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The Earl of Onslow: My Lords, there is one other precedent from about 1688 to 1956. The Army Act used to be renewed every year because in those days we were frightened of standing armies. There is no excuse for saying that there is no time for Parliament to legislate.
My noble friend Lord Elton made the point that if something goes wrong the Government can correct it and if it goes wrong and the Government have not noticed it then Parliament can correct it. This is such serious legislation, especially with the powers to repeal and re-enact legislation, that a sunset clause of some sort on the face of the Bill is essential.
6.45 p.m.
Baroness Scotland of Asthal: My Lords, in answer to the point of the noble Lord, Lord Avebury, he is correct in relation to Amendment No. 19 to the extent that Amendment No. 19 provides a sunset clause for Part 2 of the Bill. Clause 34(2A) provides for Part 2 to come into force by order of a Minister of the Crown, and reflects what is currently provided for in the Bill. Clause 34(2B) ensures that part of the Bill ceases to have effect three years following commencement unless both Houses of Parliament agree to its extension.
So one has the uncomfortable position on this amendment that unless both Houses agreed to the extension—one assumes unamended—the Bill would fall and we would have to re-argue which provisions, if any, were to apply. I have taken it that that was the intent of the amendment.
Clause 34(2C) has the effect of ensuring that, following agreement, any order to extend the provisions of Part 2 of the Bill can be only for a maximum period of three years each time. So there is, in effect, an opportunity—
Lord Elton: My Lords, did the Minister refer to Clause 34(2)(b), which is about the provisions of the Act coming into force in accordance with provision made by Scottish Ministers by order, or is she referring to some other provision?
Baroness Scotland of Asthal: My Lords, I refer to the way in which Amendment No. 19 seeks to deal with the matter. I am dealing with the amendment of the noble Baroness, Lady Buscombe, and the impact it seeks to have on the way in which this Bill would operate. So, to that extent the noble Lord, Lord Avebury, is correct in terms of the impact that that amendment could have in relation to it.
Amendments Nos. 18 and 20 are consequential. The Government cannot support the amendments. We shall resist their inclusion.
Of course I hear what the noble Lord, Lord Avebury, says in relation to the new construct. However, one has to make a clear choice at this stage because it is important to appreciate the significant differences between the Terrorism Act and this legislation. We do not think that legislation is an appropriate model for the Bill. Your Lordships will know that the differences between Part 2 of the Bill and the Terrorism Act is that things will be done as you speak and need to be reviewed. If you compare that to Part 2 of this Bill, we would hope that it would remain unused on the statute book for years to come, unless and until an emergency arose and regulations had to be made.
One would then have to ask what the review team would be reviewing because the review would merely be a re-run of the arguments in the course of the Bill's passage. Your Lordships will remember that under the old Act a period of 29 years went by without the legislation ever being used at all. So it is a very different situation from the Terrorism Act where what the noble Lord is being asked to review is very much alive, very much in use and happening immediately. The House is right to seek to have it reviewed, but that is a very different situation.
Lord Avebury: My Lords, I was contending that the review should cover unforeseen emergencies which might have arisen since the Act came into force and which would require some change in the scope of the emergency regulations or even in the definitions at the beginning of Part 2. But if such a thing did not materialise, then, as with the report that I referred to written by my noble friend Lord Carlile on the workings of the Terrorism Act 2000 in April 2004, it would be a nil return. He would say that the Act is working satisfactorily and he has nothing to report, and then there would be no need to take up the time of Parliament.
Baroness Scotland of Asthal: My Lords, I understand the way that the noble Lord puts it. The reason that we say that it will not apply in that way is that the whole purpose behind the Bill's construction is to allow the House and Parliament to debate the regulations that would apply in any given situation. Very unusually, the House and Parliament have an opportunity to amend regulations. Your Lordships will know that usually, under the affirmative resolution procedure, we either accept or reject and there is no opportunity for us to amend. It is therefore a bit of a curate's egg: you either take it all or reject it all. Because of the particular, fast-moving nature of these regulations and because we will have to adapt them, we have provided that opportunity to amend in Parliament.
While we are discussing commencement and sunsetting, I inform the House that we intend to commence Part 2 immediately following Royal Assent. That is because we recognise the inadequacies of existing legislation, which represent a weakness in our capability to respond to the most serious emergencies that should not be allowed to continue any longer than necessary. We think that the convention of allowing two months to pass between
Royal Assent and commencement is unnecessary because Part 2 is purely a mechanism for making legislation that will affect no one simply by its being commenced. That decision is based purely on the need to fill the gap in our capabilities.Sunsetting legislation is appropriate where the powers that it contains are expected no longer to be needed after a certain period, after which their use should be reviewed by Parliament. As I have said before, the Bill does not meet those criteria. The issue in this case is not timekeeping. I think that the noble Baroness, Lady Buscombe, accepts that. No one believes that emergencies will stop happening in three years' time. I understand her point, but we would say that that is when sunsetting is appropriate.
Sunsetting is justifiable when legislation is enacted to deal with short-term issues or where the exercise of powers conferred by the Act will not be subject to further parliamentary scrutiny, as in the case of the Anti-terrorism, Crime and Security Act 2001, but not in the case of the Bill. The purpose of an annual or, as has been suggested, triennial, review is that, given the nature of the powers, Parliament should assess whether it is appropriate for them to continue to exist in the light of how they have been exercised. I understand that we do not agree on that. The Civil Contingencies Bill does not fall into that category of legislation; it is a long-term mechanism, as I have said many times.
I was of course interested to hear how the noble Lord, Lord Avebury, put it. This is a clear case of where we must see what helpful things we can do. This House and the other place always have an opportunity to propose a debate or call for papers and your Lordships will know that we have always responded and the House has always make provision for proper debate, scrutiny and discussion. I am confident that if those matters continue to cause concern, that will happen. Indeed, knowing how this House has worked in the past five years, I am confident that if we exercised the powers under the Bill, the House would do that.
That is a perfectly proper way for Parliament to scrutinise: first, to scrutinise the regulations in detail and to amend them when necessary; but, secondly, if the House feels it appropriate, to call for a report or debate. That is perfectly possible within our current rules. Therefore, we do not think that the provision adds significantly; it is unnecessary. As I have said several times, we hope that the powers will never have to be used; they are there just in case, as a safety net to be used in extremis. That is why I am unable to accede to the urging of the noble Baroness on the sunsetting clause.
Baroness Buscombe: My Lords, I am very disappointed by the Minister's response. I have tried to tell the noble Baroness, Lady Scotland, that we are here trying to insert an important safeguard. Sensibly, we believe, we are considering only a review of Part 2 emergency powers. We have opted for a modest, triennial review. I am grateful to my noble friend
Lord Elton for his confirmation that we seek a review that might take up two hours of debate in your Lordships' House which, let us face it, is hardly a great deal of parliamentary time, compared to the time given to other Bills, such as the Hunting Bill.We are trying to find a way to have the opportunity to review extraordinarily wide powers if something is going badly wrong. These are extraordinarily wide powers. We want the opportunity, if necessary—and only if necessary—to put right anything that is wrong in the Bill. Yes, in that case, we would be debating amendments, which we believe is a sensible option, given these extraordinary powers. We appreciate that the legislation may be unused for years to come. I hope that the noble Baroness is right. If that is the case, great, but let us have the safeguard.
If nothing is going wrong, all that we are asking for is, once every three years, a two-hour debate or something similar, to be sure that we all remain content that this is the right legislation to have in place to protect our nation. I believe that we are right to push for this and I beg to test the opinion of the House.
6.56 p.m.
On Question, Whether the said amendment (No. 18) shall be agreed to?
Their Lordships divided: Contents, 162; Not-Contents, 126.
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