Clause 7 - Urgency

Civil Contingencies Bill – in a Public Bill Committee at 4:15 pm on 29th January 2004.

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Photo of Patrick Mercer Patrick Mercer Conservative, Newark 4:15 pm, 29th January 2004

I beg to move amendment No. 19, in

clause 7, page 7, line 12, leave out 'thinks' and insert

'genuinely believes on reasonable grounds'.

Photo of John Butterfill John Butterfill Conservative, Bournemouth West

With this it will be convenient to discuss the following amendments: No. 26, in

clause 8, page 7, line 35, leave out 'think' and insert

'genuinely believe on reasonable grounds'.

No. 38, in

clause 21, page 13, line 37, leave out 'thinks' and insert 'believes on reasonable grounds'.

No. 39, in

clause 21, page 13, line 39, leave out 'thinks' and insert 'believes on reasonable grounds'.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

I hope that I can deal with the amendments quickly, much to everyone's relief.

This is a simple point. The Bill revolves around the most serious style of emergency that the country is likely to face. I fully understand that, by definition, emergencies are unlikely to be clear, but events will move quickly and reports will be confusing, I believe that we need a stronger phraseology to ensure that the emergency powers do not appear to be imposed on a whim.

That is why I believe that the phrase ''believes on reasonable grounds'' should replace ''thinks''. It would suggest that Ministers who are responsible for imposing the powers have had the difficulties explained to them to the best of their knowledge and understanding and that their decision is made after a balanced and due process of thought and discussion. The word ''think'' suggests uncertainty and that Ministers may react viscerally rather than in a balanced fashion. That is why I believe that it is inadequate and that a stronger phrase should be used, namely ''believes on reasonable grounds''.

Photo of Mr Richard Allan Mr Richard Allan Shadow Spokesperson for the Cabinet Office, Cabinet Office, Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Trade and Industry)

I am glad to have the opportunity to debate the urgency provisions, and I thank the hon. Member for Newark for his introduction because there is an important test to consider.

We seem to have tiered provisions throughout this part of the Bill. Ordinary regulations may be made under clause 2, and clause 5 provides for orders. Then, if the Government cannot use those, they can fall back

on the urgency provisions in clause 7. They would be the least desirable from the point of view of anyone who had to respond to an emergency, as it is clearly better for things to be done in an orderly fashion.

It is important to test the threshold at which we invoke the urgency provisions. The phrase ''thinks'' appears to be a lower threshold than what has been sensibly proposed by the hon. Member for Newark, which could be tested more robustly. That is the safeguard that we are looking for. We do not want the urgency provisions to kick in unless the situation is genuinely urgent, so the threshold over which the Minister must leap is relevant.

I hope that the Minister can put some flesh on the bones of the phrasing and explain the circumstances that would satisfy what is required by his wording and allow the urgency provisions to be triggered. I believe that there will be a lot of interest outside the House in things being done in an orderly fashion through the normal regulation and order-making process, rather than the last resort process in clause 7.

Photo of Douglas Alexander Douglas Alexander Minister of State (Cabinet Office) and Chancellor of the Duchy of Lancaster 4:30 pm, 29th January 2004

I fully understand the hon. Gentleman's concern that Ministers should use the powers of direction under part 1 of the Bill, and the powers to make emergency regulations under part 2, in a reasonable fashion. I entirely agree with what the amendments are designed to achieve, but I must reject them, for reasons that I shall set out.

Amendment No. 19–amendment No. 26 in the case of Scotland–proposes a requirement that a Minister

''genuinely believes on reasonable grounds''

that there is an urgent need for directions. However, it is unnecessary expressly to require a Minister of the Crown or Scottish Ministers to act ''reasonably'', because it is a tenet of public law in this country that Ministers are bound to act reasonably. Furthermore, expressly to require that in this context could be dangerous. A court considering this legislation and another enactment that did not expressly require a Minister to act reasonably might legitimately infer that Parliament had intended to allow the Minister to act unreasonably.

I can understand why hon. Members think that emergency powers are a special case and that it is therefore appropriate to be as full and forthcoming in the Bill as possible, even if the provisions are strictly unnecessary. The Government accept that part 2 of the Bill will need to be used only in extremis and that there is merit in drafting this part of the Bill as transparently as possible, but if including unnecessary material in the Bill would potentially cast doubt on the interpretation of other enactments, it would not be appropriate to include it. That principle holds good for part 2, notwithstanding the nature of the Bill. Even an enactment such as the Human Rights Act 1998 does not at any stage expressly require a Minister to act reasonably. That explains the Government's position and why we reject the amendments.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

I am grateful to the Minister and to the hon. Member for Sheffield, Hallam. The point has

been explained clearly, and I am content to beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

I beg to move amendment No. 21, in

clause 7, page 7, line 19, leave out

'may be written or oral'

and insert 'shall be written'.

Photo of John Butterfill John Butterfill Conservative, Bournemouth West

With this we may discuss the following amendments: No. 24, in

clause 7, page 7, line 29, leave out subsection (5).

No. 28, in

clause 8, page 8, line 1, leave out

'may be written or oral'

and insert 'shall be written'.

No. 31, in

clause 8, page 8, line 11, leave out subsection (5).

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

Again, this group of amendments deals with a not dissimilar point to the one that we made under the previous group. I fully understand that, in the event of an emergency, circumstances will always be difficult to judge. What concerns me is the fact that, by allowing a Minister or Ministers merely to give an oral instruction down the telephone, swingeing powers may be introduced without the proper course of thought having been gone through.

British Telecom gave me a note that reflects clearly on that point. It states:

''We believe that the ability to make oral directions where an emergency has not been declared is not warranted. If it is determined that speed is of the essence in establishing important requirements in such circumstances, then a written Notice under the hand of the relevant Minister should be issued to the relevant body or person. Oral directions are open to interpretation and abuse and it is difficult to envisage when oral direction would be necessary in a non emergency situation where speed of reaction cannot be that critical.''

The note makes a sensible point, but I go further. According to all the principles of emergency planning in which I have ever been involved, there comes a point at which the word of the Minister, the officer or the incident commander simply must be backed up by something stronger. To delve back into history, there was an incident during the second world war when the German commander of the bridge at Remagen failed to give correct written orders. He gave only oral orders for the bridge to be blown up. As a result, the orders were misinterpreted; the bridge was not blown up. Fortunately for the British and indeed, the American and Allied cause, the bridge at Remagen was taken and the wall was considerably shortened. From the Nazis' point of view that was a most unfortunate incident. It has led, as no doubt other hon. Members will be able to tell us, to situations in the armed forces where crucial decisions have to be backed up in writing, although the executive order may be given orally. That applied in the British armed forces particularly where a bridge was to be blown up: a written order had to be given and an oral order was simply not good enough.

As a victim of my past experience I take issue with the idea that a Minister can impose such orders by word of mouth. I believe that it is as simple as that; an

oral order needs to be backed up by a written order. Perhaps in subsection (3) ''written or oral'' should be struck out and the phrase, ''shall be written'' inserted so that there can be no misunderstanding in these most serious of circumstances.

Photo of Mr Richard Allan Mr Richard Allan Shadow Spokesperson for the Cabinet Office, Cabinet Office, Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Trade and Industry)

Again, the hon. Gentleman does us a favour by picking up on the issue. The ability to give oral orders worried one of my colleagues to whom I spoke about the Bill, particularly in the context of part 1. Part 2 deals with what happens when an emergency has occurred. It is about Ministers perhaps having to take exceptional powers in those circumstances. Part 1 is about planning for emergencies. It is hard in that context to understand when there would be a requirement or necessity to give oral instructions under the terms of clause 7, which relates to an emergency situation in which written orders could not be prepared on issue.

The grounds for confusion if oral instructions were given are apparent from the draft regulations. Are the instructions under clauses 2(3), 4(2) or 6(1) parallel to the incredibly complex draft regulations? They do not relate to orders that can be easily given down the telephone. It is not a question of picking up the phone and saying, ''You must do this.'' The only one that could sensibly be given in an oral form is draft regulation 13 in respect of compulsory plans, which has a blank space. It says, ''You must have a plan about–''. I can foresee circumstances in which a threat of a particular nature appears and a Minister might want to ring everyone up and say, ''You must have a plan about–'', but that is almost the only draft regulation that would fall within that category.

The other powers that concern us are in clause 4 and deal with business continuity. I fail to see the circumstances in which we could sensibly give a business continuity instruction or why business continuity would be such a priority that an instruction would have to be given in oral form. We must be clear that we are trying to limit the powers to do things exceptionally to exceptional circumstances where appropriate. Giving oral instructions is clearly exceptional. It will be much harder to establish the chain of accountability if anything goes wrong when instructions have been given. If someone wishes to challenge the instructions at a later date, which is perfectly possible under the Bill, it will be much more difficult with oral instructions. The idea that we are giving Ministers the power to make urgent oral instructions in relation to business continuity seems bizarre.

The other thing that I am not sure is necessary are the provisions in clause 6 relating to the disclosure of information. That might present a stronger case in that we may want to say to one category of people that they must share information with another, but I do not understand how that would be done for directions or regulations. As we have said, the regulations for clause 6 powers are complex and technical. I cannot imagine instructions on those being given orally. The only thing that could be dealt with orally is whether action is to be taken under the powers in that clause. The Minister must justify why oral direction powers are appropriate for part 1 activities generally rather than

for a much narrower range, particularly in respect of a compulsory plan for which there is scope to issue oral directions. The provision is more wide ranging than it needs to be. Our role is to keep things as narrow as possible.

Photo of Douglas Alexander Douglas Alexander Minister of State (Cabinet Office) and Chancellor of the Duchy of Lancaster

The Government cannot accept the amendments. Clauses 7 and 8 are designed to enable action to be taken by a Minister of the Crown in cases of urgency where there is insufficient time to make legislation. That exceptional power is designed to ensure that in cases of real urgency, the Government can arrange for coherent, effective action to be taken at a local level. There are circumstances during emergencies, or when they appear imminent, in which consistent, decisive action is necessary. Sometimes such action might be outside existing planning frameworks and at others it might not be apparent to local areas how best to deal with the situation. For example, there might be a sudden heightening of the terrorist alert state or a mass evacuation that requires responders urgently to reassess their plans for such an emergency.

The hon. Member for Sheffield, Hallam suggested that these provisions are unnecessary because they are included in part 2. However, although there would be appropriate regulation powers under part 2, some circumstances would not merit the declaration of an emergency but would, none the less, require some quick, brief direction. That comes to the nub of the matter raised by the hon. Member for Newark, the central contention of which was that if an oral direction were given, it would be vital for it to be backed up with a written direction from the Minister. I think we would agree on that. Perhaps I can direct the hon. Gentleman to clause 7(5), which says:

''Where a Minister gives an oral direction (or further direction) under this section he shall confirm it in writing as soon as is reasonably practicable.''

I hope that we have addressed hon. Members' specific concerns and recognised the balance that needs to be struck between ensuring that there is speed of action where necessary and ensuring the rigour and clarity that would come from written communication. The Bill contains appropriate safeguards. Any oral direction must be confirmed

''in writing as soon as is reasonably practicable.''

Photo of Steve Pound Steve Pound Labour, Ealing North

The hon. Member for Sheffield, Hallam talked about the chain of accountability. Is it implicit in the clause that a contemporaneous record should be kept? For example, in the Royal Navy a yeoman signaller would take notes of a superior officer's oral commands and those would later be confirmed in writing. Will a record be kept at the time of the oral direction to establish that chain of accountability and provide the basis for the subsequent written confirmation of the oral order?

Photo of Douglas Alexander Douglas Alexander Minister of State (Cabinet Office) and Chancellor of the Duchy of Lancaster

Clearly, the issue of whether minutes are taken during ministerial discussions has been a matter of some contention and interest in recent days in this House and other places. I find it inconceivable that there would not be a contemporaneous record of the Minister's direction

in the serious circumstances that we are envisaging. None the less, the additional safeguard articulated in clause 7(5) would ensure that there is also a guarantee that any contemporaneous record taken by a civil servant would be full enough in terms of written communication thereafter. On that basis, I urge the hon. Member for Newark to withdraw his amendment.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

I thank the Minister for clearing up several misunderstandings, the hon. Member for Sheffield, Hallam for making his point so clearly and, indeed, one or two other Committee Members for their salty interventions.

With my regrettably reasonably wide experience of emergencies, albeit not on the scale that the Bill foresees, everything that I have heard makes me cautious. As e-mail moves at the speed of light or sound–or however quickly it moves–an oral instruction can quickly be backed up with a written one provided that e-mail continues to exist during a state of emergency. On that basis, despite my reservations, the Minister has made things clearer, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark 4:45 pm, 29th January 2004

I beg to move amendment No. 22, in

clause 7, page 7, line 27, after 'given', insert

'or when the Minister accepts that the emergency (as defined in section 1) has ended, whichever is the sooner'.

Photo of John Butterfill John Butterfill Conservative, Bournemouth West

With this it will be convenient to discuss the following amendments: No. 23, in

clause 7, page 7, line 28, at end insert

'but the Minister may extend the direction for a further 21 days'.

No. 29, in

clause 8, page 8, line 9, after 'given', insert

'or when the Ministers accept that the emergency (as defined in section 1) has ended, whichever is the sooner'.

No. 30, in

clause 8, page 8, line 10, at end insert

'but the Ministers may extend the direction for a further 21 days'.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

I am most grateful for the opportunity to make what the Committee will be pleased to hear is a brief series of comments. I hope to change ''21 days'' to the period in the amendment. That strikes me as being thoroughly practical. If anything, it will make the powers less difficult to impose and will allow the Minister more flexibility in dealing with a problem. Different problems will require different sorts of solutions, different powers and the implementation of different types of power. The Bill's phrasing suggests that the imposition of the powers will lie in blocks of 21 days. I hope to give more flexibility and to allow Ministers to bring the state of emergency to an end rather more quickly.

Photo of Mr Richard Allan Mr Richard Allan Shadow Spokesperson for the Cabinet Office, Cabinet Office, Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Trade and Industry)

This is another helpful group of amendments from the hon. Gentleman. We are right to question the extent to which any direction that has been given under an emergency power should stay in force. There is only one set of circumstances in which we might bring forward urgent powers rather than

introducing regulations in the normal fashion, and that is after we have passed all the threshold tests to show that we could not bring a regulation to the House in the normal manner.

To accept that there could be urgent conditions is not to accept that any regulation that is brought forward through the urgency provisions should stay in force indefinitely. The Government have proposed a 21-day limit. The hon. Gentleman's wording suggests that it could be reduced. I am curious about that, because my understanding is that the powers in this part of the Bill concern not situations once an emergency has been declared but those before one happens. For that reason, it is odd to debate something that would repeal powers when the emergency is over since they would concern circumstances in which there was no emergency. We would be dealing with the emergency regulations in part 2 if an emergency had occurred.

That brings us to the important matter of how long regulations should stay in force. What is the Government's intention? If they cite the urgency provisions in clauses 7 and 8, how confident can we be that they are committed not to say that the directions are good and should be left in force for the foreseeable future, then just keep renewing them because they seem all right?

From a democratic point of view, it would be far more acceptable for there to be a clear statement that urgent regulations will be dropped as soon as possible and that the Government will then introduce regulations through the normal procedure. They might be identical, but it would be helpful if there were a clear disconnection between those introduced as urgent provisions and those that come about in the normal way, so that we could continue to maintain the constitutional nicety of regulations always coming through this place, except where there were urgent requirements. Then, when there were urgent requirements, the regulations would clearly be in a different category and would not be proceeded with for any longer than was strictly necessary. That is the kind of clarification that we seek. It is important in the context of the part 1 regulations, but we shall see when we debate part 2 next week that anything that is significant in the context of part 1 is significant to the nth degree in the context of part 2, where the powers that could be contained in the regulations will be of a different order of magnitude.

Photo of Douglas Alexander Douglas Alexander Minister of State (Cabinet Office) and Chancellor of the Duchy of Lancaster

I regret that the Government cannot accept the amendments. Clauses 7 and 8 are designed to enable action to be taken by a Minister of the Crown in cases of urgency and where there is insufficient time to make legislation. Amendments Nos. 22 and 29 would, in addition, provide that the direction ceases to have effect when

''the Minister accepts that the emergency . . . has ended''.

This misunderstands the purpose of clause 7. Directions may be given when there is no emergency–for example, there may be an outbreak of a disease overseas, which did not presently threaten the United Kingdom, but which could in future. All

the Minister would have to be satisfied of would be that there was an urgent need to make provision.

Clause 7 provides that the Minister may give another direction after the first one has lapsed. There is no limit on the number of further directions that may be given. Amendments Nos. 23 and 30 would limit the number of successive directions to two. The amendments are largely unnecessary. Before making a further direction, the Minister must be satisfied that there is insufficient time for legislation to be made. In the case of a direction that contains provisions, which could be made by way of a negative resolution instrument–that is provisions relating to planning business continuity management promotion and information sharing, which could be made under clauses 2, 4 or 6–it is difficult to conceive of circumstances in which it would not be possible to prepare and make legislation before the first direction elapsed.

In the case of directions that contain further provision requiring a responder to exercise one of its functions, the relative legislation and order under clause 5 would be subject to affirmative resolution. It might not be possible to ensure that an affirmative procedure has been completed before the first direction lapses, but that should be possible by the time the second direction lapses.

On how long it would take to make the secondary legislation under the provisions mentioned here, regulations under clauses 2, 4 and 6 are subject to the negative procedure. They could be made, and in urgent cases brought into force immediately, even before they were laid before Parliament, but it would still take time to draft the legislation and, in an emergency, even an hour's delay could be dangerous. Orders under clause 5 may be made only if a draft of the order has been laid before and approved by resolution of the Houses of Parliament. It would be necessary to prepare a draft order and to hold a debate in each House. The timing of the debate would obviously depend on the availability of the parliamentary time and there would be particular problems during an Adjournment or Recess. Once the draft order had been approved by both Houses, it would be necessary to make a final order. Therefore, we do not believe it is necessary to support the amendments, and we do not believe it is necessary that the regulations should remain in force for only 21 days. Indeed, the Bill under clause 7(4)(b) requires the Minister

''to revoke the direction as soon as is reasonably practicable.''

On that basis I hope I have given sufficient comfort that the hon. Gentleman will feel little need of further amendments.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

I am grateful to the Minister for his very clear exposition and to the hon. Member for Sheffield, Hallam for his views. I think that I accused the Government earlier of a lack of fresh thinking and innovation. Certainly, from what I have just heard–sensible, and may I say seamanlike, precautions are to be taken before such time as contagion, disease or another problem actually spreads to these shores–is

indeed fresh and innovative thinking, and on that basis I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 ordered to stand part of the Bill.

Clause 8 ordered to stand part of the Bill.