Clause 18 - Meaning of ''emergency''

Civil Contingencies Bill – in a Public Bill Committee at 9:30 am on 3rd February 2004.

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Photo of Joe Benton Joe Benton Labour, Bootle

With this it will be convenient to discuss the following amendments: No. 88, in

clause 18, page 11, line 26, after 'serious', insert 'immediate'.

No. 90, in

clause 18, page 11, line 31, after 'threatens', insert 'immediate'.

No. 92, in

clause 18, page 11, line 41, after 'threatens', insert 'immediate'.

No. 94, in

clause 18, page 12, line 6, after 'threaten', insert 'immediate'.

No. 96, in

clause 19, page 12, line 38, after 'serious', insert 'immediate'.

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)

We now reach the part of the Bill that causes most concern among Liberal Democrats. Part 2 deals with the circumstances in which the Government may bypass the normal democratic and constitutional arrangements and bring emergency powers into play. We all recognise that they may have to do that in extreme and exceptional catastrophic circumstances, but we would prefer the provisions to be have some statutory force. We do not want things to happen in an entirely ad hoc way, with someone having to take control in catastrophic circumstances, so it is important that we test the Government on what those circumstances should be and that we keep the thresholds as high as possible.

The amendments would raise the threshold in relation to the first part of what the Government call the triple lock, which is set out in three clauses. Clause 18 sets out the first lock, which is that an emergency must be taking place. We seek to define the circumstances in which an emergency is deemed to take place and in which the Government may consider emergency regulations. The first lock involves leaping over that threshold.

We will come to the second lock in clause 20, when we will consider emergency regulations. The third lock is in clause 22, which relates to the question of proportionality. In a sense, however, the first lock is the most important. It defines the circumstances in which an emergency is deemed to have occurred and in which the Government may feel the need to consider emergency regulations.

The Joint Committee's recommendations begin with those relating to the first lock. The Committee queried whether the same definition should be used in clause 18 and in clause 1, which sets out the circumstances in which the emergency planning duty kicks in. I seek to make clause 18 more restrictive by changing the definition. Amendment No. 89 would replace the word ''serious'' with the word ''severe'', while amendments Nos. 88, 90, 92, 94 and 96 would introduce the notion of immediacy. That would make the definition more restrictive than that spelled out in clause 1.

When the Joint Committee queried whether the definitions should be the same, the Government's response was interesting. We accepted that part 1 asks local authorities to plan for a wide range of emergencies, down to little local situations, such as the failure of an electricity substation. However, we shall not be triggering national emergency regulations under part 2 if a local electricity substation fails. Yet, the only substantive difference in the definitions is that clause 18 says that an emergency must affect a larger geographical area of the United Kingdom—it must not be localised. Otherwise, the notion of seriousness is the same in both definitions, and we therefore seek to amend it.

As I said, the Government's response was interesting. They said:

''The Government recognises that Part 1 and Part 2 of the Bill serve very different purposes. There is no reason why the duties imposed under Part 1 should apply in the same circumstances where regulations may be made under Part 2. The Bill reflects this in a number of ways. The definition of 'emergency' in each Part is largely the same.''

We found that curious. The Government accept that the parts cover very different circumstances, but have resorted to a definition that is essentially the same for both.

The Joint Committee also specifically considered the meaning of the word ''serious'', which we want to replace with the word ''severe''. Recommendation 11 referred to that in the context of the ''Dealing with Disaster'' definition of a major emergency. The Government responded mostly with reference to part 1, but at the end they said:

''In Part 2, it has proved necessary to incorporate this policy in a different way. While the capacity of local bodies to deal with an event will be an important factor in determining whether it is appropriate to make emergency regulations, it will also be necessary to consider the powers of bodies at the regional level and central government and related agencies . . . The Government considers that clause 20, which provides that it is necessary to make emergency regulations if existing legislation is inadequate or ineffective in some respect reflects the spirit of the Committee's recommendation.''

The Government are effectively saying that, in the context of the triple lock, we have to rely on the clause 20 lock to back up the clause 18 lock. That leaves us feeling that the clause 18 lock is extremely weak. It covers the broad range of circumstances, which was intentional in part 1 and the clause 1 definition, but is too open for part 2. We are left with a dodgy Yale lock as the first lock, into which a credit card could be slipped to make a way through.

Photo of Nigel Evans Nigel Evans Conservative, Ribble Valley

We have had a dodgy lock and a dodgy everything else, but I am wondering about a dodgy interpretation of either ''serious'' or ''severe''. We are talking about a matter of degrees, and some people could interpret serious to be severe and vice versa. Will the hon. Gentleman describe the distinction between the two?

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)

The hon. Gentleman may be helped by a later Conservative amendment, which would include a definition of serious in the Bill. At this stage, our intention was to highlight the issues. I am not sufficiently legally qualified to cite precedents for either word, and we contemplated different options such as ''catastrophic''. However, our point is about the commonality of the definitions and whether they include the same circumstances in parts 1 and 2, except for the expanded geographic element. We thought that the best way to test that was to propose a different definition.

I hope that the hon. Gentleman will accept that rationale, as it is no more learned than that. We are trying to make the point that if the lock is to be effective, it should be more restrictive—a Chubb lock rather than a Yale, as we may not reach the three and five-bar mortice locks until later clauses.

The other amendments—Nos. 88, 90, 92, 94 and 96—concern the notion of immediacy, which came up earlier, and are important. It might help to cite some examples of the circumstances in which the Government might consider introducing emergency powers and in which the notion of immediacy is relevant. The foot and mouth crisis has been mentioned. Foot and mouth would have passed the clause 18 lock because it was on a large geographical area and could be deemed to be serious. I do not know whether it would pass the other locks on whether other powers are in place, but we need to consider such real-life circumstances in trying to find definitions.

I would question whether emergency regulations were needed based on the immediacy of foot and mouth. If foot and mouth occurred, we would have an administrative problem of getting people out to deal with it rather than a legislative problem. Considering how foot and mouth progresses, Parliament would probably have time to make the necessary regulations, for health reasons, concerning the treatment and disposal of animals that would not normally be allowed.

Photo of Oliver Heald Oliver Heald Shadow Leader of the House of Commons

Was not one of the great problems with foot and mouth that there were so many movements of animals in a short time that the disease spread far wider than anyone had expected? Is there not an element of immediacy needed in trying to stop the movement of animals 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)

That is helpful; those are the tests that we are trying to work through. The point remains for me that if we ever invoked powers under this part of the legislation, that would represent a failure of Government and the normal constitutional process. We should never have to put the powers in place in normal circumstances, excepting the most extreme

catastrophes. One would hope that, given our animal welfare and farming legislation generally, we are prepared for eventualities such as foot and mouth, which are, in a sense, predictable. Large-scale animal disease of one sort or another is entirely predictable. My concern is that we are introducing a regime under which we wait until something happens before bringing in legislation to deal with animal movements. If we need such legislation, it should be in place the whole time. We should not wait for a disaster before putting it in place.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

Further to the point made by my hon. Friend the Member for North-East Hertfordshire (Mr. Heald), surely one aspect of foot and mouth was the immediacy of the need to slaughter animals under any suspicion. The Government had to deal with several cases in which flocks were being slaughtered in unexpected parts of the country, as he said, and farmers were objecting and complaining afterwards only to find that the flock had been infected. Does not that point add to the strength of the point about immediacy?

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)

Trying to work out whether the problem was one of administration or legislation is the problem. Did the Government need particular powers in those circumstances or did they need more people on the ground to do things that could be done anyway under existing powers? It is worth exploring some of the examples that we have discussed. If we have a future foot and mouth crisis, will emergency regulations be introduced? My concern is that the focus in such a crisis, as so often when there are problems in society, will be on legislation, not administration, and that people will believe that we can solve all the problems by passing an emergency regulation, when in fact what is needed is better people out there, doing things correctly. [Interruption.] The hon. Gentleman suggests an emergency volunteer reserve. Whoever is legally tasked with carrying out the duty should be out there doing it.

It is worth trying to define the extent to which a regulation is necessary. If a regulation is necessary because it relates to something that we have not planned for at all—a major catastrophe—no one will have a problem with that. We accept that, in such circumstances, emergency regulations must be brought into play. However, to cite an example from the Second Reading debate again, we have managed to survive since the early 1970s without having to put in place any emergency regulations. I return to my original point: the introduction of an emergency regulation is a failure of the democratic process, in that we have not put regulations or legislation in place in the normal way to deal with the circumstances.

The other example that is cited and which may be relevant is an incident such as that which occurred on 11 September. That catastrophic incident occurred in another country but clearly, in a sense, represented a threat to the United Kingdom. It was quite obvious at the time that places in the UK could become targets in a similar way. Again, the question was about the immediacy of the threat. In the end, we responded in

the correct, normal and democratic fashion: what became the Anti-terrorism, Crime and Security Act 2001 went through both Houses of Parliament, and we had normal democratic debates. We were not all entirely comfortable with the outcome, but the point is that we responded to the 11 September incident and dealt with the security threat here through the normal democratic process. We were able to do so because there was not that immediacy; it was not the UK mainland that had been catastrophically attacked, although we could see a clearly defined threat.

Photo of Nigel Evans Nigel Evans Conservative, Ribble Valley

I shall use the word ''intelligence'', which is open to different interpretations these days, following the situation with weapons of mass destruction. Following 11 September, if the Government had had intelligence that there may be a threat to the United Kingdom, would not that have triggered the emergency powers? The issue is who interprets the intelligence.

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) 9:45 am, 3rd February 2004

The hon. Gentleman's comments are, as usual, topical. He is right. Intelligence is continually being received about threats of various kinds that might be deemed to be emergencies as defined in the Bill. My concern is that we shall end up in a situation in which Ministers feel tempted to pull the emergency powers off the shelf as a first option, rather than that being absolutely their last recourse should there be circumstances in which the democratic process cannot function, such as a catastrophic chemical, biological or nuclear attack on central London that prevents Parliament from meeting. That, we could accept. However, I would not find it acceptable should events such as those of 11 September, or something similar happen—we know the sort of circumstances that might obtain; we have the threat of Abu Hamza in north London—prompting a huge press outcry saying, ''What are the Government doing about it?'' and for a Minister to say, ''I can bring in some emergency regulations, then I can be seen to be doing something,'' even though the existing criminal and terrorism law would cover the situation.

If the threat were not immediate—which is why I am trying to insert that definition—we could bring into play ordinary legislation in the ordinary way within the democratic framework. I suspect that the Minister will say that the clause 20 second lock covers some of the same ground, because it mentions the Government having to prove that existing legislation cannot be used. However, I am seeking to reinforce that at every stage along the way because I am concerned lest there be an essential democratic failure. Being realistic, in such a climate, the demands on all of us would put pressure on Ministers to do something—in fact, we on the Opposition Benches would be making demands too. In such circumstances, it would be helpful for Ministers' powers to be more circumscribed rather than more expansive, so that they were not tempted to use them inappropriately. Indeed, they might face censure later for having introduced powers in a way that was not consistent.

The final example that I should like to examine in the context of the term ''immediate threat'' is the fuel crisis. The hon. Member for Ribble Valley (Mr. Evans) and some of his party colleagues in the Welsh Assembly will know a thing or two about that. It was a classic circumstance for the Emergency Powers Act 1920, which we are seeking to replace and which was explicitly geared towards such circumstances. The last use of the emergency powers, in the 1970s, was due to industrial action that prevented energy supplies from getting through. It happened very quickly and in an unexpected and unpredictable way. In terms of the threshold of the damage that it threatened, in the end it was low. There was a fear that it would lead to serious consequences, but it did not.

Photo of Nigel Evans Nigel Evans Conservative, Ribble Valley

Making no reference to any member of the Welsh Assembly, I hear what the hon. Gentleman says, but if he would cast his mind back to the fuel dispute, he would know that there was a threat. Representatives of the national health service were going on television and saying that members of staff would not be able to get into hospitals, and that would have meant that operations could not go ahead, so there would have been a threat to people's lives. He is underplaying it a little—if people cannot get access to fuel, that could lead to the loss of human life.

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's intervention is helpful in fleshing out the circumstances that we need to explore. However, I still ask, in those circumstances would it have been better for Ministers to have invoked emergency regulations that might have appeared draconian and, to use a terrible metaphor, poured fuel on the fire, or stoked it up even further, or for them to have dealt with it using ordinary powers under existing legislation? That is what we are trying to tease out: when circumstances such as foot and mouth, 11 September and the fuel crisis occur, is it better to deal with them under existing legislation? If existing legislation is too weak, should we, in the normal democratic manner, bring into play new legislation that would be accepted, however reluctantly, by the country at large because it had been through the democratic process? Under those circumstances, would it be better to allow the trigger to be invoked, and so say that this is the kind of emergency that can be dealt with by regulations? The amendments would introduce two critical words. The first would deal with the notion of whether seriousness is a sufficient threshold, given that we are allowing it a much broader scope in the part 1 test. The other would test the notion of immediacy, and the extent to which a threat is so immediate that the emergency regulations must be invoked.

I hope that that the amendments have helped lead to a debate on the most constitutionally important part of the Bill.

Photo of Oliver Heald Oliver Heald Shadow Leader of the House of Commons

Subsection (1) refers to the threat of

''serious damage to . . . human welfare in the United Kingdom or in a Part or region''.

Amendment No. 89 would change the word ''serious'' to ''severe''. Before dealing with that, however, it is worth considering how the clause is set out. The sort of damage to human welfare that the clause is dealing with is set out in subsection (2), which states that

''an event or situation threatens damage to human welfare only if it involves, causes or may cause . . . loss of human life''.

It then lists other categories.

That the Bill has to define serious damage to human welfare as loss of human life shows the sort of mischief that it is aimed at—namely, the sort of incident that might cause some loss of life; but the use of the word ''serious'' leads one to assume that it would affect more than one person. However, the fact that the other categories include ''human illness or injury'', ''homelessness'' and ''damage to property'' makes it more difficult to see exactly what sort of incident the provision is aimed at. The incidents should be of a scale that is more than local, but I wonder what the Under-Secretary has in mind for illness and injury. Is she thinking of the SARS virus, or would the threat of Asian flu be enough to trigger an emergency? Is she contemplating that they would be a threat to human welfare?

Not knowing exactly what sort of incidents part 2 is aimed at, and on what sort of scale, is part of the problem. The type of incidents dealt with in part 1 were different—they dealt with incidents in ''a place''. Part 2 seems to deal with incidents that could sweep across the country or a region. Are we talking about SARS or Asian flu, or about a terrorist threat—perhaps an anthrax attack?

The same sort of questions arise for homelessness. The word has a particular meaning in law. It could mean a family living in overcrowded accommodation; it does not necessarily mean that homes have been destroyed or that people are sleeping rough. For instance, as a result of last week's snow, Norwich was cut off and people in the city were forced to sleep in Salvation Army hostels, on church floors and so on. I suspect that that is not the sort of incident dealt with in part 2.

How can we judge whether something is a serious incident that threatens serious damage? What is the scale? What does the Minister have in mind? Similarly, on ''damage to property'', one can imagine all sorts of damage that occurs through natural causes. I do not suspect that the provisions mean anything much less than a hurricane, but how do we know?

It is worrying that, under subsection (5), the Secretary of State may decide that an emergency has occurred. Even if the situation does not come under the provisions of subsections (1) or (2), he can nevertheless treat it as an emergency. Under subsection (5) the Secretary of State may order that a particular event should be treated as falling within paragraphs (a) to (c) of subsection (1), and may amend subsection (2) to provide for other changes. It would be interesting, and expected by the courts, to hear from the Minister about the sort and scale of incidents that she has in mind.

The word ''serious'' is used in various legal contexts and I wonder whether ''really serious'' or ''grievous'' or something like that would be better. There is a scale of assaults that includes common assault, and a really serious assault that includes wounding is called grievous bodily harm, because grievous means really serious. Will the Minister explain where ''serious'' comes in that scale? Funnily enough, I have never come across the expression ''severe'' in a legal context, although I expect that it exists.

Photo of Oliver Heald Oliver Heald Shadow Leader of the House of Commons

That is a useful intervention in one sense. People understand what is meant by a severe weather warning, just as they understand what is meant by grievous bodily harm. Both are extremely bad news. However, it is for the Minister to explain the drafting, and I look forward to that.

Amendment No. 88 would define an emergency as ''an event or situation which threatens serious immediate damage to human welfare'' and amendments Nos. 90, 92, 94 and 96 would include ''immediate'' in similar provisions. As the hon. Gentleman said, its purpose is to add an element of immediacy to the threat and to clarify what incidents are covered.

Photo of Nigel Evans Nigel Evans Conservative, Ribble Valley

Does the law hinge on an interpretation of what is ''immediate''? In planning terms, ''immediate'' could cover three or six months if we had sufficient warning. If it is an immediate threat and we need to make plans and get them right, ''immediate'' could mean six months. ''Immediate'' does not mean that the event has either happened or will happen in an hour.

Photo of Oliver Heald Oliver Heald Shadow Leader of the House of Commons

The other point is that something can be extremely urgent even though the damage may be some months away. In the case of an illness with a slow incubation period, such as BSE, we would not want people to continue to eat infected food or animals to continue to eat their infected feed. They would have to stop immediately, because although the results may not be seen for two years, we would want to prevent that illness from developing. Immediate action would be necessary, even though the damage would be some time away.

Looking at the structure of the Bill again, we have to read clause 18 with clause 20. Clause 20—the triple lock—seems to suggest that the Secretary of State may take the powers and make the regulations only when the need for provision is urgent. That may be the answer. Although it does not say in clause 18 that there must be an immediate threat of damage, if one reads it together with the triple lock—that an emergency has occurred, is occurring or is about to occur, that it is necessary to make provision and that the provision must be urgently needed—that provides the answer to the concerns rightly raised by the hon. Member for Sheffield, Hallam (Mr. Allan). It may be that the expression ''immediate'' and the expression ''urgent'' are the same, but it would be interesting to hear the Minister's views. We certainly want to hear what the

Minister has to say about both amendments, as they obviously try to tackle the problem that we see as important.

The Bill gives the Government wide ranging and important powers. They will be able to take people's property and people can be detained and their movement stopped, and so on. Those are the most serious powers that a Government can take on. We would want those powers to be used only if a substantial threat existed across a reasonable geographical area and if it were an immediate threat.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Defence) 10:00 am, 3rd February 2004

We have reached a very important point in the Bill. Clause 18 deals with many concerns held by commentators, and many Opposition Members want to investigate further the meaning of some words in the draft Bill.

This part of the Bill has been improved since the draft was prepared. Initially the wording read

''an event or situation which presents a serious threat'' and it now reads

''an event or situation which threatens serious damage''.

However, it seems to me that the event or situation does not need to be of any seriousness. That means that a relatively innocuous event could be considered to have implications of damage that might be sufficient to trigger the emergency powers. That is particularly relevant because the powers will almost certainly result in infringements of freedoms that could not be justified or tolerated if there were not an emergency. It is therefore vital that the trigger for using such powers is set at an appropriately high level.

I cannot read the clause without thinking about the fuel crisis; it looms very large. I accept that it was a serious threat. Nevertheless, one has to ask—for example, following the tenor of the arguments put forward by hon. Members—whether the picketing of Stanlow oil refinery would immediately trigger emergency powers, knowing what we do about the way in which the fuel crisis developed over 10 days from the picket? I addressed a public meeting in Rhuthun on the night that Stanlow was blockaded, and my final piece of advice to the farmers was ''Don't blockade Stanlow.'' Obviously, they took my advice to heart and immediately drove over to Stanlow. That point is a serious one. As only one oil refinery—although a major one in the UK—was involved, would such a case trigger the Government powers? It is important to investigate that.

We all want to know how far the clause will go. In light of the implicit infringements of liberty, it is important that we should tease out the responses and that they should be discussed fully. The decision as to whether the definition of an emergency has been satisfied is currently made by a Minister. I realise that the Queen is the primary decision maker, but she will undoubtedly take advice from one or two Ministers—well, she might. As the damage needs only to be threatened rather than actual, that may be a highly subjective decision based on assumptions of cause and effect. That takes us back again to Stanlow.

I appreciate that there will be parliamentary scrutiny and that is clearly a desired process, but that is not likely to occur within several days or more, by which time the regulations may have already had a considerable impact. The fact that they relate to movement to and from a place or to the destruction of property means that their effect is required to be immediate—in other words, before any parliamentary consideration can be given. There is therefore plainly a need for a high threshold, as illustrated by the Government's observation that flooding could trigger the use of emergency powers. Indeed, paragraph 35 of the explanatory notes refers explicitly to ''flooding''.

What I am saying may be double-edged, and I may be speaking against myself, but there will probably be a lot of low and medium-level flooding, as well as that caused by global warming, whether or not one accepts that that exists, although I believe that it is a problem. The Environment Agency is much exercised by flooding and the likelihood of serious flooding in the immediate future. I am trying to be helpful rather than stupid, and am keen to find out from the Under-Secretary what degree of flooding would cause these powers to be introduced? How bad and widespread would the flooding need to be? How many properties would need to be affected, and how many people's safety would need to be compromised? By definition, safety must be compromised even in a small flood, because people have to evacuate their properties. How devastating must the consequences be for these powers to be introduced? The damage must be defined as serious, so what does the Under-Secretary define as serious? I am very much assisted in these matters by Liberty, which is anxious to probe the intentions behind this part of the Bill. These are sensible amendments on a very important part of the Bill.

Photo of Oliver Heald Oliver Heald Shadow Leader of the House of Commons

The hon. Gentleman mentioned the fuel crisis. Subsection (2) gives examples of damage to human welfare, such as:

''disruption of a supply of . . . energy'', and,

''disruption of facilities for transport''.

During the fuel crisis, people picketed and drove slowly down the M25 to slow the traffic. Does he agree that those sorts of activities could be enough to trigger an emergency? If an emergency is triggered, one can do all sorts of things to make such protest impossible, such as prohibiting movement, travel and assembly. Does he share my concern that we need to know whether such activities would be banned in those circumstances? This goes to the root of what a free country is.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Defence)

I agree entirely. The hon. Gentleman makes his point very well. I can think of at least two laws that would deal with the M25 protests if they were to be repeated: the likelihood of a breach of the peace, and driving without due consideration for other road users. Will that sort of protest be banned under this legislation? It is utterly wrong that it should be, especially as we already have the legislation to deal with it. No doubt, the Under-Secretary will respond in

due course. If she says that it would be banned, that calls one of the triggers into question, because we already have the necessary legislation.

This is a very important part of the Bill, and the hon. Gentleman is right that we need to consider the issues carefully. The Bill already refers to pieces of legislation that can deal with foreseen problems, which is why I am asking the Minister to tell us what the Government have in mind with regard to the nature of the threats implicit in this part of the clause.

Photo of Nigel Evans Nigel Evans Conservative, Ribble Valley

We have come to an important part of the Bill, and we should remind ourselves that we could be accused of needlessly frightening people. There is an onus on us in this Committee to consider every eventuality. We do not ask whether something is likely to happen, but whether it can. That is the point of the legislation.

We have discussed the interpretation of words. Amendment No. 89 would substitute ''severe'' for ''serious'', but what are the interpretations of those words? Some people would use them interchangeably. It depends on who interprets them, and I suspect that that will be the Secretary of State. If a Secretary of State is looking for an emergency, they will have one.

Photo of Nigel Evans Nigel Evans Conservative, Ribble Valley

I must say that that does not fill me with any great joy.

Photo of Nigel Evans Nigel Evans Conservative, Ribble Valley

There are some quality Government Whips, but we may not always be blessed with having the Government Whip who is on this Committee making that sort of interpretation.

The fuel dispute has been mentioned, and we should consider the matter in that context. A blockade at one depot triggered a series of blockades at other depots. I remember that, because I telephoned my sister at our shop in Swansea and said, ''Make sure the van's full, because I've heard that there's going to be a fuel dispute.'' She said, ''What do you mean you've heard? We've not been able to get petrol in Swansea for a couple of days.'' The problem started at different times in different parts of the country. It was only when one of the Ministers could not get some fuel that he realised that there was a problem. It took a few days for it to permeate through to London, but it hit other parts of the country at different times. A north-west national health service chief went on television and talked about the danger that it was causing to people's lives. If it had gone on just one more day, it would have had a disproportionate impact on the welfare of human beings, the distribution of food and all sorts of other things.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Defence)

I agree fully with the hon. Gentleman that there was a serious threat at that time—there is no doubt about that. Does he agree that some of the actions that were taken were innocuous and should not

fall within the emergency legislation? Slow motorcades and lawful picketing can be dealt with under other legislation. It seems to me that movement will be prohibited under the Bill: picketers will not be allowed lawfully to stand outside Stanlow, or wherever else, to make their point. That seems wrong.

Photo of Nigel Evans Nigel Evans Conservative, Ribble Valley

I suspect that it comes down to proportionality and balance. Earlier, the hon. Gentleman said that legislation already exists in a number of areas, which the Government could consider using instead of turning an incident into a crisis. That is what it is all about.

As the hon. Member for Sheffield, Hallam said, one can add fuel to the fire simply by saying that we have a crisis on our hands. We would all be wandering around talking about a crisis and saying, ''Don't panic, Mr. Mainwaring. Don't panic.'' The hon. Gentleman said that we would all demand that Ministers act in certain circumstances. During the fuel dispute, we all wanted to ensure that people in our constituencies who were due operations would get them, that people would be able to get to hospitals if they needed to, and that public transport would be unaffected. He may remember the system of rationing at petrol stations. People in certain key jobs were allowed to have petrol, while other people were not. I had to cancel a few constituency functions because I had so little fuel that I was not sure whether I would be able to fulfil them all. I therefore had to make judgments about what was important.

The fuel dispute is an interesting case, and we have all referred to it. At what point would the Government have said that it was so serious or severe that existing legislation was insufficient and they needed emergency powers? I am not certain, so perhaps the Minister can say tell us whether the Government would have been able to send in the Army to open a passage for vehicles. If such circumstances were to arise again, I suspect that there would have to be convoys to protect tankers that were going about their business. We should remember that certain people made threats against tanker drivers during the fuel dispute, and it is pretty serious when threats are made against the welfare of people who are seen to be breaking a strike.

All those issues will need interpretation. I am always aware of how the newspapers interpret things all the time. Nowadays, anyone who has been in the House a couple of weeks is an insignificant Back Bencher, but they became top Tories straight away if they said anything against John Major when he was Prime Minister in 1992-97. So the newspapers' definition of a top Tory differed from mine. Their interpretation depends on the message that they want to send.

Photo of Nigel Evans Nigel Evans Conservative, Ribble Valley

Anyone who was prepared to criticise their own side at that time. In 1992-97, there was an increasing number of top Tories, but that is politics, I am afraid.

My hon. Friend the Member for North-East Hertfordshire mentioned SARS. We were extremely fortunate not to have an outbreak in this country, given the enormous damage that the disease did to tourism in China, the rest of Asia and, indeed, Canada. Constituents asked me whether they could still go to Canada, and I told them to seek advice from the Foreign and Commonwealth Office. Parts of the country were all right, but Toronto was a real problem, and advice was given accordingly.

There have now been small outbreaks of bird flu in a number of countries, and severe action has been taken against bird populations to keep those outbreaks under control. I understand that the civet cat is also being culled in China to prevent a complete epidemic. What would happen if bird flu attacked this country and someone died—in this context, I think that there would have to be a death—rather than simply being taken to hospital and diagnosed with the disease? Germany has already had a couple of suspected outbreaks. I assume that the regulations that dealt with foot and mouth would be sufficient to allow the Government to act without taking emergency powers. However, if 30 people died in Birmingham, or 20 people died in Manchester, we would be in a completely different situation. I assume that that there would be a serious or severe threat to life and that the Government might want to take other actions, including preventing people from travelling to certain areas. We would not get guidance along the lines of ''Don't travel unless you have to,'' as we sometimes do when there are severe weather conditions. In those circumstances, it is for individuals to interpret severe. When there is a severe weather warning or serious snowfall and the Government or someone from the Met Office says, ''If you don't need to travel, don't travel,'' the interpretation will be up to the individual. That is completely different from an outbreak of bird flu in Birmingham in which 30 people die, for instance, and in which, in order to stop the outbreak, the Government must all of a sudden evacuate sections of the city or prohibit travel. In that situation emergency powers may well be used.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Defence)

The hon. Gentleman is on an interesting part of the debate. I would like to return to the foot and mouth outbreak and shift our attention from Birmingham to Anglesey. There were competing opinions about the efficacy of the cull—neither farmers union in Wales could agree, for example. There was a lady on Anglesey with a pedigree herd of some exotic sheep, although perhaps ''exotic'' is not the right word. She applied to the High Court to prevent the destruction of that herd and she succeeded. Under the Bill, however, she would have had her chips. The point is serious: those animals were perfectly fit and there was no outbreak anywhere near her, but she would not have been able to challenge the emergency power requiring that all the animals be destroyed. It seems that the relevant power would be unchallengeable, but that may be wrong—the Minister looks bemused, although she will no doubt be able to address that point in due course.

Photo of Nigel Evans Nigel Evans Conservative, Ribble Valley

I am grateful for that information, because the hon. Gentleman makes a serious point. I remember that pedigree herd. It is amazing to discover during such incidents how many people keep farm animals as pets. A number of pets were under threat owing to the outbreak of foot and mouth, but I am delighted that that lady managed to preserve her pedigree herd. However, the problem is serious and concerns the powers that come into play when an emergency is triggered by the Secretary of State's or the Whip's interpretation that certain action should be taken.

I remember the foot and mouth outbreak particularly well, because the Army moved into Gisburn, just up the road from where I live in the Ribble valley. The Army encamped at the auction mart, which meant that farmers had to obey orders from people with whom they do not usually associate. It was interesting to see who was making decisions. Action was taken that led to the loss of herds, lots of animals and people's businesses. I remember as an MP trying to get answers to some of the farmers' questions and I found it incredibly difficult. MPs of all political persuasions were in the same boat. Only when we were some way into what I would call the foot and mouth emergency could we glean some information. Then we were invited up to Gisburn to see exactly what the Army was doing.

When we are talking about emergency powers and what follows from them, it is because we live in a democracy, are used to travelling around fairly unimpeded, do not have ID cards, are presumed to be innocent until proven guilty in the main—

Photo of Nigel Evans Nigel Evans Conservative, Ribble Valley

So far. It is only because of those things that a great deal of unease could be caused by invoking the powers under the provisions and having people told, ''You can't go there, you must do this, you must do that'' by those from whom they are not ordinarily used to taking orders. In other words, there must be good cause to trigger such powers. That leads me to have some sympathy with the amendment.

Photo of Oliver Heald Oliver Heald Shadow Leader of the House of Commons

Will my hon. Friend accept that part 2 seems to be designed to avoid court decisions about whether there is good cause? When it comes down to it, under subsection (5), the Secretary of State could say that something was an emergency just because he wanted to. He does not have to do anything. The clause says that he may, by order, provide that an event is an emergency. We will see whether the triple lock is a Yale, Chubb or whatever. I do not even know the gradations of the effective locks that are available. I am not an expert in such matters, unlike the hon. Member for Sheffield, Hallam who clearly is. He is leaving Parliament at the next election and wants to go into other business. Well, a locksmith may be a suitable profession. He has already shown huge expertise in such matters.

Photo of Steve Pound Steve Pound Labour, Ealing North

He is actually going to Yale.

Photo of Nigel Evans Nigel Evans Conservative, Ribble Valley


The interpretation of ''immediate'' brings us back to 11 September. As I have said, when I was in Australia and heard about what had happened in the United States, I telephoned my office and told my staff to get out of here. I interpreted that event as an immediate threat to this place. We did not know what was happening. We knew that one other plane had crashed into the ground and that another one did not take off. The situation could have been far worse, although clearly it was one of the most horrific things that has ever happened on this earth. The matter comes back to proportionality and Ministers being sufficiently safe in their interpretation that they have the backing of the general public.

I have already raised the issue of security in the Palace of Westminster. I understand from reading the newspaper since then that a review of security is currently taking place, which will no doubt lead to another upgrading of security measures in this place. It is already being said that, in some cases, the public will not be allowed to turn up at Westminster, as they have done in the past, but will have to make appointments. Such matters are being investigated. It will be a sad day for democracy if people cannot pop into the House of Commons and lobby their Member of Parliament. Such action would be severe.

I hope that the Under-Secretary can reassure us at some stage about such matters. I do not want overly to frighten people, but we must consider every eventuality. We have not had suicide bombers in this country, but if such a person were able to gain access to the Chamber at Prime Minister's Question Time, he could take out most of the Government in one fell swoop. If the President or Vice-President were removed in the United States, everyone there knows the pecking order of who is next in line for such offices. If the Government of the day were taken out in this country, I do not have the faintest idea of the pecking order here and how many Members of Parliament would have to be killed in one fell swoop before measures were put into place. I assume that emergency powers would be invoked, but I do not know who would take the helm, for how long and when the elections for the Government would take place. [Interruption.] Yes, I accept that they could be the Government Whips. It would be a severe emergency if such an event took place but, sadly, it is possible.

I heard on the ''Today'' programme about ricin. [Interruption.]

Photo of Joe Benton Joe Benton Labour, Bootle

Order. I wish to point out to members of the Committee that an hon. Member is on his feet and I will not allow talking across the Room.

Photo of Nigel Evans Nigel Evans Conservative, Ribble Valley

I suspect that hon. Members are worried about where they will be in such circumstances. Plans would have to be made. However, in the United States, ricin has been found in the post of one of the Senators. The chief of police has already confirmed that the substance is ricin. I remember when the Chamber was closed and none of us could gain access to it. It was cordoned off because suspect powder was found in the mailroom near the Chamber. Mr. Speaker had to

process through the back Corridors as opposed to walking through Members' Lobby and Central Lobby. Obviously plans are in place for certain eventualities.

However, what worries us all about this is when the trigger will be pulled; when the Secretaries of State will decide that we face an emergency for which they do not have sufficient power, which they will have to prove under the triple lock, in any event. The hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) said that it is a very subjective interpretation. Of course it is. It cannot be objective, just as, during the foot and mouth crisis—as the hon. Member for Meirionnydd Nant Conwy said—one farming union advised one course of action while another union said that it was against inoculation or injections, and that something else should be done. Those two experts in the farming industry came up with different ideas on how to perform. I assume that the Secretary of State's decision as to what constituted an emergency would, under guidance or advice from somebody, be very subjective.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Defence) 10:30 am, 3rd February 2004

An element of subjectivity must, by definition, always be involved here. But the amendments are semantically stronger and they seem to serve two purposes. First, there is the need for the damage described in subsection (1) to be severe in order to qualify under subsections (2) to (4). In addition, it could be argued that the need for the damage to be severe is implied in 18(1) but, for the sake of certainty and clarity, it is appropriate that it should be written in the Bill. I support these amendments, as I am sure does the hon. Gentleman. To be fair to the Government, I accept that there has to be an element of subjectivity, but as far as possible that should be defined.

Photo of Nigel Evans Nigel Evans Conservative, Ribble Valley

I am persuaded that the amendments that have been put down are sufficiently strong, strengthen the Bill and mean that despite the subjectivity that will clearly be involved in the interpretations, more backbone is put into the whole legislation. That means that the Government have to be more vigorous in their interpretation and their explanation to the public—something we will definitely need. The public will have to be with us.

The amendments on severity and immediacy are clearly open to interpretation. I was waiting for the Liberal Democrats to mention asteroids before I did, but they have not, to date, so I might as well. If we knew that an asteroid or something else was going to hit the earth in five years' time, and the hon. Member for Montgomeryshire (Lembit Öpik) had been given a tip-off and alerted everybody as to the immediacy of the event, clearly the Secretary of State would have to decide what constitutes immediate. We would want to ensure that sufficient action was taken to make safe as many people as we possibly could. Whether something is an immediate threat depends on the emergency, but I am sufficiently persuaded that the amendments would further stiffen the legislation. That would mean that

the Government would have to think longer and harder before they brought those emergency powers into being.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

I am grateful to my hon. Friends for their interventions on the amendments. The more one listen to the arguments, the more persuasive they become. What is being proposed today suggests that the rather nebulous terms on the face of the Bill, at the moment, could indeed be improved and the sinews of the Bill could be given much greater strength so that the public—I pick up a point from my hon. Friend the Member for Ribble Valley—may not be so scared by precisely what the definition of emergency powers is.

I hope that the Minister can assure us that some thought has been given to when the trigger will be pulled. Currently, clause 18(1) says

''an event or situation which threatens serious damage''.

That is an incredibly broad definition of exactly what an emergency is. I wonder how much contingency planning has gone into deciding when the flag will drop, the balloon go up, or the trigger be pulled—or whatever other analogy the Minister or colleagues may wish to use.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

Indeed. We need to know exactly when that will happen.

I extend my sympathy to the Minister on her cold and I hope that, despite it, she can respond properly and tell us how much thought by the Government and the emergency planning services has gone into deciding when a situation will be deemed to be serious. To take up an example used by my colleagues, is it serious when a 25 lb bomb explodes in Birmingham? This country has become sadly familiar with bombs of that size in such locations during the campaigns by the IRA. However, there may be intelligence—I use the phrase carefully—that suggests that the organisation that is thought to be responsible, or claims responsibility, for an attack has a further series of bombs planned in other capitals or provincial towns throughout the country. Does the situation become serious when that single bomb goes off, or would it be much easier to understand if at that stage it were regarded as both severe and immediate, because although the danger would not yet be manifested, it would be immediate to other parts? That would be a relatively small and harmless event with a relatively low level of loss of life and injury, but it would presage a much greater loss of life and danger. Perhaps in such a case the situation becomes both severe and immediate and therefore emergency powers are necessary.

Can the Under-Secretary assure all of us that there is thinking around contingency planning for flooding, disease, bomb attack, or whatever, so that we would go from coping with such situations under normal legislation to requiring the sort of emergency powers about which we are talking?

To refer to an earlier debate, there is something that goes hand in hand with that. To pick up a point made by my hon. Friend the Member for Ribble Valley,

perhaps the Under-Secretary can assure me that the public would be forewarned about the sorts of circumstances that might require that trigger to be pulled and the balloon to go up.

Photo of Oliver Heald Oliver Heald Shadow Leader of the House of Commons

We know that the Government have the civil contingency reaction forces, which must surely be training for or working out their response to a range of part 2 situations. Does my hon. Friend think that it would be helpful for the Under-Secretary to give us a broad outline of the work that they are doing and the responses for which they are training and preparing?

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

I am grateful for my hon. Friend's intervention. I was going to deal with CCRFs soon, but this is an opportune moment. The CCRFs have been training as far as possible, given that they have been deployed to operations overseas to back up our staggering regular forces that have been kept so short of manpower and resources. The CCRFs have been planning various exercises, but to the best of my knowledge no situation has been deemed serious enough to require the necessary orders for them to be brought to arms and physically deployed. I should be grateful if the Under-Secretary would clarify that. Perhaps a severe and immediate situation, as proposed in the amendments, may call for the CCRFs that are available to be mobilised automatically.

The amendments, with which I have a great deal of sympathy, clearly make the point that we must be cautious about scaring the pants off the public. Anything that the Government can do to inform the public beforehand, tell them what is likely to happen, inform them what powers are likely to be in place and how the decision making process will work must dispel fear. I ask—indeed, beg—the Under-Secretary for an assurance that thought is being given to the matter, and that the Government will not wait for a situation to be upon us before giving an explanation, as happened during the sky marshal drama, kerfuffle and nonsense. The Government should be proactive, and say to people, ''This is what is likely to happen, these are the powers that we are likely to invoke, and this is how you are going to react.'' The public would be reassured, rather than frightened, by that. That is why I have such sympathy for the amendments.

Photo of Fiona Mactaggart Fiona Mactaggart Parliamentary Under-Secretary (Home Office)

I thank hon. Members, who have picked away at and teased out a whole range of key issues within this important clause, which is about what constitutes an emergency. I reassure the hon. Member for Sheffield, Hallam that we share an approach. This Government do not wish to use emergency powers as a matter of convenience or through laziness. Such powers will be used only when absolutely necessary. That view is held by us all, and is one reason why the issue is so important. As democratic politicians, we cannot permit a situation in which emergency powers are a first resort; they have to be a last resort. They have to be robustly limited and properly confined. That is what we are talking about today: how best to ensure that the legislation does not permit emergency powers to be used profligately.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Defence)

I agree with what the Under-Secretary says, but my concern stems partly from the fact that the Terrorism Act 2000 was used against people demonstrating peacefully against Chinese diplomats who came to London. Flag waving demonstrators were tackled under the Act. That underlines the importance of getting the clause right and of teasing out exactly what the Government have in mind. I do not for one moment impugn the hon. Lady's sincerity, and I accept what she says, but some of us feel unhappy about this legislation because it could in future be used differently from how we now foresee it being used.

Photo of Fiona Mactaggart Fiona Mactaggart Parliamentary Under-Secretary (Home Office)

I understand the hon. Gentleman's concern. He has raised the issue of the way in which legislation may be used against those conducting proper industrial disputes. He will be reassured by the fact that the legislation is specifically prevented from being used in such a way. Many of the concerns that he and others have expressed have been dealt with.

The first issue is to establish whether the definition of emergency is appropriate and whether the controls are sufficient. The hon. Member for Sheffield, Hallam seeks to make such controls more robust by requiring that a threat should be immediate. I reassure him that the idea of the immediacy of the threat and its consequences is already implied in the Bill. Clause 20(3) states that provision must be necessary, and clause 20(4) requires that the provision to deal with the situation must be needed urgently. The definition of an emergency in clause 18 must, as the hon. Gentleman himself pointed out, be read in the context of the triple lock with those parts of clause 20. If there were no immediate threat, it is very difficult to imagine how these tests in the Bill could be met. If the threat is not immediate, if it is not an urgent necessity and if it can be dealt with by other powers, emergency powers cannot be deployed.

Any assessment of the seriousness of the threat requires an assessment of the immediacy of its consequences. We may need to take action when the consequences will not be immediate but might, as the hon. Member for North-East Hertfordshire pointed out, occur in the future. In such cases, action may nevertheless need to be immediate. The real difficulty of this debate is that we are all conjuring up in our minds extreme situations and, as the hon. Member for Newark (Patrick Mercer) points out, we have a responsibility not to terrify the public.

Let me conjure up an extreme situation in which a threat may not be immediate, but the requirement for action may be immediate. For example, in the case of a biological element that could cause birth defects, the consequences would not happen for nine months, but urgent intervention of a peculiar kind might be required. We need to ensure that the requirement to act is urgent, that it is necessary because there is not another provision and—this is the third element of the triple lock—that there is an emergency.

I shall turn to the definition of an emergency, as that is the main point of the debate. It might help hon. Members if I explain how we came to the construction whereby the Bill names a wide range of things that could constitute an emergency. The reason for that is to create as clear a definition of emergency as possible, so that it is exhaustive and transparent. In clause 18, we do not want to talk about degree, but about the type of event. The issue of degree is dealt with by the necessity for action. Of course, degree is implied in the clause by the word ''serious'', but we are really talking about the circumstances that we might define as an emergency and that could be the first trigger for the use of emergency powers.

The Bill allows for emergency powers to be used in a wide range of contexts. Our intention is that they should be used only very rarely, and only at times of extreme emergency. They are designed not as a front-line tool, but as a safety net when other options are insufficient to resolve an emergency. In contingency planning and in our resilience work, the responsibility on Ministers must always be—and is always—ensuring that we have effective methods, which are not emergency powers, to deal with serious issues.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark 10:45 am, 3rd February 2004

I hope that I have not intervened too early on the Under-Secretary, but can she reassure me that the contingency planning and the resilience work to which she referred will be made public, so that in the most severe circumstances the public will understand when the line has been crossed and will be prepared for it?

Photo of Fiona Mactaggart Fiona Mactaggart Parliamentary Under-Secretary (Home Office)

As the hon. Gentleman knows, the Government make regular parliamentary statements about their progress and resilience work. We try to make information available, but that has to be balanced against the need to protect sensitive information. We are talking to practitioners about that work through meetings and presentations, so that those who might be involved in resilience work at a local level are aware of what is happening. Our general advice to the public is to go about their business in their normal way. They will be informed when they need to take particular action. Giving other advice may create fear, and that could make situations worse.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

I hope that the Under-Secretary will forgive me for interrupting yet again, but that is the very point that I was hoping to tease out. This country is on the second highest alert state possible. This country is at a higher level of alert than even America, and yet relevant information is not publicly—or easily publicly—available. Surely, if there is a possibility of invoking emergency powers such as those that we are discussing, the public need to understand that. As I said, only understanding before the incident will lead to fear being dispelled in one way or another.

Photo of Fiona Mactaggart Fiona Mactaggart Parliamentary Under-Secretary (Home Office)

That is a point of view. If a warning is necessary to protect public safety in the face of a specific and credible threat, the Government will issue one without hesitation, and we will provide any further information that is required in those

circumstances. However, providing generalised warnings before any action is required by citizens is not a sensible way of enabling them to protect themselves. That has happened in the past and has often led to citizens becoming cynical about some of the actions that they may be requested to undertake.

Our view is clear: we will inform citizens when they need to take action, and we will inform them about the generality of the action that the Government are taking to protect the life and operation of the nation. However, it can be dangerous to provide broad advice to citizens in that it can make them feel less confident in the efficiency of our procedures to deal with threat.

Our record and intelligence on such matters are good. We have taken specific action, ranging from advising airlines on how to behave to shifting the level of security of this Palace at times. We are confident that we treat such matters seriously and are planning thoughtfully. When it is necessary to inform the public, we will do so. However, the best advice for the public is for them to go about their business in the normal way, to listen if there is any warning, and to follow any information given.

Photo of Fiona Mactaggart Fiona Mactaggart Parliamentary Under-Secretary (Home Office)

I have been very generous in giving way on this point; I would like to continue to consider the generalities of the debate.

The clause provides a comprehensive list of circumstances that may qualify as threats to human welfare, the environment, and national security, and that is the reason for the power in the clause to which the hon. Member for North-East Hertfordshire drew attention on a number of occasions. That power enables the list to remain full and transparent. We believe that such transparency is important. The requirement enables us to deal with situations that we cannot envisage. All of us are stretching our imaginations to think of the circumstances in which an emergency power could be used. When the Emergency Powers Act 1920 was written, there was no awareness of the ways in which technology and information technology might be relied upon. That is now a part of the legislation, but it was not then. That is the reason for the provision.

Let me assure the hon. Member for Sheffield, Hallam that emergency powers will not mean that the Government cease to prepare for emergencies or rely on emergency powers. We agree that those powers are an instrument of last resort, and we will continue to pursue our resilience work in the way that I have just described to the hon. Member for Newark.

In the debate on circumstances in which those powers might be used, a number of hon. Members mentioned the fuel crisis. It is fair to say that of all the episodes that we have had to deal with—acts of terrorism, disruption of supplies in various circumstances and so forth—the fuel crisis is the most likely to have triggered this sort of provision. However, the fundamental reason for that is not because the emergency powers might have been used to sustain supply, but because of the threat to the

health services and human welfare that could have arisen from it. Of course, health services were not considered an essential supply in the 1920 Act.

We want to ensure that action should be taken only if that is necessary—that is provided for in clause 20—and that it is in due proportion to the activity. As the hon. Member for North-East Hertfordshire pointed out, we need to consider each element of the triple lock. We must consider not only whether there is an emergency, but whether powers exist in present legislation that could enable that emergency to be dealt with and whether the powers that are taken are necessary and in due proportion to the circumstances. The two elements must be read together with the description of an emergency in clause 18.

We are trying to be as transparent as possible about what is an emergency, so that people can have a clear picture of the kinds of things that might comprise an emergency—what could provide a serious threat to human welfare, for example. It is a part of that transparency to have a broad set of circumstances that might create an emergency. Therefore, tight, further locks are necessary.

The set of circumstances is described broadly. We want to make it comprehensive. A circumstance has to be serious to be provided for in the Act. However, a wide set of circumstances could pose a serious threat to human welfare. Those threats are comprehensively defined: events have to fit within the definition. There are then further triggers within the triple lock. This is not a catch-all definition. The power in clause 18(5) is very narrow.

I will now address the point made by the hon. Member for North-East Hertfordshire about making the definition broader. It relates only to the list of supplies, systems and facilities or services that disruptions to which present a threat to human welfare. It is already restricted in that respect. It is designed to ensure that the definition of ''emergency'' does not become out of date, so that we can retain a comprehensive definition. Members will have received a copy of the 1920 Act, which I circulated, and they will have seen how things that seemed to be essential for human welfare some time ago are not seen as that now.

The hon. Member for Meirionnydd Nant Conwy asked whether floods could be emergencies that trigger a response on this scale. I was born in 1953.

Photo of Fiona Mactaggart Fiona Mactaggart Parliamentary Under-Secretary (Home Office)

I thank the hon. Gentleman for that. The floods of that year led to the deaths of 307 people, and 30,000 people were rendered homeless.

The constituency that I represent was largely under water, vast swathes of farmland were inundated and ruined for years to come, and Winston Churchill described it as a national disaster. Now, the Environment Agency warns us that the possibility of that happening again is increasing.

It is possible that such circumstances could constitute an emergency for the purposes of the Bill. However, such an emergency would not necessarily trigger emergency powers if the powers that were

needed to deal with it already existed in legislation, or were not required so urgently that they could not be dealt with by normal legislative processes.

There could be circumstances that would fulfil the requirements of an emergency, but would not fulfil other requirements. That is why the triple lock operates as it does. It is important to have a broad definition of emergency, so that people know that it is comprehensive and other things do not creep in to it. That is one reason why we require a further element of the triple lock. The hon. Member for Meirionnydd Nant Conwy used the example of blockades during the fuel crisis. We could not use emergency powers if existing powers could properly be used in such circumstances—that is specifically precluded.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Defence) 11:00 am, 3rd February 2004

I am grateful to the Under-Secretary for the thoughtful way in which she is responding to the debate. In the event of such an occurrence, and of emergency powers being invoked despite there being at least two pieces of legislation that would apply, what right would those affected have in terms of legal redress?

Photo of Fiona Mactaggart Fiona Mactaggart Parliamentary Under-Secretary (Home Office)

There is a power in the Bill that allows for the use of existing legislative powers that cannot normally be used immediately. I shall come to that, but I do not think that that is the hon. Gentleman's point. He asks what recourse somebody might have to the courts in such circumstances. Access to the courts remains a fundamental principle of our constitution. Even in times of emergency, a person should be able to challenge the legality of an action that adversely affects him. The grounds on which regulations could be challenged could be those that the situation did not meet the definition of an emergency or that there were other powers to deal with it.

Photo of Oliver Heald Oliver Heald Shadow Leader of the House of Commons

The definition of emergency in clause 18(1) is

''an event or situation which threatens serious damage to . . . human welfare''.

Would the Under-Secretary say that that is the same, or has the same effect, as

''events . . . calculated . . . to deprive the community or any substantial portion of the community of the essentials of life'', which is the definition in the Emergency Powers Act 1920? To me, the terms essential or depriving the community of something essential provide a stronger test—a higher hurdle—than threatening damage to human welfare.

Photo of Fiona Mactaggart Fiona Mactaggart Parliamentary Under-Secretary (Home Office)

I understand that. That is one reason why the definition in clause 18(2) sets out a comprehensive list of what constitutes serious damage to human welfare. Relatively speaking, the 1920 Act was a catch-all provision, and we have sought to make the Bill more transparent by listing the factors that could constitute serious damage to human welfare. It will make clear all the circumstances in which the

emergency power might be invoked and increase Government accountability when the provisions are used.

These are serious issues, and it is right that hon. Members' concerns about them should have prompted them to table the amendments. However, I hope that I shown that the proposed changes are not necessary to achieve the end that the hon. Member for Sheffield, Hallam seeks. The issue of immediacy is dealt with properly in clause 20, while the issue of seriousness is dealt with by the way in which we have constructed clause 18. I hope that he understands that the Government cannot accept the amendments and that we will continue to resist them.

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 grateful to you, Mr. Benton, for permitting a wide-ranging debate on the amendments. That was our intention, and now that we have got all the issues out in the open—now that we have sent all our balloons up—I hope that we can make progress on subsequent amendments, many of which touch on the same issues.

I am grateful to the Opposition Members who have contributed and to the Under-Secretary for her considered response. However, I want to pick up a couple of points raised by the hon. Member for Meirionnydd Nant Conwy. The point about the breach-of-the-peace legislation was instructive, and my hon. Friend the Member for Orkney and Shetland (Mr. Carmichael) has mentioned the ability to apply wide-ranging legislation in the Scottish context. The breach-of-the-peace legislation was introduced in 1351 to deal with soldiers returning from the hundred years war, and the Government could use a huge amount of other relevant legislation if they dug deep enough. I hope that we shall discuss this issue later.

On the point about dealing with animals during the foot and mouth outbreak, I am concerned that clause 18 could allow the Government to disapply the Animal Health Act 2002, which we in Parliament introduced to deal precisely with such emergencies. However, we shall return to many of these issues in later amendments and, as we may want to return to the issue at a later stage or perhaps in another place, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Joe Benton Joe Benton Labour, Bootle

With this it will be convenient to discuss the following amendments:

No. 78, in

clause 18, page 11, line 38, leave out paragraph (f).

No. 93, in

clause 18, page 12, line 4, leave out paragraph (b).

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)

We have already touched on some of the issues before us. In responding to the previous group of amendments, the Under-Secretary said that clause 18 was about the types of emergency rather than the degree of emergency. We shall deal with the degree of emergency later, and amendments Nos. 91 and 93 deal with the types of emergency.

We seek to delete two elements. In an attempt to bind the Government's hands as much as we can—that is the tone of many of the amendments to this part of the Bill—we have sought to remove the provision relating to damage to property, because it is not justified in the context of the emergency regulations. We cannot imagine circumstances in which damage to property, independent of other events that damage human welfare—that injure or kill people—would justify triggering the emergency regulations. As we have already established, we are talking about a very high hurdle. We understand the need to refer to damage to property in part 1, which deals with planning, but not in part 2, which deals with emergency regulations. People used to spend a lot of time developing armaments that would kill others while leaving property alone, but I am not aware of terrorists having weapons that would damage property while leaving people alone. Therefore, we cannot envisage damage to property happening independently of damage to people. Therefore, its inclusion in the clause is not justified.

The second element that we address is flooding, which was mentioned by the hon. Member for Meirionnydd Nant Conwy. In our exchanges on the issue, it was suggested that we could expect flooding to happen with increasing regularity and severity in the context of global warming. That leads me to ask why we do not have a flooding preparations Act. In other words, why do we not introduce through primary legislation the powers that would be necessary to deal with an incident of severe flooding? Why wait until a flooding incident occurs and then deal with it by emergency regulations? If flooding on such a scale is as likely as has been suggested, we should deal with it in the way that I have described. Again, flooding in itself does not justify the triggering of emergency regulations.

Amendments Nos. 91 and 93 are straightforward. They would delete the provisions on damage to property and on flooding. As the debate develops, I am thinking more and more, in the context of the flooding provisions, that if there is a gap in the law or if we can predict a gap, the appropriate course of action is to plug that gap rather than wait for serious flooding to occur. I talked earlier about pouring fuel on the fire. Now we are trying to plug gaps rather than waiting for flooding to occur and trying to deal with it through emergency regulations.

Photo of Oliver Heald Oliver Heald Shadow Leader of the House of Commons

In the previous debate, I mentioned the Emergency Powers Act 1920. Section 1 of that Act, which we are replacing in these provisions, makes it clear that if at any time it appears to His Majesty, as he then was, that there have occurred or are about to occur events—it describes a number of things—of such a nature as to be calculated

''to deprive the community or any substantial portion of the community of the essentials of life'',

His Majesty may proclaim an emergency and make regulations.

The hon. Member for Sheffield, Hallam made it clear that amendment No. 91 would remove clause 18(2)(d), thereby removing ''damage to property'' as

one of the events that constitute a threat of damage to human welfare. He seemed to suggest that the purpose was to probe whether damage to property on its own can threaten damage to human welfare.

Let us consider the first three examples of damage to human welfare in subsection (2): loss of human life, human illness or injury, and homelessness. Then we come to the new category of damage to property. One can obviously imagine a situation in which a house is destroyed and property is damaged, but in those circumstances homelessness would be created. It is hard to see why the provision on damage to property is necessary in that respect, because an event that threatened homelessness would be covered. Equally, if damage to property involved the possibility of bits falling off a building and hitting someone in the street, the threat would be one of human illness or injury. Similarly, damage to property that was so serious that it might somehow kill someone would be covered by paragraph (a) on ''loss of human life''.

The hon. Gentleman's point, which I, too, should like to probe with the Under-Secretary, is why damage to property is included as a freestanding element of damage to human welfare. What sort of situation is the provision designed to cover? Damage to land that causes contamination is covered separately in subsection (3)(a). Is subsection (2)(d) on damage to property designed to cover a particular set of circumstances that have occurred in the past and that the Under-Secretary has in mind, or is it just a catch-all? Why is it in the Bill? I agree with the hon. Gentleman and wish to probe the Under-Secretary on that issue.

Amendment No. 78 would leave out paragraph (f) on

''disruption of an electronic or other system of communication''.

The purpose of the amendment relates to something that we touched on earlier. The disruption of an electronic or other system of communication is the sort of emergency or situation for which the suppliers or those who run the system plan. It is difficult to see why emergency powers are necessary in such a situation. That is the point that BT has made; it has said clearly that it feels that it can deal with such matters on its own. Clearly, if the situation is a by-product of a more serious incident, we come back to my point about damage to property. If the disruption of an electronic communication system is going to kill somebody, cause them injury or illness, or make them homeless, it does not need to be separately set out in this part. The Under-Secretary will need to explain what she has in mind.

Justice has also raised concerns about the issue. It has said that it understands that there may be circumstances, such as an internet virus or other communications disruption, that might create a risk of damage to individuals—illness, injury or loss of life. It is hard to see why this provision is needed as a separate freestanding element. I look forward to the Under-Secretary explaining that.

Amendment No. 93, tabled by the Liberal Democrats, would delete flooding from the provisions for events or situations that threaten damage to the environment. Clearly, flooding threatens such damage. However, if it pollutes the land, damages plant or animal life, causes homelessness or has any such important aspect, it is already covered. Why is flooding included even if it does not have those consequences?

Will the Under-Secretary say what the impact of this measure will be in relation to coastal erosion? One of the great issues in East Anglia, as she may know, is that there are places where the sea constantly erodes the cliffs. Over time, the water pours in and the landscape of that part of the coast changes and areas become flooded. What are the consequences of that? Could Ministers be sued by landowners who say, ''Oh look, there is a state of emergency here because my farm has gone underwater. What have you done about it?''? If that is not the case, why is it not a risk? If these powers exist and if the Under-Secretary says that they are justiciable, there is a danger that a member of the public could take a Minister to court if he believes that the Minister did not take action when it was necessary.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Defence) 11:15 am, 3rd February 2004

I shall discuss amendments Nos. 91 and 93 first, and I agree with what has been said. However, given the current wording of clause 18(2), it appears that an event or situation threatens human welfare if it causes ''loss of human life'' or ''illness'', and so on. The amendments would delete some of the types of damage described—specifically, human injury or illness and damage to property. My understanding is that that would make the definition of damage to human welfare stronger. They are sensible probing amendments that are worthy of a considered response.

On amendment No. 78, the Joint Committee on the draft Bill said in paragraph 47 of its report that the core notion of an emergency is a threat to human welfare. It acknowledged that some events may present a serious threat to human welfare in an indirect manner—for example, the collapse of the money supply would not by itself cause physical harm but it is easy to foresee its consequences doing so—for example by causing widespread loss of services and riots. The definition of emergency in clause 18 should cover such serious, though indirect, threats to human welfare, as well as the more obvious direct ones.

It is argued, however, that including disruption to

''an electronic or other system of communication'' as a threat to human welfare would make the definition of ''emergency'' too broad. It would therefore include a wide range of events that posed no risk to public safety. Nor would it usefully extend the definition to cope with serious indirect threats.

In recent years, communications systems in the United Kingdom have been subject to frequent and serious disruption without any significant threat

arising to human welfare. For instance, the Sobig virus caused major disruption to the internet in August 2003, and The Guardian in September estimated it to have caused as much as $14.62 billion worth of economic damage worldwide. Such an event would certainly count as a threat of serious disruption to

''an electronic . . . system of communication'' within the meaning of subsection (2)(f), but there is no evidence available to show that it ever posed any risk to human welfare. Similarly, the postal strikes in October 2003 were obviously disruptive, but they did not appear to endanger public safety.

An event causing serious disruption to a communication system and that threatened human welfare—for example, a computer virus that attacked emergency response systems or the air traffic control network—would safely fall within the meaning of the other grounds of clause 18(2). For example, it might come under an event threatening ''loss of human life'', which is in paragraph (a), or ''human illness'', which is in paragraph (b). On that basis, paragraph (f) is simply unnecessary.

As with communication systems, however, transport facilities in the UK are subject to frequent and widespread disruption without human welfare being threatened. Industrial action, maintenance problems and unfavourable weather conditions each, in their way, regularly cause serious disruption to facilities for transport, but no evidence has been put forward to suggest that such disruptions have caused any broader or larger threat.

Photo of Oliver Heald Oliver Heald Shadow Leader of the House of Commons

Does the hon. Gentleman agree that, not unusually, the 1920 Act includes a definition that sums up the sort of damage to human welfare that one looks for to trigger Government action? It says:

''an event of such a nature as to be calculated . . . to deprive the community, or any substantial portion of the community, of the essentials of life.''

Would he agree that the amendments are trying to re-establish the essential nature of the damage that must be done?

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Defence)

That is absolutely right. The hon. Gentleman is right to refer to the 1920 Act, because the Bill will codify or update it in many ways. It contains a clearer exposition of what we are talking about than the wording in the Bill. Although some improvement has been made since the Committee on the draft Bill, a great deal of further work needs to be done.

The definition of ''emergency'' should be limited to those events that threaten human welfare, and not be broadened to include disruptive events such as transport strikes that are otherwise relatively harmless. In the event that disruption to facilities for transport gave rise to some actual threat, we submit that such an event would naturally fall within one or other of the grounds under subsection (2). For example, under subsection (2)(e), a threat to human welfare already includes

''disruption of a supply of money, food . . . energy or fuel''.

As such, an event such as the fuel strikes of September 2000 would already be covered by that provision. Similarly, a strike by ambulance workers would be covered under subsection (2)(h), which mentions

''disruption of services relating to health.''

Transport disruption sufficiently serious to threaten human life or injury, for instance, would fall within paragraphs (a) and (b). Those eventualities have already been covered in earlier parts of the Bill, which

we have already discussed. The big word always used by Government is ''otiose''. I suggest that it might come in during the Minister's response, which I anticipate will be made later.

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Two o'clock.