| Previous Section | Back to Table of Contents | Lords Hansard Home Page |
Baroness Buscombe: My Lords, there is a serious reason why the Life Peerages Act 1958 is included. I am sorry; I had assumed that it was fairly obvious. We want to ensure that it is not possible for any senior Minister or Prime Minister to disapply an Act and so, in some way, interfere with the constitution of either House of Parliament. That it is included has nothing to do with anything external to your Lordships' House or another place. That is purely why it is included; I hope that the noble Baroness will understand.
Baroness Scotland of Asthal: My Lords, I hear what the noble Baroness says. However, I remind her that the Act itself simply provides Her Majesty with the right to issue life peerages, and that its protection would not protect those who sit as Members of your Lordships' House. It is the Writ of Summons issued by Her Majesty that enables such a person to sit as a Member of the House of Lords. Whether or not the statute was protected from amendment, Writs of Summons could be issued to enable their receivers to sit in the House of Lords. The nature of the Bill preserves the rights of Her Majesty to act in that manner. That is why the noble Baroness and others need not be overly anxious on the subject.
I reinforce what I said in the letter—it was referred to by the noble Viscount, Lord Goschen—about the necessity to protect the rights so dearly cherished by us all. The Government are at one with noble Lords who wish to see our constitutional arrangements supported and preserved. Nothing in the Bill does violence to that sentiment.
As I made clear on Report, the emergency powers exist to make temporary changes to the law where effective response is prohibited by insufficient powers. The Government cannot run amok altering legislation as we see fit. Any changes will be temporary and can be made only for the purposes of preventing, controlling or mitigating an aspect or effect of the emergency in question. They must be necessary, proportionate and compatible with the Human Rights Act, and will be scrutinised by Parliament.
The possibility of temporarily amending legislation of constitutional importance was examined in great detail by the Joint Committee that undertook
pre-legislative scrutiny of the Bill and during debates in both Houses. Discussions have also taken place at official level with the civil liberties groups. The Government share the concerns expressed that emergency powers should not be capable of making substantive amendments which undermine the constitutional arrangements of the United Kingdom. However, we are satisfied—we remain so—that the Bill cannot be used by this Government or any other government in that way, given the absence of any express power to do so. I understand the desire of the noble Earl, Lord Onslow, not to trust any government, perhaps particularly because of his experience with his own, but I shall say no more about that. The issues are protected.I want to move on to why the list approach is inappropriate.
Lord Elton: My Lords, before the noble Baroness moves on, can she clarify a deeply important point? Under Clause 22(3)(j), a Minister can,
- "disapply or modify an enactment or a provision made under or by virtue of an enactment".
Is she saying that that would lapse with the end of the emergency powers? In other words, is she saying that a Minister cannot break the tumbler so that it is irreparable when the order is revoked? I would be most grateful to hear the noble Baroness say, in terms and on record, that a disapplication or modification would be coterminous with the emergency.
Baroness Scotland of Asthal: My Lords, that is how it works. The emergency powers under the Bill enable a government to take those steps necessary to address an emergency. That is why we have the tight time frame. Noble Lords will remember our debates about seven days, 21 days, the importance of when the issues will lapse, the fact that we have to come back and get assent from Parliament, and that the powers last only so long. We have included those time limits. However, noble Lords will know that it will be open to Parliament on a number of occasions to shorten the time limits and to come back and have the powers disapplied. We have debated that at length.
The powers are there for the purpose of the emergency. Once the emergency goes, so do the powers inherent in the direction. Noble Lords will remember the clear comments made on Report about the utility of the provisions lasting for only so long as they were necessary. Opposition Peers commented that, although powers were taken on a number of occasions, they were not used. Some people prayed in aid September 11, where the substantive law, not the emergency powers, was used to deal with the situation.
We expect the ordinary laws of our country to be used if at all possible, unless and until we had an extreme situation, in which case the emergency powers would be available to address it. That is the whole thrust of the Bill. It is not to deal with the general situation, but to deal with a situation in extremis.
We cannot agree that including a list of "constitutional enactments" to be protected from amendment is the right way to achieve that shared aim. As the noble Lord, Lord Lester of Herne Hill, said, we have no written constitution and no universally agreed list of legislation which is "constitutionally important". All Acts of Parliament have the same status, and it is common for them to contain both very important provisions and very minor ones. Acts may deal with the fundamental rights of individuals or the building blocks of our constitution but contain provisions that are—I hesitate to say "banal"—certainly technical.
The Human Rights Act, for example, one of our most treasured Acts, contains provision both for the pensions of judges and the right to life. Although I pay every respect to the noble and learned Lords who sit on our Judicial Committee, I do not believe that any of us would say that those two issues have quite the same importance.
Lord Lester of Herne Hill: My Lords, this is an important issue, which may be listened to with great care by the House. Does the noble Baroness agree that the Government have commendably treated the Human Rights Act as no ordinary law and made provision to ensure that future legislation, as well as past legislation, must where possible be read and given effect compatibly—so that in effect it is treated as a special constitutional measure and safeguard, pace Dicey, who revolves in his grave as a result of that? Is that not the position?
Baroness Scotland of Asthal: My Lords, it is. Noble Lords will know that we debated long and hard whether the Human Rights Act should be given that special position. The argument could run that because the Human Rights Act has to be referred to on the face of every Bill, and because the provision is already there, we do not have to have the same provision reflected on the face of the Bill. We have come to the conclusion that, due to the very special nature of the Human Rights Act, we can make the exception.
As a consequence of the way in which legislation is made generally, there is room for legitimate disagreement about which enactments contain provisions of constitutional importance. We do not believe that it is possible to prepare an accurate list of enactments which should be protected. For example, some will argue that the devolution Acts are of great constitutional importance; those less sympathetic to devolution may not. There are arguments in favour of both interpretations. Those Acts alter the distribution of powers and the way parts of the country are run. On the other hand, they do not affect the sovereignty of Parliament or the fundamental rights of individuals.
It is important to bear in mind that, regardless of whether it is believed to be constitutionally important, no legislation is immune from change through the ordinary legislative process, as can be seen by the myriad amendments and repeals to enactments that have been highlighted for express protection. I need only mention the case of Magna Carta—popularly considered to be of the greatest constitutional importance, while in practice
the vast majority of it has been repealed and the protections that it still contains are better provided for in the Human Rights Act.I note that, following discussion of the Magna Carta on Report, it has been removed from the list of enactments that it is suggested should receive express protection. That highlights the point that keeping any such list up to date and accurate would be impractical, as the importance and content of legislation changes over time. Indeed, many of the enactments referred to in the debate have largely been amended or repealed and the protections once guaranteed in many Acts are now largely to be found elsewhere.
Any list of protected Acts would inevitably be an inaccurate attempt exhaustively to list all such constitutional enactments. But this amendment would be a problem. The danger of an incomplete list of constitutional enactments which cannot be amended is that the courts could conclude that it was an exhaustive list and that Parliament envisaged that constitutional enactments which were not specified could be amended by emergency regulations. The effect of the amendment would be that a court might conclude that the Scotland Act could be modified so as to suspend the Scottish Parliament, or that the Data Protection Act could be suspended. That is not our intention.
In other words, the amendment would weaken the safeguards in the Bill. As the Bill is currently drafted, emergency regulations could not be used to make a substantive amendment which undermined the constitutional fabric of the UK. But once Parliament begins to list enactments that cannot be amended, there is a real risk that a court will conclude that, notwithstanding the other provisions of the Bill, any enactment which is not on the list can be amended. That is not how we have run our law in this country. It is against our tradition to do it in such a way.
I should make it clear that it is because this Government love the freedoms of this country and the constitutional arrangements that we have made that we feel that they are important. I heard the noble Baroness, Lady Buscombe, say, "hunting". I am not hunting in this Bill for anything other than justice.
6.15 p.m.
| Next Section | Back to Table of Contents | Lords Hansard Home Page |