Clause 18 - Meaning of ''emergency''

Civil Contingencies Bill – in a Public Bill Committee on 3rd February 2004.

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Amendment proposed [this day]: No. 91, in

clause 18, page 11, line 36, leave out paragraph (d).—[Mr. Allan.]

Question again proposed, That the amendment be made.

Photo of Joe Benton Joe Benton Labour, Bootle 2:30 pm, 3rd February 2004

I remind the Committee that with this we are discussing 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 Fiona Mactaggart Fiona Mactaggart Parliamentary Under-Secretary (Home Office)

It might reassure the Committee if I review the structure of the clause. For an event or situation to qualify as an emergency, it must threaten serious damage to human welfare and to the environment and the security of the United Kingdom, as listed in subsection (1). Subsection (2) gives comprehensive exemplars of things that are required in order for the damage to be considered serious. It is therefore not sufficient for something to fall within paragraphs (a) to (h) or within any subsections in other clauses: that something is pre-eminently required to qualify as causing serious damage to human welfare, to the environment or to the security of the United Kingdom. Bearing that point in mind might mitigate some of the concerns that hon. Members have expressed. Some of the examples that they have described would not qualify as an emergency because serious damage would not have occurred.

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 Under-Secretary's comments are helpful, and this is precisely what the amendments seek to clarify. The weakest interpretation is that something that may cause damage to property can also be defined as damaging human welfare. In other words, at what point would a Minister judge damage to property to be seriously detrimental to human welfare? Such a definition is difficult to arrive at. Incidents of death or injury are clearer, but we are trying to establish the threshold at which damage to property can be defined as being seriously detrimental to human welfare.

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

Let me give an example, although examples are always full of risk because, as I said earlier, they involve speculation. Damage to an

installation, such as a nuclear power station, might lead to further damage to human welfare—an example of damage to property at an initial stage creating a serious threat to human welfare. It is also important to recognise that the items listed in subsection (2) are deliberately designed to be comprehensive. They will overlap in many, if not most, situations.

To achieve transparency, we have tried to list comprehensively all the situations that might constitute serious damage to human welfare, so that nothing is left out of this provision that could suddenly be deemed to create serious damage. That is why this approach is preferable to the more general approach taken in the Emergency Powers Act 1920, in which there was much room for ministerial discretion. In order to be accountable to Parliament, we are seeking to allow Parliament to be clear about the things that need to happen to qualify as constituting serious damage to human welfare. Serious damage to human welfare must also have its natural meaning. The combination of those two factors is designed to provide the transparency and accountability to Parliament that the hon. Gentleman rightly seeks, and to provide the security that the threshold for moving to the use of emergency powers is sufficiently high. We need to be confident of both of those things.

Photo of John Horam John Horam Conservative, Orpington

I am grateful to the Under-Secretary for giving examples, as they help to elucidate the generalities of legislation. She will remember the ships that came across the Atlantic and the huge row last summer about whether they could be cleaned and dealt with at Hartlepool. From what she is saying, I guess that that case would not be included as an emergency, even though it could have led to contamination and environmental damage in the surrounding area.

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

That episode was dealt with by existing legislation, so the use of emergency powers would not be contemplated. Apart from anything else, such a case would be dealt with by other parts of the triple lock and would fail to meet the necessity provision. I do not know enough about the nature of the threat that was on those ships, so it is not for me to speculate, but one part of the triple lock is that there needs to be a serious threat to human welfare. Action must be urgent and necessary, and in due proportion to the threat.

There are a series of tests, which at each stage narrow the opportunity for using emergency powers as opposed to something else. Hon. Members are rightly keen for proper reassurances that the new provision is not a first stop when confronted with a situation that is difficult to deal with. It is a backstop. If the usual mechanisms at the Government's disposal are not sufficient because, for example, they cannot be deployed swiftly enough, the use of an emergency power could be considered if the event meets all the characteristics of the triple lock.

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

As the Under-Secretary knows, amendment No. 78 addresses, in part, the interrelationship between subsection (2)(e) and (h). Threatened

disruption to health services, money, food, water, energy or fuel is covered under paragraphs (e) and (h). However, why would we want a situation involving an electronic or other system of communication, such as an internet virus or other communications disruption, covered unless it involved the disruption of one of the other things—supplies, money, food, the health system? In other words, what is the case for having

''disruption of an electronic or other system'' listed on its own as an emergency trigger?

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

I have made it clear that our aim is for the list to be comprehensive. Subsection (2) contains a comprehensive list. Something can qualify as an emergency only if it includes one of the things on the list. It is necessary to be as inclusive as possible if one is also protecting the rights of Parliament by making it an ''only'' list.

I worry about giving too many examples, as I will reach the point when I can no longer think of any. However, I can think of one that might help. The threat of disruption to communications systems might on occasion have a significant effect on air traffic control, for example. In itself, that would not necessarily constitute an immediate threat to human welfare, but emergency powers might be needed to intervene and to deal with the situation urgently. One can imagine such circumstances. It is important that if we are to provide Parliament with security as to what might happen, we must ensure that there is clarity on what the circumstances that constitute a threat to human welfare are.

I am certain that most of the cases that would come under subsection (2)(f) would very likely be brought together with paragraphs (g) or (h), which deal with disruption of facilities for transport and the impact on health respectively. However, intervention might be required because many other systems now depend on electronic communications. I do not think that such powers are likely to be used, and I hope that the general powers in the Bill are not likely to be used anyway. However, they may, of course, have to be. In many cases, the utilities might be perfectly capable of dealing with matters arising from the kind of emergency that is envisaged in part 1. However, one can envisage a situation in which, for example, the duty of the utilities to their shareholders might conflict with the Government's duty to the nation. In those circumstances, the Government might have to make a temporary provision to direct how the utilities operate in order to deal with the situation.

Some hon. Members talked about how electronic systems could be disrupted, and the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) mentioned the Sobig virus. He must be reassured that only disruption that was a serious threat to human welfare—''serious'' is clearly stated—would require such action. The Sobig virus did not meet that test.

The hon. Member for North-East Hertfordshire (Mr. Heald) raised the slightly daunting spectre of legal action by a landowner when the Government had not taken action under emergency powers. I have

sought advice on the matter and it is quite true that it would be possible for such action to be contemplated, although I do not think that his point about coastal erosion would be covered by emergency powers. If someone attempted to take action through the courts to show that the Government should have used emergency powers, they would be able to do so. However, my judgment, which is supported by the history of judicial review, is that the judiciary would be reluctant to substitute its discretion for that of Ministers in such cases.

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) 2:45 pm, 3rd February 2004

I am interested in the Under-Secretary's remarks. If she is correct, surely there is an entirely new concept in the law in England and Wales. Let us say that, in a flooding incident, householders A, B, C and D were looked after because a barrage had been erected. If householders E and F unfortunately did not receive that benefit, however, they would go to the Government and say, ''Look, because you've not protected us, we're going to sue.'' The provision could offer carte blanche for some rough rides through the courts for the Government in the coming years. I would welcome the provisions if the Under-Secretary is right, but I question whether that interpretation is correct.

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

What I was saying, in answer to the hon. Member for North-East Hertfordshire was that anyone could raise an action, but that I saw no prospect of an action enjoying any success under the approach that our judiciary takes. Our system of law permits people to take legal action, but it does not guarantee them success.

On amendment No. 93, the hon. Gentleman raised flooding, which can be devastating to infrastructure and property. It is appropriate that powers are available if there is a threat of flooding on such a scale as to sever vital road and rail links and devastate buildings vital to the provision of essential services. Although it is proper to discuss what might be considered an emergency, the Government must resist the amendments.

Photo of Mr Michael Trend Mr Michael Trend Conservative, Windsor

The Under-Secretary, being my neighbour in east Berkshire, will know that we experienced a serious flood some 12 or 13 months ago, which mainly affected my constituency, but which might have affected hers to some extent. The people who were flooded, or who were involved in trying to find a way forward with the Environment Agency through flood risk and alleviation groups, feel strongly that they might have some grounds for action against the agency or the Government. Does the Under-Secretary envisage that an emergency might be declared in a slightly worse situation than that one? How high on the grade of situations that could be declared emergencies was that?

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

The hon. Gentleman was not here earlier when I gave an example of a flood that might have that result. That example would be familiar to people in his constituency of my age and over, being the 1953 flood, which affected the same area and a larger area. It put the road that runs between my constituency and that of the hon. Member for Maidenhead (Mrs. May) completely under water, and turned Cookham into an island with about two houses on it. A flood of that size could be considered to require the kind of powers envisaged in the Bill, whereas a flood such as the one that we recently experienced could, although devastating to our constituents, properly be dealt with within the current legislative framework. The legislation that we are debating should be used only when the problem cannot properly be dealt with by other legislation.

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

Amendment No. 78 concerns electronic systems. I am not satisfied with the Under-Secretary's response. Under clause 18(1), an event must threaten serious damage to human welfare to be considered an emergency. Subsection (2) sets out the only circumstances in which that may arise, unless subsection (5) is used, by order, to add to a class, or to treat a specific incident as coming under one of the relevant headings, whether or not it might otherwise do so.

One is entitled to ask, ''Can I imagine any circumstances in which disruption of an electronic system of communication would justify emergency powers legislation if it did not also involve disruption to money, food, water, energy, fuel, transport or health, loss of human life, human illness or injury, homelessness, or damage to property?'' If a disruption would not make any of those things happen, it is hard to see why it would warrant an emergency being called. I am not satisfied that there is a circumstance in which that would be the case. The Under-Secretary tried valiantly to give an example, and I give her full credit for trying. She came up with the example of air traffic control, but that would clearly involve disruption of facilities for transport, a point at which she later hinted. I am not satisfied, and I want to press amendment No. 78 to a Division. I am not quite sure of the procedure, because it is not the first amendment in the group, but in so far as it is necessary to ask for such a thing to happen, I ask now.

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 will take your advice, Mr. Benton, on how and when we can divide on that amendment. I have been moving backwards and forwards on my own amendment as the Under-Secretary has spoken. She gave a very considerate response, which in some ways has made things clearer. We are dealing with a huge set of events that can cause all the things described here. For instance, murders cause loss of human life, evictions can cause homelessness, computer viruses can bring down networks, the transport system can be disrupted on a daily basis by the train operating companies. All of that can happen, but for the emergency we are dealing with, the subset

that must be satisfied is the condition of causing serious damage to human welfare. That is my understanding of her comments.

In that context, I can understand the reason for paragraphs (a) to (c) and (e) to (h). They are restrictive, and clarify the circumstances that would call for declaring an emergency. However, paragraph (d) stands out in even greater contrast, because it is the least well defined of them all—anything can be ''damage to property''. The others seek to narrow the definition; but paragraph (d) is the one that absolutely broadens it out. I remain concerned about it. I understand the logic of the others paragraphs, but not of paragraph (d).

On the flooding point, again we remain concerned because the importance of the reference to flooding, which we seek to delete, is that it refers back to subsection (1)(b), about the environment of the United Kingdom. The Under-Secretary talks about flooding and the damage to human welfare, but we are not talking about flooding in that context. The reference to flooding is specifically related to subsection (1)(b) and damage to the environment, rather than subsection (1)(a) and damage to human welfare. The flooding question remains open.

My instinct is not to press our amendments, bearing in mind strictures from the Chair about issues that one might wish to return to. I think that we need to consider this issue further. I am not persuaded that the hon. Member for Ealing, North (Mr. Pound) is entirely on our side on this occasion, although he promised support on earlier occasions. I do not intend to press our amendments, but I hope that that does not disrupt the ability of Conservative Members to press amendment No. 78, which I would be minded to support.

Photo of Joe Benton Joe Benton Labour, Bootle

I shall put the question on amendment No. 78 formally when we come to it, but at the moment we are dealing with amendment No. 91.

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 beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 78, in

clause 18, page 11, line 38, leave out paragraph (f).—[Mr. Heald.]

Question put, That the amendment be made:—

The Committee divided: Ayes 7, Noes 10.

Division number 5 Adults Abused in Childhood — Clause 18 - Meaning of ''emergency''

Aye: 7 MPs

No: 10 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Photo of Oliver Heald Oliver Heald Shadow Leader of the House of Commons 2:45 pm, 3rd February 2004

I beg to move amendment No. 107, in

clause 18, page 12, line 11, leave out subsections (5) and (6).

The amendment would remove subsections (5) and (6). Those subsections allow the Secretary of State to say that an event threatens damage to human welfare, and also to amend subsection (2) to define whether disruption to supply threatens damage. Subsection (6) allows consequential amendments to part 2 of the Bill provided that the draft has been approved by both Houses.

My hon. Friend the Member for Stone (Mr. Cash) made it clear on Second Reading that the subsection was worthy of particular consideration. He made the point that although times and circumstances had changed since 1920, questions of liberty and justice remain immutable. He pointed out that the Bill allows for carte blanche amendment, as he put it, and adaptation of existing legislation. He went on to criticise subsection (5) as enabling a Secretary of State to add classes of events and situations and specify them pretty much at will. That would obviously be subject to approval of both Houses of Parliament, but with a Government with a substantial majority—up until now—it will happen.

My hon. Friend went on to quote Rene Descartes as saying, ''I think, therefore I am''. He made the point that in this Bill, the Secretary of State is saying, ''I think, therefore it shall be.'' I would like to probe the Minister on the purpose of subsections (5) and (6). Why are they necessary? In the context of the structure of the clause, which is designed to list only the matters that shall be treated as threats to human rights, is it right that the Government go on to say, ''Except that, if we want to, we can add any range of ideas or particular event''. The provisions do not seem to have the sort of certainty that the Under-Secretary was talking about a moment ago.

Will the drafts be amendable? The draft cannot be laid before Parliament and amended, which is true—unusually—of the emergency regulations themselves, and that concession has been greatly welcomed. Given that the effect of the provisions could be to open up a range of new areas in which emergency powers can be given, should not the drafts be amendable?

What will happen if we are in an emergency situation and the powers need to be exercised, but Parliament is unable to meet, for whatever reason? One can imagine an emergency bad enough that Parliament would not be able to meet. In those circumstances would the Secretary of State be stuck and unable to add to the categories, or is there some catch-all arrangement later on in the Bill? Would it be possible to deal with matters in some other way?

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change) 3:00 pm, 3rd February 2004

My hon. Friend the Member for Sheffield, Hallam (Mr. Allan) and I are probably in agreement with the Conservatives on this point. With good

reason, the powers relating to subsections (1) and (2) have been drawn fairly widely, and we have no real quibble with that. However, to provide that the powers can effectively be amended by an order when they are as widely drawn as they are makes us feel somewhat uneasy.

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

One point that I did not make, on which the hon. Gentleman may wish to give us his thoughts, is that if the matter were dealt with as the clause provides, we would normally be talking about a 90-mintue debate. As an important issue could arise, is he satisfied with that?

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

It will come as no surprise to anyone that I certainly do not think that that is a particularly satisfactory way of dealing with the matter. The way in which this House, as opposed to the other place, deals with secondary legislation is not satisfactory, particularly when we are talking about an issue of such importance and gravity. If it were merely a question of orders being made under subsection (5)(a) to specify or exemplify the powers that are to be exercised under the earlier subsections, I might not have a quibble. However, when subsection (5)(a) is read with subsection (5)(b) and subsection (6), it is clear that what is envisaged is rather more extensive. I would be interested to hear the Minister's justification for that.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

It defeats me why subsections (5) and (6) are necessary. The powers in the clause are spelt out clearly and thoroughly in subsections (1) and (2), and they give a sufficient level of power. In combination with the triple lock that we were talking about earlier, that means that the powers can be considered in some detail, and that there can be negotiations and debates. The imposition of subsections (5) and (6), however, seems wholly illiberal. Every other check and balance in the clause will be overthrown at the whim—perhaps that is a slightly unfortunate word—certainly at the behest of a Secretary of State whose party enjoys such an enormous majority in the House. The amendments are intended to redress that balance. I really do not see why subsections (5) and (6) need to be included. The rest of the clause means that things can be dealt with perfectly competently and capably. I would be most interested to hear how the Minister can possibly justify the imposition of the two subsections.

Photo of Mr Michael Trend Mr Michael Trend Conservative, Windsor

I recognise what the provisions are intended to do. Most human beings would think that the fact that those who drafted the Bill drew up a huge list would suffice. They would think that ''damage to property'' and ''loss of human life'' would catch almost anything going, but there is a terrible temptation among those who draft Bills to say, ''Oh well, just in case there's something that we haven't thought of, let's bung in a catch-all provision at the end. We can think of some way of doing that, using this sort of instrument or that sort of instrument.'' Speaking for myself, I think that it is part of the role of Governments to question strongly whether such things are needed, or whether in certain circumstances, which one cannot

imagine, they may have some mischievous purpose. I ask the Minister to consider carefully whether the subsections are justified. Could something that was so extraordinary not be seen on the radar and appropriate legislative measures be taken in a timely fashion? I understand why a catch-all provision has been recommended, but I am not persuaded that it has a purpose. We need to be able to envisage the sort of circumstances in which it might be used, and in that case we ought to make a judgment about that.

Photo of John Horam John Horam Conservative, Orpington

Is there any precedent for this sort of conjunction of arrangements, whereby on the one hand we have an extremely comprehensive list of the circumstances in which emergency measures may be taken, and, on the other, we have a catch-all provision? I have seen legislation that is pretty wide-ranging, whereby more or less everything bar the kitchen sink can be considered, and I have seen legislation that is clear about what is involved. What I have never seen before is the two brought together in this way. I wonder whether the Minister has any precedents that she can quote to back up her case.

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

I start by telling the Committee about the purpose of the power. People have assumed that it has a slightly different purpose than that which is intended. It is designed to enable the Secretary of State to specify more precisely whether a particular event or situation, or a particular class of event or situation, falls inside or outside the definition of emergency. It is not designed to give a power, nor does it do so, to amend that definition. So, all the provisions of subsection (1) will continue. That definition is a broad one. It is not possible to specify in the Bill every event or situation that is an emergency.

However—this is the circumstance in which the power might be used—it may be possible to identify impending events and situations that might become emergencies. An example of a situation that turned out not to be an emergency, but that we all thought might become one, was the millennium bug. That was an example of an apparently impending potential emergency that turned out not to be an emergency. There are hon. Members in the Committee who know much more about the consequences of the millennium bug than I do.

The intention of subsection (5)(a) is not to change the list of what is required to provide a threat to human welfare, but to say whether an event falls inside or outside the definition in subsection (1). That would provide an opportunity to have a debate in advance of an event occurring about whether it might be an event for which it would be appropriate to use emergency powers.

Photo of Mr Michael Trend Mr Michael Trend Conservative, Windsor

I agree that the millennium bug is a good example, but surely that would be covered by subsection (2)(f), the hugely controversial disruption of electronic or other systems of communication. That rather makes my point. I think that it is covered.

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

Indeed not, because I am talking about the power in subsection (5)(a). That power provides

''that a specified event or situation, or class of event or situation, is to be treated as falling, or as not falling, within . . . paragraphs (a) to (c) of subsection (1)''.

It gives Parliament an opportunity to discuss an impending event, or potentially impending event. So, Parliament could have a second bite at the cherry. I understand hon. Members' concerns that that might provide a free ride, but it is designed to give Parliament an additional opportunity to question before a Minister takes action.

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)

Will the Under-Secretary clarify how it is intended that the power should be used? This is the part of the subsection that we think is sensible. It is more restrictive than open. Is it the Government's intention to publish a set of regulations that say that floods of a certain magnitude and certain types of terrorism will fall within this, or will it be used specifically on a case-by-case basis? Will the Government say, ''We expect floods of a certain magnitude next year, therefore this year we are bringing in the regulations''? I wonder if she could clarify how they intend to use this order-making power.

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

Matters will need to be dealt with on a case-by-case basis. Had we been able to make complete provision in advance, that would have been built into the Bill, as we have tried to do throughout. That is why we have tried to be comprehensive. What we are trying to do here is ensure that, in a matter that could fit within the concept of emergency with which the Bill is designed to deal, and that, if, as could be the case, it is foreseeable and foreseen that under subsection (5)(a) a class of event could be considered to fall within subsection (1)(a) to (c), there would be an additional opportunity for Parliament to hold the Executive to account.

The hon. Member for Stone was concerned about the other parts of the clause that he felt might be a catch-all opportunity. I will try to assist hon. Members to understand how the rest of the provision continues. Having agreed that subsection (1) is not amendable, although Parliament could decide that a particular event was covered by it—we are not seeking to amend it, but to give Parliament an opportunity to decide whether an event is included—the second part of the provisions could allow subsection (2) to be amended in order to provide that

''involving or causing disruption to a specified supply, system'' such as electronic communications, which might create an emergency, is treated as threatening damage to human welfare.

We discussed earlier how the 1920 Act did not envisage the importance of telecommunications and information technology. The complete collapse of the telecommunications system might cause a national emergency on its own. The second part of the provision says that either something is, on its own, not threatening damage to human welfare, or one could add to that list to ensure that the Bill is constructed in a way that makes the list comprehensive. If it is, Parliament is the body to which Ministers are properly accountable. We need a mechanism to ensure that the

list remains comprehensive in order to sustain the structure that says that, ''A matter can be treated as an emergency only if one of the following happens.''

Although the appropriateness of much of the definition of emergency will not be affected by the passage of time, it is possible—it has happened since the 1920 Act. We do not want continually to pass legislation on the matter. New supply systems, facilities and services might become so essential to human welfare that civil protection duties should apply to an event that disrupts them.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change)

Subsection (5)(b) refers to

''involving or causing disruption of a specified supply, system, facility or service''?

I have read it several times, as has my hon. Friend the Member for Sheffield, Hallam, and we just cannot see what it means.

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

Subsection (2)(e) to (h) uses the same fundamental language and concept of the disruption of a supply. Subsection (5)(b) gives the power to rule out one of the events in subsection (2)—for example,

''(g) disruption of facilities for transport''— and say that it is no longer necessary. In future, we may be saying ''Beam me up, Scottie''. It also gives the power to include a new, specified supply, system, facility or service. Therefore, it echoes the language in subsection (2) to show that the Bill is not an unfettered framework and that we will consider whether new forms of supply, if interrupted, might cause damage to human welfare.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change) 3:15 pm, 3rd February 2004

It might be clearer if we echo the language of subsection (2)—''an event or situation''—in subsection (5)(b) by putting those words with

''involving or causing disruption of a specified supply''.

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

The hon. Gentleman is getting into matters of drafting.

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

It seems to me that the meaning and the intention are clear. If we use subsection (2), disruption of the kinds of supply that are not currently listed could be included in circumstances where there could be serious damage to human welfare was threatened. Unless such a provision is included—I am not prepared to banter about the language—we will be unable to sustain the principle of the Bill, which is to be comprehensive about what constitutes damage to human welfare.

Mr. Allan rose—

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

For a final time I will give way. I am being generous.

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 are not seeking to banter, but we are trying to be helpful on a subsection that we do not like in its entirety.

My hon. Friend the Member for Orkney and Shetland (Mr. Carmichael) has a point in relation to the wording of the subsection. To us it is not clear. Part of our job in Committee is to look at lack of clarity in the wording as well as at the issues and principles. If the Bill stays as it is because the amendment falls, we want it to stand on the record that we believe that the wording could be improved.

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

I would be prepared to reconsider the drafting of the subsection. We disagree here about what we are seeking to achieve.

The power in subsections (5) and (6) is a limited power that does not change the definition of an emergency, but allows us to retain the Bill's framework, which is to have a comprehensive definition of what represents a serious threat to human welfare. In my view, the power increases the clarity and accountability of the Bill.

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 can follow the Under-Secretary's argument. Considering subsection (6) and the need to place a draft resolution before Parliament, if an urgent need arises during a lengthy recess, does she envisage Parliament being recalled to consider such a measure?

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

The hon. Gentleman is right in that the subsection (5) power could not be used if Parliament was not sitting. As I have tried to show, however, that power is designed not necessarily for use in an emergency, but to ensure that the definition can be kept up to date over time and that when one can envisage a situation requiring the use of emergency powers Parliament would have an opportunity to debate whether it fell within the definition of an emergency in subsections (1) to (3).

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

I have become more concerned about the subsection as the debate has gone on. I understand the Under-Secretary's point about the millennium bug or some other possible major catastrophe, but I have thought about the matter a little more and I wonder whether the reason for subsection (5)(a) is that Ministers or their officials are concerned that some decisions might be controversial and that it might be hard to decide whether they fall either side of the line. If a decision was later found to be unreasonable, the consequences in terms of legal action and damages may be substantial. Is the purpose of subsection (5)(a) to enable a controversial decision to be ratified by Parliament so that it definitely falls within the framework of subsections (1) and (2)? In other words, is this a back-covering operation to enable Ministers to take difficult decisions? That is the first concern that has arisen in the debate.

The second concern involves subsection (5)(b), which gives the Government carte blanche to add new categories of disruptions to systems, services and supplies. There is little justification for that. The Under-Secretary may rightly say that the structure here provides a list that clearly defines the services in respect of which disruption would cause harm to human welfare. In such circumstances, however, I do not think that the Government are entitled to have a catch-all and say, ''Oh well, in 30 years science may

have changed.'' We pass so much legislation that surely we could find the time to consider a short two-clause Bill if it really were necessary to add a new category. As has been said, subsection 5(b) is a bung-it-in operation, while subsection 5(a) is a cover-the-Minister's-back job. I am therefore not at all satisfied on subsection 5(b).

Subsection (6) allows primary legislation to be changed by order, which the House is always anxious to avoid because it gives away the power and sovereignty with which we are all entrusted. This is not a satisfactory situation, and we will want to reconsider it on Report. At least, I imagine that my hon. Friend the Member for Stone will be very keen to reconsider it, as he has taken such particular care over the issue.

On the understanding that we want to return to the matter, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Photo of Joe Benton Joe Benton Labour, Bootle

Members of the Committee now have the opportunity to discuss matters relating to amendment No. 84, although it has not been selected and cannot be voted on.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

At the near-conclusion of our debates relating to the clause, and having examined the definition of a state of emergency in parts 1 and 2, I want to point out that clause 55 of the Fire and Rescue Services Bill provides a wholly different definition of ''emergency'', which members of the Committee can read for themselves. I hope that the Under-Secretary will not think that I am endeavouring to spoil or wreck in any way by producing this quibble; it is probably no more than that, but it is important. My question is simple: if ''emergency'' has been so defined for the Fire and Rescue Services Bill, is there such a great difference between the requirements of that Bill and those of this Bill? Why did we not give due consideration to the issue earlier, when we discussed part 1? If the definition of ''emergency'' under the Fire and Rescue Services Bill is perfectly adequate, why was that not taken into account during the drafting the of definition of ''emergency'' for this Bill?

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

As I have constantly said, our aim is to try to ensure that the drafting for the definition of ''emergency'' is comprehensive and clear. The reason for that is that the powers that we seek to create through the Bill are significant. It is therefore particularly important that Parliament be fully involved in defining as comprehensively as possible the definition of an emergency.

The context for that definition is different from the context of the Fire and Rescue Services Bill, to which the hon. Gentleman referred. For example, countering terrorism is not a primary aim of firefighters. In those circumstances, while providing for these powers, we felt it proper to seek as much transparency as possible by making the definition of the circumstances in which they might be invoked as comprehensive as possible. Transparency and clarity have been our priorities. Our

aim should be to give as full an indication as possible to Parliament and to the public of the situations in which the use of emergency powers might be necessary.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

Transparency and clarity are—forgive the pun—extremely clear, but having two different definitions of ''emergency'' in two different Bills seems neither transparent nor clear. Does the Under-Secretary imagine that many other definitions of ''emergency'' exist in legislation, and if so how many? Does she foresee the introduction of other definitions in other Bills?

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

I have not done a word search for other definitions, so I cannot tell the hon. Gentleman how many there are, but I can tell him that there are good reasons for having definitions that are appropriate to the context. The context of the definition in question is the kind of emergency in which it might be appropriate to use emergency powers. There are other emergencies in which the appropriate reaction is to send an ambulance or a fire truck. The definition of those emergencies is quite different from that for the ones that we are discussing in relation to part 2. According to the context, it is necessary to have different definitions of ''emergency''.

We have sought to provide as full and transparent a definition of ''emergency'' as possible because our judgment is that there is merit in seeking as comprehensive a definition as possible to make clear to Parliament and to the people all the circumstances in which it could envisaged, although it would not certainly happen, that the Government might use the emergency powers that the Bill provides for. That is the reason for taking such an approach. I am confident that it is the right approach and that it gives the appropriate power to Parliament as well as the appropriate understanding to people of the circumstances in which these powers might be used.

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

Was there any consultation about the two different definitions among those giving instructions to parliamentary counsel, because there seems to be no reason for not using the definition in the clause in the Fire and Rescue Services Bill?

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

There has been consultation, of course, but our view, which I have just set out, is that different circumstances require different definitions. ''Emergency'' has a natural meaning and the definition required—for example, in providing for how one would deal with an ambulance or health services emergency—is different from the definition that might be required for the Bill. That is why we have given as clear and comprehensive a definition of ''emergency'' as we can. It seems to be the right way to go to be as transparent as possible about the circumstances in which we might use emergency powers.

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 apologise for not diving in before, but I was looking at the next group of amendments. This will not require a ministerial response, as it is more a comment on the clause than a question.

I simply wish to put it on the record that the Liberal Democrats remain concerned about the definitions in the clause. I am aware that we are only on lock 1 of what is supposed to be a triple lock and that we still have to make a great deal of progress. Having spent a lot of time considering the matter—we needed to do so—it seems that the first lock is not really much of a lock at all. I suspect that the other two will be more of a lock, but the definition is so broad and comprehensive that to call this a lock is a misnomer. We remain concerned about some words, which I am sure we will return to at later stages.

Question put and agreed to.

Clause 18 ordered to stand part of the Bill.