Coronavirus Bill

Lord Newby Excerpts

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Wednesday 25th March 2020 Lords Chamber

Moved by

[Lord Newby]

7: Clause 89, page 58, line 21, leave out “2 years” and insert “3 months”

[Lord Newby (LD)]

My Lords, the Bill introduces across a whole range of public policy areas significant powers, some of them quite draconian. The noble Lord just said that the proposal in respect of abortion was unacceptable because it would have made a fundamental change. The truth is that we are making fundamental changes across the board. The proposed changes on mental health are, in my view, at least as fundamental as that on abortion proposed by the noble Baroness. Although the Minister might have reasons for not wanting to make that change, he cannot pray in aid that it was a fundamental change. This is happening across the whole of what we are doing and, frankly, that was not his best moment.

Because the changes being made in the Bill are so powerful, we believe that they need to be in place for as short a period as possible and that they need regular and effective review and renewal. Therefore, the amendments in my name raise two related issues. The first is how often that review should happen. Obviously, we welcome the fact that the Government have moved from a position where there was to be no review for two years to one where there will be a review after six months. However, we believe that the period should be shorter. The Civil Contingencies Act has a renewal date of 30 days. Some of the measures in the Bill could probably have been exercised under that Act and they would have been subject to that 30 days. We are not going as far as that, but the end of September is simply too late for Parliament to have its first chance formally to decide whether this very wide-ranging legislation should continue.

As to the form, we have several concerns. As the Bill stands, there is no role whatever for your Lordships’ House in respect of the legislation’s continuation and renewal. That is certainly unprecedented and completely unacceptable. The normal way of dealing with legislation that is time-limited and needs renewal is via the statutory instrument route, which obviously applies to both Houses equally. That was the case with the Anti-terrorism, Crime and Security Act 2001, the Prevention of Terrorism Act 2005 and the Terrorism Act 2006. The House of Lords and the House of Commons had exactly the same powers and they worked perfectly well. Your Lordships’ House is an extremely responsible body.

An exception to the principle of the two Houses having the same powers in respect of legislation was the EU withdrawal Bill—subsequently the EU withdrawal Act. It was agreed that, although there would be a meaningful vote in the House of Commons, there would be a meaningless vote in the House of Lords. That was on the basis of the circumstances being exceptional, as we were following the democratic mandate of a referendum. I opposed it at the time on the basis that it set a doleful precedent, but that view did not prevail.

Now, a second set of exceptional circumstances is being brought before your Lordships’ House in a very short period. I believe that the more often we see exceptional circumstances occurring, the less acceptable it is, if your Lordships’ House is to perform the function that it has done until now in respect of the renewal of legislation. We therefore propose that the former precedent of renewing a Bill by statutory instrument should be followed in this case.

However, in Amendment 12 we also suggest an alternative method of achieving the same involvement of your Lordships’ House by proposing that it mirrors what is proposed in the Commons. Personally, I would prefer us to go back to the traditional SI route but, in a spirit of generosity, if the Government would prefer to do it the other way, we are, reluctantly, prepared to accept that.

The other amendments in this group have been tabled by the noble Lord, Lord Anderson, and the noble and learned Lord, Lord Falconer of Thoroton. They have our full support, and no doubt they will be spoken to more eloquently than I could, so I will not attempt that.

I would like to ask the Minister about a practical point, which I hope he will be able to accept. At Second Reading yesterday, my noble friend Lady Barker suggested that the Government should produce a grid to explain which clauses of the Bill have been implemented, and exactly how. That is a very good idea and I hope the Government can accept it, but could they go slightly further by having, as part of that grid, a list of all the other provisions introduced to deal with the coronavirus, but not necessarily under this Bill? I cite, for example, the power to close restaurants and all other places where people congregate, which was introduced under the Public Health (Control of Disease) Act 1984. That would be helpful not only for specialists, as it were, like us, but for those who want to find and then look at the legislative basis for decisions. For others, who just want to see where a particular provision that might affect them comes from, if the Government have a single source saying, “Here’s the whole raft of provisions that have been made and this is exactly where you can find them”, that would be extremely helpful for public information. Obviously, I hope the Government will agree to our more substantive amendments but, at the very least, I hope they can do this. I beg to move.

[Lord Anderson of Ipswich (CB)]

.My Lords, I support Amendments 11 and 12, which I think means that I support the idea of six-monthly reviews with debates in both the Commons and in the Lords. However, I rise to speak in particular to Amendment 10, tabled in my name. Regardless of how often the reviews take place or precisely who conducts them, surely one needs a degree of information from the Government. Clause 97 provides for that, but in an absolutely minimalist form. As I read it, all that is required is that the Government should explain which provisions have been switched on or switched off in the previous two-month period and that they should certify that they are content with the switching on and the switching off.

I have two points to make. The first concerns effective review in Parliament. As I said yesterday, my experience of reviewing exceptional counterterrorism powers suggests that one really needs at least some basic information from government on how the powers are being applied and how effective they are judged to be. There is also a point for the Government in this. Reports of this kind will provide them with an excellent opportunity to communicate to Parliament and to the wider public what they have done, why they have done what they have done, whether they believe that the measures are having some effect on the disease and, if so, why. I was encouraged to hear the Minister say yesterday in introducing the Bill that the Government would update Parliament regularly on how these powers have been used across the UK, but I suggest that that does not go far enough. In the Bill as written, things are not provided which go even that far.

My Amendment 10 is very modest, and deliberately so. I have sought not to invite the riposte that I am requiring some new power to collate or put forward statistics or that I would overburden an already burdened Civil Service. The Government will of course make their own assessments of whether these powers should be switched on or off and how effective they are. All I ask is that that assessment should be shared with Parliament in an appropriate way. It is a document that the Government will control, so it is very much up to them to decide in what form that communication should be made. If the amendment cannot be accepted, I ask the Minister at the very least to give an undertaking today that these reports will provide information about how the powers have been used across the United Kingdom, what measures may have been necessary to ensure compliance, and whether and why the various powers have been judged effective.

I have saved perhaps my best point until the end. Yesterday, the Minister raised by proxy the comments of my noble and learned friend Lord Judge, who sits beside me in spirit, if not physically. He contacted me this morning and has authorised me to say that if he had disregarded his own advice not to attend today, he would have supported my amendment. If I have not persuaded the Minister, I hope that the spirit of my noble and learned friend will have done so.

--- Later in debate ---

I hope that these remarks are helpful. None of us wants to see the wrong balance struck between the powers conferred on government and Ministers’ accountability to Parliament. However, we believe that the balance struck in the Bill is the right one, with the safeguards that we need to bring it about. I therefore urge noble Lords not to press the amendments.

[Lord Newby]

My Lords, I thank the Minister for his assurances about the website and the comprehensive information that it will contain. That is extremely helpful. On behalf of the noble Lord, Lord Anderson, let me say how grateful both he and I are for that half-assurance, which we think is more than half an assurance, on the justification that the Government are about to give on a two-monthly basis.

On the amendment in the name of the noble and learned Lord, Lord Falconer, I loved the Sir Humphrey argument that it could not be changed because everybody had agreed what was in it. Well, they agreed what was in it; no doubt the Scots and the Welsh did not, with the following breath, say, “But don’t you dare suggest that parts of it can be disapplied, or give the Commons such a vote.” It was an argument, but I am not sure that I found it completely convincing.

On the amendments that we put forward, the fact that there is an SI provision for the end of the two years only makes the case for having an SI provision after six months. The Minister did not seek at any point to explain why the Lords should be treated differently from the Commons. I see that the concern in the Commons was to get a better position from the Commons; our position is to make our arguments. I am afraid that I am not convinced by those arguments but, equally, I realise that this is not the point at which we should test the opinion of the House. I therefore beg leave to withdraw the amendment.

Amendment 7 withdrawn.