Clause 21 - Scope of emergency regulations

Civil Contingencies Bill – in a Public Bill Committee at 2:30 pm on 5th February 2004.

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Photo of Patrick Mercer Patrick Mercer Conservative, Newark 2:30 pm, 5th February 2004

I beg to move amendment No. 42, in

clause 21, page 14, line 4, leave out paragraph (h).

Photo of John Butterfill John Butterfill Conservative, Bournemouth West

With this it may be convenient to consider amendment No. 43, in

clause 21, page 14, line 15, leave out paragraph (n).

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

It is nice to see you back in your Chair, Sir John.

The two amendments in my name and that of my hon. Friend the Member for North-East Hertfordshire (Mr. Heald) impinge quite closely on the clause. Amendment No. 42 would strike out the phrase

''protecting or restoring the activities of banks or other financial institutions''.

I find that curious, for the simple reason that all the other provisions in subsection (2) seem to make eminently good sense and are fairly general, in that they deal with protecting life, treating human illness, protecting or restoring property or protecting or restoring a supply of money, food, water, energy or fuel and so on. They are all essential in an emergency that may range from the relatively slow-moving spread of, say, foot and mouth disease, to a traumatic incident that is both sudden and unexpected. However, I do not fully understand why paragraph (n) is included when paragraph (d) refers to

''protecting or restoring a supply of money, food, water''{**ww**} and so on. It seems to be iterative. I should be most grateful to the Under-Secretary for her clarity of vision and her insight into why two paragraphs should appear to deal with the same thing.

I can understand that the supply of money may be crucial for instant restoration in the sort of emergency that we are talking about, but banks or other financial institutions will not necessarily be immediately affected, nor is their protection crucial under emergency legislation. Current legislation is perfectly adequate to deal with banks and other financial institutions.

Perhaps I may probe the Minister further on what ''other financial institutions'' might include. We have already discussed one amendment relating to the Financial Services Authority, on which we probed the Minister, and I found the explanation for its suspension difficult to understand. However, I should be grateful for further illumination on amendment No. 42.

What concerns me even more is paragraph (n), the last paragraph in subsection (2), which refers to

''protecting or restoring the performance of public functions.''

Subsection (2) lists a series of comprehensive and logical conditions that need to be protected and restored—human life, the treating of human illness and property, the supply of money, food, water, energy or fuel, which I have already mentioned, electronic or other means of communication, facilities for transport and the provision of services relating to health.

Why do the Government feel it necessary to include provision for the protection or restoration of the performance of public functions? If the Minister can demonstrate what other public functions might be necessary, why are they not listed? Why has the Minister chosen a portmanteau provision that suggests that more can be added on the whim of those people making the regulations at the time of an emergency?

The provision is less than precise. It positively encourages a difficult situation, which would probably be unprecedented and—from what the Government have said—for which there are few or no contingencies in place. By including

''protecting or restoring the performance of public functions''

the Government would be allowed a huge amount of liberty and flexibility over matters that the other paragraphs in the subsection already deal with.

In summary, first, I would be extremely interested to know why

''banks or other financial institutions''

are signalled, despite the fact that we have already discussed restoring the supply of money? Secondly, at the end of what looks like an exhaustive and comprehensive list, why should we discuss other public functions that are not specified? It gives a huge amount of unnecessary and unwelcome latitude to the Government and the Secretary of State concerned.

Photo of John Horam John Horam Conservative, Orpington

I follow my hon. Friend by requesting an elaboration on the definition of financial institutions. Money has been dealt with elsewhere and I understand why the Government would want to be able to take emergency powers to deal with it; its survival is crucial to an ongoing society and it should not be disrupted unnecessarily by an emergency.

''Institution'' is a rather peculiar word; ''organisation'' may be better. What is a financial institution? Are we talking about the stock exchange, LIFFE and those organisations that one can legitimately call institutions? On the other hand, if one is considering money, there are holes in the wall at supermarkets and cheque-cashing shops that are clearly not institutions; they are organisations and financial media, which have sprung up over the past few years to enable people to use their credit, obtain cash and so forth. That, in a way, is more important than any institution.

There seems to be a curious dichotomy, which may not be that important in the wider scheme of things, between institutions and money-giving organisations, which may be quite small and local. One can hardly believe that they would be involved in an emergency situation. There has been some slack thinking.

''Financial institutions'' is a phrase that someone has included because it is an obvious one, thinking that if we include financial institutions as well as banks, we have covered everything. I am not sure that we have; perhaps financial organisation may be a better term.

Photo of Mr Michael Trend Mr Michael Trend Conservative, Windsor

Subsection (2)(n), which we have mentioned before, says

''protecting or restoring the performance of public functions.''

Such provisions always worry me because they mean either nothing or a great deal. It is the subject of our amendments, so what does the Minister think it means? This is the subject of one our proposed amendments. The list seems to be fairly exhaustive, and I cannot think of anything that has been left out of it. There is provision elsewhere in the Bill for new methods of communication that might be developed, where we cannot yet imagine what they might be. If its presence has a sinister purpose, which I doubt, the Minister might be able to help us, if that is where we should be pointing our attention. If it does not have an obvious purpose, what is it doing there? If this Bill, having become an Act, were ever to be abused, it would be on small words that the argument thereafter would turn. A Bill that gives the state such enormous powers should be as restrictive as possible. Why in a Bill of this nature do we need one of these traditional catch-all phrases? Why can we not have absolute precision?

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

Subsection (2)(n), which we sought to delete with our probing amendment No. 43, talks about:

''protecting or restoring the performance of public functions.''

One might read this paragraph in conjunction with clause 30, in which the meanings of ''public functions'' are listed. The clause talks about functions conferred or imposed by an enactment, functions of Ministers of the Crown, functions of persons holding office under the Crown, and then the provisions concerning Scotland, Northern Ireland and Wales.

Looking at those functions, a question arises as to how they differ from the contents of paragraphs (a) to (m). Why is a paragraph (n) necessary? For example, if the function is something to do with the function of a Minister of the Crown, surely that would be protecting or restoring activities of Her Majesty's Government? If it is the sort of function necessary to restore—to use the words of the Emergency Powers Act 1920—''the essentials of life'', these essentials seem to be covered in all these previous provisions. There is no mention made of local authorities, but clearly the sort of functions of local authorities that are needed in order to restore or protect, in an emergency, are covered by paragraphs (a) to (m).

Is it not another case of belt and braces provision, of having a back-up in case we got it wrong? Much as one understands the desire to do that, surely in legislation that deals with such an important subject as an emergency and gives such wide-ranging powers, and in which the whole idea, according to the Under-Secretary, has been to set out a broad range of criteria, so that it is comprehensive, it is wrong to put in a

catch-all. Either one nails it down or one does not. The 1920 Act is quite instructive, because its definition of what the powers can be is very broad. In this Bill the Government have tried to list them all, but have then lost courage and inserted paragraph (n). Would the Under-Secretary say why she does not think that public functions, as set out in clause 30, are covered by the other parts of subsection (2)?

Photo of Fiona Mactaggart Fiona Mactaggart Parliamentary Under-Secretary (Home Office) 2:45 pm, 5th February 2004

I shall begin at the point where the hon. Member for North-East Hertfordshire ended—the issue of whether this is an exhaustive list. He rightly noted that I had previously said in a debate on clause 18 that we had sought to be comprehensive. It is important to recognise that there is a difference between the structure of clause 18 and that of clause 21. In clause 18 we have sought to be absolutely exhaustive, in order to ensure that people understand the circumstances of an emergency in which a power could be used. The hon. Gentleman will note that clause 21(2) contains an introduction, which says ''In particular''. We recognise that that does not have the comprehensive quality that I made so much of when dealing with clause 18. That is important because clause 21 was designed not to put a boundary around something but to inform and to ensure that the way in which the power can be used and the sort of regulations that can be made will go with the grain. We continue to be committed to transparency and to be as fulsome—that is a better word than comprehensive in this case—as we can.

Photo of John Horam John Horam Conservative, Orpington

I understand the purpose of the provision—the Government are trying to give a direction perhaps to help a judge or the judiciary at a later stage if the provision is ever contested—but is that not an odd way to use legislation? I have never thought that legislation was bound to include lots of examples of the way in which it might work. I am not a lawyer, but I would have thought that that is an odd way in which to make law. It would inevitably make legislation more verbose than it would otherwise be.

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

This is odd legislation because it is designed to be used in extraordinary circumstances. It covers civil contingencies, so one would expect it to have some peculiarities that would not necessarily be as important in legislation that does not provide such substantial powers. The hon. Gentleman is right to say that this is not the way we usually go about legislation, but it is important because the Bill, which deals with contingencies, short-circuits to some degree the usual democratic process. It is important that the circumstances in which that might happen are as clear as possible in advance. That is why we have taken that approach.

It might be worth recalling that in the draft legislation—the Bill has changed substantially since—there was a provision to protect political, administrative or economic stability. Following pre-legislative scrutiny that was discarded, precisely because we recognised that that in itself would not constitute the sort of emergency during which it would be proper to use such powers. Nevertheless, the Government felt that disruption to financial services

payments processing could have a significant effect on human welfare by affecting the availability of essential services and resources. It is appropriate that emergency powers should be available if their disruption is damaging to human welfare. Hon. Members will recall that the Government in their response to the Joint Committee report gave some examples. The example on page 8 states:

''if a terrorist attack on the City of London constituted a threat of serious damage to human welfare, and it was necessary to make emergency regulations''—

that is part of the triple lock to which we have frequently referred—

''the Government considers that it should be possible (where it was necessary to do so and in due proportion)''—

the triple lock again—

''to declare a bank holiday so as to protect the interests of financial institutions.''

That is one example of the sort of way in which the provision might operate.

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

Surely the purpose of subsection (2) is that it should be read with subsection (1) and that the sort of actions that are covered by any provision in the first line of subsection (1) are given an element of definition by subsection (2). Otherwise, the removal of the protection and restoration of economic and political structures would make no difference, but it must make a difference. Surely one must read a provision on the basis that it is any provision of this sort of class—the protecting or restoring of supply services or property or, in the case of human beings, treating injury and illness. In other words, one cannot say that subsection (2) is simply illustrative: it provides part of the definition of any provision.

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

The hon. Gentleman is correct. If a provision does not meet the overarching condition in subsection (1), even if it is of the nature described in subsection (2), it would not be possible to make it. Therefore, his point is accurate. If I did not make that clear, I apologise to the Committee.

The hon. Members for Orpington (Mr. Horam) and for Newark (Patrick Mercer) asked what financial institutions were if they were not the banks, and that is an important point. They would include insurance companies, building societies, friendly societies, credit unions and other institutions of that type. The term is commonly used in legislation without further definition. Supermarkets, for example, would not be financial institutions, but, in response to the point made by the hon. Member for Orpington, financial markets such as LIFFE might be.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

I am glad that the Under-Secretary is feeling and sounding a little better. At least, I hope that she is feeling better.

Before the Under-Secretary moves on—I assume that she was about to move on—will she address the point about the overlap between paragraphs (d) and (h)? If the subsection has already referred to protecting or restoring a supply of money, why do we need to refer to banks and other financial institutions?

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

If there was a run on the banks, it might be necessary, for example, to declare a bank

holiday to protect the continuing existence of the Bank of England and the other banks and to enable them to continue their general operations, as opposed to dealing specifically with the money supply. If, for example, there was a terrorist attack on the City of London, there might be no direct threat to the money supply, but there could be a threat to the continued activities of banks, and it might be appropriate for the Government to take action.

A further question relating to definitions was asked about public functions. Public functions that are not defined elsewhere could include the tax and benefits systems or the activities of Scottish Ministers, which I think the hon. Member for Windsor (Mr. Trend) mentioned. We have discussed whether definitions overlap. Of course they do. One of the consequences of trying to be fulsome is that there will inevitably be overlap. If we accept the amendment and withdraw parts of the clause, some aspects will not be covered. For example, Her Majesty has prerogative powers. There is also a range of activities that it is difficult to describe as functions, but which nevertheless need to be carried out. The most obvious is the conduct of foreign relations. That is not a function that needs to be performed, but it is part of the business of Government.

While the probing has been worth while, I resist the amendments, because they would not improve the Bill or achieve hon. Members' aims.

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

The Under-Secretary mentioned the Crown prerogative powers and she also mentioned foreign relations, but surely they would be covered under paragraph (l):

''protecting or restoring activities of Her Majesty's Government.''

They are obviously part of the activities of Government, and the prerogative powers. Does she agree with that, or could she explain through an example what paragraph (n) will add in those areas?

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

Paragraph (n) ensures that we have functions, and paragraph (l) ensures that activities take place. Activities might include the activities of devolved Ministers or the day-to-day activities of Government such as accounting for their actions to Parliament, but those things would not be public functions. One requires both so that activities and functions are protected.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

I am grateful for the detailed and, in parts, very clear exposition of the Under-Secretary, which explains why she is reluctant to accept the amendment. Her reasoning on amendment No. 42 has been explained almost to my satisfaction. It is fairly clear that the activities of banks and other financial institutions can differ from the provisions of paragraph (d), which deals with protecting or restoring a supply of money. Although those matters overlap, the provision does make sense.

However, on paragraph (n) the Under-Secretary, while trying to outline all the details and factors that might be involved in an emergency, is guilty of inserting a subsection that says ''And anything else that might crop up at the last moment that our legislators and drafters have not been able to get their heads round.'' I have a degree of sympathy with that

because the Bill deals with matters that are comparatively unknown. We are moving into an area of chaos, uncertainty and public fear. I understand the Government's desire to err on the side of caution in that way, but I am concerned that my experience of chaos, drama and disasters—

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

Thank you so much.

The one thing that individuals need in time of stress and difficulty is something to hang on to. They need pegs to help them to understand what is necessary because thinking will never be clear. That is why I would emphasise the points made by my hon. Friend the Member for North-East Hertfordshire about the reading of subsection (2) in relation to subsection (1) and clause 30. Taking all of that into account and understanding the cross-cutting nature of my points, although I am satisfied on one count, I remain relatively unsatisfied on the other. None the less, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change) 3:00 pm, 5th February 2004

I beg to move amendment No. 100, in

clause 21, page 14, line 17, leave out

'or by the exercise of the Royal Prerogative'.

The amendment stands in my name and that of my hon. Friend the Member for Sheffield, Hallam (Mr. Allan). With the amendment, subsection (3) would read:

''Emergency regulations may make provision of any kind that could be made by Act of Parliament'',

followed by a list of what the regulations may do.

This is a probing amendment. We are interested to know the Government's thinking about the exercise of the royal prerogative as listed here. When one hears about the royal prerogative, one immediately thinks of the big matters that it is used for, such as declaration of war. Of course, it covers a multitude of sins. We are all aware of that. I wonder whether it is necessary to have it here. If it is a power that can be exercised by the royal prerogative, it does not need to be in the Bill. I do not see what the inclusion of those words adds to the Bill. We offer this as a probing amendment to discover what the Government think the inclusion of those words adds to the Bill.

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

The hon. Gentleman is right in many ways. It probably is not necessary to mention the royal prerogative. We have done so to be as transparent and clear as possible about what type of activity might be needed under emergency regulations. As he points out, when one thinks about the royal prerogative, one tends to think about the big matters, but it also covers smaller things such as the organisation of the civil service and pardoning offenders. Those are usually done by the exercise of the prerogative.

While the hon. Gentleman's point that the provision is not essential is reasonable, it is included in the interests of fulsomeness, transparency and clarity. If there is a convention that particular activities are usually done by prerogative and if, for example, it was difficult to do that—if, say, Her Majesty was caught up in an emergency and could not be contacted—it might be suggested that the civil contingencies legislation did not provide for that. We wanted to make it explicit that it did.

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

I am interested in the Under-Secretary's explanation. I cannot understand why, in the middle of an emergency, the Government would want to pass regulations about pardoning offenders or creating a new dispensation for the civil service. I have found it very difficult to get them to produce a draft civil service Bill. The Government have been promising to do that for seven years and have an agreement with the Liberals from 1996 to do so.

Photo of Mr Michael Trend Mr Michael Trend Conservative, Windsor

It is a small point, but my hon. Friend should give credit to the Public Administration Committee, on which I have the honour of sitting, for producing a useful draft Bill.

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

Indeed. I paid so much tribute to the Committee that I tabled the draft myself as a private Member's Bill. I think that it is an excellent Bill. It is intended to define the boundaries between special advisers, Ministers and civil servants and to protect the independence and impartiality of the civil service. What I find somewhat odd is that the Government would want to do that under the royal prerogative in the middle of an emergency.

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

I said that it was possible to conceive of, not that it was likely. Part of the difficulty in framing the Bill—we have all had this difficulty throughout the debate—is that we have to imagine things that are not always easy to imagine. All I was saying is that the power was included for reasons of transparency. It is possible to imagine circumstances, however remote, in which the prerogative power might be appropriate. It was included to make things transparent. The hon. Member for Orkney and Shetland (Mr. Carmichael) asked whether the provision was necessary. We included it in the interests of clarity and transparency. We hope that it is unlikely to be used.

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

If the Under-Secretary could cite royal prerogative powers that we could see might be useful in an emergency, nobody would have any objection. However, the sort of things that have been mentioned so far, such as pardoning offenders and civil service reform, do not seem the sort of things that would be useful if there was a huge terrorist attack, a flood or a fire. In those circumstances, one's first thought would be, ''Let's get a civil response out there,'' not, ''Let's pardon a load of prisoners.''

Similarly, civil service reform would probably be seen as a somewhat distant priority, urgent though I believe it to be—which is why I introduced a Bill on the subject. Civil service reform is not the sort of thing that Sergeant Jones would be thinking about. He would be saying, ''Don't panic, don't panic!'' but he would be hoping that troops were coming over the

horizon or an activity of a more substantial nature was about to occur. Indeed, he might be hoping for the attendance of the volunteer reserve that we have been unable to persuade the Under-Secretary about.

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

The hon. Gentleman labours a particular point that I made. The hon. Member for Orkney and Shetland rightly said to the Committee that when people think about the royal prerogative they usually think about the big things. We commission the armed forces and make declarations of war through the royal prerogative. Big powers are involved. I was echoing the point that he made and saying that there are also little powers. I was not saying that there are only little powers; I was saying that, in addition to the very significant powers that are exercised through the royal prerogative, there are smaller ones.

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

It is just that I have not heard any powers that sound as though they would be useful. Obviously, we are not going to have the Whips declaring war through the emergency powers.

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

Would it help the hon. Gentleman if I read out some examples?

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

The following are examples of circumstances in which the royal prerogative is used: the commissioning of officers in the armed forces, the issuing and withdrawal of passports, Royal Assent to Bills, the appointment and dismissal of Ministers, the making of treaties, the declaration of war, the deployment of the armed forces overseas and the recognition of foreign states.

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

I do not wish to seem boorish or difficult, but would any of those things be used in a response to an emergency? One can see the Whips sitting there, about to make their emergency regulations, thinking, ''Let's get the volunteer reserve in place,'' or, ''Let's get the Army there,'' or, ''Let's get the fire service active,'' but are they really going to be so hellbent on their duties in Parliament that they will think, ''Well, we really must sack a Minister,'' or, ''Let's stop passport control,'' or something of that sort? If the Under-Secretary thinks that the provision is necessary, perhaps it is.

Photo of Mr Michael Trend Mr Michael Trend Conservative, Windsor

Has it occurred to my hon. Friend that the provision might be used to continue the regrettable practice of giving some special advisers in Government the power to give orders to civil servants? Perhaps I am the conspiracy theorist here, but if in some ghastly emergency, the Prime Minister says, ''I want one of my people—a party person—at the head of every Department,'' that can clearly be done by royal prerogative and an Order in Council.

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

I suppose that that is right. It would be possible under the royal prerogative to put Alastair Campbell in charge of the Army, or Jonathan Powell in charge of the Navy. Those names do not convince me that the provision is a good one. Is the Under-Secretary able to provide a concrete example of the royal prerogative as an excellent way of doing this or that in an emergency? If she can, I am quite happy to give up on the matter.

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

In the interests of clarity, I suppose the most directly obvious domestic example of the use of the royal prerogative is the direction and disposition of the armed forces in the United Kingdom. That power is usually exercised through the prerogative and it might be required in the civil contingency that we are discussing. That is why we have included the provision.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

If I understand the Minister correctly, we could end up with the Commissioners of Her Majesty's Treasury directing our armed forces.

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

The hon. Gentleman will recall that that unlikely event would occur only if Her Majesty were unavailable and if two Commissioners were in agreement. He should recall that we have a lead Government procedure. None of that is in the least bit likely to happen. For that to happen, all the safeguards that we have discussed at length would have to have been met.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

Will the hon. Lady tolerate another intervention?

Photo of John Butterfill John Butterfill Conservative, Bournemouth West

Order. I will decide whether it is to be tolerated. The hon. Lady is not actually speaking, she is responding.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

Forgive me for my lack of protocol, Sir John. The hon. Lady states that we are discussing circumstances in the unlikely event of Her Majesty being unavailable. It seems to me that, in the event of a traumatic incident, such as the famous dirty bomb, it would be highly likely that Her Majesty would not be in a position to exert her influence. In exactly those circumstances, Whips would be directing the troops.

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

I do not share the hon. Gentleman's scepticism about the capacity of the Whips. He should note that when such regulations are made under subsection (3)(l), the Defence Council would be the authorising body. The Defence Council's members include the Secretary of State for Defence, the Minister for the Armed Forces, the Chief of the Defence Staff, the Vice-chief of the Defence Staff, the Chief of the Naval Staff, the First Sea Lord and the Chief of the Air Staff. Under paragraph (l), they would be invited to authorise the deployment of Her Majesty's armed forces. It is a further safeguard by which I hope he will be wholly reassured.

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

Curiouser and curiouser. Like many in this place, I can be guilty of speaking in code. When I say that an amendment is a probing amendment, I generally mean that it makes a bit of sense to me, but I have no doubt that the Minister will explain why my thinking is wrong. More often than not, that is exactly what happens. It is probably the first time that I have heard the use of the royal prerogative being prayed in aid of clarity and transparency. If anything, its use makes the constitutional mechanisms of Government as opaque as they are today.

As the Under-Secretary was answering the questions of Conservative Front Benchers, a vision came to me that involved her producing some excellent

hospitality for Her Majesty, the Prime Minister and the Chancellor of the Exchequer on the Ardtalla estate, from where they might be unable to communicate with the outside world. Ardtalla, as the Under-Secretary can no doubt confirm, is a wonderful place, but it is not the most accessible spot on earth. In the absence of the Under-Secretary, the Prime Minister, the Chancellor of the Exchequer and Her Majesty, our armed forces could be led into battle by the hon. Member for Glasgow, Rutherglen (Mr. McAvoy). That prospect I find more than alarming. [Interruption.] I suppose that if they are led into battle by him, they might not need to worry so much about whether they have body armour.

The Under-Secretary seems to have conceded that there is no good reason for including the exercise of the royal prerogative in the Bill. She gave the example of Royal Assent signifying the status of Bills. I stand to be corrected on this, but I believe that that part of the royal prerogative is still exercised directly by Her Majesty, inasmuch as she superscribes the Bill. In circumstances in which Her Majesty is taking tea with the rest of the suspects in Ardtalla, the hon. Member for Glasgow, Rutherglen could superscribe Bills. That is even more frightening.

This is one of those occasions when it is proper that we should probe the Government. If the Under-Secretary cannot come up with a response, she should say that she will consider the matter and perhaps write to us with information that may not be available today. I have experienced similar occasions with other Ministers. As I believe that we should revisit the matter on the Floor of the House, I shall not press it to a vote. However, it is a live issue, and unless there is a proper, satisfactory, comprehensible and—to use the Under-Secretary's term—fulsome explanation, we shall have to come back to it in the future. That said, and with my hands in no way bound, 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. 44, in

clause 21, page 14, line 21, leave out

'or on any other specified person'.

Photo of John Butterfill John Butterfill Conservative, Bournemouth West

With this it will be convenient to discuss the following amendments: No. 47, in

clause 21, page 14, line 28, leave out paragraph (c).

No. 56, in

clause 21, page 14, line 37, leave out paragraph (h).

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

It bears considering precisely what subsection (3)(a), which is about emergency regulations, says:

''Emergency regulations may make provision of any kind that could be made by Act of Parliament or by the exercise of the Royal Prerogative; in particular, regulations may—

(a) confer a function on a Minister of the Crown, on the Scottish Ministers, on the National Assembly for Wales, on a Northern Ireland department, on a coordinator appointed under section 23 or on any other specified person''.

Clause 23 talks, logically, about the regional and emergency co-ordinators who will be empowered under this clause:

''Emergency regulations must require a senior Minister of the Crown to appoint—

(a) for each Part of the United Kingdom other than England in relation to which the regulations have effect, a person to be known as the Emergency Coordinator for that Part, and

(b) for each region to which the regulations have effect a person to be known as the Regional Coordinator for that region.''

There we have, spelled out quite clearly, those individuals who are likely to take on these emergency regulations, who are likely to have the sorts of powers that we are discussing conferred on them. That strikes me as utterly reasonable. In the event of an emergency of the type that we have talked about endlessly over the past days descending on these islands, it is clearly stated under clause 23 who will be able to take up the powers. Yet we find here the formula,

''or on any other specified person'',

and then,

''(and a function conferred may, in particular, be—

(i) a power, or duty, to exercise a discretion;

(ii) a power to give directions or orders, whether written or oral)''.

Who might these other specified people be? Are we again returning to the Commissioners of Her Majesty's Treasury, for instance? Could we, yet again, see these powers being taken up by Whips? Under clause 23, where it talks about an emergency co-ordinator, is it feasible that one of these specified people that are talked about here could be the regional commander, perhaps the Army brigadier? If the Under-Secretary is correct and this stays in the Bill, we could be moving back to a Cromwellian figure, a figure of the Commonwealth, perhaps—these powers might be wholly improperly given to someone who is not specified under clause 23. The Government are creating a rule for any tinpot individual who might be directed, under these forms of emergency, to take up the reins of power.

In an emergency, things go to pot. It is extraordinarily difficult to understand who or what is in control, and what their powers are. That is why things must be laid down clearly. That is why we have clause 23, which at first sight seems to be admirably clear. Why do we then need this reference to ''any other specified person''? Surely this is a dictatorial subsection—it is wearing jackboots. Will the Under-Secretary explain why she would prefer to keep this in the Bill, and why she should not immediately strike it from the face of the Bill, as we are suggesting.

I would also ask the Under-Secretary to make clear why, in subsection (3)(c), emergency powers

''provide for or enable the destruction of property, animal life or plant life (with or without compensation)''.

Surely this must be unacceptable. Why, in these particular circumstances, should property be taken from the hands of the individual? Why, at the whim of perhaps this self-same individual of whom we were talking a moment ago—maybe a Whip, or a military dictator imposed by these powers—should a sweeping

power such as this be allowed to destroy property, animal life or plant life, with or without compensation?

Subsection (3)(h) talks about prohibiting, or enabling the prohibition of, other specified activities. Surely this is a horribly vague phrase? Surely this gives this individual about whom we have been theorising carte blanche to outlaw at times of emergency any type of activity that is seen as objectionable or disruptive, irrespective of the rights of the citizen. As it is so highly authoritarian, one must ask whether it is in direct violation of the Human Rights Act 1998.

I should be interested to hear why these three phrases have been included. We could end up with a tinpot dictator who could sweep away property without any form of compensation and object to any activity that he or she decided was illegal or improper at the time of an emergency. I should be most grateful to the Under-Secretary for clarity on those points.

Photo of John Horam John Horam Conservative, Orpington

In our first short debate this afternoon the Under-Secretary acknowledged that the Bill was unusual, unprecedented and unlike any other law on the statute book, because it deals with a possibly unprecedented situation. Therefore, she said, it was sensible—I understand her reasoning—to give some illustrations in subsection (2) to point to the direction in which the Bill is intended to operate. As we know, the subsection contains a long list from (a) to (n). That is one approach to setting out the Bill. I think that it has dangers, because there is a possibility that one starts to establish a hierarchy of examples. If I were a lawyer, which I am not, I might say that something that is not mentioned in the Bill is, by definition, not as important as, so is more controversial than, something that is mentioned. That was the position that the Under-Secretary sought to defend in our first debate.

The second debate was on the royal prerogative. None of us knew, and we had to be reminded—the Under-Secretary was very helpful on this—exactly what it covers. It covers a huge variety of ridiculous things, as well as some well-known and important things. However, it was at least clear. If we take the trouble to look it up, we know what it covers. That is the second approach to the Bill—to have great clarity. Something is specific, it is there, and if we take the trouble to look it up, we know what it means.

However, here, as my hon. Friend the Member for Newark just said, if we use the phrase

''or on any other specified person'',

we are producing the exact opposite—vagueness, banality and bathos. Who could this person be? We have mentioned Ministers of the Crown, Scottish Ministers and the National Assembly for Wales. I do not quite know why we refer to the National Assembly for Wales and Scottish Ministers. The Under-Secretary may be able to explain the distinction between Scotland and Wales. We have mentioned the Northern Ireland Departments and co-ordinators. I appreciate that any Government would want regional co-ordinators, possibly between Departments, to take civil powers in an emergency. That is perfectly normal and it has happened in the past. Who else could there be? The clause has covered

everybody but the kitchen sink. Moreover, to leave the wording so vague, without giving an illustration or an idea of the thinking behind it, seems rather odd.

This one clause contains a pot pourri of different approaches to legislation. It would be helpful if the Under-Secretary could spell out a little more clearly what she means by the phrase

''or on any other specified person''.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change) 3:30 pm, 5th February 2004

I, too, largely concur with the comments of the hon. Member for Newark on this string of amendments. The inclusion of these different passages means that the Bill is drafted exceptionally widely and leaves a great deal of power in the hands of the Executive. The provision that causes me the most concern is subsection (3)(c), which says that regulations may

''provide for or enable the destruction of property, animal life or plant life (with or without compensation)''.

It is well known that in the European convention on human rights is the right to property. The removal of property without compensation is a clear contravention of the ECHR provisions and of the Human Rights Act 1998. I find it exceptionally worrying that we should be putting the possibility of the destruction of property without compensation in the Bill. It seems to me, and we will come to the point later with other amendments that my hon. Friend the Member for Sheffield, Hallam and I have tabled, that the provision of compensation for many of the emergency regulations will be crucial should they ever have to be enforced.

Quite the most obnoxious provision is that in subsection (3)(h), that regulations may:

''prohibit, or enable the prohibition of, other specified activities''.

That has got to be about as widely drafted as possible. I think back to my knowledge of Scots law and the definition of a breach of the peace, which was conduct likely to cause annoyance or alarm to the lieges. [Interruption.] The hon. Member for Newark pronounces it differently. The alternative definition was ''Anything that two cops don't like the look of''. It was that widely drafted and it seems to me that what we have here is the civil contingency equivalent of a Scots breach of the peace.

That provision is so widely drafted that it is next to impossible for the ordinary citizen to know how to regulate their conduct so as not to contravene a regulation under the Act. The lack of clarity and breadth of definition I find most disturbing. It seems to me that, given the extent of specification that exists elsewhere in the clause and the Bill, it is not necessary. If it is necessary, I invite the Minister to tell us why.

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 echo what has been said. I am also concerned about the clause. In particular, I would like the Under-Secretary, if she could, to give an idea of the type of person that might not be specified under subsection (3)(a). I ask her whether, if a co-ordinator were to be appointed to cover an emergency in Wales, the National Assembly would have a role in that appointment? That is an important question and the

same applies in England, Scotland and Northern Ireland. There is a valid role for the devolved Administration in the cases of the north of Ireland, Scotland and Wales.

I am also much exercised about the idea of depriving people of property with or without compensation. That was something that engaged many of us during the pre-legislative part of the Bill. Even before then, the House of Lords Select Committee said:

''Clause 21(3) provides that the regulations may make provision of any kind that could be made by Act of Parliament or exercise of the Royal Prerogative, and gives a non-exhaustive list of provisions which might be included. If this were not a draft bill to make emergency provision, we would strongly question the appropriateness of a number of aspects of the power (such as, for example, sub-delegation by directions or orders (whether written or oral) ((3)(a)(ii)), confiscation of property without compensation ((3)(b)), destruction of property, etc. without compensation ((3)(c)), prohibition of movement ((3)(d) . . . and prohibition of assembly''.

That is what it said well before the pre-legislative process took place.

During that process many people gave evidence to us on the issue. The police gave fairly stringent evidence. Mr. Goldsmith of the Association of Chief Police Officers said:

''if I were a police constable who had to requisition property or state that property would be destroyed, it would make my life a lot easier if I could say to the person who owned it, 'You will be compensated for it.' ''

Much has been said about Pool Re, and no doubt the Under-Secretary will refer to it again. I cannot see the justification for the wording in the Bill; it is peculiar and I cannot understand it. If, for example, the Government are being protective of the public purse, they say that a herd of cattle have to be destroyed to stem the spread of a disease and a farmer puts in a fraudulent claim, we would clearly catch up with him and he would not be paid the amount that he wishes to receive. If there had been another unworthy reason for an action, which undermines a person's right to compensation, all of that is provided for in the law of tort and in criminal law.

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

The hon. Gentleman refers to the destruction of animal life without compensation. It is a good example because the power of destruction already exists in the Animal Health Act 2002, which was also very widely drawn. Does he agree that we would be in danger of having a Government on the cheap trying to trump the requirement under the 2002 Act to pay compensation?

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 am trying to investigate that. Although the Minister will refer to Pool Re in her careful way, as the Cabinet Office Minister did when he gave evidence to us, there are people who are concerned that if we take property without providing compensation, we might fall foul of the Human Rights Act 1998. That is not the case, however. Article 1 of protocol 1 states:

''No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.''

International law kicks in, not the Human Rights Act. It would be illegal in international law to confiscate property for whatever reason without compensation, unless the claimant was precluded by fraud, negligence or some other hindrance, legal or otherwise.

We have heard from Liberty, Justice, academics and lawyers among others, and the overwhelming view is that the provision is worded peculiarly and that it should not be in the Bill. The Government have the last resort: if they believe that the claim is unsubstantiated, they do not pay out, and that is correct.

Photo of John Butterfill John Butterfill Conservative, Bournemouth West

Order. I appreciate that the hon. Gentleman is technically in order to refer to paragraph (b), but the next group of amendments deals specifically with compensation, whereas compensation is just ancillary to other matters in paragraph (a), so it might be better to discuss compensation under the next group of amendments.

Photo of John Butterfill John Butterfill Conservative, Bournemouth West

Order. It is not a question of how important it is; it is a question of when it is appropriate to discuss it in Committee.

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)

Perhaps I was rather anxious to get it off my chest, which I have done. I think that I have given the Under-Secretary enough to respond to, and I should be grateful if she would do so.

Photo of John Butterfill John Butterfill Conservative, Bournemouth West

I should be grateful if the Under-Secretary would deal with the compensation question when we discuss the next amendment, which deals specifically and only with compensation.

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

Thank you, Sir John, I shall try to abide by your strictures. I shall deal with the amendments separately because that might assist clarity of debate. It might also be helpful to remind ourselves of the triple lock. It is tempting when one talks about what might happen to assume that there are not restrictions. We must remind ourselves that the regulations can be made only where there is an event or situation that threatens serious damage to human welfare, the environment or security, which requires serious and immediate action. It must be necessary to make provision in order to resolve the emergency, when existing powers are insufficient—that is in clause 23—and emergency regulations must be in due proportion to the aspect or the effect of the emergency with which they are designed to deal.

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

The Under-Secretary is absolutely right to remind us of the triple lock, but the provisions that we are discussing in relation to the amendment cannot be seen in isolation, but will be seen as part of the definition of the triple lock. Retaining such provisions in the Bill risks making the triple lock much more ineffective.

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

I do not accept that suggestion. I understand why the hon. Gentleman has made it, but I do not accept it. Things need to happen in a particular order before one reaches the point of contemplating any regulation. It is quite a progressive exercise, which is one of the reasons for the shape of the Bill. The Joint

Committee suggested that it might be helpful to put the triple lock in one clause, but we were unable to do that because of the time at which consideration might occur. I do not accept that the amendment mitigates that provision. All of the regulations must be in due proportion and must be urgently necessary in dealing with the emergency.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change) 3:45 pm, 5th February 2004

I am grateful to the Under-Secretary for her patience on the point. I fear that the difference between us is that she considers the matter from the top looking down to the bottom end of the process, whereas I look at it as a court might—considering a regulation or an Act that has been passed, then establishing whether the process that created it was carried out properly. In that regard, the provisions will be seen as defining the triple lock.

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

Were a Minister, or any person making a regulation, not able to show that they had satisfied the requirements of the triple lock, they would not have the powers conferred by the Bill.

I was going to go through the amendments part by part, but it might be helpful to review for a moment the effects that the list has. Clause 21(3) specifies provisions that may be included, but the list is not exhaustive, which is an important point. Emergency regulations can include provisions that are not listed in clause 21(3). However, by being fulsome—that is a word that I used earlier—we sought to give a flavour of the kind of provisions that might be included in emergency regulations. The provisions of the subsection will have an effect on the scope of the power in two ways: first, the more unusual a provision is, the less likely it is that a court would consider that it could legitimately be included in emergency regulations unless it is specifically mentioned in the clause; secondly, if the clause makes a specific provision, a court is likely to conclude that emergency regulations must be made in accordance with it. For example, clause 21(3)(o) provides that emergency regulations may have an effect in

''(i) an area of the territorial sea,

(ii) an area within British fishery limits, or

(iii) an area of the continental shelf''.

The courts might conclude that the regulations are precluded from having an effect in any other part of the sea around the United Kingdom. I hope that that helps in understanding the way in which the list operates.

Let me turn to amendment No. 44; I shall return to the other points later. The hon. Member for Newark was concerned about conferring functions that are necessary for the resolution of an emergency. Why should they be given to the Minister of the Crown, the Scottish Ministers, the National Assembly for Wales, a Northern Ireland department, a co-ordinator or any other specified person? Incidentally, the reason for listing the National Assembly is that it includes Executive and legislative functions; the Executive operates within the National Assembly.

The conferrals have given rise to concern. Of course, it would have been possible to refer simply to

the conferral of functions on any specified person. Again, we sought to indicate through the list the way in which the power might be exercised. It is likely that emergency regulations will confer functions on one of the specified persons, and that is why the initial list was drawn up.

Could the functions be conferred on others? That is an important question. What other specified persons might be included? The hon. Member for Newark referred to tinpot individuals. There may be circumstances in which it is proper to confer functions on a chief constable, a local authority chief executive or an Army officer, if the clear responsibilities in an emergency need to be augmented with additional powers. The point is to try to ensure that the additional powers rest with the people who can most properly exercise them. This is not an attempt to appoint a team of tinpot dictators in an emergency situation. It is an attempt to continue the approach that we have taken throughout the Bill of ensuring that responsibility rests with those who have the most appropriate skills for the situation. One might not be able to predict in advance precisely to whom the responsibility should be given, as it will be different in different kinds of emergencies.

The regulations will set out the responsibilities. If the responsibility is, for example, to co-ordinate people in order to move them to another area, it would be carried out by someone other than the person whose responsibility it is to inform people more widely. That is the reason for having a breadth of possible co-ordinators.

The hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) asked about the National Assembly's role in appointing a co-ordinator in Wales. That will be covered by a concordat between the United Kingdom Government and the devolved Administrations. The Assembly will be consulted on the appointment except when the urgency of the case prevents it. The devolved Administrations have worked closely with the Government throughout the development of the Bill and are content with it as drafted.

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 Minister will know that during pre-legislative examination of the Bill one part was amended. Initially the drafting required consultation with the National Assembly except in cases of urgency. That was amended, but I am concerned that the provision remains in connection with the appointment of the co-ordinator.

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

The emergency regulations provide that a function may be conferred on the Welsh Assembly because it is the Executive for devolved matters. Therefore, there needs to be a proper arrangement for doing that. In another situation, for example, the emergency regulations might confer a function to a chief constable when he is managing a cordon or something similar. There will be protocols on how we manage such matters and we have discussed with the Welsh Assembly how we should develop those.

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 am not trying to be difficult, but this is important. The Government or whoever drafted the Bill accepted the wisdom of dropping that caveat in

consultation with the Welsh Assembly. Surely, the caveat now being imposed should, likewise, be dispatched. If it can be dispatched in connection with declaring an emergency, surely it could be done in connection with appointing the co-ordinator or specified person.

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

Our ambition is to have a settled agreement in place well in advance of the nomination being required. That is what I referred to when I said that we are developing a concordat between the United Kingdom Government and the Welsh Assembly. It will be clear to the appropriate people in advance that there will be a planning stage about how it will operate in practice and that will also happen in the Welsh Assembly.

Amendment No. 47 deals with the destruction of property, animal life and plant life. We accepted in previous discussions that the powers might be required in cases of contamination, a major health animal health scare or a major industrial accident and so on. Hon. Members' concern is reasonable in relation to the powers for compensation. I have said before that we shall return to the point on future amendments. The Bill must be read in conjunction with the Human Rights Act. Article 1 of protocol 1 provides for protection of a person's right to the peaceful enjoyment of his or her possessions, subject to the state's right of interference in the public interest.

As the hon. Member for Meirionnydd Nant Conwy said, there was compelling evidence from the police about the importance of compensation being available to obtain public consent for some of their actions, but I do not want to stray to a later group of amendments. I assure hon. Gentlemen that we are certain that the Bill conforms with the Human Rights Act. The concerns that the hon. Gentleman began to outline—

Sitting suspended for a Division in the House.

On resuming—

Photo of Fiona Mactaggart Fiona Mactaggart Parliamentary Under-Secretary (Home Office) 4:11 pm, 5th February 2004

I move on to amendment No. 56, which concerns the actions that might be needed to resolve an emergency. It is important to recognise that emergencies are, by their nature, unpredictable, and that the actions needed to resolve them may be far-ranging. The hon. Member for Orkney and Shetland pointed out that there is a reasonable duty to be clear about the responsibilities that might fall on individuals. We can all agree about that. However, those responsibilities would be set out in the regulations. The provisions in the Bill set out the extent and limitations of the powers, not the detail of their application in each emergency situation. It is prudent to allow for the prohibition of activities that may exacerbate the emergency or hamper response efforts, but it is not possible to specify comprehensively all the activities that may need to be prohibited in all possible emergencies.

In this Committee, we have often found that examples assist, so I asked for some examples of the

broader power. Like the hon. Gentleman, I feel resistance when it comes to very generalised, broad powers such as this. If a situation led to a severe water shortage, it might be necessary to impose a regulation that people could not have a bath more than once a week. If a major contaminant affected produce, it might be necessary to prevent someone from selling contaminated vegetables on a market stall.

In the interests of transparency, we have tried to list the most likely prohibitions in the clause. However, other less obvious prohibitions may be relevant in certain circumstances. I have made it clear that prohibitions that are not provided for and that are very unusual might be resisted by the courts. If the prohibition involved a specific provision, and the regulation was outwith that provision, the same thing would apply. We are attempting to be as fulsome as possible, but we require a provision that is flexible and provides opportunities in situations that we cannot foresee. That is why we will resist the amendments.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

Sadly, the Under-Secretary's explanations do not go far enough, and I therefore seek to divide the Committee.

Question put, That the amendment be made:—

The Committee divided: Ayes 6, Noes 7.

Division number 6 Adults Abused in Childhood — Clause 21 - Scope of emergency regulations

Aye: 6 MPs

No: 7 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

I beg to move amendment No. 46, in

clause 21, page 14, line 26, leave out 'or without compensation' and insert

'full compensation except in the occasion that the property being confiscated is being used to commit an offence'.

Photo of John Butterfill John Butterfill Conservative, Bournemouth West

With this it will be convenient to discuss the following amendments: No. 79, in

clause 21, page 14, line 27, leave out 'or without'.

No. 80, in

clause 21, page 14, line 29, leave out 'or without'.

No. 83, in

clause 21, page 14, line 46, leave out from 'function' to end of line 49 and insert

'subject to proper remuneration or compensation being payable'.

No. 60, in

clause 21, page 14, line 48, leave out 'or compensation'.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

We have already trespassed on to the areas covered by some of the amendments, so the issues before us are reasonably clear. Whether rightly or not remains to be seen, but I hope that the forthcoming debate will make that clear.

If I may, I shall quote the words of my hon. Friend the Member for Cities of London and Westminster (Mr. Field) on Second Reading. He said:

''I also believe that certain economic freedoms and property rights, which we perhaps take a little too much for granted, are under threat from the Bill, which provides for the

'requisition or confiscation of property (with or without compensation)'.

To read those words on any Bill before the House brings terror to my heart, because the notion of private property ownership is the single most important guarantee of many of the freedoms that we enjoy.''—[Official Report, 19 January 2004; Vol. 146, c. 1171.]

Further to that, BT tells us:

''We are concerned that the Bill allows for the requisition, confiscation or destruction of property without compensation. We believe that compensation should be payable under the powers contained in the Bill.''

Amendment No. 46 upholds that, with the proviso that the property being confiscated is not being used to commit an offence. Clearly in certain instances an offence may have been or be about to be committed, but I do not understand how, in times of emergency, the Government can hope physically to implement the provision. It seems to make little sense.

I move on to amendments Nos. 79 and 80. As BT says in its briefing, they require compensation to be payable in the event of the requisition, confiscation or destruction of property under the powers contained in the Bill. Article 1 of protocol 1 of the European convention on human rights protects the peaceful enjoyment of possessions. Although deprivation of possessions is permitted in the public interest, the European Court of Human Rights has stated that, in the absence of provision for compensation, the protection afforded by the convention would be largely illusory and therefore ineffective. It is surely not acceptable for the Bill to enshrine as a general rule that property may be requisitioned or destroyed without compensation, particularly as it is not clear what, if any, exceptional circumstances might, under the convention, justify the refusal of compensation. The general rule must be that compensation will be payable in all cases.

On amendment No. 60, it appears to me to be crucial that it be possible to claim compensation for damage to persons or property. My concern is that a malevolent Government might use the provision in some wholly improper way to make unprincipled expropriations, or perhaps to use the powers in such a way that those affected know that compensation will not be paid.

On amendment No. 83, again I quote BT, which makes the points much more clearly than I can. Its view is that the amendment seeks an obligation on Government so that, where organisations are required by emergency regulations to undertake activities, the Government cover costs over and above those arising from normal commercial activity. The funding of all activities associated with an emergency needs to be addressed. BT believes that the Bill should include a statutory duty on Government to fund relevant costs of organisations required, under the regulations, to exercise their functions.

Costs to be covered would include those incurred as a result of activities beyond individual, operational or ''business as usual'' costs in reacting to emergencies as defined by the Bill; the cost of providing a service where that was required; and reimbursement for any loss of revenues caused by those activities and contractual penalties arising from them. Funding is fundamental to the definition of ownership of roles and responsibilities and introduces a check on appointed officials exercising their powers.

Furthermore, most category 2 responders operate in the private sector. Commercial companies, which by the nature of their businesses are category 2 responders, should not incur financial burdens over and above those of other private sector companies as a result of requirements imposed by emergency regulations. Those costs should be met out of the public purse.

I remain to be convinced that the Bill deals fairly with those individuals who may be adversely affected by emergencies.

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

The amendments all essentially relate to compensation for disruption or confiscation of property. I will make some general comments that are, I hope, pertinent to all the amendments.

On amendment No. 46, I am interested in the specification of property that is being used in the commission of a crime. Given the existing law, which gives fairly wide entitlement to the police and courts to confiscate and forfeit items that have been used in relation to the commission of a crime, and given the extension of those powers under the Proceeds of Crime Act 2002, I question whether that specification is necessary.

The Under-Secretary has said, today and on other occasions, that the Bill is not a normal piece of legislation because we are not trying to anticipate normal circumstances. That is absolutely true. In order to maintain the respect of the population, it is important to include a number of checks and balances. Where liberty is to be deprived and property is to be removed, there must be a balance for that check.

Compensation strikes at the heart of such checks and balances. To make provision for the confiscation, removal or destruction of property without compensation risks undermining public acceptance and good will on which we might be reliant in a public emergency.

I do not see why the provision is in the Bill: it is so exceptional for the Government to remove and confiscate property other than that which has been used in the commission of an offence without compensation, that there must be some clamant or compelling reason for its inclusion. Frankly, in the absence of any other explanation, I would be interested in the Under-Secretary's thoughts behind its inclusion.

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)

Thankfully, what I have to say will be considerably truncated, for obvious reasons. Earlier, I referred to the Government's insistence on the wording of the provision and the inclusion of ''with

or without compensation''. I still do not understand the reason for it, despite the Under-Secretary's assurances and explanations.

When the Under-Secretary responds, I ask her to refer to the Pool Re situation, which was much in evidence when the Joint Committee interviewed the Cabinet Office Minister. He told us that the Government should not be able to say that there is effectively a blank cheque from public purse in all circumstances. No one in the Committee would disagree with that. He continued:

''it is absolutely and categorically not the case that there are no circumstances in which the government would offer under the Bill''.

If the Government were to destroy property under the emergency powers and decline to offer any compensation, would that action invalidate any insurance policy that the potential claimant had? As a standard wording in many insurance contracts, ''in time of war or emergency'' very often vitiates the contract and leaves the insured with no financial redress. I would kindly ask the Under-Secretary to respond specifically to that question.

Although I am in sympathy with the wording of amendment No. 46, I would go further. I can foresee circumstances in which the potential claimant or person affected has, due to his negligence, brought something on himself. Let us say that a fire is raging and that in order to create a windbreak someone is asked to destroy a barn. The person does not do it and it has to be destroyed to create a windbreak.

Equally, we might have a situation in which it is suspected that a disease abounds. The person concerned does not take appropriate action and ignores advice from the Department for Environment, Food and Rural Affairs. In those circumstances, I can see that it would be legitimate for the Government to move in because of the individual's negligence. I would broaden the scope of the clause. Although I am in sympathy with it, I would broaden that aspect.

Photo of Oliver Heald Oliver Heald Shadow Leader of the House of Commons 4:30 pm, 5th February 2004

In his earlier remarks, the hon. Gentleman made the point that the deprivation of someone's personal possessions is in breach of the European convention on human rights. Of course, there is the specific exception that in the public interest it is possible to deprive someone of their possessions, but would he agree that it has always been the assumption that if that were to happen there would be compensation? To say that the state can take goods away without paying for them goes well beyond what most understood the exception to mean. If there is no compensation, that undermines the concept of article 1 of the convention.

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 wholeheartedly agree. It undermines the whole concept of the law of property as well. I am a Welshman, but an Englishman's home is his castle. I fully understand that, and it is a serious point. There are repercussions to consider. Let us say that the home is heavily mortgaged. What would happen next? That

person faces bankruptcy and the lenders do not get paid. Have the Government thought that out?

I am fairly sure that international law would allow for compensation to be paid. However, why should we have to look out of that window? Should we not cater for the matter in domestic legislation? We should be catering for what is foreseeable, and delete the wording from the Bill.

As I said—I shall not labour the point because we discussed it earlier—the provision does not make a great deal of sense. Another two examples have been given where the negligence of the victim—the person who loses the property—may lead the Government to say, ''You brought it upon yourself.'' In those circumstances, one could understand that. In the case of a fraudulent claim, that would also be accepted. The law of tort, and the criminal law, will assist the Government. I cannot think of a situation where the Government lawfully decide not to compensate where they are not already covered by existing case law or common law.

To use the word that has to be used once a day, the provision is otiose. I do not see how it is necessary, and more to the point, it is quite worrying. The Government are entitled to withhold compensation for proper reasons. No one would disagree with that, but to include the provision in the Bill is strange and disturbing and I ask the Under-Secretary whether she can justify it. When the Cabinet Office Minister gave evidence, he could not give an example of something that would come under the provision, and I find that quite disturbing.

Photo of Mr Michael Trend Mr Michael Trend Conservative, Windsor

I support what the hon. Gentleman and my hon. Friend the Member for Newark said about the amendment. I do not think that the provision is merely otiose: it is potentially pernicious. We have got into a pattern in recent debates of Opposition Members saying that the wording is not precise enough or too vague. They want to know precisely what is meant and think that it is unwise to have a number of loose ends in the Bill. The Under-Secretary then encourages us to think that everything holds together and gives references to other parts of the Bill, locks and so on. That is necessary, but in this case the ''or'' is the pernicious word, because it is deliberately obscure.

In this area, more than most in the Bill, great clarity is required. I am sure that the Government have something in mind, and perhaps the Under-Secretary will share it with us. I am also sure that there are many other ways of putting the Government's purpose into legislation. The amendment suggests a good form of words, and various amendments have been suggested to it, to keep some purpose that the Government may wish to protect. However, the sweeping nature of the tiny word ''or'' would allow all sorts of injustices. It might in particular discourage some of the private enterprises from fulfilling the duties laid down in the Bill as fully as they would otherwise do. They will clearly always have their eye on the cost, and on the ambiguity about whether and to what extent the Government will help to meet it. Therefore, I ask the Under-Secretary to think carefully about whether the wording in the Bill is correct.

Photo of John Horam John Horam Conservative, Orpington

I cannot possibly anticipate the Under-Secretary's response, but I have an idea that she will say that the Government are reluctant to put themselves in a position where, at some time in the future, they have to sign a blank cheque and are worried about that. That is clearly a possibility with amendment No. 46, so I have some sympathy with what might prove to be her position on it.

However, amendments Nos. 79 and 80 seem to be in a wholly different category. The hon. Member for Meirionnydd Nant Conwy and my hon. Friend the Member for Windsor put the point very well. The issue here is whether there should be any compensation or no compensation. Compensation could be nominal, so to put in the Bill something that might be less than nominal, which gives the Government full power to give purely nominal compensation, seems to be not only otiose, to use the phrase that has been used before, but extraordinarily cruel.

In any situation one should at least allow for the possibility of reasonable or rational discussion about compensation. To rule out compensation seems extraordinary, even in emergency powers legislation, simply because the Government concede very little by allowing some compensation, because it may be very small. As my hon. Friend said, there are precedents. Both nationally and internationally there are situations where compensation has indeed been quite small, for reasons that were argued at the time and no doubt carried weight. Equally, there have been instances in the recent past—I am thinking of foot and mouth—where huge compensation was paid. In many instances, it was considered far too much, because people made more money than they would have done from their farming activities. However, to insist on putting into the Bill a specific recommendation that in some circumstances no compensation at all should be paid seems unnecessarily harsh.

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

I thank the Committee for the debate, but I must continue to resist the amendments. It might help if we reflect on the character of the Bill. I have talked about the shape of it, in terms of the triple locks and so on, but we should be aware of another aspect. It is an enabling Bill, so it is necessary to set out the scope of the powers.

The hon. Member for Orpington implied that the provision prohibited paying compensation. I do not think that he meant to suggest that it would do that in every instance, because hon. Members have agreed that there are cases where compensation may not be paid: they may be rare, but they exist. To ensure that such cases are possible, the Bill provides that compensation may or may not be paid.

Let me reassure hon. Members, first, on the points introduced earlier by the hon. Member for Meirionnydd Nant Conwy on article 1 of protocol 1 to the European convention on human rights. That will be in force and any action taken under the Bill will have to conform to it. I hope that hon. Members find that reassuring.

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 do not want to overdo the discussion, but the Government have a let-out in the wording of the protocol. It states:

''No one shall be deprived of his possessions except in the public interest''

The public interest could be used to justify depriving someone of their possessions without compensation. Although I appreciate the sincerity of the Under-Secretary's assurance, I would not like to rely on it.

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

But the hon. Gentleman must recognise that in a democratic society things must be done in the necessary way. There are a number of caveats that operate and things that we would expect the Government to conform to. There may be cases—I will come to them—in which the public interest, exceptionally, suggests that it is more sensible that compensation should not be paid.

The hon. Gentleman also raised questions about insurance. Those need to be answered. Whether the emergency arrangements would impede existing insurance arrangements would depend on the terms of the insurance contract. It is true that some policies have exclusions relating to war and emergency, and the Government will take that into account when dealing with compensation schemes. It is worth recalling that in every civil contingency in which the 1920 legislation has been used, compensation has been paid. The Government's habit is to pay compensation. Our desire is to do that, because in our experience it lubricates the management of an emergency. It secures good will, which is necessary if things are to work. On the Pool Re arrangements, any extension of Pool Re would obviously depend on the circumstances of the emergency and would need to be dealt with in that way.

The killer point is: can we envisage circumstances, in an emergency, when this Bill is required, in which it might be inappropriate to pay compensation? Examples have always been helpful to me in confronting some of the difficult issues that we are dealing with, so it might help if I offer the Committee two or three. In an emergency, it might be necessary for the police or others to requisition for a short time a piece of heavy lifting equipment or a tractor that is not being used to clear a path or move something. In those circumstances, it might not be necessary to have an extensive compensation arrangement.

My second example is more likely in the kind of circumstances that we are talking about. Action might be taken that affects a large number of people equally. For example, the water supply could be cut off, or, if there were a complex virus, the internet could be suspended. In those circumstances, somebody might have just sent off their novel and might have a case for substantial compensation for their intellectual property, which it might not be appropriate for the Government to deal with at that point.

My third example could be more common. It could be necessary to take action that prevented a far larger catastrophe, but involved unavoidable harm, such as making a fire-break. In all the examples that I have given, it might be necessary to proceed without compensation, although I am not saying that it

would be. I reiterate that we intend to operate the powers in conformity with the Human Rights Act 1998. All the clause does is make proceeding without compensation possible and legal; it does not make it more likely.

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)

Amending the wording by taking out ''with or without'' would never prevent Government from not paying. That is what I cannot understand. If we accept what the Minister says, it is rarely likely to happen, so why does it need to be covered in the Bill?

Photo of Fiona Mactaggart Fiona Mactaggart Parliamentary Under-Secretary (Home Office) 4:45 pm, 5th February 2004

Precisely because it is an enabling Bill. In each debate on every clause, I have talked extensively about the importance of being as fulsome and as clear as possible. In an enabling Bill, it is necessary to be as clear and as comprehensive as possible about the reach of the powers that one seeks. That is why we require this power. It is not because the general intention of the Government is to withhold compensation. I therefore resist the amendments.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

I am most grateful to the Under-Secretary for her clear exposition of why she and the Government intend to resist the amendments. My hon. Friends the Members for Windsor and for Orpington and the hon. Member for Meirionnydd Nant Conwy made some powerful points that she has answered comprehensively. I absolutely take her point about this being an enabling Bill. Her examples were useful, and illuminated this problem better than it has been in the past. I was partly reassured by her telling us that under the Emergency Powers Act 1920 compensation has been paid in full in all emergencies.

I understand the Under-Secretary's reservations and therefore her resistance to the amendments. I am still not completely happy, but I am happier than I was when the amendment was first moved, so 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. 49, in

clause 21, page 14, line 30, leave out 'specified place' and insert

'place specified as being at risk of, or under, an emergency as defined in section 18'.

Photo of John Butterfill John Butterfill Conservative, Bournemouth West

With this it will be convenient to discuss the following amendments: No. 50, in

clause 21, page 14, line 32, leave out 'specified place' and insert

'place specified as being at risk of, or under, an emergency as defined in section 18.'.

No. 52, in

clause 21, page 14, line 35, leave out

'specified places or at specified times'

and insert

'places or times of emergency'.

No. 54, in

clause 21, page 14, line 36, leave out 'at specified times' and insert

'to and from places of emergency, at times of emergency'.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

This little clutch of amendments is really very simple. They are broadly similar inasmuch

as they seek to probe the Government as to why there is not greater clarity about precisely where they would place these powers. Subsection (3)(d) states that the regulations may

''prohibit, or enable the prohibition of, movement to or from a specified place''.

We contend that that is sufficiently vague to need amending. Amendment No. 49 would prevent any misunderstanding of the powers that the Government might choose to impose. Despite lengthening the sentence, the amendment would tighten the definition of precisely where this was likely to happen and would make a woolly area much more precise.

The same tenet applies to all four amendments. Will the Under-Secretary clarify why we cannot introduce those few simple words, which would tighten this whole aspect considerably?

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

I cannot support the amendments. However, it might help if I answer the hon. Gentleman's questions. He asked why we should not have a tightly defined power—for example, when movement might be restricted because of urgent risk. That would be possible in many cases—for instance, following a bombing, when there would be restrictions in a limited area. In other cases, it might be possible to predict that a risk was heading towards an area—for instance, the release of toxic gas. However, there may be cases when it is necessary for emergency regulations to have effect in an area that is not directly affected. For example, if ambulance services had been directed to a part or region of the United Kingdom where there was an emergency, one might require private ambulance services to provide a more general service than normal in another part or region because the usual blue light services were not available.

We must remember that the due proportion and the necessary in emergency tests apply. It would not be possible to pick any area or be profligate in choosing where to apply the provision. It directs itself to a part of region of the UK; and it will be duly proportionate. One needs the rather more embracing possibility not because it will automatically be used or because it unnecessarily gives people freedom, but because the protections against doing it in a way that is not necessary to mitigate the effect of the emergency exist elsewhere in the legislation. If one seeks to move people in an area that is not directly affected by the emergency in order more effectively to protect those who are in the emergency area, it must be necessary to make regulations so to do. That is why we have provided the power.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

I am grateful to the Under-Secretary. I understand what she says. I believe that her examples are helpful. I am slightly at a loss to understand why, if blue light services move from one county to another and therefore emergency powers are needed to compensate for the lack of blue light services in another county, they cannot be included under the emergency regulations. My visceral reaction is that the wording of the amendment is clearer. However, as one might otherwise be accused of nit-picking, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

I beg to move amendment No. 48, in

clause 21, page 14, line 31, at end insert

'save that the movement of honourable Members to or from a place at which Parliament is assembled shall be enabled or protected.'.

Photo of John Butterfill John Butterfill Conservative, Bournemouth West

With this it will be convenient to discuss the following amendments: No. 111, in

clause 21, page 14, line 35, at end insert

'save that the assembly of honourable Members in Parliament shall not be prohibited but shall be protected'.

No. 53, in

clause 21, page 14, line 36, at end insert

'save for the travel of honourable Members, which shall not be prohibited'.

No. 112, in

clause 21, page 14, line 37, at end insert

'save for the Parliamentary activities or business of honourable Members, which shall continue, and be protected'.

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

This series of amendments seeks to protect the position of Members of Parliament in their vital role in respect of emergency regulations. The amendments would ensure that when regulations are made under subsection (1) to

''prohibit or enable the prohibition of movement to or from a specified place'',

the movement of MPs to or from the place where Parliament is assembled should be enabled or protected. If the famous dirty bomb were used in London, or some other crisis arose, Parliament might need to meet somewhere else—perhaps even in another city. It is important that the regulations do not prevent Members of Parliament from going wherever Parliament sits to fulfil their duty.

We do not intend to give Members of Parliament opportunities that members of the public will not enjoy, except in so far as they will need them to perform their constitutional role. It is important that that should be the case, because it will obviously be essential for them to meet and discuss a national emergency. That has happened several times in recent years, and Parliament has even been recalled during a recess to fulfil its role as the cockpit of the nation at a time of crisis.

Photo of Steve Pound Steve Pound Labour, Ealing North

I am sorry that this is a slightly tangential point, but I believe that Parliament can sit in only one of three places: Northampton, Oxford and Westminster. Personally, I would suggest Stromness or Scapa Flow in times of national emergency. However, in the absence of an alternative, I offer Northolt—we stand willing to serve. Does the hon. Gentleman know whether it is possible to convene Parliament at any other spot?

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

I am grateful to the hon. Gentleman. In fact, clause 21 contains provisions that could empower the Government in that regard. Perhaps this could be a proper use of the royal prerogative—that may be what it is there for. Under normal circumstances, he may well be right, but I am sure that the provisions that allow for the protection or restoration of

''the performance of public functions''

or for the royal prerogative to give anyone any function whatever, as far as I can see, probably cover the situation one way or the other.

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

Northolt may be excellent.

The provisions in clause 18(5) and (6) are one example of why we need the amendments. Subsection (5) allows the Secretary of State to provide by order for a specified event to be an emergency in the sense that it threatens human welfare. Subsection (6) goes on to say that that may not happen

''unless a draft has been laid before, and approved by resolution of, each House of Parliament.''

It is therefore important for Parliament to sit in such circumstances.

Equally, clause 26 provides that emergency regulations shall be laid before Parliament by a Minister of the Crown

''as soon as is reasonably practicable''.

It goes on to talk about parliamentary scrutiny, making it clear that each House of Parliament has an important role. It is therefore right that Parliament should have special protection under the emergency powers.

It is particularly important that our role in scrutinising legislation and making changes should fall into that special category given the wide-ranging nature of the measures in the Bill. There are powers to destroy property and requisition it without compensation, with animal and plant life destroyed, movement prohibited, perhaps soldiers at the end of the street with rifles stopping movement, and assembly prohibited. It is on that basis that we offer these amendments to the Committee, and we look forward to hearing what others think.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change) 5:00 pm, 5th February 2004

All right hon. and hon. Members are welcome to come to Stromness or any other part of my constituency at any time. They need not wait for a national emergency to do so. I commend it to the House, but just how my constituents would feel about 658 other Members of Parliament descending on them, I am not sure. We shall see—but I hope not.

My interest was immediately engaged when I heard about Members of Parliament travelling. I consider myself to be the resident expert on the subject, as I do rather more travelling than anyone else here.

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

The hon. Gentleman is very kind, but I shall decline his invitation for the moment.

I have some concern about our travel being protected in this way and the signal that it would send to other people. It seems to me that we would create a sort of political elite, which would be given special treatment. If flights and ferries in and out of Orkney were cancelled, I would feel a little uncomfortable if I were picked up, presumably by the police, and taken to the airport, where I would be put in splendid isolation on the 17.40 to London.

The amendments are drafted for hon. Members. I am all for the rights of Back Benchers, and I can understand why we would not want to rush too many right hon. Members to the House, but I am not sure why they are excluded. What about peers and Members of the Scottish Parliament, the Legislative Assembly and the Welsh Assembly? We have already said that we envisage a big role for those Assemblies. I fear that we would risk setting ourselves up for ridicule.

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

Does not the hon. Gentleman agree that one of the essential protections in the Bill is parliamentary scrutiny in clause 26? If it is right that that is important—I think that he and I agree that it is—it is pointless not to allow us to get somewhere and to do the scrutinising.

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

Yes, it is, except that I cannot believe that in the event of whatever requires us to be here we could not be got here without putting it in the Bill. I feel uneasy about the proposal, because I think it would send the wrong signal.

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

The constituencies' bids for where Parliament might sit in an emergency grow, but I shall resist them and get down to business.

A theme of the debate is a sense of concern that somehow emergency powers might be used to curtail the activities of Parliament and parliamentarians for political or other reasons, or that some nefarious future Government might deny the proper role of elected Members to scrutinise legislation. I want to assure hon. Members that that is not possible. Clause 26(1)(b) states that regulations

''shall lapse at the end of the period of seven days beginning with the date of laying unless during that period each House of Parliament passes a resolution approving them.''

To make regulations, it is necessary for Parliament to meet.

There is also in the Bill a clear requirement in clause 21(2)(m) that emergency regulations be for the purpose of

''protecting or restoring activities of Parliament, of the Scottish Parliament, of the Northern Ireland Assembly or of the National Assembly for Wales''.

The fact that that is included means that it would not be possible to make regulations whose main aim was to do the precise opposite. To interpret the clause, one must read it in the context of the legislation. Our aim is to ensure the continuation of Parliament.

Conjuring up a theoretical risk of a nefarious Government is unnecessary because of the protection in the Bill and runs the risk, as the hon. Member for Orkney and Shetland pointed out, that MPs will appear to want a gold-plated arrangement for themselves at a time when the citizens of this country cannot move about.

Although the intention of the amendment is good—that is, to ensure that parliamentary scrutiny is paramount and that the Executive do not have carte blanche to do anything they want—that is not what it

would achieve, whereas the Bill will. I urge hon. Members not to persist with the amendment.

Photo of Mr Michael Trend Mr Michael Trend Conservative, Windsor

May I make a suggestion? There is a blanket prohibition on assemblies of ''specified kinds'', but the problem would be solved if Parliament were deliberately exempted from being a specified kind of assembly.

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

There may be extreme circumstances involving a health requirement—for instance, if gas were released. We know that there is a relatively high risk of attack in this Chamber. In such circumstances, it might be necessary to make some kind of restriction. Therefore, making a special arrangement would be inappropriate, as we have the power under paragraph (m) to do the thing that we want to do, which is to protect or restore the activities of Parliament, the Scottish Parliament, the Northern Ireland Assembly or the National Assembly for Wales. It is not necessary to do what the hon. Gentleman seeks to do. In fact, it might prohibit us from doing some things that we need to do, although we hope that the circumstances in which we would need to do them do not occur.

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

I totally disagree with the Under-Secretary. As individuals, many of us may not be special. I would be the first to admit that that may be true—although not in this Room, Sir John. However, the one way in which we are special is that each of us represents a part of the country. We are here to do our democratic duty. People have elected us to do that. I am trying to protect not the individual person but the role, which is vital under our constitution. MPs with that role should not have to be the supplicant of Government in order to do their job. It is something in our constitution that is above asking for the Government's permission. It is entrenched in our constitution and has been for almost a thousand years. It is vital that MPs should have the ability, whatever the circumstances, to meet, make decisions, discuss the important events of the day and change the law. In the Bill, we should be the vital protection that ensures that regulations are scrutinised.

Clause 26 makes it clear that it is possible for the regulations to go on seven days after seven days after seven days, without parliamentary scrutiny. Although a set of regulations would lapse at the end of seven days under subsection (1)(b), subsection (4) says:

''Nothing in this section . . . shall prevent the making of new regulations''.

If we were not available to sit and scrutinise such regulations, there would be nothing to stop Ministers, including the Whips, continuing to pass emergency regulations. I am not saying that the Under-Secretary has anything nefarious in mind, as I think she put it. Rather, the Government are saying that they can probably help us out in our role under paragraph (m). However, the duty is higher than that. It is vital that Parliament should sit.

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

I do not see how regulations designed to curtail the activities of Parliament for reasons unconnected to the welfare of its Members could be due largely to an emergency, because they would be prohibited by aspects of the triple lock.

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

I should like just to give the Under-Secretary an example of the way the authorities carry on unless something is made of the importance of the role of Members of Parliament. The last time the Queen came to open Parliament, the authorities closed Westminster bridge. That meant that Members of Parliament could not get here and were forced to go all the way up the river and over another bridge. The Leader of the House, the Serjeant at Arms and others, including myself, made representations—the Serjeant called the police and I think that even the Speaker got involved. It was only through those representations that people were allowed to get here for the state opening of Parliament. Police officers on the other side of the bridge were not doing anything evil, but nobody had explained to them that having Members of Parliament to greet Her Majesty when she came to give the Queen's Speech actually mattered. That sort of thing is more of a concern than an evil Government of the kind that the Under-Secretary was conjuring up.

The amendment is designed to ensure that the rights of Parliament, which are ancient, important and established in our constitution, are upheld. I do not see why it is not possible to amend the provisions on emergency powers that say that assemblies are prohibited by inserting something along the lines of what the amendment proposes. If the Under-Secretary thinks that another protection will do something similar, she should explain how. However, subsection (2)(m) does not do so, because subsection (2) says only ''may make'', which does not mean that the Government must make provision for Members of Parliament. I do not think that that is enough.

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

Where there is a long list of regulations that could be made, that must influence interpretation. I would suggest most powerfully that subsection (2)(m) does precisely that. Courts would strike out any regulation that had the contrary effect. Where the interests of the welfare of hon. Members are involved, their movement might have to be restricted—where they need to be quarantined, for example. However, were that necessary for their welfare, the regulations under subsection (2)(m) would be required in order to protect the rights of Parliament. It would not be possible legally to make regulations that went in directly the contrary direction.

We all agree that we would wish Parliament to be able to deal with such matters properly. However, the hon. Gentleman's concerns are dealt with by the requirement under paragraph (m). It is quite true that it is not exhaustive, but I repeat that the courts would not permit anything that went in the opposite direction from one of the items on the list.

Photo of Oliver Heald Oliver Heald Shadow Leader of the House of Commons 5:15 pm, 5th February 2004

I was hoping that the Under-Secretary might say that the Government will ensure that Parliament can sit in any emergency because we agree that that is crucial.

Photo of Mr Michael Trend Mr Michael Trend Conservative, Windsor

What the Under-Secretary has been saying presupposes that the courts will be able to sit. Could they be deemed to be an assembly that cannot sit?

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

If it is of assistance to the Committee, the Government will, of course, expect Parliament to sit. That is fundamental to the Bill. We do not wish to have a situation in which Parliament is not engaged and the Government are not accountable to Parliament. This is an urgent mechanism to deal with an emergency, but it constantly provides for accountability and for fixing limits on what the Executive might do. Accountability is, and will remain, to Parliament, even though it is circumscribed in order to be able to produce emergency responses, which might require a short procedure. It is clear: the whole construct of this enabling Bill is that the regulations must be considered by Parliament. They should be considered by affirmative resolution of both Houses, and the Government would expect Parliament to be able to fulfil its functions.

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

As you will know, Sir John, some of the most senior Members of this place are concerned about this provision. Having said that, I shall read the Under-Secretary's comments in detail and consider them further. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of John Butterfill John Butterfill Conservative, Bournemouth West

While I am on my feet, I should say that we in Bournemouth are used to hon. Members visiting in large quantities, and we would not wish to prevent them from going there. The Chair should be able to get in its own plug.

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

I beg to move amendment No. 115, in

clause 21, page 14, line 38, at end insert

'knowingly and without lawful excuse'.

Photo of John Butterfill John Butterfill Conservative, Bournemouth West

With this it will be convenient to discuss the following amendments: No. 57, in

clause 21, page 14, line 39, at beginning insert 'knowingly'.

No. 58, in

clause 21, page 14, line 40, at beginning insert 'knowingly'.

No. 59, in

clause 21, page 14, line 42, at beginning insert 'knowingly'.

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

I very much look forward to visiting Bournemouth in September with a number of my party colleagues.

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

It ill behoves the hon. Gentleman to make cracks about numbers. It would be better for the Conservatives to maintain a little humility.

We return to the question of checks and balances. As the clause stands, it creates a strict liability offence, unless in fact the offence-creating regulation would also create a defence. That is not satisfactory. The Bill is inadequate in anticipating a need for protection. The concept of knowingly committing an offence is important, particularly when we consider that we might be dealing with a situation in which the promulgation of emergency regulations is difficult. It is quite conceivable that somebody could be going about what they consider to be their normal daily

business, but would in fact be unknowingly falling foul of a regulation of which they were simply not aware—an occasion on which we might reasonably depart from the normal rule that ignorantia juris neminem excusat, as we say in Orkney.

The question of lawful excuse is also an important one. I envisage a situation where regulations have apparently been breached, but in fact, because of some other dire situation, the person in question ought to be able to avail themselves of a common-law defence, such as necessity. It is possible to see how such a situation might arise in an emergency. However, that defence is not available to someone falling foul of the strict liability offence that is currently in the Bill, which is why it is important to add the words ''without lawful excuse''.

The amendments tabled by Conservative Members, Nos. 57 to 59, achieve the same end with regard to ''knowingly''—they simply put it in each of the sub-paragraphs, whereas we have it as a general provision in paragraph (i). Of course, this does not deal with the question of any other offences.

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

With most offences, it has always been accepted that there is the factual element of the offence, what the lawyers call the actus reus, and then there is the mental element, the mens rea. It is not at all clear what the Government have in mind with this set of offences, which is why we tabled amendments that would require guilty knowledge on the part of the offender. Perhaps the Government believe that there would be a mental element to these offences, and simply have not stated the detail in the provision at subsection (3)(i). We are right to press the Under-Secretary.

Obviously, there are different states of knowledge that one might think appropriate for a minor offence where there is strict liability but no mental element, and normally one would not expect the accused to be at threat to their liberty if the offence was committed. Failing to have insurance on a motor vehicle is a strict liability offence, and there are some others relating to motor vehicles, but I think by and large they do not carry a penalty of imprisonment on their own. I am willing to be corrected by the Under-Secretary, though, as it is a long time since I looked at ''Wilkinson's Road Traffic Offences''.

The general idea is of a body of offences that are strict liability but do not carry the severest penalties. The next stage up deals with people who have acted carelessly or recklessly. The most serious type of offence is when somebody has acted intentionally, because the prosecution have to prove that the person intended to act as they did, which is a more difficult test. I shall be interested to hear what the Under-Secretary has to say about these offences, what the penalties for them would be, and whether all three are equal in seriousness—or whether she would draw a difference between failing to comply with regulations, obstructing a person and so on.

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

It might help to remember what sorts of offences can be committed under the Bill. The

only offences that can be created are those of failing to comply with the regulations, failure to comply with a direction or order given under the regulations, or obstructing a person in the performance of a function under the regulations. That is the nature of the offences.

I reassure the hon. Member for Orkney and Shetland that we do not intend them always to be strict liability offences. Indeed, it is an enabling Bill, and the nature of the regulations will depend on the circumstances of the case. The Government agree—I hope that the Committee finds it reassuring—that in the majority of cases it will be appropriate to require some mental element when creating a criminal offence. However, it might sometimes be necessary to create a strict liability offence. For example, if in an emergency it was necessary to impose price controls, it might be appropriate to create a strict liability offence.

In general, the Government intend that a mental element would be required. A framework that allows both is necessary in an enabling Bill, but we want the power to create a strict liability offence in those circumstances in which it is appropriate to deploy it.

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

I am in some measure reassured by what the Under-Secretary says, but examples are not always helpful in such cases. Her examples were not particularly good. For instance, price controls may not be known to every shop owner or on every street corner in the country; they would inevitably be complex, and it would be easy for someone to fall foul of the detail of the regulations. I do not see why the knowingly element or the mens rea should be so difficult for the Government. It is always a matter of evidence. As one moves towards the situation akin to strict liability, the evidence is not difficult to adduce. It often works as a rebuttable presumption.

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

Does the hon. Gentleman agree that although clause 22(4)(c) states that the maximum punishment is three months' imprisonment or a level 5 fine, if the Under-Secretary were to say that a minor breach of the regulations would rate only a £500 fine and no imprisonment, it would makes one's view of strict liability offences somewhat different?

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change) 5:30 pm, 5th February 2004

A minor breach might well rate a penalty at the lower end of the scale. It is clear from clause 22(4) that it is envisaged that serious breaches will be punished by up to three months' imprisonment. I presume that second offences would rate six months' imprisonment.

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

The hon. Gentleman was asking about why I would resist ''knowingly''. In our view, there may be cases in which recklessness or negligence are a sufficient test; it might not necessarily show knowledge, but someone had been reckless as to whether they were in breach. That would be the appropriate test. I therefore wish to resist the knowingly test. It is a high test; for example, someone who resists the police in the course of their duty has to do so knowingly, and in such cases we might wish to continue such a test, but in other cases, recklessness or negligence might be a better test.

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

The Under-Secretary is testing me. It is a long time since I have had to consider such matters. I do not think that knowingly is as high a test as she suggests. It is certainly not as high as the test of being possessed of full mens rea. In order to be possessed of mens rea, there has to be something more than mere knowledge: there has to be some evil intent. ''Knowingly'' pitches it as a sensible level. It is better than strict liability. Someone who is acting wilfully or recklessly would still be deemed to be acting knowingly. The two tests are not necessarily exclusive. Then there is the question of lawful excuse, and the defences that would be available in any event.

The hour is late, Sir John, and I fear that we will not do justice to those questions now. We may wish to revisit the subject on another day—perhaps when there is a little more daylight. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Further consideration adjourned.—[Ms Bridget Prentice.]

Adjourned accordingly at twenty-eight minutes to Six o'clock till Tuesday 10 February at half-past Nine o'clock.