'(1) Nothing in this Part shall affect existing rights under common law or under enactment to claim compensation.
(2) (a) Compensation shall be given for any loss or damage incurred as a consequence of any regulation passed under this Part if the regulations—
(i) cease to have effect under section 26, and
(ii) the loss or damage would not have occurred had the resolution not been passed or approved or had
originally been passed subject to any amendment passed in section 26(3),
(b) sub-clause (a) shall not apply if the Secretary of State determines that there is compelling reasons why compensation should not be awarded,
(c) if sub-clause (b) applies the Secretary of State shall give his reasons as to what the reason is.
(3) Compensation may be given for any loss or damage incurred as a consequence of any other regulation passed under this Part.
(4) The Secretary of State may by regulations make such provision as he considers necessary for the purposes of determining compensation.'.—[Mr. Allan]
Brought up, and read the First time.
I beg to move, That the clause be read a Second time.
As my hon. Friend the Member for Orkney and Shetland says, this is my last attempt to persuade the Government to accept something so that we can finish on a high note.
Indeed. This new clause is everything: its scope is comprehensive. It refers to the entirety of common law, and one cannot get more comprehensive than that. It would establish two things in respect of the powers set out in clause 21(3)(b) and (c). Those paragraphs leap off the page because they say that emergency regulations can
''enable the requisition of confiscation of property . . . enable the destruction of property, animal life or plant life (with or without compensation)''.
There may be circumstances in which compensation cannot be paid because of the nature of the incident that has occurred. That returns to the notion of rights and responsibilities: where the Government have the right to destroy confiscated property, animal or plant life, they should compensate wherever possible. The new clause would establish that. Subsection (1) would clarify what I hope the Minister is going to say, which is that existing rights under common law would be preserved. In other words, if an individual felt that they had a problem, they could take action under common law and nothing in the emergency regulations could strike that out.
Subsection (2) would establish a presumption in favour of compensation. The Government explicitly referred to that issue in their response to the Joint Committee. In paragraph 33, concerning interference of property rights without compensation, they cite the European convention on human rights as the primary safeguard. The ECHR would establish a presumption in favour of compensation. The Government would have to establish a case to destroy or confiscate property without compensation, or they would be in breach of the convention.
In terms of major sausages achieved in Committee—''sausage'' is shorthand for an amendment—the fact that the Government conceded the point that the regulations should have a certificate of compliance with the Human Rights Act is welcome. I hope that it means that regulations affecting property will similarly be in accordance with the ECHR. The new clause goes further in seeking to establish the presumption in favour. It looks bad, from the
Government's point of view, to have legislation that does not establish that presumption.
The draft legislation implies that it is arbitrary as to whether or not compensation is paid. It is not arbitrary, because Ministers must behave reasonably, in accordance with the convention rights, but the Bill does not imply a presumption in favour of compensation. The new clause therefore tries to establish that, and gives the Government a tool to do that. I do not expect it to be gleefully accepted by the Government immediately, but I hope that they will at least recognise that a question about compensation remains unanswered, and the point may continue to be queried if they do not accept that the Bill should be drafted more explicitly to establish a presumption in favour of paying compensation rather than paying it arbitrarily, at the toss of coin—''with or without'', as subsection (3) says.
After that less than charitable contribution, I shall choose my words carefully. If the whole reach of common law is encapsulated in new clause 3, I can make a suitably lengthy response, because it contains some important points that merit consideration.
The Committee discussed compensation at some length during its sitting on 5 February. To recap briefly the Government's position, they accept that, where it is necessary in an emergency to damage a person's property or otherwise affect their financial position, it will often be appropriate to provide compensation. They also recognise that the availability of compensation will often make it easier in practice to operate emergency powers: people will co-operate more freely.
The hon. Gentleman anticipates me. With his forbearance, I shall address exactly that point in a moment.
To ensure that emergency regulations can provide compensation in appropriate cases, the Bill provides that they may enable action to be taken in relation to property ''with or without compensation'', as paragraphs (b), (c) and (k) of subsection (3) provide. However, to answer the hon. Gentleman's question, there are circumstances in which compensation is not appropriate; for example, where the loss is insurable or where the owner's negligence is to blame. If an owner wilfully infected cattle and thereby caused a major outbreak of an infectious and communicable disease, that would be a reasonable example of a circumstance in which the Government would not have to pay compensation.
The Human Rights Act 1998 will require compensation to be awarded in certain situations. Under article 1 of protocol 1 of the convention, any interference with property rights must strike a fair balance between the demands of the community or society and the need to protect the individual's fundamental rights. Compensation will often be a key aspect of a fair balance, especially where property has been taken on a permanent basis or destroyed.
The Minister referred to article 1 of the first protocol. He did not finish the sentence, which includes the words
''except in the public interest''.
In other words, the Government would be allowed, in the public interest, not to compensate. Will the Minister elaborate on that?
As I said earlier, there could be circumstances in which it would be inappropriate for compensation to be paid, but the framework in which I must consider the new clause is that, as the Bill states, the Government will pay compensation.
The new clause raised some specific concerns, such as the need expressly to protect common law or other existing rights to compensation. The Bill does not affect any right to compensation that the person may have by virtue of article 1 of the first protocol—the protection of property.
On the specific point about the need to ensure that compensation can be given under the regulations, I can tell the Committee that the regulations may provide for it in appropriate cases, as subsection (3) makes clear. Compensation may well be appropriate in other cases. There is nothing in the Bill to prevent it, but it is less likely. That is why the Bill concentrates on compensation for interferences with property and in circumstances where a person is required to carry out a function.
The suggestion that compensation be given as a matter of course if Parliament fails to approve the regulations is an interesting one. If the Government take action of which Parliament subsequently disapproves, it may be appropriate to consider compensation, but the regulations may have been rejected by Parliament for reasons unconnected with the provisions that have given rise to the claim for compensation; for example, the situation may have ceased to warrant the use of emergency powers. In addition, the existence of the provision might impede appropriate action in the interim between the regulations being made and their being considered by Parliament.
On the related point about the details of compensation, the Government agree that it may not always be appropriate or possible to set out the full details of the compensation scheme in the regulations. Those details may often be technical and take time to settle. However, it is unnecessary to provide expressly that the details of compensation may be set out in regulations. Clause 21(3)(a) provides that the regulations may confer a function on the Minister of the Crown or other person. That could include the function of determining the details of such a compensation scheme.
That was a helpful response, and I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
Question proposed, That the Committee do report the Bill, as amended, to the House.
Before you conclude the proceedings, Mr. Benton, I would like to say a word of thanks both to yourself for your distinguished chairmanship of the Committee's deliberations and to your colleague, Sir John, who has done great service to all of us through the work that he has done. I should also like to pay tribute to the work of my hon. Friend the Member for Lewisham, East (Ms Prentice) and the usual channels in servicing the work of the Committee.
On a personal note, I pay tribute to my officials, who have worked hard to ensure that we have, hopefully, been in a position to provide answers to hon. Members. I reserve my final note of thanks for fellow members of the Committee. Notwithstanding some of the less temperate words expressed this afternoon, we have made significant progress in a supportive environment for Ministers offering explanations that Committee members have sought.
My earlier point was a serious one: the Committee might have been more exciting, but it would have been less advantageous, had we not anticipated, between the production of the draft Bill last July and the publication of the Bill we have debated today, many of the points to be raised. The pre-legislative scrutiny process, combined with the Committee proceedings, has progressed the Government's thinking, notwithstanding some of the comments that we have heard, and I am genuinely grateful for the contribution of members from all parties in the Committee for their endeavours in that regard.
I join in the thanks to you, Mr. Benton, and Sir John for the very courteous, polite and firm way in which you have conducted our proceedings. It was particularly inspired to arrange for the fire alarms to go off while we were discussing forest fires, and for my hon. Friend the Member for Newark to spill water all over our papers while we were discussing flooding. I also enjoyed the references to marsupials, toothless tigers and the odd sausage and chipolata.
This has been an extremely pleasant Committee, and I extend my thanks to the Minister for the courteous way that he has dealt with our attempts to amend the Bill. We do not feel that we have made much progress, but having said that I agree with the Minister about pre-legislative scrutiny. It is a very
worthwhile process, which we support. We would like to see more draft Bills go through that process, but we would also like the Committee proceedings to result in a few amendments.
I thank the Clerks, Mr. Healey and Mr. Patrick, for all that they have done to assist us. I also thank the police, the Badge Messengers, those recording our proceedings, and the Minister's officials who have been very kind in preparing and giving briefings to us through the Minister. Finally, I thank the Government Whip, the hon. Member for Lewisham, East, who has been a pleasure to ''usual channel'' with.
I, too, thank you, Mr. Benton, Sir John and all the staff on the Committee, particularly the Minister and the Under-Secretary, who has clearly been suffering from a cold, but performed admirably given the circumstances. The Committee has been enjoyable.
To finish on a note of complete concordance, I can tell hon. Members that every time I serve on a Committee considering a Bill that has been through the pre-legislative process, I am impressed by the value that is invested in that scrutiny. I would encourage the Government to go further with the process, because it gives a focus to our debates. We have been reasonably well focused over the past couple of weeks, unlike those Committees considering Bills that have not had the benefit of pre-legislative scrutiny. Again, I thank everyone who has taken part.
May I thank you, Mr. Benton, and your co-Chairman, Sir John, for your able chairmanship? I echo what has been said about the usefulness of the pre-legislative process, and about the temperate way in which have conducted ourselves over the past few weeks. May I advise the hon. Member for Newark through you, Mr. Benton, that I have a cousin in north Wales who has a sausage factory?
I thank all members of the Committee for the courtesy that they have extended to Sir John and me during our proceedings. It has been a pleasure to chair the Committee. I shall ensure the Committee's remarks get back to Sir John.
I thank the learned Clerks, and the Hansard staff, and everyone else connected with the smooth running of the Committee.
Question put and agreed to.
Bill, as amended, to be reported.
Committee rose at sixteen minutes past Five o'clock.