Terrorism Prevention and Investigation Measures Bill

Debate between Lord Hunt of Kings Heath and Lord Goodhart

Wednesday 5th October 2011 Lords Chamber

[Lord Hunt of Kings Heath]

Why, then, my Lords, do the Government need a draft emergency Bill? It is because they consider that there may be circumstances in which the current Bill does not meet the security threat. My argument is that if the Government have to contemplate bringing in emergency legislation, it would be better to actually legislate for those provisions and allow Parliament its proper scrutiny rather than, at the time of an emergency or enhanced threat, seek to rush legislation through.

[Lord Goodhart]

Does the noble Lord accept that this deals with a particular problem, which is what is to be done during the period when Parliament does not exist? Surely special arrangements have to be made for dealing with that particular period of time.

[Lord Hunt of Kings Heath]

Then why on earth not put it into the Bill and allow the House to scrutinise and debate it thoroughly?

[Lord Goodhart]

This is something that is supposed to arise during the period when Parliament is dissolved. That is the problem. There is an interval of time, a month or perhaps six weeks, when no Parliament is in existence to deal with these notices. This is a perfectly legitimate provision meant to deal with that situation.

[Lord Hunt of Kings Heath]

My Lords, the noble Lord is a very good debater, particularly when he is defending a really impossible situation. The point is this. We have the Government saying, “Here is our Bill. We are so confident that it will meet the circumstances that we are also preparing an emergency Bill. However, we are not going to let Parliament have full scrutiny of that emergency Bill because we are not going to bring it before Parliament, but just in case we do need it because a threat has arisen during the period of the dissolution of Parliament and the first Queen’s Speech following a general election, we are going to provide in this Bill for the Home Secretary to be able to use it simply by executive diktat”.

We see here the confusion at the heart of the Government’s policy. The reality is that, in opposition, the parties opposite did not like control orders. They have come to power, had the advice and now realise that they need them but are stuck. They have produced the Bill as a way of proving that they are getting rid of control orders but they know that they will need the full panoply of the control regime so are going to have this emergency legislation as well.

A number of Select Committees have commented on the dangers of emergency legislation. First, it is bad constitutional practice. Secondly, the amount of information that will be given to Parliament in respect of an individual case will inevitably be very limited but might have an impact if those cases ever came to court. So this is not the right way to go.

There are of course a number of other features in the Bill and I will not detain the House. No doubt, we will come to the “alternative construct” of the noble Lord, Lord Macdonald, which has been heavily debated by the Joint Committee on Human Rights. We will have a great debate on that. I would be interested in the Minister’s response to the Joint Committee on what are called the Lord Macdonald amendments, in particular on whether the judiciary has been consulted and whether there is deemed to be a risk of replacing Executive decisions—where, ultimately, the Executive is accountable to Parliament—with judicial decisions. The general view of the judiciary on whether it wishes to be drawn into such decisions would be highly relevant.

I have just one other point. Control orders legislation was heavily criticised but it had to be renewed annually by Parliament. As a result of the changes made in the other place, this legislation will only come to be renewed once every five years. This matter is important. It enables extensive Executive powers to be used. Parliament ought to be able to come to a judgment on this on an annual basis.

I hope that the Minister will be prepared to listen to these arguments. Ultimately, this is a bad Bill producing a very fudged situation. I really sympathise with those in the security and police forces who will have to operate in such a difficult and uncertain environment. I hope that the scrutiny that this House will give to the Bill will bring from the Government a willingness to listen, consider and accept constructive amendments. The Bill needs an awful lot of work.

Public Bodies Bill [HL]

Debate between Lord Hunt of Kings Heath and Lord Goodhart

Wednesday 9th March 2011 Lords Chamber

[Lord Goodhart]

I should like to add a few words in my capacity as the previous chairman, and a member for several years before that, of the Delegated Powers Committee. A strong case has been presented for further action on this matter. The final sentences in paragraph 20 of the committee’s latest report state:

“Especially in the absence of a convincing explanation, it is not appropriate for an existing power to make subordinate legislation to be transferable to another, unidentified, body. This renders the powers in clause 5 in relation to these bodies especially inappropriate. The Committee draws the attention of the House to amendment 99A”.

Schedule 5 lists a group of bodies that are among the most important to be covered by the Bill. They include the British Waterways Board, the Equality and Human Rights Commission, the Competition Commission, the Human Fertilisation and Embryology Authority, the Human Tissue Authority, the national parks authorities, Ofcom and the Office of Fair Trading. All are organisations of considerable importance. There is a very strong case for the arguments presented by my noble friend Lady Thomas of Winchester, the noble and learned Lord, Lord Mayhew, and the noble Baroness, Lady Andrews. This matter needs further consideration and I hope that my noble friend the Minister will use the period before Report to have a serious look at it.

[Lord Hunt of Kings Heath]

My Lords, first, I echo my noble friend Lady Andrews in paying tribute to the stewardship of the noble Lord, Lord Taylor. Clearly, he has listened to the House and we have made a great advance. We very much appreciate the briefing sheets from his hard-working officials.

It is good that the noble Lord, Lord Goodhart, has joined in our debates. I do not know whether the Government think the same, but the point that he raised underpins the remarks of his noble friend Lady Thomas, the noble and learned Lord, Lord Mayhew, and my noble friend Lady Andrews. They made pertinent remarks about how the powers in the Bill should be exercised. The noble Lord, Lord Taylor, and his noble friend Lord Henley have given us eminently reasonable explanations as to how Ministers intend to use the powers. The problem is that future Ministers may take a different approach. The noble Lord, Lord Walton, put forward the good example of the HFEA and the HTA.

We are looking for ways to build further reassurances into the Bill. We will have a later debate on what the noble Lord calls the enhanced scrutiny of orders and on my amendment proposing a super-affirmative procedure. That is one approach, but we should also pursue the suggestion of both the noble Baroness, Lady Thomas, and the noble and learned Lord, Lord Mayhew. I am glad to hear that work is in progress on Clause 8. The noble Lord said that he could not give any guarantees, but I encourage him in that direction.

I am glad that the noble Lord also said that reviews of these bodies will take place in future. We on the opposition Benches support that. It is right that these bodies and their functions should be kept under regular review. I was also glad to hear that accountability, reporting and FOI responsibilities will continue if the functions are transferred. However, does that apply only if they are transferred to a public body? What would happen in the case of Consumer Focus, whose functions will be transferred to Citizens Advice? What about the British Waterways Board when it transforms itself into a charity? What will happen to the accountability, reporting and FOI requirements?

I take the noble Lord’s point about the sparing use of data sharing that is likely to occur under any order arising from the Bill. However, I issue a caution that past experience suggests that this issue is very complex and will demand the careful use of orders. The noble Lord may want to write to me on the issue of non-public bodies in relation to FOI and accountability functions. In the mean time, I am glad that work is in progress.

Public Bodies Bill [HL]

Debate between Lord Hunt of Kings Heath and Lord Goodhart

Wednesday 9th March 2011 Lords Chamber

[Lord Goodhart]

My Lords, I have Amendment 125A in this group. I originally planned to de-group it, because it is different in its purpose from the others. However, in view of the lateness of the hour, and if the Minister agrees, I shall deal with it now and get it over with.

It is clear that this Bill is meant for use in the near future and not in the longer term. It cannot be right for it to create powers which might be exercised several years from now in circumstances which are entirely different from those of the present. This makes it desirable that a time limit be put on the operation of the Bill in the nature of a sunset clause. There should be a reasonable time for the Government to enact their legislation under this Bill. I have suggested in my amendment that the sun should set on the Bill when the present Parliament is dissolved; that is, in a little over four years if we adopt the Fixed-term Parliaments Bill.

That seems to be a reasonable time in which to do everything that is needed here. There is absolutely no need for the provisions of the Public Bodies Act, as it will then be, to continue after the duration of the present Parliament.

[Lord Hunt of Kings Heath]

My Lords, I shall speak to a number of the amendments in this group. The amendment of the noble Lord, Lord Newton, has indeed acted as a beacon, such a beacon that we all want to join in and follow him. I very much support the intent behind it.

In many ways, this is a very important group of amendments, because they go back to the question of the architecture, as we have come to call it, of the Bill. I repeat that the Opposition are not opposed to a regular review of public bodies—it is right that they should be subject to review. Our concern all along has been that the Bill should not give such overweening power to Ministers without sufficient parliamentary scrutiny.

We have had a number of debates about the architecture of the Bill during our days in Committee. I acknowledge the progress that has been made through amendments and responses from the Government. The removal of Clause 11, Schedule 7 and those clauses relating to forestry are particularly welcome. We have also discussed Clause 8, concerning the matters to be considered by Ministers. The Minister has already said that this is a matter in progress and that he cannot give a commitment, but it is none the less encouraging that he and his officials are discussing the wording of Clause 8. I hope that he will be able to bring some comfort to us when we come back on Report.

Nevertheless, the Bill could still be further improved, first, by enhancing the consultation procedures and then by making order-making procedures in Parliament subject to extra scrutiny. My Amendment 114A to the Minister’s Amendment 114 seeks to ensure that the public would always be consulted if the Minister proposed to make an order under Clauses 1 to 6. I accept that the Minister’s amendment is welcome and extensive. I also accept that in new subsection (1)(g) of the proposed new clause the Minister is given power to consult the public, since it states,

“such other persons as the Minister considers appropriate”.

That is a phrase beloved of parliamentary counsel and officials. I should like to encourage him to go a little further. In the context of this Bill, the provision gives a little too much discretion to Ministers to decide who else they want to consult. The bodies in this Bill are all important and deal with important functions. I believe that there should be no question that if an order is made under this Bill there should automatically be public consultation.

I also believe—this relates to my Amendments 118A and 118B—that the order-making procedure to be used in Parliament should be thorough. I welcome Amendment 118 in the name of the noble Lord, Lord Taylor. The question is whether it is sufficient. On this we have the advice of the Delegated Powers and Regulatory Reform Committee, which certainly did not think so in its report in November 2010 when the Bill was originally published. On 7 March, we had a further report from the committee. It welcomed the noble Lord’s amendment, which it sees as a further enhancement, but it reminds us that there are still two key differences between the Government’s proposed enhanced procedure and what was in the Legislative and Regulatory Reform Act 2006, which introduced the super-affirmative procedure. The committee says that, under the 2006 Act,

“if a committee of either House recommends that no further proceedings be taken on a draft order, then any further proceedings are automatically stopped unless and until the recommendation is rejected by that House itself (commonly called the ‘veto’)”.

The committee reminds us that, under the 2006 Act,

“a Minister wishing to proceed with an order unaltered after having been required to have regard to representations must lay a statement before Parliament giving details of any representations received”.

The committee points out that such a statement is not required under this Bill or under the amendment in the name of the noble Lord, Lord Taylor. I say to the noble Lord that I welcome the enhanced scrutiny that he is proposing but I do not think that it goes far enough given the order of power that is given to Ministers.

I, of course, listened with great interest to the argument from the noble Lord, Lord Goodhart, for his sunset clause amendment. We support the principle of the sunset clause. The only question that I would put to him—it would be interesting to have further discussions between now and Report—is whether there is not an argument for keeping the Act, which would allow the Government perhaps at the start of every parliamentary term to undertake a further review, but for time-limiting the provisions in relation to an organisation named.

My main concern about the construct of this Bill is the chilling factor on any organisation so named. I think that it would be possible to have a recasting of the noble Lord’s amendment to make it clear to an individual organisation that, unless a Government deal with a matter within a certain time, it falls. However, there is a case for the Government being able to undertake a regular review. It might be that we should keep the provisions of this Bill but limit the time under which an individual organisation can be covered by it.

[Lord Goodhart]

I am certainly interested in what the noble Lord, Lord Hunt, has said. It is something that I would obviously consider and I would be happy to discuss it with him or the Minister at some time between now and Report.

[Lord Hunt of Kings Heath]

My Lords, I am most grateful to the noble Lord, Lord Goodhart, and I very much look forward to doing that.

My Amendment 176A deals with omnibus orders. The concern here is that a whole group of bodies could be dealt with under one order, which could mean that much less scrutiny would take place. It is interesting that the Government had an amendment—Amendment 126—to prevent omnibus orders in relation to the bodies listed in Schedule 7. Clearly, that falls, because we are no longer to have Schedule 7. However, if the Government thought that it was reasonable not to use omnibus orders in relation to that schedule, does not the principle arise with the bodies listed in Schedules 1 to 6?

Finally, Amendment 177 is a probing amendment. It relates to hybridity and to Clause 27(4), which states:

“If the draft of an instrument containing an order under this Act … would, apart from this section, be a hybrid instrument for the purposes of the standing orders of either House of Parliament, it is to proceed in that House as if it were not such an instrument”.

Can the Minister give an explanation of that? Perhaps, if it is extensive, he might care to write to me.