David Davis
Main Page: David Davis (Conservative - Haltemprice and Howden)Department Debates - View all David Davis's debates with the HM Treasury
Monday 23rd March 2020
(4 years ago)
Commons ChamberRead Full debate Coronavirus Act 2020 View all Coronavirus Act 2020 Debates Read Hansard Text Read Debate Ministerial Extracts Amendment Paper: Committee of the whole House Amendments as at 23 March 2020 - (23 Mar 2020)
Chris Bryant (Rhondda) (Lab)
I rise merely to refer to the issue of the timing and the length of the Bill. As Members will know, the Minister said in the previous debate that the Government were tabling a new clause that would allow the Bill to be on the statute book for two years but with an opportunity after six months to vote on whether the temporary measures in it should remain. I urge the Minister to look carefully at that new clause, because I think it is defective. New clause 19 states clearly:
“‘relevant temporary provision’” means any provision of this Act—
(a) which is not listed in section (2) (provisions not subject to expiry)”
I cannot find that section anywhere, so I do not think that the new clause works in law. I may be completely wrong—I may have missed something—and if so, I hope the Minister can enlighten me. I do not think there is any conspiracy here; it may just be that something has been missed.
Like the right hon. Member for Haltemprice and Howden (Mr Davis), my anxiety from the start has been that two years is a long time to have such draconian measures on the statute book and that to have them on the statute book without a moment when the House, rather than Ministers, can decide to switch individual measures on or off is quite problematic. The Government have already used the Public Health (Control of Disease) Act 1984 to table statutory instruments to close pubs, restaurants, casino, spas, gyms and so on. That secondary legislation still has to go through the House under the 1984 Act, and the Commons and the Lords have to vote in favour of it within 28 days of it being tabled.
Likewise, if the Government had gone down the route of the Civil Contingencies Act 2004, they would have needed to come back to Parliament every 30 days for each of the individual powers that they presented under that Act, and if the House chose not to allow those powers to remain, the Government would not be able to continue using them. In addition, the 2004 Act makes it clear that if Parliament is adjourned for more than four days, or even if it is prorogued, the Speaker and the monarch have to summon Parliament.
Mr David Davis (Haltemprice and Howden) (Con)
The hon. Gentleman may be coming to this, but there is one other element: putting this in primary legislation rather than secondary takes it out of the purview of the courts., so here we have one of the heaviest-duty Acts we have seen post war prevented from undergoing judicial review in the interests of citizens.
Chris Bryant
I agree, and I do not understand why the Government have gone in this direction. I have been told in several private meetings that it is because they believe that the Civil Contingencies Act 2004 can only be used when they do not know that something is coming down the line, but I think the definition of an “emergency” in section 19 of the 2004 Act would allow for every single thing that we are considering.
I tabled an amendment, and I must apologise to the hon. Member for The Wrekin (Mark Pritchard), because it is entirely my fault that, by accident, his name ended up on my amendment. I am terribly sorry. If the Government Whips want to beat anybody up, they should beat me up. There is a serious point here, which is that if the Government are going to take draconian powers and give themselves the power to switch them on and off, that should come back to Parliament more frequently even than is allowed for in the Government’s amendment.
Chris Bryant
Personally, I would prefer the time period to be shorter. I would prefer Government Ministers not to be switching powers on and off, because that will lead to them being more queried by the nation at large. I prefer something more like a three-month period when they have these powers, with regular review by the House, but I am not going to die in a ditch. There are no ditches here. I laud the Government for the movement that they have made, but they may still need to move some way further. It may be that they need to amend their own amendment when it goes to the House of Lords.
Mr David Davis (Haltemprice and Howden) (Con)
I rise to speak specifically to amendment 6, in my name and those of others, and to the Government amendment.
The Secretary of State himself said that the Bill has an astonishing range of powers: from forced quarantine to cancelling elections; and from allowing single doctors to section people to reducing parliamentary oversight of intelligence gathering. That is just a taster, but there is much, much more. The Opposition Health spokesman described it as having a draconian impact on many basic freedoms. As the hon. Member for Rhondda (Chris Bryant) has just said, many, if not all, of those powers are actually to be found in two pre-existing Acts. The Public Health (Control of Disease) Act 1984—the year 1984 is ironic—was designed for exactly the position we are in now: dealing with pandemics and epidemics. It was amended later, I think in 2008, to make it even more specific. The 1984 Act contains the vast majority of measures the Government need. As the hon. Gentleman said, it has been used already for the closure of pubs, restaurants and so on through secondary legislation.
The other Act is the Civil Contingencies Act 2004. As the hon. Gentleman said, the Government could have used that. The Government have argued, most recently last week at business questions, that this is the wrong sort of emergency—sort of like the wrong kind of snow—to fall under the remit of the Civil Contingencies Act. I have to tell the Government that they are plain wrong. I was here for the debates on the Civil Contingencies Act. I remember the arguments about what it would and would not apply to, and this is specifically the case. It is not just me. I am not a lawyer, but a number of public lawyers of my acquaintance think the Government are wrong. Most importantly—my right hon. Friend the Member for Sutton Coldfield (Mr Mitchell) alluded to this—we can call on an even greater authority. After business questions last week, I made a point of order to ask Mr Speaker if we could get the opinion of his counsel, Mr Daniel Greenberg. I will read the relevant paragraph to the House—it is only a couple of lines. He said:
“The 2004 Act (which I wrote), including the powers to make emergency provision under Part 2, is clearly capable of being applied to take measures in relation to coronavirus.”
The man who wrote the Act, the most authoritative source in this House, Mr Speaker’s Counsel, who is completely impartial, says that the Government are wrong, they could have used the Civil Contingencies Act.
Steve Brine (Winchester) (Con)
Further to my right hon. Friend’s point, when the pandemic influenza Bill was drafted—I spoke about it on Second Reading—it was agreed that if specific circumstances at the time meant the freestanding Bill, on which the Coronavirus Bill is based, was not able to be brought forward to the House, clauses could very easily be converted into regulations under part 2 of the Civil Contingencies Act. I remember those discussions very clearly from being in office at the time. My right hon. Friend has a point.
Mr Davis
I am glad to get my hon. Friend’s support. He has always been assiduous in these matters and he is right on that point. A reasonable person might say, “Well, the logical argument surely is that if all the powers are identical to ones that exist already, what am I complaining about?” That is a reasonable question. The reason is that the Bill loses many of the checks and balances in the preceding emergency legislation.
I was not quite here for the 1984 legislation, but I was for the later ones, and those of us who put these things through the House fought hard and long to get the proper restrictions on Government power and the proper requirements to bring the legislation back to the House so that the House could approve it. The requirements are all in there, including it having to be cleared in seven days, us having to be recalled in five days if we are in recess and it having to be done through secondary legislation, which makes it capable of judicial review. I know that the Government do not like judicial review, but nowhere is it more important than when the Government exercise powers at the expense of citizens and the courts have to step in.
As the hon. Member for Rhondda (Chris Bryant) said, the six-monthly review that the Government have conceded is an important concession, but only if the House can amend or strike out. Anything else puts the House in the position of having to vote for a Bill that might be horrific in one part because the other three parts are essential—not likeable, not pleasant, not beneficial, but essential—for fighting this real threat.
Do not get me wrong: coronavirus is a real threat. I have made these arguments over the years when the House has considered similar legislation relating to terrorism. We are facing 10 to 100 times the death rate in one year than the death rate from terrorism in 10 years. Of course there is a real threat, but we will be put in a position of saying either we take the whole Bill—three-quarters vital and one quarter horrible—or we strike down something that is vital for protecting the public. That is the position that this House has been in over the 30 years—I am looking straight at the Leader of the Opposition now, because he and I were in the same Lobby time and again—when counter-terrorism regulations were put through on a rubber stamp precisely to protect the public. That is why Labour Members—if they will forgive me for giving them advice—should be pressing for an amendable approval at six months.
Mr Steve Baker (Wycombe) (Con)
Will my right hon. Friend join me in calling on the Opposition also to adopt his amendment putting a sunset on this Bill of one year, not two?
Nick Thomas-Symonds
I am grateful to the right hon. Gentleman for giving way. I confirm that I said in the Second Reading wind-up—I confirm it again—that with the six-monthly votes at six, 12 and 18 months, which are already in the Government amendment, it would be helpful if the Government confirmed that those votable motions are also amendable. If they are amendable, it covers the point being made by the right hon. Gentleman that part of the legislation could then be switched off, but not all of it.
Mr Davis
I am now glad that I teased the hon. Gentleman, because it got something very useful on the record. If I may pick up on the point made by my hon. Friend the Member for Wycombe (Mr Baker), it is why I tabled amendment 6, which recognises that the Government need these new powers and that parliamentary counsel have created a 320-page Bill in what sounds like a matter of days—in truth, they did it in an astonishingly short amount of time. They have done it at a time, however, when scientific evidence is, to put it mildly, fragile and likely to change. It has changed already in the past two weeks and is likely to change again as different tests, different vaccines and so on become available. Scientific evidence will change. Economic analysis of future outcomes is unbelievably uncertain and the societal effects are completely unknown. The Bill is guaranteed to have flaws, even with the best draftsmen in the world.
Amendment 6 therefore proposes that instead of the sunset being two years, which anyway is too long, it would be one year. We invite the Government to write a new Bill in nine months. If they think the Bill is perfect in nine months, put it back again and we will put it through again, but this time, with three months for the House to consider it. Remember, the Civil Contingencies Act 2004 took a whole year to go through both Houses, so with three months we would have proper democratic approval of the process.
Liam Byrne (Birmingham, Hodge Hill) (Lab)
The right hon. Gentleman is making an excellent speech. There will, of course, be many things that we learn, not just things we need to take out of the Bill but critical measures that we need to put in, so flexible legislation will be essential as we go through the emergency and learn things.
Mr Davis
I agree. I think the Government have done a pretty good job so far in the face of unbelievably difficult judgments and decisions. The Americans talk about drinking from a fire hose, which is how every Minister in this Government must feel because of the information and problems arriving on their desk every day.
The right hon. Gentleman is right that there will be changes in the science and in the economics. We will also know, frankly, what worked and what did not work in the previous nine months. If we then allow Parliament three months to scrutinise it, we will get good, solid law that is well supported on both sides of the House. We will have the sort of debate we have had today, which has been one of the better debates I have heard in years because both sides are committed to the same cause.
Finally, I recommend that colleagues read the report on this Bill published at lunchtime today by the Delegated Powers and Regulatory Reform Committee of the House of Lords. That expert Committee considers our legislation and makes recommendations to the other House, and it is led by Lord Blencathra—those who have been here a long time may remember him as David Maclean, a tough, no-nonsense Security Minister at the Home Office. The Committee’s analysis is very clear and very straightforward, and it is not a libertarian fantasy. This is the conclusion, the last five lines of a five-page report:
“We anticipate that the House may well wish to press the Minister for an explanation about why the expiry date was not set at one year, thereby enabling the Government to exercise the powers needed in the immediate future while allowing a further bill to be introduced and subject to parliamentary scrutiny in slower time.”
A House of Lords Committee has arrived at exactly the same conclusion on this Bill as my amendment proposes.
Nick Thomas-Symonds
I rise to speak, ostensibly, to amendments 2 to 4 and new clause 4, in my name and in the names of my hon. and right hon. Friends.
This is certainly no criticism of the Public Bill Office, which has worked extraordinarily well under huge pressure, nor of Ministers or, indeed, of officials working under tremendous pressure, but in the past hour and a half, as the Opposition spokesperson, I have been presented with 60 pages covering 61 Government amendments, and there are also 27 Opposition amendments. It is clear that I will not be able to cover every single item in my remarks, but I will try to refer—[Interruption.] Not this early in the evening, but who knows? I will try to cover the amendments thematically, referring to them when it would be helpful to the House.
Amendments 2 to 4 relate to the Bill’s emergency powers, which I will deal with first because the right hon. Member for Haltemprice and Howden (Mr Davis) mentioned them and I want to make our position absolutely clear. New clause 4 would place a duty on the Government to support the basic means of living—food, water, clothing, income and housing—by employing all available statutory and prerogative powers.
Those two themes may be separate on the amendment paper, but they go hand in hand. The public health emergency and the restrictions on freedom must be accompanied by the strongest possible financial measures to ensure people still have the means to get by. I make it clear that I do not intend to divide the House on any of these amendments this evening, but I hope the Government will listen to my points.
The second world war emergency legislation required renewal every year, and the emergency coronavirus legislation in Ireland is subject to six-monthly renewal. We need safeguards. Often, the issue with this type of legislation, which is understandably done in haste, is not so much the intended consequences as the unintended consequences. That is important because there are vulnerable people across our society whose lives are going to change and who will need protection.
The Bill is subject to the European convention on human rights and does not exclude judicial review; there is no ouster clause in it. These are very important safeguards, and we need more. I welcome the Government’s concession on six-monthly review. I have listened carefully to a number of speeches, and I, like many others, would like it to have been even more frequent, but I accept that that is a reasonable compromise. There are some issues on which I would like reassurance from the Minister, though. First, it is clear that that is subject to a vote in both Houses, but the point made by the right hon. Member for Haltemprice and Howden is crucial: if it is simply an unamendable motion, the House is left with the choice of take it or leave it on everything. It could be that we think four fifths of the Bill is achieving its intended purpose and one fifth is not, but we would have to keep everything operational. If the Minister can confirm that the motion will be amendable, so we can make clear which bits we want to switch off, that would make a significant difference. Even if she gave that as a verbal assurance, it would be a step forward that might increase the degree of consensus across the House. I am not saying that everyone would be satisfied, but it would help us to move forward on the basis of consensus.
As I read the Government amendment, there is a carve-out in relation to devolved matters. Will the Minister make the position clear? If this House switched off powers, would they be automatically switched off for the devolved institutions; or if a power was switched on by the devolved institutions, would they then have the power to switch it off when they saw fit? In those parts of England without formal regional devolution, would it be it switched off automatically for those areas?
More widely, we have to ensure that the measures are temporary and that hard-won rights are not lost forever. In that respect, I want to focus on a number of groups in our society. First, amendments 68 to 71 deal with children with special educational needs and disabilities. I would like more reassurance from the Government. The Bill clearly removes disabled people’s rights to social care and support, and the duty to meet children’s educational requirements is changed to a reasonable endeavours duty. Many hon. and right hon. Members will have received expressions of concern about that. I thank the all-party group on this for raising it over the weekend.
Of course there is a need for flexibility. There will be a need to redeploy staff, and we all understand that, but reassurance is necessary. If we are removing the rights in the Children and Families Act 2014, for example, could consideration be given to the proposal in the amendments to change “reasonable endeavours” to “all practical steps” to ensure that our duty to some of our most vulnerable and youngest people is met?
There is also deep concern in the care sector, to which amendments 57 to 63 and new clause 29 apply. Most statutory duties relating to social care are being suspended under schedule 11. Local authorities will only have to provide services deemed necessary to prevent breaches of people’s human rights. That is clearly not the vision of social care that anyone in this House had in mind when the Care Act 2014 was passed. Of course, the Bill does not prevent local authorities from providing higher levels of care, but there is no longer any duty to carry out assessments or involve user input in care delivery, and local authorities will no longer have to assess the needs of carers. Those are sweeping changes that may reduce the level of support. Will the Government make it clear that they still expect care to be provided to the highest level possible in the circumstances, and that some sort of green light to cut back to the minimum is not provided for in the Bill? There are wider impacts. There are doctors, nurses, NHS staff and key workers who rely on social care for their family members. That new legal minimum level of support cannot become a default. We cannot have care packages automatically cut back to the minimum, and care levels should never be reduced too far or too fast.
Nick Thomas-Symonds
I am always grateful for updates on the rolling news, so I am grateful to the hon. Gentleman. This must be a rare example of a shadow Minister having called for something at the start of a debate and its having appeared before we have finished the debate. The Prime Minister is responsive on that if nothing else.
Even in this situation, proportionality and necessity still apply. It is clear that powers to detain potentially infectious people, including children in isolation facilities, will have to be implemented in a sensitive way. It is necessary to postpone elections, as set out in clause 57, but we still have to do all we can to maintain our democracy. I welcomed the Speaker’s statement setting out any moves we can make to vote in a different way and to operate in a far more digital and remote way than has been the case in the past.
Let me turn to new clause 4 and the issues it raises. Quite simply, if we are to ask people to sacrifice their freedom by staying at home and subjecting themselves to the measures set out by the hon. Member for Wycombe (Mr Baker), their basic means of living must be catered for as well. There are some specific measures in the Bill, but I commend to the Minister amendments 74 to 78, on lowering the threshold for eligibility for statutory sick pay, and new clauses 32 to 34, on the extension of statutory sick pay to the self-employed and its uprating.
Before I move on to some of the other economic measures, particularly in the Government’s new amendment, let me refer to new clause 35. A number of right hon. and hon. Members from all parties have raised the issue of access to personal protective equipment. New clause 35 sets out the importance of that to the Opposition by defining it as part of the Minister’s role to make sure that that equipment is provided to everybody who needs it. That is the imperative that the Opposition put on that, and I hope the Government will do all they can to ensure that not one person in this country does not have the personal protective equipment that they need to keep us all safe.
Mr David Davis
To carry on in the context of rolling news referred to by my hon. Friend the Member for Wycombe (Mr Baker), one thing that we need to provide is good healthcare. The new NICE guidelines have just been published. The new guideline on critical care states that all patients with confirmed covid-19 must be assessed on the basis of “frailty” when healthcare professionals are making decisions about whether to admit a patient in need to critical care. That is being interpreted by a large number of mental health organisations as potentially excluding people with learning disability and so on. Will the hon. Gentleman make the point, on behalf of the Opposition, that we need equality of access to healthcare, as well as equality of access to all the things he has talked about?
Nick Thomas-Symonds
I certainly would not disagree with the right hon. Gentleman on equality of access to healthcare—he is absolutely right about that. I am getting worried about how many points I have agreed with him on in this debate, but I certainly agree with him on that.
Penny Mordaunt
The hon. Gentleman might wish to say that some of the provisions cannot be applied. We do not wish to do that. The whole purpose of the Bill is that the bulk of the powers—apart from ones that are live at Royal Assent—are at the direction of either the devolved nations or the UK Government, to respond to a very dynamic situation. We do not wish to call on these powers. We only wish to use them in extreme cases. There are several that we think we will never use, particularly on food supply and so forth, but we need to allow that flexibility in what will be an incredibly unpredictable situation. The safeguards we have put in place will allow us to have that flexibility.
Mr David Davis
Let me give the Minister a straightforward, practical example. One element of the Bill allows the delay of the oversight of the Investigatory Powers Act 2016. That is the case because we have 15 commissioners, only one of whom is younger than 70—that is the reasoning behind it. Were the Government to do something sensible, such as appoint 15 deputy commissioners, all under 70, this would no longer be required. But we have seen the Government before resisting attempts to improve accountability, and we know that that they may want to keep it in, whereas we may want to take it out. This is a precise example, so why can we not do that?
Penny Mordaunt
In his earlier remarks, my right hon. Friend was talking about things that we might wish to do in a year’s time and so forth. I do not think any of those things are being ruled out, but we think that extensive work has been done on this Bill, which is looking only at powers we know need to be enshrined in primary legislation, not at other issues, many of which have been raised by colleagues. I do not think those very practical options are removed from us by supporting this Bill today.
I also wish to emphasise another point, because in this Bill the Government are legislating for areas of devolved competence. I should highlight that the devolved Administrations could have legislated to create their own powers through their own primary legislation. However, they have agreed, given the urgency of the situation, that the UK Government should do it on their behalf. This Bill consequently engages the legislative consent motion process for all the devolved legislatures. The amendment in the name of my right hon. Friend the Secretary of State for Health and Social Care requires the continued operation of certain key powers contained in the Bill to be reviewed every six months. Unless the UK Parliament consents to their continued operation, UK Ministers would be under an obligation to switch off the relevant powers by way of regulation.