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Ruth Kelly: These amendments provide the vehicle for bringing part 2 of the Bill, on emergency powers, to an end three years after it has been brought into force. The Government are unable to agree with that approach. The idea of sunsetting part 2 of the Bill was originally raised by the Joint Committee that conducted pre-legislative scrutiny of the then draft Bill. The Government in their response made it clear that a sunset clause is relatively unusual and requires careful consideration. The issue was discussed at some length on Report and Third Reading in the other place.
The arguments against sunsetting are compelling. Sunsetting legislation is appropriate when the powers it contains are expected no longer to be needed after a certain period, or if their use should be reviewed by Parliament. This Bill does not meet either criterion. Time-limiting the Bill is clearly not appropriate. No one believes that emergencies will stop happening in three years' time. If part 2 of the Bill were to be repealed, something else would simply have to be put in its place. The purpose of review by Parliament on a triennial basis, it is suggested, is thatgiven the nature of the powersParliament should assess whether it is appropriate for them to continue to exist, in the light of the way in which they have been exercised. I understand that that was the main intent behind the amendment.
Provision for regular review by Parliament may be appropriate where the exercise of powers is of legitimate parliamentary interest but their exercise is not subject to parliamentary scrutiny, the intent being that some powersgiven their natureshould not simply be handed over to a Government to exercise indefinitely in the manner of their choosing. That argument, however, does not apply to part 2 of the Bill. Any exercise of the powers it confers will undergo detailed parliamentary scrutiny.
I would also question the utility of review every three years, given that part 2 is a last resort option for dealing with only the most serious of emergencies, for which existing legislation proves insufficient. It is not intended for regular use. It is worth noting for example that there was a 29-year gap between the uses of the powers under the present legislation. It simply would not have been necessary or sensible to review the Emergency Powers Act 1920 every three years during that period.
Mr. Douglas Hogg (Sleaford and North Hykeham) (Con):
The Minister saysand she is right, because
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clause 27 appliesthat there will be parliamentary scrutiny of the regulations. Will Parliament be able to amend the regulations through the process of scrutiny?
Ruth Kelly: Yes. In a totally exceptional provision, it will be possible for Parliament to amend the regulationsfor example, to impose additional limitations and constraints on their use by providing that the use of the powers should come to an end after a certain date.
Emergency regulations would be laid before Parliament as soon as was reasonably practical, once they had been made, and would require the assent of Parliament to continue in force. Any further set of regulations made after the lapse of the regulations would also have to go through the same process of parliamentary scrutiny.
Mr. Richard Shepherd (Aldridge-Brownhills) (Con): The Minister talks of detailed scrutiny, but the regulations would be in the form of an Order in Council and subject to the statutory instrument process. The detailed scrutiny would have to take place in 90 minutes. Or does the Minister know something that the House and the Standing Orders do not?
Ruth Kelly: The hon. Gentleman raises an important and interesting point. I said that I would expect detailed scrutiny by Parliament to take place, and I accept that 90 minutes is indeed unlikely to be sufficient to debate regulations of such importance. It is likely that in the time of such an emergency there would be a call for a major debate on the subject of the crisis and the Government would respond to that and provide the appropriate time. The hon. Gentleman may question why we have not chosen to amend the Standing Orders to reflect that expectation. I would argue that it would not be appropriate to complicate the Standing Orders with varying procedures for different kinds of regulations. However, I place it clearly on the record that we would expect detailed scrutiny of the regulations to take place.
Mr. Oliver Heald (North-East Hertfordshire) (Con): As the Minister will know, it has been thought right to have sunsetting for a small class of provisions, including the Anti-terrorism, Crime and Security Act 2001an obvious exampleand the Terrorism Act 2000, which repeated the provisions that used to be in the Northern Ireland (Emergency Provisions) Act 1973. Given that the Bill proposes to give, rightly, the most draconian powers to Ministers in an emergency, it surely also falls into that category and should be treated seriously.
The hon. Gentleman is not alone in trying to draw parallels between the Bill and the Acts that he mentioned. Indeed, several of their Lordships also attempted to draw such parallels. They argued that because a review mechanism was appropriate in those contexts, it would be appropriate in this case. I beg to disagree. The powers in this Bill are not intended to be used on a regular basis. The powers in the Acts to which the hon. Gentleman referred are not subject to parliamentary scrutiny when exercised. We are dealing
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with a different type of Bill: it is an enabling Bill and the exercise of the powers it contains would be subject to detailed parliamentary scrutiny. The other Acts that have been mentioned grant ongoing powers that can be evaluated after a certain period of time has elapsed.
Mr. Richard Allan (Sheffield, Hallam) (LD): Following the point made by the hon. Member for Aldridge-Brownhills (Mr. Shepherd) about the nature of the scrutiny of the regulations once they are invoked by a Minister, we are concerned that those debates will be focused on the regulations before the House, rather than on the wider principle of whether the powers should have been used at all. We seek a review or a sunset provision because we want a review of the legislation as a whole, rather than the specific regulations that may have been invoked at a particular moment.
Ruth Kelly: It is worth bearing in mind the fact that we envisage the powers being used only for the most serious situations. It is unthinkable that any emergency that such powers would be connected with would not be debated in full while that emergency was taking place, including the Government's handling of the situation and the use of emergency powers.
Mr. Heald: Of course the particular circumstances that arise would probably be debated, and the particular measures taken would also be debated, albeit ex post facto and at not very great length. The point that is being madeI hope that the Minister will address itis that the powers and their appropriateness to the situation would not be the subject of such a debate. That is what we would like to see scrutinised every three years. What is wrong with that?
Ruth Kelly: The true parallel to draw here is between the exercise of the regulations and the Anti-terrorism, Crime and Security Act 2001 and the Terrorism Act 2000, not between the Bill and those Acts. They do not all fall into the same category. The regulations would be subject to detailed parliamentary scrutiny and, as I was in the process of telling the House, I cannot conceive of their being used in practice without a full parliamentary debate or without scrutiny after the event of how they had been exercised in practice and of whether greater limitation should have been imposed on their use. There is no real parallel between the Bill and the Terrorism Act 2000 or the Anti-terrorism, Crime and Security Act, as this is a purely enabling Bill.
Mr. Shepherd: But of course, the underlying anxiety is the very definition of what constitutes an emergency, which lies in the Government's hands and in the hands of the parliamentary majority that the Government normally have. With such a very loose definition of what constitutes an emergency, with the powers being so enormous and with the rights of scrutiny dependent on the Governmentnot necessarily this Government, because of course the Minister is arguing for a permanent Actwe want the greatest possible clarity about why all that is appropriate.
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