Conditions for making emergency regulations

Civil Contingencies Bill – in a Public Bill Committee at 4:45 pm on 3rd February 2004.

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Photo of Joe Benton Joe Benton Labour, Bootle

With this it will be convenient to discuss amendment No. 99, in

clause 20, page 13, line 31, leave out paragraph (b).

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

These two amendments in my name and that of my hon. Friend the Member for Sheffield, Hallam would delete paragraph (b) in subsection (5) and paragraph (b) in subsection (6). The clause as a whole helpfully leaves out the circumstances in which emergency regulations may be made under clause 19. We seek to probe the provision of the extraordinary power in subsections (5)(b) and (6)(b). It is proper and unexceptional that the power should not be exercised unless the existing legislation cannot be relied on without the risk of serious delay. That strikes at the heart of urgency and emergency. Likewise, one can have no objection to the provision that the existing legislation might be insufficiently effective. However, the middle provision, that

''it is not possible without the risk of serious delay to ascertain whether the existing legislation can be relied upon'' is curious.

As I understand it—perhaps the Under-Secretary will correct me if I am wrong—it is referring to there being no time to find out. I should have thought that the number of lawyers in the Government's ranks, never mind those whom they employ, would have made that unnecessary—I shall not go so far as to say otiose. [Hon. Members: ''Go on.''] I am a moderate man and a cautious lawyer.

That strikes at the heart of the matter. I am all for giving the Government powers that are necessary, but I simply do not see any need to encourage laziness.

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)

In rising to support the hon. Gentleman, I want to say that I think it is quite remarkable that the paragraph has been included. We have a provision that states:

''the existing legislation cannot be relied upon without the risk of serious delay'', and then there is the provision that states:

''existing legislation might be insufficiently effective.''

I really cannot see the excuse for paragraph (b). If it is to stand, and the Government say, ''We can't be bothered to use the Library over there to find out whether there is a provision to help us. We'll carry on regardless, and find out some day that we've brought in legislation that wasn't necessary,'' that is an astonishing state of affairs.

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

The Government cannot support the amendment, but it might help hon. Members if they listened to—I am sorry, that sounds as though I am telling hon. Members off, and I did not mean it that way. The provision covers what would happen if it were not possible to discover for certain whether an existing piece of legislation could be relied on quickly enough in an emergency situation. We are

talking about extraordinary situations. It is possible that legislation that had been designed for one purpose could properly be used in an emergency situation, but it would not have been used in those circumstances before, because emergencies are emergencies, so there would not be experience of such a use.

The law is often complex and relevant provisions might be in relatively obscure legislation. The meaning and intent might be subject to differences of interpretation and it might be necessary to seek counsel's opinion to see whether a particular power is sufficient and appropriate to be used in the emergency. In such situations, when lives might be at risk and it is not possible to ascertain with complete certainty whether a piece of legislation will be effective, and when there is not time to seek the views of a higher legal authority, the measure represents an assurance that it is not ultra vires to make a provision that due consideration reveals could have been made under existing legislation. Such measures would not be taken because a Minister was lazy, but because circumstances were extraordinary, and the legislative power in question perhaps had not been used in that way before.

The provision ensures that when regulations are made, they are made properly. We may find ourselves in those circumstances, and this is a proper provision to make.

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

I have listened carefully to the Under-Secretary's explanation, and I do not think that the situation is any better than it was when I raised my probing amendment. When I made my living from being a lawyer, and sat in my wee office in Macduff, or occasionally in Buckie, and I came across a legal problem that I did not know the answer to, sometimes it was a day or two before I could get back to a client. The Under-Secretary and her colleagues in Government have rather more substantial resources at their disposal than I ever had in my wee office in Macduff or Buckie. I cannot believe that the ranks of Government lawyers who will be employed in the drafting of the emergency regulation could not apply their mind for a second or two to whether the existing legislation was fit for purpose. It seems that the real point at issue is ensuring that the Minister's back is covered and that, as a result, we risk having duplication of effort and legislation, which ultimately would be undesirable.

I said initially that this is a probing amendment. Our probing has not elicited any great comfort, but I reserve the right to return to the matter at a later stage and, accordingly, do not intend to press it to a vote. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

I beg to move amendment No. 85, in

clause 20, page 13, line 34, at end add—

'(7) The fourth condition is that subject to the conditions appertaining at that time the public be informed at the earliest possible opportunity of the type of emergency, the steps taken to mitigate its effect and its likely duration and the area affected by the emergency.'.

The amendment seeks to include a practical element alongside the other conditions for making an emergency regulation that are specified in clause 20. It makes it clear that we are looking for a fourth condition. It is intended purely and simply to probe the Government about how far they intend to take clause 20, with a view to making their actions not secretive but completely open and to align them with making information public before, during and after an incident.

Let me give an illustration. The powers in the Bill are predicated on the worst possible event, which, as we have already heard, could be some form of traumatic assault, be it by disease, weapon or natural disaster. Clearly, all of those would cause conditions such as have probably never been experienced in this country.

The amendment seeks to ensure that people understand precisely what has happened. What would be the benefits of that? If, for instance, there were a dirty bomb in Cornwall, which is a reasonably discrete part of the British isles, how much sense would there be in broadcasting the fact that that attack had 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)

I wonder whether the hon. Gentleman is party politically motivated. His dirty bombs always go off in Liberal Democrat areas. It was Liverpool last time, and now it is Cornwall.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

I shall try in future to be a little more generous in deciding where my dirty bombs are likely to explode. I used Cornwall for the obvious reason that it is discrete from the rest of the UK.

In the event of a device exploding in Cornwall, to what temptations might the Government be open? It is possible that they might wish to be secretive about the event and not inform the rest of the nation about what had happened. They might hope that by keeping the event reasonably secret, by keeping to a level of security, they might avoid panic spreading to the rest of the country.

The Minister and, in the past, her colleagues have made the point clearly that Government strategy rests on not doing the terrorists' job for them by scaring the pants off the public, by showing the whole gamut of horror that might result from such an attack. I do not agree with that position, but I understand it. There is a certain sense in it. If one wishes to live in a free society and to try to make terrorism less effective, there is an argument for not broadcasting what the terrorist can do to people should because it will alarm them unnecessarily.

I do not believe that argument; the contrary argument is that knowledge and understanding dispel fear. In a particular event, the public should be told as soon as reasonably possible. They should be told, provided that they have been alerted to the dangers beforehand and, to refer to what was said in an earlier sitting, they have been trained in how to deal with the

particular exigencies. If that does not happen, I can begin to understand why the Government might wish to be less open about the event.

The Government must understand that it is highly likely—as we saw after the events of 11 September—that other attacks would follow hard on the heels of the first. After 11 September, one attack was quickly followed by another. A series of attacks then occurred around the world, which have been less well publicised. In particular, there was an attack on a French chemical plant in Toulouse on 13 September. It was not widely acknowledged as an al-Qaeda attack, but it was part of the series of attacks that had been planned, starting in America and spreading worldwide.

Were we to agree to the amendment, it would be clear to the public that had an explosion occurred in one or another part of the country—Orpington, let us say—

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

My pleasure. If an explosion occurred in one part of the country, other areas would be aware of that and alert to the possibility of an attack. I underline that information on such an emergency should be broadcast to the public at the earliest possible opportunity.

The steps taken to mitigate the effects of the emergency should also be made clear. Returning to the analogy of the dirty bomb, decontamination would need to start immediately within the area where the device has exploded. People would have to be aware that emergency powers had been put in place. There might be a cordon of armed police and soldiers who may, in certain circumstances, be allowed to open fire on people trying to escape the contaminated area.

By broadcasting the effects of an attack, the people who are in the downwind plume—the hazardous area where contamination might spread—would be alerted to what had been done and what was likely to be done. It is possible that, if the wind were in the west, areas west of the bomb would in due course feel its effect. The public would need to know what had happened, what type of emergency it was and what was being done about it. Broadcasting the estimated duration of the crisis would be extremely effective in dispelling fear. People should be told what was likely to happen.

Photo of John Horam John Horam Conservative, Orpington

I have no wish to subvert my hon. Friend's argument, but the need to explain matters to the public, which might be accelerated by his amendment, could adversely affect the decision on the type of reaction that the Government have in mind. It is often the case that the press get wind of something, even if it is not something overt such as a sudden attack but the intelligence service believing that something is about to happen. There might be a scare such as the one over BSE, for example. The Daily Mirror got wind of that and put pressure on the Government to make an announcement about it. The fact that the Government had to make an announcement, because there was already something in the public domain, had a destabilising effect on what they eventually decided

to do. They had to decide more rapidly than they would otherwise have done. Of course, they felt under pressure to reassure the public in some way.

There is a problem here and it involves the educative process. Any Government are concerned to reassure the public and to get across the exact degree of risk and danger involved. At the same time, they have to act very fast.

Photo of Joe Benton Joe Benton Labour, Bootle

Order. That was a somewhat lengthy intervention.

Photo of John Horam John Horam Conservative, Orpington

My hon. Friend has the gist.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

I have indeed got the gist and I am grateful to my hon. Friend for that point. If I may digress, it is a moot point whether the lessons of the foot and mouth crisis of 1967 or 1969, or at the end of the 1960s, were learned.

Photo of Joe Benton Joe Benton Labour, Bootle

Order. Remarks must be addressed through the Chair.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

Forgive me, Mr. Benton. I do not know whether you can help me about whether the foot and mouth crisis was at the end of the 1960s, but let us say that it was. [Interruption.] I am now told that it was in 1966.

If the effects of that incident had been remembered, if the physical measures that were taken to mitigate the effects of foot and mouth disease at the time had been brought to mind and if farmers and other agricultural workers had been reminded of the dangers and had been trained in how to mitigate against them, perhaps the alarm and despondency that spread—due, as my hon. Friend the Member for Orpington suggests, largely to the efforts of the press—might have been reduced. That underlines the point that I am trying to make.

The amendment would seek to build on the effects of training and warning people beforehand. It would create a fourth condition, which should, combined with the points that I have made, ensure that the effects of the incident are understood, that fear is dispelled and that action to mitigate the effects of the incident can be taken more quickly.

That has been done before. In the late 1980s, it became clear that the IRA's tactics were changing dramatically. It had realised that the effects of the bombing campaign against the mainland meant that it made much more sense to hit commercial targets, in, say, the City of London, rather than kill the odd policemen or soldier in the Province of Northern Ireland. When it became clear that the tactics were changing to that end, the Metropolitan police introduced a programme of public information. People were trained and told what to expect and, as a result, every person who was likely to be a victim became alert to the danger and became an intelligence receptor. It was clear that that helped to allay fears. It was also clear that the IRA found it much more difficult to operate in those conditions than it might have done otherwise.

I appreciate that the amendment is trying to address a host of different contingencies. We are not talking simply about the far end of the spectrum. The examples that my hon. Friend mentioned about BSE and the foot and mouth crisis make the point well. I hope that the amendment is accepted, because it would make the clause much more practical than it is at the moment.

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 hope that the Committee will forgive me for dwelling on a word, because amendments to Bills are all about words. When I read the amendment, the word ''appertaining'' leapt out at me and I was curious about it. I looked it up in my online dictionary. Appertaining means

''belonging to or part of''.

I think that the word here should be prevailing. That point should assist the hon. Member for Newark, because, on this occasion, I thought that the use of a word was not entirely correct.

On the substance of the amendment and the point about information, we have diverged throughout our discussions. The hon. Gentleman is in favour of providing more information more frequently than I would be. I fully recognise the information function, but there is a dividing line between calming fear and creating fear. We have talked about this throughout our discussions, and about the extent to which the provision of extra information, such as the ''Protect and Survive'' booklets, calms or creates fear. I am of the school that believes that such booklets created more fear than they calmed. However, I understand the rationale behind the amendment in these circumstances.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

The ''Protect and Survive'' booklet was, mercifully, never put to the test. That great, terrible incident never actually came upon us. It is, therefore, a difficult lesson to draw, because one cannot say, ''This booklet was extremely useful when we had this frightful event.'' The event did not take place, so it is slightly unfair to come to a judgment.

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 could deem the booklets to be a perfect success—here we are, and not a single person was killed by a nuclear explosion in the United Kingdom in the last 50 years. Therefore the success rate was 100 per cent. I think we all agree that information is essential—the central point about the information provision in the hon. Gentleman's amendment is when and how much information should be given. That is a valid issue and I am pleased that he has raised the amendment at this point—I was trying to be supportive while being nit-picking about the words at the same time.

It is a useful debate, and information provision at the time when regulations are put into force will be important, not necessarily because of a need to inform people as to how they should deal with the incident, but to explain to the public why emergency regulations, and not any other measure, have been brought into force. There is, again, the constitutional point to which we keep referring—if we are to bring

into place emergency regulations, there is a selling job to be done, particularly if Opposition parties are, as they may well be, leaping up and down and saying that the emergency regulations are an abuse of power. Under those circumstances, information provision as to the circumstances behind the particular regulations and the justification for them would be entirely valid. The phrasing of the amendment can, to a degree, incorporate such information provision.

Photo of Mr Michael Trend Mr Michael Trend Conservative, Windsor

I go further than that. I have not been party to earlier discussions about calming or creating fear. My general view is that fear is caused by ignorance, and the best way to dispel it is to be as open and honest as one can be with the people of this country.

This Bill would place enormous powers—in many cases, it confirms existing powers, but some are new—in the hands of the Government. There is a natural suspicion among a large part of the population that the Government are not straight in emergencies. If one thinks back to the civil defence days, there was a whole range of black-and-white films, in which suspicious-looking men in bowler hats from Whitehall were up to no good or kept the secret of the phial of deadly germs from each other, as well as from the general public. There is a problem of communication and, with such massive powers in the hands of Government, I see no objection to there being written into the Bill an obligation for the Government to communicate. Indeed, from my work on the Public Administration Committee, from my reading of the Phillis report, and from the enactment, sooner or later, of the Freedom of Information Act 2000, it seems that we are moving in that direction. Governments should be more open, and if they are not, they will increasingly be forced to be more open. Obligations to communicate will become established in custom, if not in legislation. I do not see the problem with including some obligation to communicate, or at least to define the areas and circumstances in which the Government would communicate.

If the Government are reluctant to accept this amendment—I rather suspect that they are—would the Under-Secretary turn her mind to how Government communications would work at the time of a particular crisis? Several scenarios have been put before the Committee, and I do not wish to add to them, but it has been suggested that it is difficult for the Government to know how much to say and when to say it. However, it is surely right for them to work on the assumption that they need to communicate. Is the Government Information and Communication Service, which may be in the process of reform, also part of the preparations for coping with a civil contingency on the scale envisaged in the Bill? Are plans in place for people to take certain responsibilities and is there a clear line of command to pass information down to those who have to communicate it? The style in which information is communicated is important, because we do not want to create greater despondency, despair or anxiety than is necessary. In

other words, a great deal of thinking must take place about the way in which communication takes place before, or if, an awful event occurs.

Photo of Fiona Mactaggart Fiona Mactaggart Parliamentary Under-Secretary (Home Office) 5:15 pm, 3rd February 2004

As hon. Members suspected, we cannot accept the amendment. Speaking as a Member to whom friendly bombs are more common than dirty bombs, I have found much of the debate interesting. It has given us an important opportunity, as the hon. Member for Windsor requested, to gain a better understanding of how communications will work in an emergency. This is a point to which the hon. Member for Newark returns, and he rightly recognises the fact that to maintain the United Kingdom's resilience in an emergency it is crucial to have clear methods of communication to inform people of the most sensible things to do.

I assure the Committee that the Government will use every reasonable measure to ensure that the public are aware of the situation, if emergency powers are used. Clear and accurate information will be given about the effects of emergency regulations and the reasons for their use, because that is what people want know.

The hon. Member for Windsor asked what arrangements would be in place. They are well established. We have arrangements with the BBC and other broadcasters to ensure that, in the event of an incident, we can get the right information to those who need it, when they need it. Clearly, declaring an emergency would be regarded as a major news item and it would be covered as such, but broadcasters would want to explain why it was necessary and what the consequences would be. The Government have a clear strategy in place to ensure that the information is available to broadcasters.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

I am grateful to the Under-Secretary for her forbearance and generosity. For the record, can she make it clear whether this system of information comes into play before the incident or only when it has occurred? I recognise that burgeoning intelligence might make an incident imminent, but do the Government intend to inform, train and make people understand what the problems might be before the incident or only when it has occurred?

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

There is no such thing as a standard incident. That is part of the point of having emergency regulations. There may be circumstances in which it is proper to alert people before the incident. Members of the Committee have jokingly referred to the ''Protect and Survive'' booklet. I think that fun was poked at it because of the feeling that it was plonked on the nation without a context. Therefore, in its way it illustrates powerfully the fact that necessary and appropriate information that predates an incident must arrive in a context.

When I was teaching people to be teachers, I used to say, ''Children will only learn it if they are ready to receive what you are teaching them. They need the right books in their head to understand what you are trying to communicate.'' In practice the same is true of

the public. If people feel that the information offered by the Government is relevant and that it connects to an experience that they are expecting or about which they are anxious, the Government might properly provide such information beforehand. The UK Resilience website contains general information to assist people in any emergency, such as having a torch at home, but often prior information must be properly tailored to the situation.

If emergency regulations were made, the Government's news co-ordination centre would provide information through all the media for the general public. It would refer to the terms of those regulations and their implications, as would the UK Resilience website, ensuring that people had the information they required. Part 1 requires responders to make arrangements to warn the public and to provide them with information and advice if an emergency occurs or is likely to occur. Therefore, public information is available at a series of levels. The national news co-ordination centre will have information about the fact of the emergency and what is required, and local responders will provide information about what people might do. We hope that those two sources will provide appropriate information in the most useful way to enable people not only to protect themselves, but to be aware of the measures that the Government are taking for their protection.

Photo of John Horam John Horam Conservative, Orpington

I am sorry to make further remarks about what the Under-Secretary said because I know that she is suffering with a severe cold. The measures that she outlined contain two elements—national, through the news co-ordination centre, and local. Is there room for an independent element?

Governments know that their information is often received with a certain scepticism. To deal with that, it may be sensible for the Government's consultations and arrangements to contain an independent element, whether it is business, trade unions or an independent personage such as a judge, which can be involved in framing the public communication and be acknowledged by the Government as being there. That would reassure the public that the Government are not simply, of their own volition, making a statement about a possible emergency, but have taken the trouble to consult a slightly wider group of people, who agree that the emergency exists and that the Government are right to inform the public in the way that they are doing. I hope that my point is reasonably understandable. This is an element that any Government should address these days.

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

I understand the hon. Gentleman's point. That element of independence will be provided by our media—we do not have a Government proclamation. The British media are, rightly, sceptical, so the challenge will lie in the means of communication. To build trust in the Government's communication, will we require a further imprimatur?

We are talking about an emergency, in which the most important thing is to make necessary and proportionate regulations, but the Government must

communicate that. Therefore, adding extra layers to the communication is not useful; it must simply say why the situation is an emergency, what the necessary powers are, why they are proportionate and what people can do. There will be plenty of opportunity for various experts to offer comment and a critique, and the Government will have to defend their actions robustly on the grounds that they are right and necessary in the circumstances.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

I am grateful to the Under-Secretary for her clear outline and gracious rebuttal of the points that other hon. Members and I have made. She stated clearly that the public must perceive the threat as credible and that the Government's response to it must be tailored accordingly. That is reasonable and practical.

I have mentioned how the Government have handled other threats looming large against this country. It is tempting to say that we stand on the edge of a cataclysm. With the discovery today of what seems to be ricin in one of the American Government Departments, it seems that weapons of mass destruction may be used against undefended members of the public. It is worth remembering that at this time last year, almost to the day, there was an attempt to deploy ricin against the Jewish community in north London.

If that had happened, the population there would have been wholly unprepared for the attack. I have mentioned that the Government are willing to get involved in campaigns such as Firewatch, in which children are trained to deal with situations that do not, but could, happen every day. I absolutely accept the Under-Secretary's point that the fear of burning chip

oil spilling over a child on the Hawtonville estate in Newark is much more credible than the fear of a ricin weapon.

It is my firm belief that, as the war on terror continues to spread—not necessarily to increase but to diversify—we must start educating and training before an incident rather than afterwards. I take the Under-Secretary's points, which she makes fairly, but I hope for the sake of the public, who may not be attuned to accepting my warnings, that that state of affairs will not continue ad infinitum and that the only time we have to warn, deal with and treat them is before an event rather than afterwards. In the light of those points, I reluctantly beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

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 shall be brief. Clause 20 is important, in that it is part of the triple lock. To say something nice in closing, it is the bit that looks most like a lock. The way that the first, second and third conditions have been drafted in subsections (2), (3) and (4) is great. This is a congratulatory note for the Government, because this part of the Bill, despite the strictures that my colleague mentioned earlier, is generally well drafted.

Question put and agreed to.

Clause 20 ordered to stand part of the Bill.

Further consideration adjourned.—[Ms Prentice.]

Adjourned accordingly at twenty-nine minutes past Five o'clock till Thursday 5 February at half-past Two o'clock.