Clause 22 - Limitations of emergency regulations

Civil Contingencies Bill – in a Public Bill Committee at 2:30 pm on 10th February 2004.

Alert me about debates like this

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) 2:30 pm, 10th February 2004

I beg to move amendment No. 103, in

clause 22, page 15, line 38, leave out 'three' and insert 'one'.

We seek to explore and test the limits of the emergency regulations, specifically in respect of offences that can be created and the penalties that can be applied under them. In order to provoke a debate and test the provision, we have suggested that the maximum penalty available for any offences committed under clause 21(3)(i) should be reduced from three months to one month. They are offences of failing to comply with the regulations or otherwise obstructing them.

This important provision needs to be highlighted in order to reassure the public about the nature of the emergency regulations. One of the biggest concerns is that people could be incarcerated indefinitely and all sorts of penalties applied. My reading of the way in which the various clauses work together is that there are limited powers in respect of anything that can be done to people who breach the emergency regulations. I wish to test the circumstances under which the offences could be invoked.

We must consider whether, in the kind of circumstances that have been described to date—for example, an emergency in which people must be prevented from entering or forced to leave an area—several offences could be committed during an incident in which an individual refuses to comply with the regulations. They might refuse to comply with the emergency regulations but might also be causing an affray, engaging in violent disorder or causing a breach of the peace. We are interested in the interaction of the offence of refusing to respect the regulations with other offences.

My hon. Friend the Member for Orkney and Shetland (Mr. Carmichael) and I had a discussion earlier that was educational for me and would have been educational for the Under-Secretary of State for the Home Department, the hon. Member for Slough (Fiona Mactaggart), but not, I suspect, for the Minister for the Cabinet Office and Chancellor of the Duchy of Lancaster. We were discussing the concept in Scottish law of thole an assize, which means that someone who has been prosecuted for one offence cannot be prosecuted for another offence that takes place during the same incident. Clearly, that would be relevant in this debate. If the Minister can stretch himself to English and Welsh law as well, I would be interested in how the regulations relate to that concept and how the legal process would work if

someone were in breach of several different regulations.

We talked about circumstances in which people refuse to move, or move where they should not. Other circumstances were described earlier; for example, around animal welfare and animal husbandry, when there were clear instances of individuals refusing to comply with the Government's requirements to destroy their animals. They took the matter to court, and some found judgment in their favour. Clearly, in a future incident, if powers were brought into play through the regulations set out in the Bill, someone might have a legal difficulty under animal welfare legislation but also under the regulations. Again, the interaction between the various pieces of law is what will be most important to individual members of the public.

I hope that the Minister can provide some clarification about when and how offences might be prosecuted, particularly how they relate to tholed assizes, or the English equivalent, which is the inability to prosecute twice for what is effectively the same set of circumstances, and in doing so give us an assurance that where a more grievous offence has been committed, it is the more grievous offence in normal law that is prosecuted, not the less grievous offence under the emergency regulations.

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

When we discussed the offences, the Under-Secretary said that some might be drafted in such a way as to allow recklessness or negligence to be one of their ingredients. Such an offence might show not knowledge, but that someone had been reckless in breaching the provisions. There could be a range of tests for such offences, and we suggested ''knowingly'' as an added ingredient.

Is the Minister satisfied that clause 21(3)(i) will allow us to create offences that could be more or less serious, depending on the exact ingredients that were included when the regulations were made? For example, paragraph (i)(i) refers to

''failing to comply with a provision of the regulations'',

which could be a strict liability offence. If so, would it not be right for the penalty to be somewhat less than that which would apply if the provisions referred to ''failing to comply with a provision of the regulations with intent''? Similarly, the Minister may create a range of offences under sub-paragraphs (ii) and (iii). Different penalties could apply, depending on whether someone negligently, recklessly or intentionally failed to comply.

I would be grateful if the Minister could tell us what he and his officials think the template for such penalties would be. I do not see much problem with a maximum penalty of three months, which is a modest term of imprisonment.

Photo of John Horam John Horam Conservative, Orpington

Given his knowledge of the issue, does my hon. Friend know whether there is a precedent for the term in the Bill? Why is it three months? Is there any evidence to suggest that that is the appropriate term?

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

A range of offences carries a maximum penalty of three months. Those are minor offences, although, obviously, no offence is a minor matter. The maximum penalty in a magistrates court is six months, and the penalties that we are discussing are half of that, so that gives us a feeling of what three months represents.

It would be helpful if the Minister could explain whether three months is seen as the maximum term for all the offences, or whether he has in mind strict liability offences that carry a one-month maximum term or, perhaps, only a purely financial penalty. Are the Government saying that there will be just three offences, all of which will carry a maximum penalty of three months and a set level of fine, but that they have not worked out whether recklessness, negligence or intention will be the mental element? Are they saying that there will not be a family of offences as regards failing to comply, but just one, and that the same will apply to the other provisions? The Minister might also tell us what he thinks would happen in a serious case. Is he relying on provisions for other offences, such as those relating to affray or civil disorder?

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

I was going to keep my remarks for the clause stand part debate, but they are germane to what has just been said.

I wish to explore the reasons for these offences being triable only summarily. That follows on naturally from the last point made by the hon. Member for North-East Hertfordshire (Mr. Heald). It may be an unintended consequence of the offence being triable only summarily that it would attract a six-month time bar for prosecution. I would be interested to know if that is the case as it would affect a very small number of cases, certainly in Scots law. It may also lead to some procedural difficulties, which are always something to bear in mind. Will the Minister confirm that that would mean that it could never appear on an indictment? If an offence under this section were to run alongside more serious cases it may be necessary to level charges under this section for evidential purposes. Presumably, that would not be available to the prosecution. I would be interested to explore with the Minister his reasons for framing the provision in this fairly restrictive manner.

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

The present offences under the Emergency Powers Act 1920 carry a maximum of three months, or a fine not exceeding level 5. Does the hon. Gentleman think it is possible that the Minister has said, ''Well, we will just do what we have always done''?

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

The Minister can tell us his own thoughts, and I would never presume to second-guess them. I presumed for my own part that what we were in the business of doing here was creating a summary offence, for which three months for a first offence, and six months for any subsequent offence would be the normal statutory maximum under criminal procedure legislation. I think the level 5 fine is also the same so I was not particularly surprised to see that in the Bill.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Defence)

Subsection 3(i)(i) clearly creates an absolute offence,

and the Minister might confirm that. If it creates an absolute offence, are we happy that the regulations will be known to those persons who transgress? After all, we are dealing with an emergency situation, and the last thing anybody in this Committee—and, I am sure, across the House—wants to do is to criminalise people who did not know that e emergency regulations had come in. Will the Minister tell us how the regulations will be made known to the public, since it is incumbent on us as lawmakers not only to make good law, but to make good law that is known to people who might inadvertently break it?

I have no problem with sub-paragraphs (ii) and (iii), because there is an element of wilfulness, of mens rea in there. Sub-paragraph (ii) says:

''failing to comply with a direction'',

which makes it is quite plain that the person would have had a direction. Likewise, with the words ''obstructing a person'', the person obstructed would undoubtedly have advised the person obstructing that an offence was being committed. I have no problem with that. However, I am very concerned about the first limb. We may inadvertently criminalise many people who might not know that what they are doing transgresses emergency regulations.

Photo of Douglas Alexander Douglas Alexander Minister of State (Cabinet Office) and Chancellor of the Duchy of Lancaster

Let me set out the context in which I will seek to respond to each individual point. It is worth my recapping the limits in the Bill on the creation of criminal offences.

The only offences that can be created are failure to comply with the regulations, as has been commented on, failure to comply with a direction or order given under the regulations, or obstructing a person in the performance of a function under the regulations. The penalty that may be imposed for such an offence is limited, and any offence created by the regulations must be summary-only offences, triable in the magistrates court or, as the hon. Member for Orkney and Shetland said, the sheriff court in Scotland.

In relation to the penalties and amendment No. 103, which the Government do not support, the maximum penalty will be imprisonment for three months or a fine not exceeding level 5 on the standard scale, which is currently £5,000. That does not mean that such a penalty will be the maximum for each criminal offence created by the regulations, nor does it mean that a court will impose such a penalty whenever someone is convicted of an offence under the regulations. Each case will depend on the circumstances, but that relatively low penalty appears to be an appropriate maximum.

The hon. Member for Orpington (Mr. Horam) asked for a precedent. The penalty reflects the maximum penalty for offences created under the Emergency Powers Act 1920.

A maximum penalty of only one month could be seen as too small a disincentive to prevent the breach of regulations under inevitably serious circumstances, especially when such a breach may have significant

implications for response efforts in such an extraordinarily serious situation. Retaining the flexibility to allow for a maximum sentence of up to three months where appropriate is reasonable and proportionate.

While the hon. Member for North-East Hertfordshire was making his point, I was dredging my memory for delict evidence, as I often did at Edinburgh university, and criminal law. In terms of the distinction between mens rea and actus reus, his point was fair. The Bill is an enabling Bill and sets out the limits of the power. It will be possible to mix elements and penalties where appropriate, depending on the nature of the offence in any particular situation.

Photo of Alistair Carmichael Alistair Carmichael Shadow Spokesperson (Energy and Climate Change), Liberal Democrat Spokesperson (Energy and Climate Change) 2:45 pm, 10th February 2004

Can the Minister confirm that although the offence in clause 21(3)(i)(i), which is

''failing to comply with a provision of the regulations'',

is, on the face of it, a strict liability offence, it would be possible, within the regulations promulgated, to incorporate defences? That relates to the point that the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) made.

Photo of Douglas Alexander Douglas Alexander Minister of State (Cabinet Office) and Chancellor of the Duchy of Lancaster

I will come to that.

On the point about tholing the assizes and multiple offences, my understanding is that it would be for the Crown Prosecution Service to determine south of the border which offences to prosecute and where they overlap. The particular point that relates to Scotland is whether the issue would be deal with on indictment or by summary procedure in the Scottish courts. However, there is no divergence from the standard procedure, which is adopted by the Crown Office and the Lord Advocate, as set out in the Bill.

On who would decide the limit, within the three months it would be for Ministers to determine the nature of the offences under the particular circumstances. We have set out a maximum limit of three months in the enabling legislation, but there is scope for a lesser period, depending on the nature of the offences. The courts would obviously then determine the circumstances of the offence in question.

In relation to offences created under the regulations and whether they might overlap, I have already said that there could be circumstances where, for example, someone had deliberately broken quarantine, knowing that they had a contagious disease. That may give rise to liability under offences-against-the-person legislation. There could be circumstances in which there is an overlap between the regulations and a breach of other legal obligations under which the individual is bound.

The decision to make the offences summary only reflects the precedent of the 1920 Act. It is not appropriate to be able to create more serious offences by way of secondary legislation. I therefore hope that the proposals will find favour on both sides of the Committee.

On information about the regulations, if emergency powers are used, the Government will take every reasonable measure possible to ensure that the public are aware of the situation. Clear and accurate communication about the effects of emergency

regulations and the reasons for their introduction is essential. Arrangements for communicating with the public in such situations are well established and have been the subject of recent debates in the Committee.

Photo of Elfyn Llwyd Elfyn Llwyd Shadow PC Spokesperson (Home Affairs), Shadow Spokesperson (Business, Innovation and Skills), Shadow Spokesperson (Communities and Local Government), Shadow Spokesperson (Culture, Media and Sport), Shadow Spokesperson (Defence)

I accept what the Minister is saying, but during the unfortunate recent foot and mouth outbreak, some farmers in parts of Wales were told one thing and others were told another. Nobody knew from one day to the next what the true position was. There must be a high threshold of information if we are to criminalise people, that will mean a departure from previous experience.

Photo of Douglas Alexander Douglas Alexander Minister of State (Cabinet Office) and Chancellor of the Duchy of Lancaster

I take the hon. Gentleman's point. I am fully aware that the foot and mouth outbreak gave rise to serious concerns, and lessons have been learnt from it. The thrust of the Bill reflects that, by ensuring preparedness as well as effective co-ordination between messages generated centrally by government and the response and action on the ground.

In policy terms, we seriously considering the challenge of communications. It might help if I write to the hon. Gentleman on his specific point about the difference between mens rea and actus reus, so that he has the assurance that he seeks. It is not simply a matter of principle, but, as he says, it will be a practical issue in terms of the information that is given.

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

There has been a good deal of discussion in the Committee about public information, but surely learning the basics could be part of the national curriculum, or the citizenship part of the national curriculum: for instance, that could be as simple as teaching that if the Government declare an emergency, it will be an offence not to do as one is told. Past generations have experience of emergencies, and I suppose that that is in the folk memory of my generation, in the sense that my parents remember the war. However, the population that is growing up has no experience of such things. Can we not do something in the schools to alert people to the basic points?

Photo of Douglas Alexander Douglas Alexander Minister of State (Cabinet Office) and Chancellor of the Duchy of Lancaster

I am intrigued by the hon. Gentleman's point. First, I should place our deliberations this afternoon in context. I trust that these instances will be extremely rare. I focused on citizenship, but the curriculum deals with a far more regular and established pattern of issues that every child who benefits from citizenship education would encounter.

An appropriate balance must be struck between the trusted intermediaries of information, who are often local communicators, be they local responders in the emergency services in the immediate circumstances of an incident or local channels of communication who work closely with the BBC on connecting in a crisis and produce the documentation and information made available to people. I would be anxious to maintain that balance if our approach to basic common-sense advice in a crisis appeared overly draconian and heavy-handed.

The whole foundation of the communication with the public must be to provide the information that they need, which can vary markedly according to the circumstances of the crisis. I therefore maintain that we want a public who are alert but not alarmed. I

would need to be persuaded of the hon. Gentleman's case that communicating further information in terms of legality about emergencies would alert rather than alarm the public.

Therefore, we must make sure that the public is alert but not alarmed and that the information being communicated is relevant and appropriate to the circumstances encountered.

Photo of Patrick Mercer Patrick Mercer Conservative, Newark

I want to take that point a little further. The Minister makes it clear that instances will be extraordinarily rare, and so one hopes and prays. In those extraordinarily rare circumstances, it will be crucial that people know how to react. The Minister says that bringing children into the envelope of knowledge may alarm them, but Firewatch is training small children on how to deal with what we hope will be the extremely rare and unusual circumstance of tipping boiling chip fat over themselves. In those unusual circumstances, children know how to react, albeit counter-intuitively. Would it not make sense for people to be aware of extraordinary circumstances so that there is less room for panic?

Photo of Douglas Alexander Douglas Alexander Minister of State (Cabinet Office) and Chancellor of the Duchy of Lancaster

I appreciate that the hon. Gentleman sought to paraphrase my remarks, but he should be careful to ensure accuracy. I said that we need to ensure that the information that we share with the public strikes a balance of informing people, but not alarming them unnecessarily. If communication were not appropriate and appeared threatening rather than helpful, constructive and informative, it could achieve an objective that none of us would seek. We seek to ensure that the right information is communicated at the right time to the right people.

On the basis of past experience, the evidence suggests that the British people have responded in a common-sense and serious manner to advice given at the scene of an incident by the emergency services. If it is necessary to share specific information with a wider community of interests in the event of the kind of catastrophic incident that we anticipate, there are tried and tested methodologies and mechanisms by which information can be shared.

It is something of a red herring to say that a central element of that communication is the issue of legality. The central foundation of that communication has to be public safety, which should inform the central thrust of the communications challenge the Government take up.

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 amendment was intended to provoke a debate, and we have had some useful contributions. I especially like the Minister's phrase, ''Be alert, not alarmed''. It reminds me of that old graffito, ''Be alert, Britain needs lerts''. I think I got that from my mother—it is of second world war vintage.

We have explored the substance of the offences usefully, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 22 ordered to stand part of the Bill.