Clause 21 - Scope of emergency regulations

Civil Contingencies Bill – in a Public Bill Committee at 9:30 am on 10th February 2004.

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Photo of Oliver Heald Oliver Heald Shadow Leader of the House of Commons 9:30 am, 10th February 2004

I beg to move amendment No. 86, in

clause 21, page 14, line 44, leave out paragraph (j).

Photo of John Butterfill John Butterfill Conservative, Bournemouth West

With this it will be convenient to discuss the following:

Amendment No. 116, in

clause 21, page 14, line 44, at beginning insert

'subject to section 22 (5)'.

Amendment No. 117, in

clause 21, page 14, line 44, leave out

'(other than a provision of this Part)'.

Amendment No. 82, in

clause 21, page 14, line 44, after 'Part', insert

'or a provision of the Human Rights Act 1998'.

Amendment No. 120, in

clause 22, page 15, line 40, after 'proceedings', insert—

'(5) Emergency regulations may not amend, display or modify any provision of this Part nor any enactment named in Schedule 5 (Enactments not to be modified by Emergency Regulations).'.

Amendment No. 87, in

clause 22, page 15, line 40, at end add—

'(5) Emergency regulations may not amend any provision of the Human Rights Act 1988 or any past legislation which makes up the statutory framework of the British Constitution.'.

New schedule 1—Enactments not to be modified by emergency regulation—

'Magna Carta 1297

Bill of Rights 1688

Crown and Parliament Recognition Act 1689

Act of Settlement 1700

Union with Scotland Act 1707

Union with Ireland Act 1800

Parliament Act 1911

Parliament Act 1949

Life Peerages Act 1958

Emergency Powers Act 1964

European Communities Act 1972

House of Commons Disqualification Act 1975

Ministerial and Other Salaries Act 1975

British Nationality Act 1981

Supreme Court Act 1981

Representation of the People Act 1983

Government of Wales Act 1998

Human Rights Act 1998

Northern Ireland Act 1998

Scotland Act 1998

House of Lords Act 1999

Civil Contingencies Act, Part II and Schedule 5 (Enactments not to be modified by Emergency Regulation) [2004]'.

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

It is good to be in a different Room and notice the wide chasm that has opened up between the Opposition and Government. I am sure that that is an encouraging feature.

The three Conservative amendments—Nos. 86, 82 and 87—are all concerned with the disapplication or modification of enactments. The first place in which that arises is clause 21(3)(j), which gives the power to disapply or modify enactments by emergency regulations. Amendment No. 86 would remove that power; amendment No. 82 would leave the power in place, but not permit the Human Rights Act 1998 to be disapplied or modified; and amendment No. 87 would protect the Human Rights Act and other constitutional enactments from disapplication or modification.

The amendments are based on the comments from expert bodies, such as the Law Society, Justice, and Liberty, and on the views of the Joint Committee when it considered the draft Bill. The principle that there are fundamental human rights that must be respected and that, even in a state of emergency, there are some rights that should never be infringed is shared across the Committee. However, the Government take the view that it is not necessary to make the sort of provisions that I am suggesting.

Emergency regulations can be made over a broad range of areas. The powers in the Bill seem to be designed to give the Government scope to cope with unforeseen circumstances. Yet, when it comes to the question of entrenching or not allowing the disapplication or modification of the Human Rights Act and other constitutional measures, we are asked to rely on the following assurance in the Government's response, which said that

''we cannot presently envisage circumstances in which this power would lawfully enable us to make a substantive amendment to a constitutional enactment.''

What is sauce for the goose is sauce for the gander however, and if the Government are to have such wide-ranging powers on the basis that the unforeseen must be catered for, it seems odd that they are not prepared to put their money where their mouth is when it comes to protecting some of our most important constitutional enactments. It does not seem right to rely on the Minister's assurance. Circumstances change, Ministers change, and we should design good law. If we want to exclude the disapplication or modification of the Human Rights Act, we should do so. I note that the Government response says that

''it may be safe to assume that Parliament intended to confer the power to interfere with such a statute if the interference is trivial.''

It is not as though the Government are saying that they will not touch any of these Acts because they are inviolate. They are saying that they want to be able to touch them and interfere with them by using emergency regulations, provided that, in their opinion, the change that they make is trivial. That is not very encouraging.

Either there is a class of entrenched or constitutional Acts, or there is not. Lord Justice Laws has suggested that there is and the Minister, in the Government response, seemed to accept that although it is a recent thing, there is such a class of Acts. The current wording of the Bill does not reflect that sort of thinking, but we believe that it should, which is why we tabled a group of amendments to protect the Human Rights Act 1998 in one way or another. Amendment No. 117 would also protect our basic constitutional Acts.

The Government say that it is very hard to define what a constitutional Act might be. The Liberal Democrats, perhaps aided by Justice and Liberty, have produced a new schedule that includes the obvious ones. If the Government are concerned that one or two others should be included, I suggest respectfully that they adopt the same principle that applies throughout the rest of the Bill, which is, if in doubt, put it in.

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

I wish to speak to amendments Nos. 116, 117, 120 and new schedule 1, which were inspired by Justice and Liberty, as well as the principles of justice and liberty. The amendments would—as the hon. Member for North-East Hertfordshire (Mr. Heald) said about his amendments—define a series of constitutional Acts that cannot be modified under an emergency regulation. We have already established that emergency regulations can be wide ranging. Although we are seeking to ensure that a category of legislation cannot be interfered with through the use of emergency regulations, that does not mean that we would limit the power of Parliament to alter or adjust those Acts. We believe that it is appropriate to do that through primary legislation. We cannot see why the circumstances under which the Acts that we have defined in new schedule 1 could or should be amended in the context of an emergency regulation, which by definition has a duration of only seven days until it must be considered by Parliament. In other words, Parliament may amend some of those Acts if it proves necessary, but it should do so explicitly in the context of emergency regulations.

The Joint Committee considered the issue in some detail and came up with its own list of Acts of Parliament, but the Government in their response, to which the hon. Member for North-East Hertfordshire referred, declined to accept its recommendation. It is worth looking at the Government's response to tease out the key issues. They said that they agreed in broad terms that constitutional legislation should be excluded, but they have given us dubious comfort, in the context of the amendments, in telling us that parliamentary counsel says that the power in question

could not be exercised in the way that we fear that it would be exercised. The problem that has given rise to the amendments is this: we do not take sufficient comfort in the advice of parliamentary counsel to accept that the Bill as drafted excludes constitutional Acts from potential interference through emergency regulations.

I should like to highlight one point in particular. The Government said—to paraphrase part of their response—that, ''We make legislation by tacking all kinds of bits into Acts. Therefore it is hard to pick out the constitutional ones. We may have constitutional bits at the core, but there will be all sorts of other stuff tacked on to the sides.'' Sadly, there is probably some truth in that. The Government specifically referred to the European Communities Act 1972, which is one of the Acts to be excluded that we list in new schedule 1. They said:

''Even in an enactment of undeniable constitutional importance as, for example the European Communities Act, it is possible to conceive of appropriate amendments.''

In other words, in one sense they are saying, ''We do not wish to interfere with the constitutional legislation'', but in their response they say that there may be circumstances in which they would wish to do that. I assume that that is because they envisage some odd bits on the edge of the 1972 Act that they may wish to interfere with, but they do not envisage that they might secede from the European Union through emergency regulations. However, we have to think of Governments of all political persuasions potentially being in power. We would not wish the definition of a state of emergency—that is, the device of emergency regulations, rather than primary legislation—to be the reason for secession from the European Union. It is precisely that kind of fundamental constitutional measure that we want to avoid.

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

Does the hon. Gentleman think that it is not good enough for the Government to say, ''Oh well, we don't know what a constitutional act is'', given that Parliament could define it? In fact, that is what the new schedule would do. If the Minister does not like a particular Act, he could argue that it should not be included in the list, and Parliament could vote against it. If he wanted an Act that is not in the list to be included, it could be added.

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

The hon. Gentleman is entirely correct. Perhaps a further refinement would be for the Government to accept the amendments and then give themselves the power to add or remove pieces of legislation from the list. Such a power could be debated in the House as a regulation in the normal fashion. He is correct that to suggest that there should not be a fear of trying to define constitutional legislation. If we have defined it a little too widely—and there were odd bits and pieces in the 1972 Act that the Government might wish to amend in an emergency—including it in the schedule as suggested would merely require them to wait until they could introduce regulations in the normal fashion. All that we are denying them is the power to make an emergency regulation, not the power to amend the legislation. That can happen in the normal fashion.

The Government used that argument in their response. They said:

''The Government is aware of no precedent in legislation for doing so''—

that is, for defining constitutional Acts. The response went on:

''This reflects the constitutional history of the United Kingdom. There is no written constitution.''

I find that collection of sentences interesting. They say that there is no precedent, but that there is also no written constitution. If we put the two together, we can say that, under the British constitution—such as it is—things happen by precedent, so there is no reason why the Bill should not establish one; precedents have to start somewhere, otherwise we would be in a completely frozen constitutional situation.

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

The hon. Gentleman will know that the most recent case on such matters, on which Lord Justice Laws made his comments, is very new. That, and the fact that the legal precedent in the courts has only just been established, is surely a good reason why we in Parliament should grasp the nettle if we agree with the courts. We should say: ''We'll deal with the matter in this way, rather than in the traditional, old-fashioned way''. Does it not ill behove a Minister at the cutting edge of modernisation, who has big conversations and so on, to deny such a thing?

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

I am glad that we are working hand in hand on the modernising front, seeking a more clearly defined constitutional situation together. After all, there is a huge amount of debate today about the Government savaging one part of the UK constitution in a way that has attracted criticism—not, perhaps, because of the end result, over which we may agree, but because of the means by which they are arriving at it. [Interruption.] I may lose the hon. Member for North-East Hertfordshire at this point.

Clearly, the Government are not shy of enacting measures that involve innovation to certain parts of the constitution when they wish to. All we are doing is encouraging them to introduce another piece of groundbreaking constitutional reform by accepting that we can start to define and protect certain pieces of legislation as the core of the United Kingdom constitution in the Bill.

The Government, in their other principal rebuttal, said that we could trust the assurances of parliamentary counsel. They said that they think that Parliament

''will not permit interference either with a general presumption or with a 'constitutional' enactment''

because it did not intend to confer such a power under the Act that we are debating. If the Government are not going to leap up and accept the amendments, we might at least expect a clear statement along those lines. My assumption is that when parliamentary counsel say, ''Parliament did not intend that'', they mean that, in future, should a Government try to bring forward a regulation that interfered with a constitutional enactment, the lawyers and legal advisers would look back to our debate, and to a Minister's clear statement that Parliament did not intend that. I hope it has been clear to parties on both

sides—and certainly on this side—that we are seeking to protect the constitutional enactments. I hope that the Under-Secretary is able to make such a clear statement.

We continue to be of the opinion that it is safer and more appropriate to take the constitutional precedent of defining the Acts that are protected here. I will listen with interest to the Under-Secretary's response because we have come up with a more workable formula than the list that the Government rejected at the time of the Joint Committee's recommendations. That was a different kind of list. This one is quite neat, and I hope that it is acceptable to the Under-Secretary.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change) 9:45 am, 10th February 2004

I support my hon. Friend the Member for Sheffield, Hallam (Mr. Allan) about second guessing what Parliament may or may not do at some stage in the future. That is an exceptionally dangerous approach. In the past two and a half years, I cannot think of much that the House of Commons could not be persuaded to do—or be bulldozed into doing—by a majority, at least when the Government Whips have got their tails up. One might also look towards a day when the other place is wholly appointed and may be a bit more susceptible to the powers of persuasion and patronage.

My hon. Friend and I propose a sensible and fairly modest list of enactments. Last week, I speculated on the circumstances in which the Minister for Europe might be given powers and what he might do with them when he got them. If he could be denied the power to take us out of the European Union or to dissolve the Act of Union, that would be a modest but eminently sensible constitutional safeguard.

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

It might be helpful if I start by discussing our ambition. The Government's view is that emergency powers should not be capable of making substantive amendments that undermine the constitutional fabric of the United Kingdom. I am happy to make that statement explicitly. If in the exceptional circumstances of an emergency, it is necessary to break new constitutional ground—perhaps by suspending one of the devolved Parliaments for a short time or by deferring an election—the right and proper way to do so would be by introducing a Bill. That would enable Parliament to consider the matter fully.

The debate boils down to the question of how we achieve the shared aim of protecting the constitution and having a practically workable emergency framework that gives the flexibility to deal with situations as they arise, but protects the fundamental freedoms that, although they are not in a constitution in our country, are inherent in laws that hon. Members have noted have the character of a constitution.

If we start from a recognition that we share that aim, the next question that we need to ask is why we are resisting amendments that seek to entrench that aim. The reason is twofold: that is unnecessary and the amendments in their current form do not necessarily achieve that aim. Our view that express protection for

constitutional enactments is unnecessary is set out in the response to the Joint Committee to which hon. Members have referred and in the letter that Committee members have received from the Minister for the Cabinet Office and Chancellor of the Duchy of Lancaster.

Let us summarise. Legislation does not operate in a vacuum. It operates on the basis of the way in which our constitution works. First, it is important to remember that the power to make secondary legislation will be interpreted in the light of the purpose of that power. Secondly, when considering the scope of the power to modify enactments, it is important to acknowledge the status that has been accorded to enactments of constitutional importance to which we have referred. The most obvious judicial pronouncement that was referred to by the hon. Member for North-East Hertfordshire was the Thoburn v. Sunderland city council metric martyrs case. In the light of that case, the Government are of the view that the courts will expect Parliament to use clear language before delegating to the Executive the power to amend substantively the Human Rights Act. The Bill does not expressly permit regulations to modify such enactments, so there will be a presumption against modification.

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

The Minister will recall the points about triviality in which the parliamentary counsel apparently said that it was safe to assume that Parliament intended to confer the power to interfere with such a statute if the interference were trivial. What does that mean?

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

There can be several trivialities. They might be timing elements or insubstantial matters. I shall cite an example. Both the hon. Members for Sheffield, Hallam and for Orkney and Shetland (Mr. Carmichael) referred to the European Communities Act 1972. I have grasped such examples because they have illuminated our debate and helped us to imagine the situation that we might face. Let us consider an example in which it is possible to imagine that, in an emergency, a necessary trivial amendment might have to be made to the Act, which enables action to be taken to deal with an emergency.

Under the Act, I understand that Ministers are designated via Order in Council before they can implement Community law. We talked earlier about what we might do in an emergency in which an Order in Council was not possible. We have already imagined such a situation. In such circumstances, there is a failsafe. It might not be possible to operate the Order in Council mechanism, which is the usual mechanism for implementing the provision under the European Communities Act. We may require therefore a minor modification that would, for example, give a Minister the power to fulfil the responsibility created under the Act in a particular way. That imaginable, not improper, minor amendment might be conceived of in order to sustain effective management of a situation in an emergency. As presently structured, the Bill makes it clear that the power is to control, mitigate or prevent an emergency.

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

The Under-Secretary has, in a sense, described a deficiency in the original European Communities Act in the context of an emergency when Orders in Council can be made. That provides a case for modifying the primary legislation ahead of time. If we can foresee a potential problem in such circumstances, we should be considering changing primary legislation, not saying that we can foresee a problem and that the way to resolve it would be through an emergency regulation. We do not want to have to use such regulations. I hope that, when she can foresee problems, she will take action to modify the primary legislation in the usual way.

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

I profoundly disagree with the hon. Gentleman. We are not discussing a modification that we want. If he recalls, we had an extensive debate about circumstances in which an Order in Council were not the way to proceed because of some difficult-to-imagine situation, such as the robustness of the Crown and so on. In such circumstances, we might require a provision in the Bill that would be unlikely to be used. I recall that that was the framework of the debate.

It is quite proper that emergency framework legislation has a failsafe. If the proper, normal, way to do things or the normal way in an abnormal situation to do things—which is by using the Crown—is for some difficult-to-imagine reason unavailable, there needs to be an alternative back-up. It is not sensible to sift through every piece of legislation and think about a point at which some procedural change might be needed. because the procedure might—difficult though it is to imagine—be difficult to operate in an emergency.

We are not talking about the fundamental constitutional framework, but about procedural ways of operating it. As it might be difficult to operate, we need a fall-back position, which we would not be likely to use in most emergency situations, because we envisage that the Order in Council procedure will normally be available. The alternative seems to me to be frankly unnecessary and not sensible.

What is much more sensible is not to sift through every single bit of constitutional legislation, but to do what I think that the hon. Member for Sheffield, Hallam was seeking to invite me to do in the first place—to make it clear in the way that we present this that we have taken very robust steps. For example, with regard to his earlier amendment; we can take such steps by ensuring that regulations should carry with them a statement of conformity with the Human Rights Act; by using the triple lock itself, which limits the circumstances in which this kind of issue can arise; and by ensuring that this debate makes it clear that both sides of the Committee believe that it would be contrary to our intention in passing the Bill to provide an opportunity to use secondary legislation to disapply the fundamental constitutional principles of the United Kingdom. I think that I have responded generously to his invitation to do that. With that, I will continue to resist the amendments.

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

I thank the Under-Secretary for that response. I know that she has been suffering, but her reply has not suffered in any sense. To be fair, saying

that we cannot sift through every possible piece of legislation looking for every possible eventuality was a very fair response to the point that was made. We will continue to be concerned that the safeguards should be in the Bill, rather than in the sense of a presumption. That remains an issue. My colleagues in the other place, who have an enormous expertise on human rights that far exceeds anything that I understand, will want to return to the matter. In the light of that, it is best not to seek to press our amendments at this stage. I do not know what the hon. Member for North-East Hertfordshire will do with the amendments tabled in his name.

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

I remain concerned too. It is all very well for the Under-Secretary to say, as she did, that emergency powers should not make substantive changes to the core of the constitution—something that we all agree on—and to say that a Bill would be required for the suspension of the Scottish Parliament and for changes of that sort. However, she then asked why I resist. The first point that she made was that it is unnecessary to have such provisions in the Bill. If it is her intention that such changes should not be made to our most fundamental constitutional Acts, I cannot see why she should so stubbornly resist the idea that a provision for that should be in the Bill. To say that it is unnecessary is not a strong argument, given the importance of the matter and the fact that in a recent case, one of our most serious, thinking judges made a decision that suggests that some statutes have an entrenched quality that goes beyond that of others.

The Under-Secretary also said that the amendments would not achieve their ambitions. That is a slightly weak argument; the civil service is replete with all sorts of high-quality people with great brainpower and the advantage of parliamentary counsel. I am sure that such a multiplicity of talent could be put to work to get the wording right. That is not too strong a point. If the Minister said, ''We will get the wording sorted out and come back on Report'', nobody would be happier than us.

That brings us to the question of why the Government do not want such provisions. The answer lies in the part of the response in which they talk about wanting to make trivial changes:

''it may be safe to assume that Parliament intended to confer the power to interfere with such a statute if the interference is trivial''.

When the Under-Secretary was asked about that, she said that the Government might want to change a procedural provision. She gave an example in which, instead of exercising a regulation-making power under an Act, it would be possible for the Minister to make law by fiat. The context was European law.

Photo of Fiona Mactaggart Fiona Mactaggart Parliamentary Under-Secretary (Home Office) 10:00 am, 10th February 2004

I did not suggest that it might be possible for the Minister to make law by fiat. If that was the impression that I gave, the Committee needs clarification. I said that in the circumstances that we have already discussed, in which the Order in Council procedure might not be available, as is envisaged in other parts of the Bill, another parallel procedure to provide the responsibility to the Minister might be required. The Order in Council under the Act provides

the responsibility to the Minister to make the regulations.

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

Perhaps ''fiat'' is a controversial word to use. The impression that I had was that it would be possible for a Minister to abandon the procedure that the Act provides to put a law into effect. That would be quite an important change to make. Similarly, the ability to make procedural changes to the Human Rights Act 1998 or to some of the other constitutional measures that we are discussing might mean that a Minister could change the law without any of the safeguards that such Acts provide. I think that one's duty as a Member of Parliament is to uphold such procedures. They should be debated and there should be proper procedural safeguards. These are not minor matters. If matters of procedure in making law are categorised as trivial, I am not at all happy and we should resist what is proposed.

However, I take the point made by the hon. Member for Sheffield, Hallam: we will almost inevitably want to return to these matters on Report, and I am sure that the other place will be interested in them as well. Therefore, 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. 81, in

clause 21, page 14, line 44, after 'Part', insert

'or a provision of the Health and Safety at Work Etc. Act 1974'.

It is nice to be in a much smaller Room, in which we will not rattle around.

Amendment No. 81 is relatively simple and relates almost entirely to the Health and Safety at Work etc. Act 1974. The reasoning behind it is very simple. It is designed to safeguard against employers being directed to breach their obligations to their employees in respect of health and safety. It is as simple as that. Regulations may disapply or modify an enactment or provision made by or under an existing Act. They could, for instance, disapply the Health and Safety at Work etc. Act 1974. As the Under-Secretary will be aware, many organisations, such as BT, have been vocal about that point, as they could find themselves being directed to send people into hazardous situations on pain of committing a criminal offence.

For obvious reasons, certain individuals are exempt from the 1974 Act, not least including the armed forces. There are also certain modifications for people in the fire service and for other elements of the blue light services. However, the nature of an emergency, particularly at the extreme end of emergencies, is difficult to imagine. There was an ideal example of such an emergency in Moscow over the weekend when an extremely serious suicide bombing took place on the metro. If our underground were subject to a similar attack, a number of first and second responders could be required under the Bill to send people into dangerous situations that the 1974 Act would normally preclude.

As I said, one understands that certain individuals are not subject to the 1974 Act because of the nature of their calling. It is therefore proper that firemen,

ambulance workers and special constables, members of the civil contingencies reaction force and the like can be sent down into smoke or water-filled tunnels to try to remove casualties to prevent people from being injured further and thus to mitigate the effects of a disaster.

This amendment is designed to protect people such as those in BT. Under the Bill, such organisations may be forced to send their workers into circumstances such as those that have been described not to do immediate, crucial life-saving work, but to do middle-order work or even longer-term work, such as repairing electricity supplies, telephone lines and computer links. Such work may not be crucial, but it may be regarded as important in the chaos of the moment. If organisations are forced to send employees to do the work, but they disobey, they could end up committing a criminal offence.

The amendment highlights the fact that it is reasonable that the 1974 Act and other similar legislation is ring-fenced to ensure that employers do not have to send their people into such situations. Otherwise, we could be making such people and their employers criminals. I will not labour the point, but I say again that this provision needs to be ring-fenced so that people who would not normally be forced to work in dangerous circumstances are protected.

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

I have some sympathy with the hon. Gentleman's comments, but I wish simply to add a note of caution and to remind the Committee of the manner in which the Health and Safety at Work etc. Act 1974 is drafted.

I am returning to the 1974 Act some time since I considered its terms, but my recollection is that the first three sections at least are drafted very widely. It imposes on people a broad sense of duty to provide, for example, and most notably, a safe system of work. I also recall that it sets out duties beyond the safe system of work and that duties are owed to those who come into the ambit of one's work. In other words, if somebody was doing some work in a certain place, and I as a member of the public or a customer were to walk in off the street, under the 1974 Act, the person doing that work would owe me certain duties. In terms of health and safety at work, that is eminently sensible. When one considers the sort of situation that one is dealing with, one sees that the sheer variety of people who are covered by the Act is enormous and that it might not be helpful for them wholly to be excluded, as the amendment seeks.

I share the concerns that the hon. Member for Newark (Patrick Mercer) has raised, but I am not necessarily persuaded that the amendment addresses them in the right way.

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

Is not the 1974 Act entirely concerned with the health and safety of employees and subcontractors? I think that occupiers' liability legislation covers people who go on to premises in the way that the hon. Gentleman described.

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

I honestly cannot remember. My recollection is that the duties in the Health and Safety

at Work etc. Act 1974 cover a wider area than employees and subcontractors. That point came to me when the hon. Member for Newark was speaking, but it is some time since I have cast my mind in this direction. My impression has always been that that Act is exceptionally widely cast, and I have some concerns about that in this context.

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

I have become almost boring because I constantly focus on one specific example. None the less, a concrete example often helps when we are addressing the tricky waters of a framework Bill dealing with situations that have not yet occurred. The kind of situations on which we are focusing will be most likely to arise when, for example, the authorities require not only some equipment, but someone to operate it. As the Committee is aware, the Association of Chief Police Officers made much of the need for experts to drive any digging equipment that might be required. In such situations, we would need powers that were not required in the Emergency Powers Act 1920 because machinery was sufficiently simple at that time for most people to operate.

It is clear that, in such circumstances, it might be appropriate to consider the law relating to employment, including health and safety law. I recognise the concerns that have been expressed by BT and others, and that they want to make their position clear. Whether it would be appropriate to disapply provisions of health and safety legislation would depend on the circumstances. The Government would need a very good reason to disapply such a provision, even in an emergency. I hope that Committee members find that reassuring.

However, as the hon. Member for Orkney and Shetland pointed out, the Health and Safety at Work etc. Act 1974 is a broad measure, and it has a series of impacts on customers, employees and employers. Protecting it at all stages may not achieve the end that the hon. Member for Newark seeks. It is possible that it will be necessary to modify the Act in order to protect the employer in some situations where we might be requisitioning their work force to operate machinery and so forth.

The safeguards rest elsewhere. I profoundly understand the need for employers and employees to be confident that there are safeguards, because any requirement to do anything such as disapply health and safety provisions must be in due proportion to the emergency. We should recall that the dual proportionality test must be compatible with convention rights, which include the right to life, the right against inhuman and degraded treatment and so on. That is where the protection that the hon. Member for Newark seeks best rests, rather than with trying to import into an emergency situation a rightly complex measure—the Health and Safety at Work etc. Act 1974—that is not designed to cope with the constant shifts in responsibility and exercise that may happen in an emergency. For that reason, I shall resist the amendment.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark 10:15 am, 10th February 2004

I am grateful to the Under-Secretary for her summing up. Our probing has been

correct. It has sought to plumb precisely the Government's understanding of the nature of the emergency. I believe that she could helpfully expand on the compatibility test to which she referred, but perhaps she could do so on another occasion.

I take the point that the Health and Safety at Work, etc. Act is not fully designed for such emergencies. What Act is, other than the Bill that we are discussing at present? I take some comfort from what the Under-Secretary said. I understand her point that the Government will be extremely reluctant to tinker with the Health and Safety at Work, etc. Act other than in circumstances of extreme emergency. Although I understand her clear explanation, with some reservations, 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. 61, in

clause 21, page 14, line 49, at end insert

'provided that such function is reasonable and proportional to the risk or risks in respect of which regulations are being made'.

The amendment would add words to clause 21(3)(k). Paragraph (k) provides that emergency regulations may make provisions requiring

''a person or body to act in performance of a function (whether the function is conferred by the regulations or otherwise and whether or not the regulations also make provision for remuneration or compensation)''.

The amendment raises two points, the first of which is that, under clause 22(1), there are limitations on emergency regulations. It deals with the issue of purpose and it limits emergency regulations by saying that they may make provision only if and in so far as the person making the regulations thinks

''(a) that the provision is for the purpose of preventing, controlling or mitigating an aspect or effect of the emergency in respect of which the regulations are made''.

Paragraph (b) deals with proportion and states that

''the effect of the provision is in due proportion to that aspect or effect of the emergency.''

I want to check with the Under-Secretary the extent to which paragraph (a) is a reasonable provision. In other words, is the word ''reasonably'' to be imported into the phrase

''the provision is for the purpose of'',

or is that the inference to be drawn? Secondly, does the phrase ''due proportion'' relate to emergency regulations as a whole or would they affect a decision to make a specific requirement on a person or a body under paragraph (k)?

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

Ministers are required to be reasonable at all times. That is the place to start, and I hope that the hon. Member for North-East Hertfordshire finds that reassuring. My second answer is also, effectively, yes. Clause 22(1)(b) provides that each provision must be

''in due proportion to that aspect or effect of the emergency''

to which the provision is targeted. That provides the additional protection that he is seeking; his amendment is therefore completely unnecessary. With those reassurances, I hope that he will withdraw it.

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

It is helpful when a Minister puts that sort of comment on the record. Under the case of Pepper v. Hart, when the courts consider a provision such as this in the future, they will be able to look back at what was said in Committee and at the Under-Secretary's assurances. On the basis that she is saying that reasonableness is imported into clause 22(1)(a) and that the proportionality in (b) applies to a specific requirement under clause 21(3)(k), I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

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

I beg to move amendment No. 101, in

clause 21, page 15, line 1, leave out paragraph (l).

This amendment is deliberately designed to elicit information. I am curious anyway about the way in which the armed forces are deployed and, by extension, about how they would be deployed in the context of an emergency and the powers given under the Bill. One of the great joys of an unwritten constitution is that very few people, including parliamentarians, understand in detail how it works. I class myself among those who are still grappling with measures and procedures, many of which were brought into play around the time of Queen Elizabeth I, when there was a coalescing of the way in which powers were exercised.

In the run-up to the recent hostilities with Iraq, we had an interesting public debate. I engaged with many constituents about the deployment of armed forces. Many people wrote to me to say that they thought that Parliament had to authorise going to war. I wrote back and said that that was not the case; the Executive decide whether we go to war, but they must have the support of Parliament.

We are considering the deployment of armed forces in the context of an emergency. I will be interested in the Under-Secretary's response on what the Defence Council is and how it works. The amendment would delete a provision. If that provision were not there, and Ministers felt that they needed to use the armed forces for a particular purpose, how would they do that? How would the armed forces be deployed if the provision were there? What does the provision do in giving the regulation-making power? In the context of this regulation, are we talking about deploying the armed forces in a normal military sense against some kind of external enemy, or about deploying them against our own population—during looting, or in cases of severe disorder in which the armed forces are used internally, as in Northern Ireland during the 1970s?

There will be public interest in the deployment of the armed forces. How they are deployed and how approvals are given are important questions. I am sure that if 100 people on the street were asked what the Defence Council was and who authorises the deployment of the armed forces in extreme situations, the number of people who could give a direct response would be very low—if anyone could at all. I class myself among them. The amendment seeks to contribute to a learning experience. I hope that the Under-Secretary can assure us that the safeguards are in place.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

I appreciate this Liberal Democrat amendment, because it gives us the opportunity to probe the Minister on a couple more technical points on the use of the armed forces. I entirely endorse what the hon. Member for Sheffield, Hallam says about the lack of understanding as to exactly what the Defence Council is. I would go one stage further, although I understand exactly what the council is from previous experience. I think that I understand, but would appreciate the Under-Secretary's guidance on the calling-out of the civil contingencies reaction forces, which, by some strange coincidence, have just been declared operationally effective, despite the fact that they are woefully under-strength and considerably over-deployed overseas.

A point came up on Second Reading about the use of the regular forces. I understand that, under emergency regulations, there is no specific provision for their use. By ''regular forces'', I mean the regular Army, Navy and Air Force—in other words, the men and women of this country. At a rough guess, there are about 60,000 people in such forces, all of whom are trained in the defence against, and the mitigation of the results of, nuclear, biological and chemical warfare techniques. There seems to be no provision, either in the Bill or elsewhere, for the deployment of those regular forces to the assistance of, say, the blue-light services. That is exactly the point that the hon. Gentleman made.

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

In the absence of the hon. Member for Ealing, North (Mr. Pound), may I ask whether the numbers that the hon. Member for Newark just gave include the senior service? I know that the hon. Member for Ealing, North would raise that point if he were here.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

In the absence of the hon. Member for Ealing, North, who on such matters acts as a positive anchor for the Government—[Interruption.] I said ''anchor''. I assure the hon. Member for Sheffield, Hallam that the number of 60,000-odd is based only on the number of regular servicemen and women who were from time to time available during the firemen's strike this time last year. That was the number that came up then. The number certainly includes those from the Royal Navy, and reflects the numbers deployed to help in that emergency.

The regular forces represent a considerable amount of trained manpower, and considerable numbers of trained soldiers, sailors and airmen who can not only react to the use of firearms or to nuclear, biological and chemical warfare techniques, but provide the manpower that we were arguing about in part 1 of the Bill. Provision for that is so noticeably absent from all the Government's measures.

I would be interested to learn how the Under-Secretary envisages the deployment of those regular forces on top of the forces that I have mentioned, which are embodied as part of the reserve in the civil contingencies reaction force.

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

I have already informed the Committee of many of the office-holders on the Defence Council. If the hon. Member for Sheffield, Hallam checks Hansard, he will see that I got three-

quarters of the way down the list. It is a committee of senior Ministers and service personnel, headed by the Secretary of State for Defence. I point him to Hansard, where he will see that the purpose of giving the Defence Council the role that we are discussing is to ensure that service leaders work with Ministers in deploying armed forces in certain circumstances—as they usually would.

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

Is not the Defence Council normally involved in authorising the deployment of forces? If so, why is it necessary to make specific provision for it in the emergency powers?

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

It is normally involved, and in the interests of fulsomeness and clarity we are making sure that that normal practice is made clear. In addition, we are making sure that such action cannot be taken without the council. That might be an appropriate safeguard in the circumstances that we are discussing.

Hon. Members recognised that there might be a need to authorise the use of the armed forces in emergencies and that the safeguard of the Defence Council is worth while. They also probed and asked in what circumstances the armed forces might be used and whether the civil contingency reaction forces would be involved. CCRFs will be deployed as part of the armed forces under the same procedures. There will not be special separate arrangements. I hope that the hon. Member for Newark finds that reassuring.

I was also asked what role the armed forces would be likely to play in emergency situations. We recognise that responding to disasters and emergencies is not the primary role of our armed forces; in most cases, they will have a role in supporting the civil authorities. They are already closely involved in civil resilience arrangements and may provide personnel. That is important and necessary in emergency situations where, to put it crudely, a lot of people are needed to move, lift and direct things. The armed forces have been deployed in that role in such situations due to their logistical skills.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark 10:30 am, 10th February 2004

The Under-Secretary clearly makes the point that the civil contingencies reaction force—those that are left in this country and are not trying to support the overstretched regular forces abroad—are already warned, trained, planned and prepared to deal with exactly the sorts of circumstances that she is talking about, including, for example, recovering casualties from rubble-strewn areas. However, none of those circumstances constitutes contingencies for which the regular forces are prepared, because there is no contingency planning. I should like to press that question. How does the Under-Secretary envisage the regular forces—not the CCRFs—being taken away from what is referred to as the arms block and swiftly deployed in support of the provision?

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

The purpose of the provision is for emergency regulations to authorise the Defence Council to deploy the armed forces. It would enable emergency regulations to delineate clearly the uses for which the armed forces might be used. For example, if they were required to be of assistance in a mass

evacuation, it would be possible to request them to evacuate an area for reasons of public safety. The armed forces might be available and might be the most appropriate bodies to do that because of their numbers or the size of the area that might have to be moved. There is a range of possibilities.

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

Would the provision enable deployment in scary circumstances, such as in Northern Ireland, where the armed forces are deployed to try to establish order?

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

That might be necessary, but it would be more likely and common for armed forces to play the sort of role that they played during the foot and mouth epidemic, although I think it unlikely that these powers would be appropriate in such circumstances. However, that is an example of the sort of thing that the armed forces might be deployed to do, because of their logistical expertise, their numbers and so on.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

Does the Under-Secretary accept that one of the reasons why there was a distinct delay during the foot and mouth crisis before large-scale action was taken on the ground was because the regular forces were simply not configured to deal with those sorts of agricultural emergencies? After a period of regrouping, retraining, rethinking and replanning, it was possible to put large numbers of adaptable and capable people on the ground.

We have seen instances in which there has been no form of planning or training for regular forces; I am not talking about reservists now. There is no planning for, let us say, a machine gunner quickly to abandon his machine gun and turn up in the middle of the street as a rubble clearer. The Bill makes no provision for training or contingency planning for the regular forces, and thus is terribly weak on that point.

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

On the first point about the difference that the Bill makes, it strikes me that, at present, the emergency powers legislation enables the Defence Council to authorise armed forces to be temporarily employed in agricultural work—ironically—or other such urgent work of national importance. The one emergency already provided for in legislation is that related to foot and mouth. However, that provision is too narrow and we might require something broader. There may be cases where the use of the armed forces is desirable in situations beyond that definition, or the situation may have gone on for a sufficient length of time to cast doubt on the use of the legislation, which authorises only temporary deployment. We may therefore need a broader power.

The hon. Member for Newark talked about training and whether the armed forces had the capacity to do a range of things. The primary aim of our armed forces is the defence of the United Kingdom and its vital interests. It is not appropriate to put substantial resources into preparing the main forces for the kinds of circumstances envisaged in the Bill, which, as we frequently remind ourselves when discussing amendments, is designed for unusual situations and extreme emergencies, and not for the run of the mill.

We do not feel it appropriate substantially to change the preparation of the armed forces. The

MOD plays a full part in the non-legislative arrangements that underpin the Bill. It is engaged at Government level; its representatives attend regional resilience forums and may attend local ones in certain circumstances, so its experience and knowledge is embedded. If, during planning, it is clear to armed forces representatives that they may be required in some situations to carry out functions that they may not have been fully prepared for, I expect them to feed that knowledge from participation in forums and discussions into armed forces training, so that they can ensure that proper preparation is in place.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

I absolutely take the Under-Secretary's point that our armed forces are designed for different sorts of emergencies and operations. Furthermore, the trouble with the regular forces is that they never necessarily have to be in one place at one time, because they are being constantly called up. In the light of that, and in light of the fact that there will be a need for additional manpower in these circumstances, would not the Under-Secretary agree that we should be considering emergency volunteer reserves?

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

The hon. Gentleman is right to think that the Under-Secretary would not agree.

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

I seek clarification; earlier, the Under-Secretary said that the inclusion of the provision was necessary. As the powers already exist, this is belt and braces, with a bit of string and chewing gum added to be on the safe side. She then said that the purpose was to ensure that the armed forces could not be deployed without the provision. Does that mean that forces could not be deployed without the consent—or, indeed, the instruction—of the Defence Council? If that is the case, I do not see how this provision could prejudice the rights of anybody else who is currently entitled to deploy armed forces.

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

It is clear that the Bill provides for the Defence Council alone to authorise that.

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

It is also clear that other powers exist to allow for the deployment of armed forces. We come back to our old friend from last Thursday, the royal prerogative. Is the intention of the enactment of this provision that the exercise of powers by Ministers—in particular, the Prime Minister—should trump the royal prerogative? I would cheerfully support the limiting of the use of the royal prerogative, but if that is what is sought here, we need to be a bit more explicit about it. I should be more than happy to help the Government to draft the necessary amendments.

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

Where the armed forces are required for traditional military purposes, such as in time of war, their deployment will be authorised by the Defence Council, pursuant to the prerogative powers, as the hon. Gentleman pointed out. In other cases—such as for the purposes envisaged under this Bill—their deployment at present might be authorised under the emergency powers legislation rather than the prerogative power. As I pointed out, that applies to the use of armed forces for agricultural purposes. However, that would be done in the same way that it is done under the prerogative power; by the Defence

Council. That provides an alternative to the prerogative power but puts it in the context of the circumstances—a civil contingency—envisaged in the Bill.

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

That was a helpful exploration of the way in which the armed forces could be used in an emergency, which is what we wanted. We remain concerned that there is not a sufficiently limiting effect, but I understand the Under-Secretary's response that there is the self-imposed limitation of the royal prerogative being exercised through the Defence Council. That has been explicitly referred to in this context and it makes sense to have it.

We will want to continue to explore these issues, but we have achieved our objective of trying to shed some light on the arcane ways in which the military can be deployed under the UK's non-constitution. 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)

I beg to move amendment No. 102, in

clause 21, page 15, line 6, after 'tribunal' insert 'of qualified persons'.

This is another probing amendment. Its genesis on this occasion comes not from Liberty and Justice—not with capital letters at least—but from my hon. Friend the Member for Lewes (Norman Baker). I hope that that is a sufficient pedigree for the Under-Secretary to consider it seriously.

I seek to explore with the Government exactly what sorts of courts and tribunals are envisaged, and what process is involved for appointments to them. There is a danger that kangaroo courts will be created. I hope that the Minister can give us some assurance that we will not be appointing too many marsupials.

Photo of Oliver Heald Oliver Heald Shadow Leader of the House of Commons 10:45 am, 10th February 2004

I should like to join in the debate. The Human Rights Act 1998 has had quite an impact on current thinking about how the tribunals and courts may be composed. I would be interested to hear the Under-Secretary's comments on that. For example, I understand that for a long time it was thought that courts martial did not have to have any legal content. It is now thought that they require either a judge advocate or some legally qualified input to be considered a proper legal tribunal. I understand that the Government are introducing measures to that effect. Similarly, there has been a lot of talk recently in legal circles about the jurisdiction of lay magistrates and how they may continue in a climate in which the Human Rights Act requires due process and fair trials. There is certainly authority in Europe to the effect that a proper legally qualified tribunal is an important feature of that system.

Will it be necessary for tribunals under clause 21 to have at least a legally qualified chairman or clerk, who can give legal input to their proceedings? I share the concern of the hon. Member for Orkney and Shetland that we should not give carte blanche for courts to be set up without proper process. It would also be helpful to know the context in which the tribunals and courts

would operate. The days when non-qualified persons acted as judges without any real knowledge of due process are long gone.

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 most interested in this part of the Bill. Who will be advising the chairperson of such a tribunal? What rights of appeal will there be on a tribunal's decision? What is the distinction between these tribunals and the ordinary magistrates courts that deal with offences or breaches of regulation under the Emergency Powers Act 1920?

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

Perhaps hon. Members would find it reassuring if I remind them of clause 24, which ensures that there will be consultation with the Council on Tribunals before any tribunal is set up. That provision was established in response to questions that arose during the pre-legislative scrutiny. It will ensure that there is no marsupial quality about any tribunals that may have to be set up, as the hon. Member for Orkney and Shetland suggested.

We know that there might be situations in which people who are adversely affected by an emergency regulation might need a form of redress and need to have that redress tested. For example, when an emergency regulation provides for compensation for the confiscation of property, it may be appropriate to enable property owners to challenge an award of compensation at a specialist tribunal. There may be cases in which an animal health disaster occurs and it might be necessary to destroy livestock or take other action. In such circumstances, animal health specialists might be the most appropriate personnel to include in a tribunal. Clearly, in addition to including them, we would need to ensure that the tribunal conformed to the characteristics of a tribunal that we would expect in a just system.

The hon. Member for North-East Hertfordshire referred to recent developments in the law on article 6. Case law is developing in that area and the Government will take those recent developments into account. However, the precise details about the tribunal will depend on the circumstances. In an enabling Bill, it is a struggle to tie down precise circumstances, because they will differ according to the nature of the civil contingency. That is the problem with the structure of the amendment.

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 may have misunderstood what is going on. Am I right in presuming that a breach of a regulation would be dealt with in a magistrates court, a sheriff court or, ultimately, a Crown court? I thought that the tribunal, on the other hand, had to do with actions taken to alleviate problems—in other words, with questions of compensation and so forth. Is that the right approach?

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

That is correct. The tribunals are designed to deal with people who have perhaps been damaged by the operation of procedures that come under the Act, rather than with those who have breached a regulation. A number of safeguards are in place to ensure that the power is used appropriately. Emergency regulations cannot alter the procedure in criminal proceedings or create an offence triable elsewhere than before a magistrates court, as the

hon. Gentleman pointed out. We will conform to article 6 and the law as it develops.

It is important to probe such issues and ensure a proper mechanism for testing whether people adversely affected by the operation of regulations can obtain recompense. However, the fact that we have expressly provided for consultation with the Council on Tribunals—and there was no such provision initially, but we recognised that there is concern about the tribunal-making power—should help to reassure hon. Members that the procedures would not be marsupial in any way. They will help in the administration of justice.

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

I do not know that I am particularly reassured, and that is because of the inclusion in emergency regulations of the provision under subsection 3(n). I have some reservations about the constitution of tribunals in such circumstances. I accept that the Under-Secretary says that the details will depend on the circumstances, and that the matter will be judged when the tribunal comes to be set up but, interestingly, she has not chosen to illustrate that by example. I cannot think of an example in which things are so urgent that we set up the tribunal.

When the dust has settled and the blue lights have stopped flashing, perhaps there will be an argument for saying, ''Yes, we will have a tribunal system to process claims because we do not want to clog up the sheriff, magistrate or Crown courts with lots of claims that are easily justiciable by a tribunal.'' I see the force of that argument. However, my concern is that we are setting up a tribunal under emergency regulations. That is not for a situation in which the dust has settled and the blue lights have stopped flashing; it is for when everything is still hitting the fan.

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

I referred to an animal health disaster as one example. There might also be a human health disaster in which one might want a tribunal that was able to examine the effects on human health. As the hon. Gentleman points out, it is possible that dealing with the consequences might run beyond the emergency period. Nevertheless, having a tribunal from the start might provide people with security, in that they can get recompense and that they have a mechanism to obtain justice. One would expect there to be legislation—proper legislation as opposed to a regulatory framework—that would embed the newly created tribunal in the longer term. Therefore, I accept his point that this measure is an emergency arrangement. Our concern is that, in some cases, there needs to be a procedure in place early, so that people know that they have a mechanism for redress.

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

I am grateful to the Under-Secretary for that helpful clarification. First of all—to stray back to the terms of amendment—it would, at the very least, be desirable for the tribunals to have properly qualified people on them.

If one considers the recent foot and mouth outbreak, Ministers were in and out of the Court of Session in Scotland every other day dealing with interdict applications. There are any number of emergency procedures within the existing court structures that can deal with emergency applications,

and I am rather happier that that should be the case. There is then a proper judicial consideration for the case of the individual concerned. Some poor benighted individual should not turn up to find Skippy the bush kangaroo with a wig on his head.

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

I wonder whether the hon. Gentleman feels that the provision exists because Government are concerned about applications for judicial review and injunctions based on the human rights convention, rights to fair trials and to the article 6 requirements. In addition, does he think that it is aimed at the Government's ensuring that they would be able to put in place a mechanism for a fair trial of any issue, such as the killing of livestock or providing compensation prior to the destruction of something or at the time of destruction?

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

I suspect that that is exactly that sort of thing that it is aimed at, and I have to say to the hon. Gentleman that the list of remedies that he has given us involves some of the most complex and most involved areas of law—judicial review, in particular. When one seeks interdict relief—or injunctive relief as it would be in England—on the basis of a judicial review application, the law is complex. Also, as I recall it, if one obtains an interdict in circumstances in which it is ultimately shown not to be appropriate, one is liable for damages that are paid consequential to that. All that makes me think that the proper place for taking such emergency—if complex—decisions is within the existing court structure. At the very least, if they are not to be made within that, there must be some safeguard to ensure that they are made by people who have some qualification to consider them.

I am not happy about the inclusion of conferring jurisdiction in the way proposed. I could be persuaded to accept a need for tribunals at a later stage—I can see the force behind it. However, I am not particularly persuaded that this is the appropriate place to have them. If we are to have them, we ought to have the minimum safeguards with regard to the people who will be staffing the courts or tribunals.

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

Does the hon. Gentleman agree that it would helpful to hear the Under-Secretary say that she cannot conceive of any circumstances in which the chairman of the tribunal set up under this provision would not be somebody with legal qualifications?

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change) 11:00 am, 10th February 2004

That would be helpful. I have legal qualifications, but frankly, if I turned up to find someone like me or a solicitor of five years' standing—which is the qualification for a lot of tribunals—sitting on the bench, the blood would run cold in my veins. We want better qualifications than that.

It appears that we are not going to make any progress. However, I am not minded to press the amendment to a Division, particularly as we may return to the matter at a later stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of John Butterfill John Butterfill Conservative, Bournemouth West

With this it will be convenient to discuss amendment No. 119, in

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

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

The amendments explore the purposes of paragraphs (p) and (q). In a sense, paragraph (o) also falls within the same category. They attempt to establish the way in which the different parts of the Bill work together. I discussed earlier with my hon. Friend the Member for Orkney and Shetland the perverse pleasure that one derives from reading legislation. It is like reading Latin texts, with its own set of rules that do not conform in any meaningful way to the ordinary uses of language. Occasionally one reads it and things fit together and make sense. There is a twisted satisfaction to be derived from that. However, other times one reads things in legislation that do not make sense and there is something glaringly inappropriate about the way in which the phrasing has been put together.

That seems to be the case with this part of the clause. My understanding of the way in which clause 21(3) is drafted is that Ministers would make a regulation that would have a function defined in any one or more of paragraphs (a) to (m). The scope of those functions would be applied according to one or more of paragraphs (o) to (q), which define the geographical area and whether the regulations are applied generally or specifically. I think that that is a correct interpretation of the way in which the subsection is intended to work. If that is the case, there are two quite different sets of paragraphs: one set, (a) to (m), which is a list of functions, and another set, (o) to (q), which is scoping.

The two sets sit awkwardly together. If paragraphs (o) to (q) represented functions rather than scope, they would allow a massive, broad range of functions to be included that are not defined in paragraphs (a) to (m). If paragraphs (a) to (m) list a narrow set of functions limiting the Government, paragraphs (p) and (q) in particular would, at first glance, suggest that the issue is wide open if they can be exercised on their own, without reference to one or more of paragraphs (a) to (m). There is a problem with the drafting, in particular of paragraphs (p) and (q). I hope that the intention is not that they should have such a massive, broad range, but that they are scoping restrictions to be applied in addition to one or more of the functions defined in paragraphs (a) to (m).

I hope that that makes some sense. It is as near as I can get to describing something that owes its structure as much to Norman French as anything else. It would be much clearer if paragraphs (o) to (q) were removed and specified in a different way so that they are clearly additional to the functions listed in paragraphs (a) to (m), rather than instead of them or an alternative to them. They are quite different in nature.

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

I want to probe whether the hon. Gentleman is right that paragraphs (p) and (q) are designed to qualify paragraphs (a) to (m), or whether their purpose is the favourite draftsman's device of the catch-all.

There is something odd about the provision. Subsection (3) starts by stating:

''Emergency regulations may make provision of any kind that could be made by Act of Parliament or by the exercise of the Royal Prerogative''.

It then states:

''in particular, regulations may''

and it lists lots of reasonably specific things. However, at the end it just states:

''make provision which applies generally or only in specified circumstances for a specified purpose''

and

''make different provision for different circumstances or purposes.''

Illustrative examples of the sort of provision that could be made under subsection (3) are not given. It is suggested that almost anything could apply in a particular or a general way in almost any circumstance.

The hon. Gentleman is probably right that paragraphs (p) and (q) are intended to qualify the earlier parts of the subsection, but it would help to know whether that is the case. If it is not, that is a serious piece of surplusage.

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

I encounter all sorts of interesting things in this Committee, such as new words and people who enjoy picking through the byways and highways of legislation. I reassure hon. Members that the provisions are standard and found in most enabling powers, such as clause 16(6), on the powers under part 1, and clause 33, in connection with the power to bring the Bill into force. However, I am happy to engage with hon. Members on this matter because their concerns are reasonable and I hope that they will be reassured by my response.

Paragraphs (p) and (q) provide that the regulations under part 2 may make provisions that apply generally or only in a specified circumstance or for a specified purpose, and that they may make different provisions for different purposes. They are not freestanding or—to borrow the word of the hon. Member for North-East Hertfordshire—catch-alls. They are designed to allow regulations to be tailored to the precise circumstances of the emergency, so they are vital for ensuring that regulations are proportionate and targeted.

I offer my usual helpful examples. If it is appropriate to restrict travel, paragraph (p) makes it clear that that can happen in specified circumstances only. Travel by forms that could facilitate the spread of an infectious disease, such as air travel, could be prohibited, whereas other forms of transport might be permitted. Paragraph (q) allows different provision to be made for different circumstances so that rather than providing for the vaccination of all animals, the regulations provide for the vaccination of animals that show symptoms of a particular disease or if they are susceptible to it.

Paragraphs (p) and (q) qualify paragraphs (a) to (m). I hope that with that reassurance the amendment will be withdrawn.

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

That is helpful. The Under-Secretary's examples referred to paragraph (g) plus paragraph (p), which relate to a restriction on travel applying in specific circumstances for a specified purpose, and to

paragraph (c) plus paragraph (q), which relate to a restriction involving animals with a different provision for different circumstances or purposes.

There is complexity, and the Under-Secretary was generous enough to say that she is happy to engage in a debate on the issue. I hope that she will have another look it because subsection(3) remains obscure to ordinary people as it combines functions with scope. However, I understand her assurances, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Photo of John Butterfill John Butterfill Conservative, Bournemouth West

I am glad that we have clarified that because I was experiencing non-plusage.

Clause 21 ordered to stand part of the Bill.