Power to authorise entry etc in emergencies

Space Industry Bill [Lords] – in a Public Bill Committee at 10:30 am on 23rd January 2018.

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Photo of Karl Turner Karl Turner Shadow Minister (Transport) 10:30 am, 23rd January 2018

I beg to move amendment 19, in clause 32, page 23, line 31, at end insert—

‘(4A) An enforcement authorisation must be referred to a justice of the peace for evaluation within 48 hours, following the 48 hour period under subsection (7) in which the enforcement authorisation remains in force.”

This amendment provides that an urgent enforcement authorisation must be referred to a justice of the peace for evaluation within 48 hours, following the 48-hour period under Clause 32(7) of the Bill, during which the enforcement authorisation remains in force.

The amendment provides that an urgent enforcement authorisation must be referred to a justice of the peace for evaluation within 48 hours following the 48-hour period under subsection (7), during which the enforcement authorisation remains in force. The amendment aims to clear up any ambiguity surrounding clauses 31 and 32, which grant warrants authorising entry or direct action and powers to authorise entry in emergencies.

Clause 32(2) permits a named person to do anything necessary for protecting national security, securing compliance with international obligations or protecting health and safety. My colleagues in the other place raised concerns about emergency warrants and such vague wording. The power conferred by clause 32 is very extensive and broad. It contains no thorough judicial oversight. The Minister is well aware that the House of Commons Science and Technology Committee also expressed concerns about this aspect of the Bill, which was obviously mentioned in detail in the other place.

We welcome the fact that the Government reduced the authorisation period from one month to 48 hours, which limits the Secretary of State’s power to a degree. However, we still have concerns that such significant and wide-ranging powers will be exercisable without anticipatory or rapid post hoc judicial involvement.

Currently, there is not enough in the Bill to check whether the powers granted under clause 32 will be appropriately or proportionately used by the authorised person. The Minister in the other place stated that the amendment would “impose unhelpful bureaucracy”. We believe that judicial oversight of emergency warrants is crucial to ensure that such excessive powers are not abused, and we do not believe that we are asking for anything unreasonable. Having checks in place to ensure that this extensive power is not misused will improve the Bill. It is not, as stated by the Minister in the other place, “unhelpful bureaucracy”. I hope the Minister can give assurances that the Government are listening to those concerns and will take them on board.

Photo of Philippa Whitford Philippa Whitford Shadow SNP Spokesperson (Health and Social Care)

I rise to support the amendment. Clause 31 refers to the seeking of warrants from justices of the peace, where there is time to do so. Clearly, there will be situations where that is not reasonable and therefore we accept that there is a need to allow emergency entry— 48 hours should be sufficient to allow that warrant to be reviewed by a justice of the peace. We welcome that the Government reduced emergency entry from a month to 48 hours, but it is perfectly reasonable that it should be looked at by a justice of the peace within two days.

Photo of Jo Johnson Jo Johnson Minister of State (Department for Education) (Universities and Science) (Joint with the Department for Business, Energy and Industrial Strategy), Minister of State (Department for Transport), Minister of State (London)

I thank the hon. Member for Kingston upon Hull East and for Central Ayrshire for raising the issue of emergency powers. The clause confers on the Secretary of State the power to grant an enforcement authorisation to carry out any specified action in the most urgent cases, such as a serious risk to national security, compliance with our international obligations or people’s health and safety. The amendment tabled by the hon. Gentleman would seek to require that such an enforcement authorisation be evaluated by a justice of the peace within 48 hours of the 48 hours that the authorisation has been in force.

The Government have listened carefully at all stages of the discussion of the provision and addressed concerns before the Bill was brought to the House. Before the Bill’s introduction, the Science and Technology Committee raised concerns about the length of time for which an enforcement authorisation would remain in place. In response to that helpful intervention, we reduced the time for which an enforcement authorisation can remain in place from one month to 48 hours.

The Opposition in the other place attempted to introduce amendments similar to that tabled by the hon. Gentleman. The amendments are not clear on the purpose that a post hoc evaluation by a justice of the peace would serve—the order would have already been spent and the specified action taken. It is also not clear what is expected to follow from any such evaluation. However, the Government have reflected further on the amendments and the intentions underpinning them. Officials have carried out extensive discussions with colleagues across Whitehall, including in the Ministry of Justice, the chief magistrate’s office and the Home Office, which is responsible for the powers of entry gateway process. None of the discussions resulted in the suggestion that the power should be amended as the amendment proposes. An important reason for that is that there is no known precedent of a justice of the peace conducting an evaluation of an emergency power once it has been exercised.

Let me reassure hon. Members that there are adequate safeguards in the Bill with respect to the exercise of this significant power. Such an authorisation can be granted only to a named person who the Secretary of State is satisfied is suitably qualified to carry out the necessary action. Each time the power is used, the authorisation must be in writing, must specify the action required and will remain in force for only 48 hours from the time it is granted.

In response to concerns previously raised about the exercise of this power without sanction by an independent judicial authority, it is important to note that the decision of the Secretary of State to issue an enforcement authorisation could be challenged by judicial review. I would also point out that this power is more conservative and requires more stringent authorisation than other comparable powers of entry, such as those of nuclear inspectors or health and safety inspectors who are provided with a standing authorisation and may act at their discretion. The power would be used only in the most serious and urgent cases, but it is necessary to ensure that those involved in spaceflight activities and third parties are adequately protected should such situations arise.

Photo of Mark Garnier Mark Garnier Conservative, Wyre Forest 10:45 am, 23rd January 2018

The Minister is being very helpful. One of the interesting points that lies behind some of the concerns is about who advises the Secretary of State that the intervention needs to be made in the first place. Will the Minister give a little more flavour of the process whereby advice is given that leads to an intervention order? That may give some comfort to the Opposition.

Photo of Jo Johnson Jo Johnson Minister of State (Department for Education) (Universities and Science) (Joint with the Department for Business, Energy and Industrial Strategy), Minister of State (Department for Transport), Minister of State (London)

The enforcement authorisations would be a last resort where the regulatory bodies in question felt that it was absolutely imperative to have one in the interests of our national security, or for the pursuit of our international obligations, or the health and safety of individuals in and around the spaceport or elsewhere in the UK. It is very much a power of last resort. Given the nature of the activities being undertaken at spaceports, everyone should be able to see the need for such provisions.

Photo of Karl Turner Karl Turner Shadow Minister (Transport)

I hear what the Minister says, but he seems to be saying that, because there is no precedent for a justice of the peace to review such warrants, it is not necessary. He also said that judicial review is available, but he must appreciate that the threshold to succeed in judicial review is very high and that it is extremely costly to the party bringing the proceeding. Frankly, he has not gone anywhere near far enough, and for that reason I am pressing the amendment to a Division.

Question put, That the amendment be made.

The Committee divided:

Ayes 7, Noes 10.

Division number 3 Caledonian Pinewood Forest — Power to authorise entry etc in emergencies

Aye: 7 MPs

No: 10 MPs

Ayes: A-Z by last name

Nos: A-Z by last name

Question accordingly negatived.

Clause 32 ordered to stand part of the Bill.

Ordered, That further consideration be now adjourned. —(Jo Churchill.)

Adjourned till this day at Two o’clock.