as it may risk being overtaken by events. In such circumstances, a further set of emergency regulations could be made.
Concern has been expressed about whether a subsequent set of emergency regulations would be subject to parliamentary approval. Under the 1920 Act, emergency regulations could be maintained in place by way of a monthly royal proclamation and without further parliamentary approval, but the Government agree that that is not the right approach in the modern day. Any new set of emergency regulations should be subject to further parliamentary debate. The Bill provides for that.
Subsection (1) provides that emergency regulations will lapse 30 days after they have been made. Subsection (2) makes it clear that a new set of regulations may be made thereafter; but any such regulations would be subject to the provisions for parliamentary scrutiny laid down in clause 26. Clause
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26 applies when emergency regulations are made; there is nothing that limits its application to the first set of emergency regulations. The Bill is therefore clear on that point. There is no need to provide expressly that a second set of regulations should be subject to parliamentary scrutiny; nor does subsection (2) cast any doubt on that point.
The hon. Member for Sheffield, Hallam raised the understandable concern of how many times emergency regulations may be remade. The Government considered whether a limit should be included in the Bill. However, we rejected that approach on the ground that it would be arbitrary and inflexible. What would the limit be? For example, the amendment offered by the hon. Member for North-East Hertfordshire suggests three times, but some emergencies may last a little longer, perhaps by only a couple of days or weeks. It would not be sensible to remove emergency regulations that had been approved by Parliament and put in their place primary legislation that might be needed only for a short time—perhaps only a few days.
It has been suggested that anti-terrorism legislation was a useful precedent, but considering the length of time it took to pass that legislation, it is questionable whether in those circumstances, where the emergency situation might continue for a matter of days, it is better to start a process of securing primary legislation. In addition, there may be emergencies that initially appear short term, but turn out to be longer lasting. In such circumstances the Government might find themselves with insufficient time to bring forward primary legislation to deal with the situation, but forced to allow emergency regulations to lapse.
The Government consider that there are adequate safeguards in the Bill to ensure that emergency powers are not maintained for a longer period than is necessary. Each set of regulations will have to meet the triple lock, which has clearly been debated on a number of occasions in this Committee. In particular, it must still be necessary to make provision to deal with the emergency. The emergency regulations would be subject to parliamentary approval every 30 days.
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