Civil Contingencies Bill

Public Bill Committee, 10 February 2004.

Standing Committee F

Civil Contingencies Bill

John Butterfill (Conservative, Bournemouth West)

May I point out to hon. Members that they should not rely on the time shown on the clock, which is at least four minutes out? I suggest that people look at the Annunciator screens if they want to know the correct time—I hope that that displays the correct time.Clause 21 Scope of emergency regulations

Clause 21 - Scope of emergency regulations

Oliver Heald (Conservative, North East Hertfordshire)

I beg to move amendment No. 86, in

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

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]'.

Oliver Heald (Conservative, North East Hertfordshire)

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.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

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.

Oliver Heald (Conservative, North East Hertfordshire)

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.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

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.

Oliver Heald (Conservative, North East Hertfordshire)

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?

Richard Allan (Liberal Democrat, Sheffield, Hallam)

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.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

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.

Fiona Mactaggart (Labour, Slough)

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.

Oliver Heald (Conservative, North East Hertfordshire)

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?

Fiona Mactaggart (Labour, Slough)

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.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

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.

Fiona Mactaggart (Labour, Slough)

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.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

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.

Oliver Heald (Conservative, North East Hertfordshire)

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.

Fiona Mactaggart (Labour, Slough)

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.

Oliver Heald (Conservative, North East Hertfordshire)

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.

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.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

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.

Oliver Heald (Conservative, North East Hertfordshire)

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.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

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.

Fiona Mactaggart (Labour, Slough)

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.

Patrick Mercer (Conservative, Newark)

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.

Oliver Heald (Conservative, North East Hertfordshire)

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)?

Fiona Mactaggart (Labour, Slough)

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.

Oliver Heald (Conservative, North East Hertfordshire)

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.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

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.

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.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

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.

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.

Fiona Mactaggart (Labour, Slough)

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.

Oliver Heald (Conservative, North East Hertfordshire)

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?

Fiona Mactaggart (Labour, Slough)

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.

Patrick Mercer (Conservative, Newark)

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?

Fiona Mactaggart (Labour, Slough)

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.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

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

Fiona Mactaggart (Labour, Slough)

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.

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.

Fiona Mactaggart (Labour, Slough)

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.

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?

Fiona Mactaggart (Labour, Slough)

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

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

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.

Fiona Mactaggart (Labour, Slough)

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

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

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.

Fiona Mactaggart (Labour, Slough)

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.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

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.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

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.

Oliver Heald (Conservative, North East Hertfordshire)

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.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

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?

Fiona Mactaggart (Labour, Slough)

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.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

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?

Fiona Mactaggart (Labour, Slough)

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.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

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.

Fiona Mactaggart (Labour, Slough)

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.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

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.

Oliver Heald (Conservative, North East Hertfordshire)

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?

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

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.

Oliver Heald (Conservative, North East Hertfordshire)

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?

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

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.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

I beg to move amendment No. 118, in

clause 21, page 15, line 12, leave out paragraph (p).

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).

Richard Allan (Liberal Democrat, Sheffield, Hallam)

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.

Oliver Heald (Conservative, North East Hertfordshire)

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.

Fiona Mactaggart (Labour, Slough)

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.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

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.

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.

Clause 22 - Limitations of emergency regulations

Patrick Mercer (Conservative, Newark)

I beg to move amendment No. 63, in

clause 22, page 15, line 31, at end insert

'with the exception of industrial action that would lead to the endangerment of human life or property, or cause illness or injury'.

The amendment is tabled in my name and those of my hon. Friends the Members for North-East Hertfordshire and for Ribble Valley (Mr. Evans). I hope that there will be no non-plussing during the discussion, as the amendment is very simple.

Clause 22 addresses the limitations of emergency regulations. Subsection (3) states that emergency regulations may not

''(b) prohibit or enable the prohibition of participation in, or any activity in connection with, a strike or other industrial action.''

Amendment No. 63 would add to the end of subsection (3)(b),

''with the exception of industrial action that would lead to the endangerment of human life or property, or cause illness or injury''.

The right to strike is something that the Bill seeks to uphold, and rightly so. However, in the circumstances, our imagination should be allowed to travel a little further to appreciate the implications of a strike of crucial emergency services, road hauliers who provide food or any other firms whose right to strike in normal circumstances would be a sine qua non.

In the event of an emergency, a different light is thrown on the right to strike. This time last year, the firemen's strike was raging—if that is the right word to use. That prompted a different strand of thinking because not only did it endanger life at the time, but it seemed likely in January and February that we were about to fight a war against Iraq and, in the past, the Army had been used to overcome strikes by firemen. Some would argue that the Iraqis and the Iraqi cause are a current and present danger to the safety of the British Isles.

It would be wrong to allow firemen to strike when a large part of the infrastructure is either in flames or contaminated by the terrorist activities that we have described. To consider the likely effects of such an emergency not just at the site of the incident, but across the country, let us take the example of a terrorist attack in the south-west that happens to

coincide with an ambulance strike in Scotland. It is highly conceivable that Cornwall might need ambulances all the way from Scotland. That might be difficult to imagine at the moment, but in a Bill with these sorts of provisions it is important that we take our imagination one stage further.

Amendment No. 63 is designed to get the Government to explain how crucial services might be forbidden from striking. The Scottish ambulances would be needed not just at the scene of the incident in the south-west, but across the nation. The amendment would ensure that the emergency regulations cannot prohibit a strike or other industrial action unless the service that is on strike is crucial to ameliorating the emergency that has already occurred. I hope that the Minister can illuminate that point.

Douglas Alexander (Labour, Paisley South)

The Government cannot support the amendment and we will resist its inclusion. I was initially heartened to hear the hon. Gentleman's enthusiasm for modernising Conservative attitudes towards industrial relations; it seemed almost to be keeping pace with his enthusiasm for modernising the British constitution, which we heard about this morning. Alas, as his argument developed, my hopes were dashed.

Let me set out the basis of our argument and, I hope, provide the assurance that the hon. Gentleman seeks. Emergency powers are not designed to restrict industrial action, and the Government consider there to be merit in making that clear in the Bill; I hope that there can be agreement across the Committee on that. That, of course, reflects the position first set out in the Emergency Powers Act 1920. The Government are confident that that will not inappropriately impede the response to an emergency.

As I shall explain, existing criminal and employment relations laws already contain appropriate provisions to ensure that industrial action does not endanger human life. In particular, I refer the Committee to the Trade Union and Labour Relations (Consolidation) Act 1992, which states:

''A person commits an offence who wilfully and maliciously breaks a contract of service . . . knowing or having reasonable cause to believe that the probable consequences of his so doing . . . will be . . . to endanger human life or cause serious bodily injury, or . . . to expose valuable property . . . to destruction or serious injury.''

In addition, there are limits on the ability of the armed forces and the police to strike. The Government consider that the provisions hold good in emergency and non-emergency situations, and that there is therefore no need for emergency powers to be used in that case.

Patrick Mercer (Conservative, Newark)

I am grateful to the Minister for that clear exposé, notwithstanding one's views on the right or otherwise to strike.

Last year, we were spared the problems of having to deal with a potentially extremely damaging firemen's strike. The Minister has partially reassured me that thought has been given to the provisions that would be relevant in the event of a much more traumatic

emergency. On those grounds, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

I beg to move amendment No. 104, in

clause 22, page 15, line 31, at end insert

'; or—

( ) require a person, or enable a person to be required, to undergo any medical test, examination, treatment or vaccination if that person objects on the basis of his or her religious beliefs, but a person who objects to such a requirement on religious grounds may be placed in isolation or quarantine.'.

The amendment raises an issue that was brought to my attention by the Christian Scientists, but it would equally apply to a number of religious groups. It is important in Committee to explore serious concerns that people raise and to seek ministerial comment on them so that people can respond to that. The amendment deals with situations that are much more imaginable than some of those that have been described. It deals with compulsory medical treatment in the context of biological attacks on the United Kingdom, any of the other extreme terrorism circumstances that we have imagined, or other emergencies such as avian flu or foot and mouth diseases that somehow transfer to humans. There are quite a lot of circumstances covered by the emergency regulations for which one can imagine medical treatment or intervention being the object of the regulations. Many religious groups may, for one reason or another, have problems with particular types of medical intervention.

Under article 9 of the European convention on human rights—the right to freedom of religion—people would have grounds to take action perhaps subsequent to an attempt to require them to receive compulsory medical treatment. However, in an emergency, we will not have time to process the court claims; that will happen post hoc rather than before the regulators come in.

We can imagine a situation in which a regulation is introduced that says that a certain form of vaccination is compulsory for the population in a certain area. An individual may refuse on religious grounds, and be taken through the system and prosecuted because of that. Worse still, there may be some attempt to forcibly administer medication. Six months down the track, the person might get to the court system and find that they were right, or that their rights had been breached by the Government. However, that will not help them if something has happened that fundamentally violated their religious principles.

It is important briefly to explore that, and I hope that the Minister can give some assurances about how any kind of medical intervention applied to humans would be dealt with when it impinges on any group's religious beliefs, whether they are Christian Scientists or anyone else.

Douglas Alexander (Labour, Paisley South)

Although the Government cannot support the amendment and will resist it, the hon. Member for Sheffield, Hallam has raised an important point. Let me try to set out the Government's position.

First, it would be helpful if I illustrated for the Committee the established approach to date. An adult of sound mind can refuse medical treatment, even if in so doing he or she is endangering their own life. Thus there is no question of a person of sound mind being compulsorily treated to save their life. When the failure of a person to accept treatment would have an effect on the health and life of others, for example if they are infectious—that circumstance could clearly be anticipated—it would be permissible to take action in relation to that person to protect the life and health of others. Such action would have to be proportionate. It would be possible to quarantine them or otherwise prevent them from infecting others.

The requirement to protect human life is one of the most fundamental provisions of the convention, as the hon. Member for Sheffield, Hallam said, from which no derogation is possible, except in very limited, extreme cases in times of war, when that is the only way to prevent a person from threatening the life or health of others, and when it is necessary to do so. It is possible to conceive of theoretical cases in which it would be appropriate to treat people compulsorily. For example, if a person were highly infectious with a deadly disease for which there was no reliable cure and they refused treatment, if they persistently attempted to breach quarantine and there was no method in the time available to ensure that quarantine was enforced, it is possible that compulsory treatment would be considered. However, as I hope the example shows, the circumstances would have to be extreme and unusual.

Of course, efforts would be taken to ensure that such treatment was in accordance with the individual's beliefs as far as possible, but the risk of infection or contamination to others and the need for urgent action must remain the overriding concern. As the hon. Gentleman said, it should be remembered that any use of emergency regulations must be in full compliance with the European convention on human rights.

Oliver Heald (Conservative, North East Hertfordshire)

Can the Minister give us any idea about what is the balance of opinion across other jurisdictions? He has probably seen the 16 examples from American states that the Christian Science committee on publication have sent me and the Liberal Democrats. It seems that some enlightened states, such as Connecticut, Arizona, and Delaware—and even some that are not so enlightened—seem to have a provision allowing an individual to choose quarantine, rather than be forced to accept a mode of treatment that conflicts with their beliefs. On looking across the world, does he think that the provisions he has outlined for this country are modern and up to date?

There was a time when there was, perhaps, a rather more robust approach to these matters. However, given that nowadays people's human rights are to be respected—the Minister's party has made a great deal of that—should we not be considering whether we can accommodate religious beliefs, provided that that does not endanger the community? What is wrong with having something like the provision in Connecticut, which says:

''The Commissioner shall inform individuals subject to such vaccination order of the benefits and risks of the vaccine and an

individual's option to refuse to be vaccinated for any reason, including, but not limited to, health, religious, or conscientious objections. No individual shall be vaccinated unless such an individual''

consents?

Arizona has something similar.

Douglas Alexander (Labour, Paisley South)

In the latter part of the hon. Gentleman's intervention he recognised that a balance had to be struck between respecting individual religious beliefs and safeguarding the concern for the community, which is one of the underlying purposes of the Bill. He got to the nub of the issue.

On the American jurisdictions, it is the case that Connecticut and the other 49 states of the United States are not governed by the European convention on human rights. The situation in the UK is distinct from the American jurisdictions. However, I understand that there are examples at a European

level that might help him. I am happy to write to him on those points.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

The Minister's response was helpful. To paraphrase, he said that quarantine and so on would be used unless there was a threat under article 1 in connection with the right to life. I understand that the Government want a balance to be struck between the various rights. We shall study his statement and, in that context and given that it is nearly 11.25 am, it would not be helpful to press the amendment to a Division. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

It being twenty-five minutes past Eleven o'clock, The Chairman adjourned the Committee without Question put, pursuant to the Standing Order.

Adjourned till this day at half-past Two o'clock.

Standing Committee F

Clause 22 - Limitations of emergency regulations

Richard Allan (Liberal Democrat, Sheffield, Hallam)

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.

Oliver Heald (Conservative, North East Hertfordshire)

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.

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?

Oliver Heald (Conservative, North East Hertfordshire)

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?

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

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.

Oliver Heald (Conservative, North East Hertfordshire)

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''?

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

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.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

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.

Douglas Alexander (Labour, Paisley South)

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.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

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.

Douglas Alexander (Labour, Paisley South)

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.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

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.

Douglas Alexander (Labour, Paisley South)

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.

Oliver Heald (Conservative, North East Hertfordshire)

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?

Douglas Alexander (Labour, Paisley South)

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.

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?

Douglas Alexander (Labour, Paisley South)

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.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

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.

Clause 23 - Regional and Emergency Coordinators

Patrick Mercer (Conservative, Newark)

I beg to move amendment No. 128, in

clause 23, page 16, line 10, at end insert—

'(d) competence and demonstration of said competence'.

It is nice to see you back in the Chair, Mr. Benton, in this Room, which is much cosier than the one we used previously.

I trust that amendment No. 28 is relatively simple. The clause refers to regional and emergency co-ordinators and states:

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

emergency co-ordinators and regional nominated co-ordinators. It goes on to say that in accordance with subsection (1) the provision may

''in particular, include provision about the coordinator's . . . terms of appointment . . . conditions of service (including remuneration), and . . . functions.''

The amendment would include, in a new paragraph (d),

''competence and demonstration of said competence''.

It is fairly clear that the co-ordinator has laid down his or her terms of appointment, the money that they will get and what they are expected to do, but nowhere in the provisions are we assured that the person will be physically competent for the job. Who might be a regional co-ordinator? What tests are there to ensure that the person will be up to the job?

The question stands comparison with the issue of how competence and training take place under the control of major accident hazards—COMA—regulations. That duty is discharged under legislation dealing with industrial and commercial sites. Each industrial site must ensure and demonstrate that its staff are competent to perform their safety and critical duties. Such sites must demonstrate safe systems procedures, correct performance, safety behaviours and attitudes, emergency response procedures, competence to provide safety critical tasks, and so on. Under the COMA regulations, a duty is imposed to carry out training to ensure that those things will happen.

Who will the individual co-ordinator be? We have talked endlessly—I have bored endlessly—about the nature of an emergency. It would be helpful if the Minister could illuminate us as to who the individual is to be, and convince us that that person will be competent to handle an emergency. Might it, for example, be a local government officer? If so, how do we know that he or she will have any competence in dealing with disaster?

Who else could it be? Could it be the regional territorial army commander? Is he or she likely to be competent? Yes, probably. It would be reassuring if we could have some indication from the Minister about not just what the person will be paid, what he or she will be expected to do and how long the contract will

last, but who it is to be, so that we can be sure that we are not sending a boy to do a man's job.

Douglas Alexander (Labour, Paisley South)

That seemed a curiously ageist comment on which to end what was otherwise a useful contribution. This is not an amendment that the Government can support, so we will resist it. The current emergency powers framework has always allowed central Government to confer responsibilities and delegate powers to deal with an emergency. The Bill does not change that. The regional nominated co-ordinators will be the focus for many of the new powers, delivering greater transparency and accountability. Such people will co-ordinate efforts at a regional level, providing strategic overview and a focus for media handling—a role that previous emergencies have shown to be vital. They will be able to act only within strict parameters: the powers given in emergency regulations. RNCs will be directly accountable to Ministers and, through them, to Parliament.

Regional and emergency co-ordinators will have three broad areas of expertise: subject matter specialisation—for example, public health—crisis management expertise and regional knowledge. All will be trained crisis managers with considerable leadership skills and personal authority. Establishing the right mix of skills will be a task for the planning phase during which the nomination will take place. Training will be tailored to build up the nominees' capabilities in the three identified areas to ensure that they can function effectively in any of them.

There is no question that RNCs will be appointed on any basis other than their competence to do the job, and that level of competence will be set very high, as befits such a significant post. I was challenged to name typical RNCs. Clearly, it is difficult to generalise, as it will depend on circumstances. However, it might be the chief constable of a region, a senior army officer from a local brigade, as was suggested, a senior regional officer from the state veterinary service, a regional director of public health or a director from a regional government office.

Reference was made to the control of major accident hazards regulations. Those cover very specific technical areas that are not, I would suggest, directly analogous to those to be handled by the RNCs. The circumstances that we are trying to anticipate vary widely. However, the basic point holds good. We need to ensure that there are competencies in every area; it would be otiose to put a general statement in the Bill when we are considering a range of qualities.

Patrick Mercer (Conservative, Newark)

Does a list of people already exist?

Douglas Alexander (Labour, Paisley South)

Work is under way in Government. We are seeking to develop a comprehensive list that encapsulates Government Departments' awareness of technical experts in their own areas of responsibility, such as public health or animal health. That will be matched with the effort to ensure that in each region of the United Kingdom we have people with the requisite skills and experience of or training in crisis management. I can assure that hon. Gentleman that that work is under way. There have been positive

experiences in the past—consider the foot and mouth crisis in Cumbria, from which we learned a great deal about what makes for effective co-ordination across geographic boundaries and liaison with central Government. Since then, we have progressed work that explains both the statutory framework that we are putting before the Committee and the work that has been done within Government Departments.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

When the Joint Committee considered the draft Bill, it contained a let-out allowing the Government not to consult the National Assembly, the Scottish Parliament or the Northern Ireland Assembly on matters of urgency. That let-out was deleted early in the Bill in clauses that related to designated areas of emergency, but it seems to have reappeared in another form under this clause. What is the logic of saying that the urgency clause should be dropped in favour of the absolute duty to consult the devolved Administrations when declaring an emergency, yet leaving it to cover the appointment of the regional co-ordinator? To be fair, the Government accepted the arguments about the other urgency clause.

Douglas Alexander (Labour, Paisley South)

I am intrigued by the hon. Gentleman's point. With the forbearance of the Committee, I shall write to him. I took note of his first point about consulting the National Assembly and the Scottish Parliament.

Oliver Heald (Conservative, North East Hertfordshire)

Subsection (1)(a) talks about emergency co-ordinators for a ''Part''. I understand that ''Part'' is a country. Is the Minister satisfied that that would work well? England, for example, has a much larger population than, say, Wales. Is he satisfied that giving each country an emergency co-ordinator is a proper way of dividing up the United Kingdom for these purposes and, if he is, will he explain why?

Douglas Alexander (Labour, Paisley South)

I hope that I can clarify those points. First, England could have regional co-ordinators who work at a regional level in England. In that sense, the appropriate comparison would be between a region of England and parts of the UK—in this case Scotland and, as the hon. Gentleman said, Wales—where the emergency co-ordinators would otherwise operate.

John Horam (Conservative, Orpington)

I presume that the Minister is referring to the standard regions when he talks about the regions of England.

Douglas Alexander (Labour, Paisley South)

There is a statutory basis for the regions, which I will happily share with members of the Committee. ''Part'' means England, Wales, Northern Ireland and Scotland, and ''region'' was defined in the Regional Development Agencies Act 1998. There are nine such regions: east midlands, eastern, London, north-east, north-west, south-east, south-west, west midlands, and Yorkshire and Humber.

The only other point that I want to make while I am still on my feet relates to the Welsh and Scottish Assemblies. I understand that a concordat was drawn up, which will form the basis of my letter about the operation of emergency co-ordinators and the relationship between the devolved Administrations in

Scotland and Wales and central Government in the UK.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I am grateful to the Minister for responding so reasonably. However, if clause 28(4)(a) remains, surely that will undermine the concordat when a case is perceived to be urgent?

Douglas Alexander (Labour, Paisley South)

Concordats are being drawn up at the moment, so the hon. Gentleman's intervention may be timely. I will ensure that I will address that point in my letter to him.

Patrick Mercer (Conservative, Newark)

The Minister has explained extremely clearly and concisely why the Government will resist the amendment. I feel a little easier now that the Minister has told us that work is already being undertaken to identify these various individuals, who will be required to demonstrate experience and confidence in three different fields. He did not, however, answer my question about whether these people would be told that they were going to be on this list.

Mr. Alexander indicated assent.

Patrick Mercer (Conservative, Newark)

The Minister is nodding, so I assume that they will be told. I very much hope that the list will be kept up to date and that the incoming regional brigadiers will become fully aware of exactly what their duties will be in an emergency. On that basis, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I refer the Minister to what the National Council for Civil Protection has said. I quote verbatim from the question put to me. It says:

''If an emergency is affecting a region so severely that Ministers have decided it is necessary to apply Emergency Powers, then it should be a democratically elected Minister who chairs the strategic decision making group and is subsequently accountable for the actions taken, rather than an appointed official such as a Chief Constable.''

It goes on:

''This is in line with existing 'Lead Government Department' arrangements for central government's involvement in emergencies, which are proposed to continue. If Emergency Powers are declared, then it follows that the central government is involved, so the appropriate government department must be leading, and at the head of each government department is a Minister.''

I ask the Minister to respond to that.

Douglas Alexander (Labour, Paisley South)

I am in dangerous waters in describing the relative merits of Ministers and competent officials. I will, none the less, seek to make some progress. The first point I make is that clearly, under our parliamentary system, Ministers are accountable for all actions under emergency regulations. That will include the appointment and functions of the regional nominated co-ordinators.

I think, therefore, that there is a genuine disagreement between ourselves and the submission that the hon. Gentleman referred to. We are keen to uphold the lead Government Department principle, in the sense that one of the bodies charged with

responsibility for drawing up the list of people will be lead Departments. For example, the Department for Environment, Food and Rural Affairs will have responsibility on animal health and the Department of Health on public health. There will continue to be a direct involvement for the lead Departments.

On the other hand, we wanted to ensure that accountability was secured to Parliament over ministerial decisions. The Minister will be responsible for the appointment of the regional nominated co-ordinator. To suggest that there should be another structure with a regional level of accountability could confuse the degree of clarity that is valuable in ensuring that the Minister responsible will be accountable to this House for ensuring that the right person has been appointed.

To cover the ground that I have touched on, the individual appointed by the Minister to the post would be selected on the basis of specific expertise. Rather than, for example, the democratic mandate secured for an individual in one locality, it would be the technical expertise of the individual that would be an important element in their ability to exercise the personal authority necessary in an emergency. In that sense, I do not think that that usurps the role of local democracy. It supplements the democratic accountability of a Minister to this place with a degree of technical expertise that is in keeping with command authority in difficult circumstances—in the event of a contingency.

Question put and agreed to.

Clause 23 ordered to stand part of the Bill.

Clause 24 - Establishment of tribunal

Oliver Heald (Conservative, North East Hertfordshire)

This is a clause that I have some concerns over. I hope that the Minister may be able to allay them. On the face of it, the clause attempts to give a role to the Council on Tribunals in the setting up of one of the tribunals that we discussed this morning under emergency regulations. It seems to give with one hand and take away with the other.

Subsection (1) says:

''Emergency regulations that establish a tribunal may not be made unless a senior Minister of the Crown has consulted the Council on Tribunals.''

That sounds as though the council will be doing something. Then subsection (2)(a) says:

''a senior Minister of the Crown may disapply subsection (1) if he thinks it necessary by reason of urgency''.

We already know that there is no possibility of looking into the Minister's thoughts. As long ago as 1942, in the case of Liversidge v. Anderson, which was referred to on Second Reading by the hon. Member for Stone (Mr. Cash), it was established that these are matters of Executive discretion and not justiciable. It seems that a senior Minister of the Crown—as we know that includes the Whips—could say that there was not time and that would be the end of that. Clause 24(2)(c) states:

''a failure to satisfy subsection (1) shall not affect the validity of regulations.''

The regulations would be in place even if the Minister or Whip had got it wrong by saying that they did not think that there was time for consultation.

Then we come to section (3):

''Where the Council on Tribunals are consulted by a senior Minister . . . the Council shall make a report''.

It goes on to state in paragraph (b) that

''the Minister shall not make the emergency regulations to which the consultation relates before receiving the Council's report.''

One would think that that may be a case where the council has some power and its report matters. However, section (4) states:

''But . . . a senior Minister of the crown may disapply subsection (3)(b) if he thinks it necessary by reason of urgency''.

Again, we cannot look behind his thoughts because, as Liversidge v. Anderson established, it is a matter of Executive discretion and Ministers can do as they like.

Subsection (2)(b) states:

''subsection (1) shall not apply where the Council on Tribunals have consented to the establishment of the Tribunal''.

The purpose of subsection (1) is to persuade Ministers to consult the Council on Tribunals. One must ask how the council can have consented if it has not been consulted. The clause is curious and somewhat confusing, although perhaps just to me. Will the Minister explain whether the Council on Tribunals has any significant role to play in proceedings or whether it is just a bit of window dressing?

Richard Allan (Liberal Democrat, Sheffield, Hallam)

I share the concerns of the hon. Member for North-East Hertfordshire about whether the clause is a toothless tiger and whether it has any force. Another aspect of subsection (2)(b) also worried me—the circumstances in which the Council on Tribunals could consent or in other words simply say, ''Yes; we do not need to be consulted.'' If the Government intend to give the council the option to say just a flat yes we will miss out on subsection (5), which is important. Once the council had been consulted, various reports would tell us what it thought, the extent to which the regulations met its expectations and so on. It would also be important to receive an explanation regarding any departures from the recommendations in the report.

I hope that the Minister can assure us that clause 24(2)(b) will be tightened up. We must remember that any tribunals set up under emergency regulations are set up in extreme circumstances. Tribunals should be available to cover most normal circumstances, so we are talking about a very special tribunal in that regard. Such a tribunal may be able to decide on the fate of flocks of sheep, for instance, which may be of great importance to individuals or to human health, in terms of vaccination, quarantine and so on. He should assure us that in such circumstances, there is no cop- out whereby the Council on Tribunals can say ''Go ahead'' without our seeing a report on its reasoning or on whether the regulations met its expectations. As I read it, subsection (2)(b) suggests that that is precisely what would happen.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

May I remind the Committee that we are talking about the establishment of tribunals? I can understand the urgency associated with a forest fire or some massive disease that requires sudden and draconian action on the ground, but I cannot for the life of me imagine a circumstance in which the Minister would be dragged from his bed at three o'clock in the morning and told that he had to set up a tribunal and that it could not wait until after breakfast. The application of urgency in the context of setting up tribunals seems a bit more than is absolutely necessary.

I am also somewhat puzzled by the construction of subsections (2)(a) and (c). Paragraph (a) states:

''a senior Minister of the Crown may disapply subsection (1)''—

the consultation of the Council on Tribunals—

''if he thinks it necessary by reason of urgency''.

I cannot quite think what such a reason would be, and I suspect that even the Minister or Under-Secretary would be pushed to come up with an example. Paragraph (c) states:

''a failure to satisfy subsection (1) shall not affect the validity of regulations.''

Presumably, the only regulations to which a failure to satisfy subsection (1) can relate are those establishing a tribunal. To my mind, that negates the purpose of subsection (2)(a), which disapplies subsection (1) by reason of urgency. Paragraph (c) seems to suggest that the provision can be disregarded anyway, whether it is urgent or not, and that the tribunal that is subsequently established remains valid whether or not there has been consultation with the Council on Tribunals.

Subsection (2) is inelegantly drafted and the power is not absolutely necessary, and I hope that between now and Report the Minister might reconsider the clause and table some amendments.

Douglas Alexander (Labour, Paisley South)

I am always intrigued to know which provisions generate the greatest heat, and I hope that I can throw some light on the discussions. The hon. Member for North-East Hertfordshire started by asserting that it is never impossible to see beyond the decision of a Minister into their mind, so in the spirit of candour, let me share the rationale behind the clause.

I was relatively safely navigating my way through an appearance before the Joint Committee on the Draft Civil Contingencies Bill back in September, when the noble Lord Archer of Sandwell put a very specific question to me. He inquired whether I had considered consulting the Council on Tribunals. I was not aware at that point—although I became aware very shortly afterwards—that he was a former president of the council. When I returned to my Department after the rather uncomfortable questioning that I had received, I made inquiries about whether there had been consultation with the Council on Tribunals. It transpired that a meeting took place after my appearance to give evidence, and the statutory construction before us—the Bill that was duly published—reflects the statutory precedents that were provided in discussion with the Council on

Tribunals. As a Minister, I accept responsibility for everything, but responsibility for the inelegance of this particular provision may be shared between the council and ourselves.

That gives me the opportunity to deal with another substantive point made by the hon. Member for North-East Hertfordshire. Today, I have written a letter to the shadow Attorney-General, who has been in discussion with me, on the matter of Liversidge v. Anderson. Again, in the spirit of candour, it would be helpful if I explained the Government's thinking on that case law, which was quoted on Second Reading. I hope that that will prevent the same red herring from appearing any more prominently than it has done so far in the course of our discussions.

We have concluded that reasonableness is an absolute expectation of the actions of Ministers and a basic tenet of public law. That judgment is informed by the case of Liversidge v. Anderson and subsequent case law that was put to us on Second Reading. We are satisfied that it is now accepted that the dissenting judgment of Lord Atkin is good law and that the courts will inquire as to the reasonableness of a Minister's belief in the circumstances described.

Lord Bridge of Harwich, in Bryn v. Secretary of State for the Home Department, 1991, paragraph 1AC 696, in the House of Lords, emphasises the strength of judicial review and asserts that specific requirements in specific cases are best left to be absorbed by that general and all-embracing concept. The great weight that has been placed on Liversidge v. Anderson suggests that the issue haunts all tenets of public law in the United Kingdom and that they are not valid. The reasonableness test has been addressed in subsequent case law. The statutory construction of the provisions reflects the statutory precedents that were put to us by the Council on Tribunals.

The tribunal would decide whether the Council on Tribunals could subsequently be ignored under clause 24(2)(b), although I find it hard to envisage circumstances in which the council would consent in cases where the tribunal has no major role and no subsequent role in reviewing the position. Clearly, the matter would primarily be for the council.

Finally, the hon. Member for Orkney and Shetland challenged me to suggest circumstances in which it could be necessary urgently to establish a tribunal, as opposed to merely taking other actions. A tribunal that is set up to approve quarantining is one example; in the event of appeals against quarantining being made during a major infectious disease outbreak or another such civil contingency, people would expect a tribunal to be set up in a matter of days or weeks. The urgency of the situation would be dictated by the contingency in question.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

Before we move on, may I ask the Minister whether he is satisfied that my interpretation of clause 24(2)(c) is correct? One can disregard subsection (1) for whatever reason, and if one does so it does not really matter. In that case, why should we have subsection (1) at all?

Douglas Alexander (Labour, Paisley South)

The provision reflects the fact that we are trying to strike a balance between the need to move with great expedition and a recognition of the enduring role of the Council on Tribunals. However, I accept the hon. Gentleman's point about the vital caveat that Ministers would remain accountable to Parliament for any decisions taken in relation to tribunals or indeed actions taken under the regulations. We have adopted that approach to ensure that the regulations established in the tribunal have legal certainty, which is surely a matter that we can all agree on, and it would be inappropriate for the regulations establishing tribunals to be struck down months or indeed years after they have been set up. A fundamental question is what would then happen to the judgments made by tribunals in the meantime, and in that regard, it is important to bring the maximum degree of legal certainty to a tribunal's operations.

Oliver Heald (Conservative, North East Hertfordshire)

On duration—obviously, we are going to have a full debate on it in a moment—clause 25 provides that the emergency regulations shall last for 30 days unless they are renewed. Surely, it will take longer than that to set up a tribunal—or is that not the case? Is the Minister thinking that, as the firemen are going in or the Army is dealing with a terrorist situation, a tribunal will be set up almost immediately, within a matter of days? Furthermore, when the emergency regulations lapse, does the tribunal lapse at the same time? How does that work?

Douglas Alexander (Labour, Paisley South)

I return to one of my core propositions: it is difficult to anticipate every circumstance that could arise. We would certainly anticipate that, in the circumstances that I have described, it would be possible to establish a tribunal in respect of quarantine restrictions fairly quickly, but I do not wish to be drawn on how quickly a tribunal could be established without being clear as to what the particular circumstances are.

Although regulations create a tribunal, the Interpretation Act 1978 will not continue in existence a tribunal created by emergency regulations after those regulations collapse. It is therefore likely that further legislation would be needed to continue in existence any tribunal created by emergency regulation. That deals with the hon. Gentleman's substantive second question.

Question put and agreed to.

Clause 24 ordered to stand part of the Bill.

Clause 25 - Duration

Richard Allan (Liberal Democrat, Sheffield, Hallam)

I beg to move amendment No. 121, in

clause 25, page 17, line 11, at end insert

', or

(c) when a senior Minister of the Crown determines that the conditions specified in section 20 are no longer satisfied.'.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following amendments: No. 122, in

clause 25, page 17, line 12, leave out from end to beginning of line 14.

No. 105, in

clause 25, page 17, line 15, at end add—

'(3) Where emergency regulations are made and thereafter new regulations are made, the series of regulations shall lapse after 90 days and new regulations shall not be made thereafter under this Part in respect of the emergency.'.

No. 106, in

clause 26, page 17, line 40, at beginning insert

'Subject to section 25(3) of this Act'.

No. 124, in

clause 26, page 17, line 40, leave out from end to beginning of line 42.

No. 129, in

clause 26, page 17, line 41, leave out paragraph (a).

Richard Allan (Liberal Democrat, Sheffield, Hallam)

Amendment No. 121 is an unusual example of us offering to give the Minister and the Crown more, rather than less, power. Normally we spend our time in these Committees trying to strike out powers exercisable by Ministers and saying that everything should be in regulations, but under these circumstances we think that it would be appropriate for a Minister to have the power to end their extra-constitutional and extra-parliamentary activity, that is, the emergency regulations that they brought into play. As we read the clause, there are only two circumstances in which the regulations would lapse: at the end of 30 days, which we accept as a sensible safeguard, or at a time specified in the regulations—in other words, if the regulations themselves state that the power exists only for, say, 15, 20 or 25 days.

We think that a third option should be available to Ministers. They should be able to say, ''Okay, we haven't reached the 30 days''—or the 25 days—''but the emergency is over.'' We can imagine circumstances in which an emergency is predicted to be more severe than it turns out to be. In those circumstances, it would be sensible for a Minister to be able to say after five or 10 days that the regulations had lapsed. That would put an extra limitation on the force of the emergency regulations and would be helpful in this context. I hope that the Minister can accept amendment No. 121 in the helpful spirit in which it is intended, and that he will respond positively.

The spirit of amendment No. 121 might be acceptable, but I suspect that amendments Nos. 122 and 124 are less acceptable. They would remove the ability to make new regulations after 30 days and to extend the powers beyond that time. We think that that is an important area to explore. We understand that the emergency regulations, as introduced outwith Parliament by the Executive, have to be brought to Parliament within seven days. That is entirely sensible and under normal circumstances, in which the Government have a parliamentary majority, one would expect Parliament to approve those emergency regulations, but we do not want continued extensions to the emergency regulations. If the Executive were able to get parliamentary approval for that, it would not be unconstitutional. However, we believe that that is a far less satisfactory solution than specifying that, after the initial period for which the emergency regulations have been in force, primary legislation must be sought. The example I cited before is the Anti-terrorism, Crime and Security Act 2001, which was a parliamentary constitutional response to the events of

11 September, and passed through both Houses of Parliament quite rapidly.

In seeking to remove the Government's ability to extend their emergency regulations, we do not seek to deny them the ability to continue with the kinds of powers that they need in an emergency. Instead, we are suggesting that the powers should be dealt with only through primary or secondary legislation, in the normal way, rather than by extending emergency regulations again and again. We think that there would be a temptation to do that. The Government could cite a lack of parliamentary time or the fact that getting the provisions through Parliament would be more difficult and that it would be more straightforward simply to approve an extended emergency regulation. We are trying to assist the Government by leading them out of the valley of temptation into pastures in which they would have to come forward with primary or secondary legislation—that is a mixed biblical reference. Essentially, we are trying to limit Ministers' options in those circumstances.

Amendment No. 121 offers Ministers an additional power and I hope that the Minister approves of that. It is a power to self-limit. Amendments Nos. 122 and 124 are quite clearly trying to limit Ministers. We think that the limitation would be sensible and would ensure that parliamentary sovereignty is maintained.

Oliver Heald (Conservative, North East Hertfordshire)

I shall speak to amendments Nos. 105, 106 and 129. The point is the same: there should not be an unlimited period of emergency regulations. Amendment No. 105 would mean that, for one emergency, there would be a maximum of 90 days of emergency regulations. If the Government wanted to continue with the powers after that, they would have to introduce a Bill, but 90 days gives them adequate time to do that. It would be wrong, as the hon. Member for Sheffield, Hallam (Mr. Allan) has said, to allow Ministers to continue with emergency regulations over very extended periods of time.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

In support of the hon. Gentleman, it is worth noting that the 2001 Act, which is substantial and involves significant legal issues, was passed well within 90 days.

Oliver Heald (Conservative, North East Hertfordshire)

I entirely accept that. We all have some experience of emergencies, if not necessarily of that kind. When there is a need, Parliament can act relatively quickly and 90 days is more than adequate for that purpose. It is incumbent on the Minister to explain why he wants more time.

Many concerns have been expressed about the Bill and the wide-ranging nature of the powers that the Government are taking. We are not used to emergency powers. We do not have bush fires lasting for 100 days or repeat earthquakes, and our floods do not last for hundreds of days. The Minister needs to come up with something major to justify more.

Douglas Alexander (Labour, Paisley South)

What challenging words to rise to, Mr. Benton.

The hon. Member for Sheffield, Hallam challenged me to join him in pastures new by accepting his amendment, but I fear that I may disappoint him.

[Interruption.] I welcome the opportunity to discuss the period of duty—I may be a sinner repenting, but not in these clauses.

Although I welcome the opportunity to discuss the time for which emergency regulations will be in force, the Government cannot support the amendments. When emergency regulations are made, an assessment will be carried out as to how long it is likely to be necessary to keep them in force. If it seems at the outset that it would be necessary and proportionate to maintain the regulations in force for a matter of days or weeks only, the regulations will provide for that. In subsection (1)(b), the Bill expressly recognises that regulations may themselves specify a date on which they cease to have effect. In other cases, however, the regulations will lapse automatically 30 days after the day on which they are made.

The Government will not be idle in the period between making the regulations and their automatic lapse. We will keep the situation under review. If it becomes apparent that there is no need to maintain the regulations in force and that it would be reasonable to revoke them, the Government will do so. It is therefore unnecessary to provide for that in the Bill. The Government will review the continued operation of emergency powers as a matter of course and they will be accountable to Parliament for so doing. It is unnecessary expressly to provide that the regulations may be revoked, given that section 14 of the Interpretation Act 1978 provides that where an Act confers a power to make regulation, it implies a power to revoke them.

If, at the end of the period of 30 days it is clear that provisions are still needed, the Government will have a number of options. If it is apparent that an emergency will continue for a substantial length of time, the Government could bring forward appropriate primary legislation to replace the emergency regulations whenever possible. However, that may not always be the best approach. The nature of an emergency can change over time, and its effects and implications are clearly unpredictable. It may not always be desirable to attempt to construct appropriate primary legislation, as it may risk being overtaken by events. In such circumstances, a further set of emergency regulations could be made.

Concern has been expressed about whether a subsequent set of emergency regulations would be subject to parliamentary approval. Under the 1920 Act, emergency regulations could be maintained in place by way of a monthly royal proclamation and without further parliamentary approval, but the Government agree that that is not the right approach in the modern day. Any new set of emergency regulations should be subject to further parliamentary debate. The Bill provides for that.

Subsection (1) provides that emergency regulations will lapse 30 days after they have been made. Subsection (2) makes it clear that a new set of regulations may be made thereafter; but any such regulations would be subject to the provisions for parliamentary scrutiny laid down in clause 26. Clause

26 applies when emergency regulations are made; there is nothing that limits its application to the first set of emergency regulations. The Bill is therefore clear on that point. There is no need to provide expressly that a second set of regulations should be subject to parliamentary scrutiny; nor does subsection (2) cast any doubt on that point.

The hon. Member for Sheffield, Hallam raised the understandable concern of how many times emergency regulations may be remade. The Government considered whether a limit should be included in the Bill. However, we rejected that approach on the ground that it would be arbitrary and inflexible. What would the limit be? For example, the amendment offered by the hon. Member for North-East Hertfordshire suggests three times, but some emergencies may last a little longer, perhaps by only a couple of days or weeks. It would not be sensible to remove emergency regulations that had been approved by Parliament and put in their place primary legislation that might be needed only for a short time—perhaps only a few days.

It has been suggested that anti-terrorism legislation was a useful precedent, but considering the length of time it took to pass that legislation, it is questionable whether in those circumstances, where the emergency situation might continue for a matter of days, it is better to start a process of securing primary legislation. In addition, there may be emergencies that initially appear short term, but turn out to be longer lasting. In such circumstances the Government might find themselves with insufficient time to bring forward primary legislation to deal with the situation, but forced to allow emergency regulations to lapse.

The Government consider that there are adequate safeguards in the Bill to ensure that emergency powers are not maintained for a longer period than is necessary. Each set of regulations will have to meet the triple lock, which has clearly been debated on a number of occasions in this Committee. In particular, it must still be necessary to make provision to deal with the emergency. The emergency regulations would be subject to parliamentary approval every 30 days.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

I am grateful to the Minister for not calling my amendment No. 121 otiose. I think that that was the substance of what he said in response. The Interpretation Act, which my hon. Friend the Member for Orkney and Shetland says is a wonderful thing, means that what a Minister giveth, a Minister also taketh away—the Minister can simply say that the emergency regulations are no longer necessary without this being specified in the Act. That is a helpful addition to my legal knowledge, although I still think it would be helpful to have it spelled out in this piece of primary legislation.

On the other points that he made about the potential to repeat, we will be debating the introduction of those emergency regulations when we get to clause 26. The extent to which parliamentary scrutiny genuinely still takes place remains an issue of concern, certainly on this side. Going back to the point I made in moving the amendment, parliamentary scrutiny is limited by the fact that Governments will have a majority and will be able to get repeat approval

for their regulations, so we prefer to see the scope of this procedure locked down even more. However, I will certainly consider the points that the Minister made in what was a helpful response to this group of amendments and I would not seek to press the amendment.

Oliver Heald (Conservative, North East Hertfordshire)

We are not satisfied that the Minister so readily rejected amendment No. 105. This Bill gives very wide-ranging powers, the sort of powers that are strictly unusual in our country, a free country. The sort of powers we are talking about could include taking people's property away without compensation; destroying property, animal life or plant life without compensation; or prohibiting or enabling the prohibition of, people's movements. This is about soldiers at the end of the street.

Is the Minister seriously saying that he, as the Minister, is entitled to say to us, ''We are going to take these wide-ranging powers and, because it might be slightly inconvenient for the Government, we are not prepared to put any limit on the length of time that this can go on''? He starts off with 30 days, he may want another 30 days, and so on, but 90 days is a good long time for a country like ours to have these sorts of regulations in place. For the Minister to say that we may not be able to make a prediction and that when we reach 90 days we may not have time to pass primary legislation, is lazy complacency which will not do. [Interruption.] Well, it is a lazy complacency and it is the sort of thing that Governments want to get away with. With a massive majority like theirs, they think that they can swan along, not giving a concession on anything, and that our great, free country just has to put up with it. If there were a Labour majority of five, 10 or something of that sort, they would make concessions on these matters, because this is against liberty. It is against all the things for which this country stands. They should put a limit on it and it is time that they did.

I want to return to this and I am going to withdraw the amendment so that I can.

Douglas Alexander (Labour, Paisley South)

I am saddened and disheartened that the civility that has characterised our discussions seems to be departing in the death throes of the Committee stage.

The point that has been made is important and it merits a serious response. What unites the Liberal Democrats and the Conservatives is not a recognition of contempt for Parliament on my side of the Room but a contempt for democracy on their side. The fundamental grievance that unites the hon. Members for Sheffield, Hallam and for North-East Hertfordshire is that the British people deliberated and decided to give the House of Commons a Labour majority. They have inner rage and frustration about that. The only point of common acceptance between them is their indignation and anger that any Government can have a majority as large as that of this Labour Administration.

It was entirely disingenuous of the hon. Member for North-East Hertfordshire to suggest that there are not the appropriate democratic safeguards on a

Government seeking to implement emergency regulations. I would have thought that in his calmer moments he would have recognised that the 30-day limit, with its obligation then to come back to Parliament, gives the safeguard for democracy and liberty that he spoke about in such overblown terms at the end of his contribution. I cannot accept his fundamental premise that somehow the workings of democracy stop when there is not a Conservative majority in the House of Commons. On that basis, he is fundamentally wrong.

Oliver Heald (Conservative, North East Hertfordshire)

Does the Minister really want to live in a country where we can carry on with emergency regulations of this sort for years with no end date in sight? That is not good enough. Ninety days is good enough. If he then wants to introduce a Bill, that is fine.

Douglas Alexander (Labour, Paisley South)

I assure the hon. Gentleman that I am confident that the triple lock, which remains in place, and the fact that we will come back to Parliament every 30 days on the basis of the regulations, give the safeguards that the British people reasonably expect. It ill behoves him to suggest that there are motives on this side of the Room that are not apparent. We have said that there will be a triple lock, which is a stronger set of guarantees than ever existed under previous Conservative Administrations—or, indeed, previous Labour Administrations.

Oliver Heald (Conservative, North East Hertfordshire)

Will the Minister give way?

Douglas Alexander (Labour, Paisley South)

I will not give way at this stage, as I want to develop my argument.

We are keen to ensure that the appropriate safeguards are embedded in this legislation. That is why we introduced the triple lock. I have no favour with an argument that suggests that, given the particular composition of the House of Commons at any particular time, the appropriate democratic safeguards—that these regulations come back to the House of Commons after 30 days—are somehow invalidated.

Oliver Heald (Conservative, North East Hertfordshire)

I feel that I have to protect the Minister. In the future, things may not be as they have been during his time. At present, there is a massive Labour majority, but a time may come when a different party is in power.

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

The Liberal Democrats.

Oliver Heald (Conservative, North East Hertfordshire)

I do not think that it will be the Liberal Democrats.

We must pass good laws with proper protections. I am not satisfied that that is the case, so I will press for a separate Division on amendment No. 105.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

To close the discussion on amendment No. 121, the Minister's contribution deserves a brief response because he threw accusations of contempt of Parliament at opposition parties. It is worth returning to some of the contexts of the Bill that we set out on Second Reading, because they are particularly relevant.

Parliament might not always be in the hands of democratic, rational parties. We would not have

particular concerns about any of the parties that are currently represented in this Committee. However, in some of our closest neighbouring European states, parties that are on the verge of being dangerous, undemocratic forces have achieved power and authority, and we need to protect against them.

Douglas Alexander (Labour, Paisley South)

An illogicality has crept into the hon. Gentleman's contribution. What statutory safeguards is he seeking in this legislation to ensure against the democratic wishes of the British people as expressed in a future general election? What safeguard could we possibly have against the choice that the British people might make at any point in the future as to who they choose to elect to the House of Commons?

Richard Allan (Liberal Democrat, Sheffield, Hallam)

The Minister should read his history books or look at some of the political circumstances that prevail today. Parties gain significant power, seek to use any statutory ability that they have to create states of emergency and then use that to take yet more power unto themselves. We have concerns about the legislation that we are currently debating not because we think that it would be used by the kinds of parties that are represented in this Committee, but because there is the potential for it to be abused at some future date if a party with less well-intentioned motives gains a position of power and authority. We were reminded on Second Reading that the Nazi party in Germany gained power through democratic means. It gained power through the ballot box to a certain degree and then used statutory powers to extend its ability to get into the organs of the German state. We are talking about powers and legislation that might last 50, 60, or 70 years. I cannot predict that at no future point will a party under our current electoral system be able to gain sufficient power and authority to seek to use emergency powers in an abusive fashion. I remain concerned about that and we are trying to limit emergency powers by limiting the scope for their potential abuse by anyone at a future date.

Oliver Heald (Conservative, North East Hertfordshire)

Does the hon. Gentleman agree that if we do not attempt to limit the powers to what is reasonable we might as well as give up? The whole point of this exercise is to try and pass reasonable laws that provide reasonable powers to what, I hope, is a reasonable Government.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

The hon. Gentleman is correct. The counter-argument is just to trust the Government, which will supposedly be okay as it will always be elected by a majority. It is perfectly reasonable that in our amendment we have sought to ensure that the Government do not have the ability to abuse emergency regulations. The hon. Gentleman's proposal of a 90-day measure is entirely sensible, and I will support his amendment if he moves it. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

I beg to move amendment No. 123, in

clause 25, page 17, line 14, leave out 'affect anything' and insert 'render unlawful'.

Joe Benton (Labour, Bootle)

With this it will be convenient to discuss the following amendments:

No. 125, in

clause 26, page 17, line 42, leave out 'affect anything' and insert 'render unlawful'.

No. 130, in

clause 26, page 17, line 42, leave out 'affect anything' and insert 'render unlawful'.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

The amendments concern a legal point. We think that there is a distinction to be drawn between the current wording, which says that anything that has happened under the regulations would not be affected at a later date, and wording that says that anything that happens in the parliamentary process does not render the regulations unlawful. It is important to make that distinction.

We can foresee circumstances where regulations have been made, Parliament takes a different view when it meets after the seven-day interval, and a question mark is thrown over the regulations. The ''rendering unlawful'' formula is intended to ensure that servants of the Crown who are engaged in this—whether they are members of the armed forces or of the blue light services, such as doctors—have the protection that they need, as they are simply carrying out their duties quite properly under the regulation. We do not want their actions to be rendered unlawful. However, to say that any subsequent decision of Parliament shall not affect anything, as the original wording does, goes too far.

Earlier, in our animal health and foot and mouth examples, emergency regulations have ordered the destruction of animals, but Parliament has then taken a different view. It may be appropriate in those circumstances for compensation to be given that reflects the fact that regulations were struck down by Parliament. We would not want vets or anyone else involved to be declared to be acting unlawfully, but we do want things to be affected. The amendment is a genuine attempt to reflect the intention of the legislation, which is to ensure that we protect people who are carrying out the regulations, without going so far as to render everybody incapable of taking action, especially where action may be justified on the basis that Parliament took a different view about emergency regulations. The sovereign, sensible, rational Parliament, elected by the British people, might take a different view about the emergency regulations from the one that the Minister took when he drafted them.

Douglas Alexander (Labour, Paisley South)

The Government entirely agree that lapse of the regulation should neither render as unlawful action that which has been properly taken in reliance on the regulation, nor adversely affect the rights of those who have been affected by such action. The amendments would not achieve that result however, and I cannot accept them for that reason.

Concerns have been raised that the provision would somehow cast doubt on a claim for compensation in relation to action undertaken under the regulations. That is simply not the case. If a public authority exceeds its powers under the regulations, or if the regulations themselves are defective in some way—for example, they do not provide for compensation in circumstances where it is required under the Human Rights Act 1998—an individual who is adversely

affected can seek redress in the courts. Lapse of the regulations will not affect that, as the right to seek redress derives not from the regulations but from public law. However, it is appropriate to make express provision to ensure that things that are lawfully done under the regulations are not affected by lapses of the regulations. That is the purpose of clauses 25(2)(a) and 26(4)(b).

Those provisions will apply to action taken by public authorities under the regulations, but will also relate to things done by or in relation to other persons. Thus, if an individual has received compensation under the regulations or exercised a right of appeal conferred by the regulations, a lapse will not affect that payment or that appeal. If a person has been convicted of a criminal offence under the regulations, a lapse will not affect that conviction.

The wider wording used in the Bill—that a lapse of the regulations

''shall not affect anything done by virtue of the regulations''—

achieves that end, but it is not clear that the narrower wording suggested in the amendments that a lapse shall not ''render unlawful''

''anything done by virtue of the regulations''

would serve, for example, to preserve any payment of compensation or appeal rights. There may be a common agreement as to the intention, but we cannot accept the amendment.

Oliver Heald (Conservative, North East Hertfordshire)

The Minister referred to the public law basis on which compensation was to be made. Will he explain what he meant by that?

Douglas Alexander (Labour, Paisley South)

The right to seek redress is established in common law, rather than specifically on compensation. For example, the European convention on human rights allows for redress against public bodies. I think that that addresses the specific point raised by the hon. Gentleman.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

That was a helpful response and we will study the record. At this stage, it would not be helpful to press the amendment. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Amendment proposed: No. 105, in

clause 25, page 17, line 15, at end add—

'(3) Where emergency regulations are made and thereafter new regulations are made, the series of regulations shall lapse after 90 days and new regulations shall not be made thereafter under this Part in respect of the emergency.'.—[Mr. Heald.]

Question put, That the amendment be made:—

The Committee divided: Ayes 7, Noes 9.

Clause 26 - Parliamentary scrutiny

Patrick Mercer (Conservative, Newark)

I beg to move amendment No. 113, in

clause 26, page 17, line 18, leave out paragraph (a) and insert—

'(a) these regulations shall be put to a Joint Committee of both Houses of Parliament consisting of members of the Privy Council chosen to reflect the political balance of the House of Commons (to be known as the Emergency Powers Committee), before their acceptance, to provide an initial parliamentary check.

(aa) a senior Minister of the Crown shall then, as soon as is reasonably practicable, lay the regulations before Parliament, provided that he believes on reasonable grounds that he has used his best endeavours to consult the Emergency Powers Committee.

(ab) a senior Minister of the Crown may dispense with the requirements of paragraph (a) above if he thinks it is necessary to do so by reason of urgency.'

The amendment would replace the phrase in subsection (1)(a)

''a senior Minister . . . shall as soon as is reasonably practicable lay the regulations before Parliament''

with the phrase

''these regulations shall be put to a Joint Committee of both Houses''—

hereinafter referred to as the emergency powers committee—

''consisting of members of the Privy Council . . . to reflect''

the membership of the House of Commons

''before their acceptance, to provide an initial parliamentary check.''

It is clear that if a traumatic disaster of the sort that we are trying to legislate for overcomes the country, speed will be extremely important. We understand from the Minister and from the way in which the regulations have been articulated that speed is crucial.

The purpose of trying to establish an emergency powers committee is that proposed ministerial regulations could be investigated quickly and, when necessary, the committee could act as a proxy for Parliament. That should provide a quick but effective check in the hands not of a senior Minister, but of a picked number of extremely experienced, thoughtful and practical people who, if the Government nominate them beforehand, train them and give them due warning, could act as a most useful democratic check in such circumstances.

It is particularly useful to see what happens in the United States, albeit that its constitution is completely different from ours. Had such a committee been available to Mr. Bush in the aftermath of the attacks on 11 September, he would have found its advice and the necessary checks and balances imposed by such a committee extremely useful. That is why we have come up with this concept—

Sitting suspended for a Division in the House.

On resuming—

Patrick Mercer (Conservative, Newark)

I shall start where I left off. The idea of the emergency powers committee is to act as a check and balance and to be a sounding board for the Government in times of great emergency. Above all else, it should assist the Government in a balanced way, but quickly.

My experience of our discussions so far is that any idea that is intended to assist the Government with fresh thinking or any form of initiative, and which is practical rather than semantic, falls on deaf ears. I am sure that that will not be the case with this amendment as it is both practical and democratically important. I am extraordinarily optimistic that the Minister will acquiesce.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

There is a lot of merit in the ideas put forward by the hon. Member for Newark, particularly in relation to the kind of dire emergencies that have been described. Every effort should be made to seek cross-party agreement on any regulations laid under the Bill. The specific and privileged role of Privy Councillors is important. Having already discussed Orders in Council, we are again grappling with arcane parts of the British constitution. Privy Councillors could have a significant role, and perhaps, more so when events are developing in a dangerous fashion. It is entirely appropriate to consider whether the Government can assure us that they would, at least, seek to involve a wider range of people than themselves, and to take alternative counsel.

Following a slightly heated exchange earlier, we recognise that the authority to take action in such situations duly rests with the elected Government but it would be in their interests to involve others, particularly Privy Councillors, and that would give emergency regulations additional force.

Douglas Alexander (Labour, Paisley South)

In response to the hon. Member for Newark, I respectfully suggest that it is not the origin of the amendment that matters, but its merit. In that regard, I the Government may hope that the Committee will support later amendments—in a matter of minutes, in fact. Unfortunately, this amendment does not fall into that category, and the Government cannot support it. We resist its inclusion for several reasons.

The Government are sympathetic to the principle of wider consultation with representatives of key parties when emergency powers are to be used, but they do not believe that the amendment sets out the best way to go about that. The Committee will be aware of the long-standing convention that the Government should seek in times of serious emergency to build consensus across the political spectrum. The Prime Minister regularly briefs senior figures from all the major political parties on a Privy Council basis—most recently for the Iraq conflict. Those tried and tested procedures allow the Government to obtain the views of senior parliamentary figures in a flexible and efficient way, and that means can be tailored to the needs of the situation at hand. The amendment would not guarantee parliamentary oversight. Any Government seeking to use emergency powers for

anti-democratic reasons could simply cite the urgency caveat and dispense with the requirement in the amendment. The urgency caveat could be removed, but that would make the process inflexible, particularly for situations in which action is urgently needed, or in which it is impossible to consult the relevant Privy Councillors.

Ultimately, it seems most appropriate to rely on the clear requirements for parliamentary scrutiny in clauses 26 and 27, which provide for sensible, timely and well tested scrutiny. I urge the hon. Gentleman to withdraw the amendment.

Patrick Mercer (Conservative, Newark)

I suppose that optimism must always be tinged with the well-tried phrase, ''This it is an amendment that the Government cannot support''. I have no doubt that the Minister is right and that amendments stand or fall on their merits. I am not referring only to this amendment, but to the fact that he knows my strong feelings and those of the hon. Member for Sheffield, Hallam.

The Minister should be aware that my hon. Friend the Member for North-East Hertfordshire and I made it quite clear on Second Reading, that we wished to support the Government—help, aid and abet them—on the broad thrust of the Bill. We are acting in their support. The way in which the Minister and his colleagues have conducted themselves, especially on such an eminently sensible and practical amendment, leaves me a little nonplussed about the support that the Government can hope to receive in future. If they continue to prove themselves completely closed to reason, which is extraordinary frustrating to Opposition Members, they give no hope that if an emergency overcomes this country in the style that we have been discussing, the Government will hope to form the quick, effective consensus that the Minister described.

Despite those words, I recognise the complete futility of trying to beat my head against the Government's intransigence, so I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Oliver Heald (Conservative, North East Hertfordshire)

I beg to move amendment No. 33, in

clause 26, page 17, line 39, at end insert—

'(3A) Paragraph (1) of House of Commons Standing Order No. 16 (Proceedings under an Act or on European Union Documents) shall not apply to proceedings in the House of Commons under this section.'.

The amendment was tabled by my hon. Friend the Member for Aldridge-Brownhills (Mr. Shepherd) and arises out of his observations on Second Reading. He pointed out that measures of the type we are discussing should not be dealt with in the 90 minutes of debate that are traditionally allowed. He said:

''we have good reason to remember just what the affirmative resolution procedure entitles us to—90 minutes of debate on what is listed''.

He went on to make a moving speech in which he said that he felt that liberty was worth more than that, and that it was necessary to have more 90 minutes for such a debate. He referred to some remarks of my right hon. and learned Friend the Member for Sleaford and North Hykeham (Mr. Hogg) and said:

''If I were a pretty nifty Government, I would get my amendment in first and Mr. Speaker would select it. In any event, how can amended regulations be subject to proper debate on the nature of the amendments if we have only 90 minutes?—[Official Report, 19 January 2004; Vol. 416, c. 1147.]

My hon. Friend then made some comments, which were generally thought quite amusing, about Whips presenting the regulations. He said that it beggars belief that they can introduce emergency regulations, but that we have only 90 minutes in which to discuss them. Amendment No. 33 is all about not applying Standing Order 16 to such proceedings.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

I agree with the hon. Member for North-East Hertfordshire (Mr. Heald) that it is important for us to consider this matter, which was sensibly and correctly raised by the hon. Member for Aldridge-Brownhills. We could be dealing with legislation as significant as such pieces of primary legislation as the Anti-terrorism, Crime and Security Act 2001, which had to be put in place on an emergency basis.

To be fair, the Government have conceded the point about amendment of the regulations, which I understand was included in the 1920 Act. They have carried forward to this Bill the principle of amendment of regulations, although it is not normal in other legislation, which does not permit amendment of secondary legislation. That raises the issue of the procedures under which such amendments will be debated. I suspect that the answer is that the will of Parliament will prevail. If Parliament wishes to debate the regulations at greater length or to set different procedures for selecting amendments, it has the power to do so. However, the reality is that unless we give a more explicit steer about our expectations at this stage, we will effectively be presented with the normal procedure of an hour and a half and an opaque system for selection of amendments; it is certainly opaque from the point of view of people who try to steer the process and want certain issues debated rather than others.

Let us consider our ability to debate primary legislation and the way in which we can freely table amendments and have them selected. Let us debate such issues, and consider what might be a restricted debate on a subject of, dare I say it, great significance to the ordinary person because of the kinds of powers that will be taken. The Minister has a responsibility to explain the Government's expectation of how we will deal with the regulations once they come to Parliament.

Douglas Alexander (Labour, Paisley South)

The Government accept that 90 minutes is unlikely to be sufficient to debate regulations as important as these will be. It is likely that there would be a call for a major debate on the crisis in a time of emergency, and the Government would respond by providing appropriate time. That said, the Government do not support and will resist the amendment. We are not convinced that it is appropriate to amend Standing Orders. We would have to be sure that it was necessary and appropriate to complicate them with varying procedures for different kinds of regulations.

The Government frequently table Business of the House motions to provide more time than the

Standing Orders stipulate. I assure the Committee that the Government will be ready to discuss the appropriate length of debate through the usual channels when and if needs arise. The key point is that Standing Orders are ultimately a matter for the House authorities, and they can be duly amended if the Government feel it necessary.

Oliver Heald (Conservative, North East Hertfordshire)

The Minister does not give much away, does he? My hon. Friend the Member for Aldridge-Brownhills feels particularly strongly about the amendment, and we will want to return to the matter on Report. To echo the comments of my hon. Friend the Member for Newark, it is disappointing that we have not had a sausage from the Minister, despite the Opposition's consensual approach. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 26 ordered to stand part of the Bill.

Clause 27 - Parliamentary scrutiny: prorogation and adjournment

Richard Allan (Liberal Democrat, Sheffield, Hallam)

I am curious whether clause 27 will not be out of date before it comes into force. When I looked at the red Annunciator screen earlier, it told me that the Lords Chairman was on the Woolsack, yet subsection (4) refers to the Lord Chancellor. I assume that that refers to the person who is the Speaker of the House of Lords. Can clause 27 stand?

Patrick Mercer (Conservative, Newark)

I have a brief question. Clause 27(2) states:

''If when emergency regulations are made under section 19 the House of Commons stands adjourned to a day after the end of the period of five days''.

If there is an emergency, would not it be wiser to have a period of less than five days, as we will need to move extraordinarily quickly? Might not 48 hours be more suitable?

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

Further to the point made by the hon. Member for Newark, it strikes me that a substantial part of what will be section 27 should also be incorporated in the Standing Orders of the House in the interests of completeness and clarity. That is where the proposal properly belongs; however, it should at least be cross-referenced.

Douglas Alexander (Labour, Paisley South)

I feel drawn to try to answer the charge laid at my door by the hon. Members for Newark and for Orkney and Shetland before I respond to the point made by the hon. Member for Sheffield, Hallam. Hon. Members could raise many concerns, but it is not reasonable to say that we failed to consult on this measure. We published a draft Bill in July; there was then a period of public consultation that lasted 10 weeks, until 11 September. After that, we moved on to pre-legislative scrutiny by the Joint Committee. With colleagues from Scotland, we are well versed in pre-legislative scrutiny, but it is not a process that has a long track record at Westminster. Those of us who were involved in it are, however, minded to view it as an exemplar of how effective it

can be. If it leaves the Minister with fewer sausages for the Committee stage, given the degree to which one has been able to anticipate its appetite, so be it.

The idea that there was once merit in introducing vast numbers of amendments in Committee or in the other place, as distinct from getting the Bill right in the first place as a result of effective pre-legislative scrutiny or drafting, may simply reflect the need for us all to update our thinking on when is the appropriate stage for amendments, concessions or points of clarity.

Notwithstanding all that, we continue to be open to points made in Committee. As evidence of that, I will respond to the hon. Member for Sheffield, Hallam, who raised a reasonable point, not least given the appearance of one of my distinguished ministerial colleagues on ''Newsnight'' last night to discuss the role of the supreme court and the Lord Chancellor. If those reforms find full expression, it will be necessary for us to revisit the position in respect of the Lord Chancellor. The reference to the Lord Chancellor as Speaker of the House of Lords may need to be changed following future constitutional developments. The hon. Gentleman makes a fair point, which I accept.

The hon. Member for Newark mentioned the time scale. Five days reflects the time scale set in the 1920 Act, which was the precedent for the Government's proposal. In the spirit of open discussion and candour that we have established, at least on this clause, I will be happy to consider the hon. Gentleman's point.

Question put and agreed to.

Clause 27 ordered to stand part of the Bill.

Clause 28 - Consultation with devolved administrations

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

I am not searching for sausages; frankly they are as difficult to find here as weapons of mass destruction.

The Minister said that he would write to me on the specific matter of urgency vis-à-vis consultation with the National Assembly for Wales. It is an important subject for the Assembly and I should be obliged to receive a response in due course.

Douglas Alexander (Labour, Paisley South)

I am happy to repeat my undertaking. I shall endeavour to ensure that the letter is sent quickly.

Question put and agreed to.

Clause 28 ordered to stand part of the Bill.

Clause 29 - Procedure

Douglas Alexander (Labour, Paisley South)

I beg to move amendment No. 114, in

clause 29, page 18, line 36, at end insert—

'(2) Emergency regulations shall be treated for the purposes of the Human Rights Act 1998 (c.42) as subordinate legislation and not primary legislation (whether or not they amend primary legislation).'.

The Government considered whether emergency regulations required procedural protection from challenges on human rights grounds. To prompt discussion on the matter, the draft Bill published in June included a clause that provided that emergency regulations were to be treated as primary legislation for the purposes of the Human Rights Act. The effect would have been to limit the remedies that a court could award on a successful challenge to emergency regulations on human rights grounds, informed by the consultation process that I described at length. On the report of the Joint Committee and its further analysis, the Government decided that that was not necessary, and the relevant clause was not included in the Bill when it was published. However, it has become apparent that the Human Rights Act 1998 will treat regulations as primary legislation in certain circumstances, particularly if the regulations amend primary legislation. That does not reflect the Government's intention. The amendment will ensure that emergency regulations are treated as subordinate legislation for the purposes of the Human Rights Act, even if they amend primary legislation. Therefore, the emergency regulations can be struck down by the courts on human rights grounds when appropriate.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

The Government deserve to be congratulated on this point, which was raised effectively by Liberty and Justice during consultation before the Joint Committee. The Government conceded that they wished to make changes, and they have done so in two steps. The first was to remove the provision that referred to treating the regulations as primary legislation, and the second was the explicit reference—clearly and neatly worded—to the fact that the regulations are not to be treated as primary legislation.

I am fascinated by the fact that the Minister said that the Government's rationale for including the provision that the regulations be treated as primary legislation in the draft Bill was ''to prompt discussion''. That is a delicate and nicely phrased way of putting it. It prompted not only discussion, but horrified responses. If that was the aim, the Minister succeeded. He delicately phrased the inclusion of a provision that rightly concerned many people. I congratulate the Government on responding positively to that concern and making this explicit revision to the Bill.

Oliver Heald (Conservative, North East Hertfordshire)

Concerns were raised by a variety of bodies, such as those involved with the fire services, about the Government's approach. If an injunction is sought from the courts, will those seeking the injunction have to give an undertaking in damages?

Douglas Alexander (Labour, Paisley South)

Let me first deal with the point made by the hon. Member for Sheffield, Hallam. I assure the House that we are not seeking to appear wise after the event about the inclusion of the provision in the draft Bill. It might be helpful if I share the specific point that we raised in the

Government response to the Joint Committee. We stated:

''The consultation paper outlined the Government's reasons for including this provision in the draft Bill. The Government considers that in an emergency, it is necessary to balance individual rights against the need to respond to an emergency. The Government was keen to hear what the Committee and consultees had to say on how best to strike this balance. The provision included in the draft Bill providing for emergency regulations to be treated as primary legislation for the purposes of the Human Rights Act was one way to strike the balance. However, the Government made clear in its consultation paper that the case for its inclusion in the final bill was by no means certain.''

We anticipated that the issue would stimulate public debate, and we were keen to ensure that we considered the widest range of views when deciding whether the draft clause struck the right balance. That is a further example of the Government being willing to listen to reasoned argument if we find that it supports our substantive policy goals. I am aware that human rights groups such as Liberty and Justice have continued to raise concerns. Through what the hon. Member for Sheffield, Hallam described as the two-step process, we have been able to use the back door on the concerns raised.

The further point raised by the hon. Member for North-East Hertfordshire was about remedies. It is important to clarify the balance that the Government intend to strike. It became apparent that we had to ensure that appropriate safeguards were in place. The treatment of emergency regulations as subordinate legislation for the purposes of the Human Rights Act, even if they amend primary legislation, is important and is reflected in the amendment. The amendment will ensure that emergency regulations can be struck down by the courts in certain circumstances. The remedies that are then available to courts are a matter for the courts themselves. The hon. Gentleman's point addressed the remedies rather than the legitimacy of the action.

Amendment agreed to.

Clause 29, as amended, ordered to stand part of the Bill.

Clause 30 ordered to stand part of the Bill.

Clause 31 - Minor and consequential amendments and repeals

Patrick Mercer (Conservative, Newark)

This is only a small query. It strikes me that one or two of these minor and consequential amendments and repeals would sit more easily if the Government could clarify the exact nature of the amendment or repeal, most notably in relation to the Race Relations Act 1976. I fail at first glance to understand where the 1976 Act sits in relation to the Bill. I would be grateful for any clarification.

Douglas Alexander (Labour, Paisley South)

On the basis of the shuffling of paper that I hear over my left shoulder, I undertake to write to the hon. Gentleman on that point.

Patrick Mercer (Conservative, Newark)

I am grateful.

Clause 31 ordered to stand part of the Bill.

Schedule 2 agreed to.

Schedule 3 - Repeals and Revocations

Douglas Alexander (Labour, Paisley South)

I beg to move amendment No. 65, in

schedule 3, page 27, second column, leave out lines 34 to 37 and insert—

'The whole Act.'.

This is a technical amendment relating to the repeal of the legislation on civil defence—the Civil Defence (Armed Forces) Act 1954—that makes provision for the training in civil defence of members of the armed forces. In the light of the repeal of the Civil Defence Act 1948, the 1954 Act is unnecessary. Initially the Government decided to preserve section 2 of the 1954 Act, which declares, for avoidance of doubt, that the duties that the armed forces may be called on to undertake include civil defence and civil defence training. However, after further discussion with our colleagues in the Ministry of Defence, it is clear that existing terms of service leave no doubt about whether members of the armed forces can be called on for those purposes. It is therefore not necessary to preserve that provision, and the Act can be repealed in its entirety.

Amendment agreed to.

Schedule 3, as amended, agreed to.

Clauses 32 and 33 ordered to stand part of the Bill.

Clause 34 - Extent

Alistair Carmichael (Liberal Democrat, Orkney and Shetland)

What is the situation with regard to a Sewel motion in the Scottish Parliament, in as much as the Bill relates to Scotland?

Douglas Alexander (Labour, Paisley South)

Rather unhappily, my initial briefing says that the Bill extends to the entirety of the UK. However, I believe that the Sewel motion is still pending, so there has been no further progress since the last time we discussed the point.

Question put and agreed to.

Clause 34 ordered to stand part of the Bill.

Clause 35 ordered to stand part of the Bill.

New clause 1 - Performance of functions and jurisdiction of the courts

Oliver Heald (Conservative, North East Hertfordshire)

I beg to move, That the clause be read a Second time.

The new clause was tabled by my hon. Friend the Member for Stone and was designed as a check on the

Executive. I should be interested to hear the Minister's response to the new clause, after which I will see if I have any further questions.

Douglas Alexander (Labour, Paisley South)

That prompts the question of what is the point of MPs standing in elections when they can act like the Government anyway? I shall endeavour to answer the hon. Gentleman's rather elliptical introduction to the new clause.

The Government agree with the sentiments underlying the amendment, but perhaps unsurprisingly in the context of our discussions this afternoon, we are unable to accept it. We have discussed at length the checks and balances that limit the exercise of powers conferred by part 2, and particularly how the triple lock and the Human Rights Act 1998 will operate to restrict the exercise of emergency powers. It is not clear what the additional restrictions suggested by the new clause, which says that the powers must be exercised only when that is

''essential in the national interest''

would add to the safeguards. I will be intrigued to hear the hon. Gentleman's contribution.

Concerns have been raised about the ability of the courts to review the exercise of emergency powers. Access to the courts is a fundamental principle of the United Kingdom's constitution. Even in an emergency, a person should be able to challenge the legality of an action that adversely affects them. However, there is nothing in the Bill to limit that. The fact that the Bill does not expressly require the powers conferred by the Bill to be exercised reasonably, as I sought to describe earlier, is not an attempt to oust the courts' jurisdictions. Modern case law makes it categorically clear that the courts will require any power of that nature to be exercised reasonably, regardless of the terms on which the power is conferred.

If the Government thought that there could be any doubt about the ability of the courts to review any unreasonable action undertaken under the Bill, they would expressly require the powers to be used in a reasonable fashion, but there is no doubt on that point.

Oliver Heald (Conservative, North East Hertfordshire)

I am grateful for that. This is the point that my hon. Friend the Member for Stone was particularly keen to get at; what does the Minister's state of mind have to be to trigger the performance of the functions referred to? The point that my hon. Friend was making about Liversidge v. Anderson was that, even in Lord Atkin's judgment—the Minister accepts that that is the correct way of looking at the matter—the Minister has to have reasonable cause for his thinking; he does not have to genuinely believe on reasonable grounds. That is the essence of my hon. Friend's point. I would be grateful for a bit more detail on what, in the Minister's view, is the reasonable state of belief required from a Minister in carrying out the functions. He has talked about the concept of reasonableness, but we should tie that down in a bit

more detail. I ask the Minister to say a bit more about whether the belief has to be a genuine belief on reasonable grounds in order to enable the Minister, or Her Majesty, to carry out the functions referred to in line 3.

As regards the national interest, the Minister and his colleague will know that I have been teasing out the following point in recent discussions: under the 1920 Act, there was the idea of the essentials of life; the Act was about providing to the community the essentials of life in circumstances in which they had been deprived of them. In the Bill, the definitions are much broader and the powers much wider. We are told about the trigger mechanisms and the ways in which the Bill provides protection but, overall, is the purpose of the Bill still the same as that of the 1920 Act—that is, to ensure that an emergency can be dealt with by ensuring that the essentials of life are made available to those deprived of them? If not, and the purpose is now wider, will the Minister explain why? I am sure that that was what my hon. Friend was getting at in using the expression

''that the exercise of those functions are essential in the national interest''

in his new clause.

We want the Bill to be used only in circumstances that are grave and affect the national interest, and in which the community has been deprived of the essentials of life. In other words, we want to know whether the essential aims of the Bill are no different from those of the 1920 Act, and whether the Bill is a modernisation, or an updating; we want to know whether it is looking at the same issues, but in a modern context.

Douglas Alexander (Labour, Paisley South)

Let me endeavour to answer both those points. Last night, while checking that the reply to a query put to me by the shadow Attorney-General was accurate, I found myself a reading public law case book. One of that book's comments was that we should no longer be haunted by the decision made in Liversidge v. Anderson, although I fear that it continues to haunt some of our deliberations and discussions. On the point about reasonableness, I repeat what I said earlier: we have considered the implications of Liversidge v. Anderson and of subsequent case law. We are satisfied that it is now accepted that the dissenting judgment of Lord Atkin is good law, and that the courts will inquire about the reasonableness of the Minister's belief.

In relation to the specifics of this Bill, there was a question about what reasonableness of belief would mean in the context of particular ministerial deliberations. Clearly, there would be a genuine, objectively reasonable belief; that would be a matter for the deliberation of the courts in circumstances following the judgment exercised by the Minister.

I am not convinced that the hon. Gentleman's case for the need for an element of national interest adds much to the definition of emergency that we have set out, which clearly modernises the essentials of life and the terms on which the whole Bill is founded. The commodities of life were described in the 1920 Act in terms of issues such as locomotion. It is appropriate to

modernise the framework of civil protection, but also to ensure that there is a rigorous and clear definition of emergency. Much of the Committee's recent discussions has covered exactly that point.

Oliver Heald (Conservative, North East Hertfordshire)

I have no doubt that we will wish to return to this subject on Report. I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New clause 2 - Confidentiality

Patrick Mercer (Conservative, Newark)

I beg to move, That the clause be read a Second time.

New clause 2 is essentially a confidentiality clause. It is based not on the idea of a reasonable and rational Government enforcing such powers, but a Government who are malevolent, misguided, or, more predictably, thoroughly shocked by the events that surround them, in a way comparable to the effects of the strictures and difficulties under which Mr. Bush's Government operated after 11 September. In those circumstances, I think that that Government reacted extremely rationally, but it is possible that a Government might not react so rationally.

The new clause is designed to act as a whistleblower's comfort blanket. As things stand, the Government will be able, on Royal Assent, to demand information for any purpose they desire and pass it on or force it to be passed on to whatever level of responder they desire. That information could be dangerous; it might lead to conflicts of interest and to difficult circumstances where the passage of intelligence is concerned. It is important that the new clause should be viewed as intending to alter the behaviour of a malevolent Government, or a Government in deep shock. Although the new clause does not guarantee personal anonymity for the source of the information, at least the information will have to be kept secret. That might allow whistleblowers, for want of a better phrase—those who have difficulties with the way the Government are conducting themselves in these circumstances—physically to come forward with that information. I would be grateful if the Minister would illuminate me on that point.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

The new clause picks up on some issues that we raised at the start of this Committee—it feels like many weeks ago, but it was not that long—concerning part 1 powers. The hon. Member for Newark is right about the ability for responders to demand information from people and then pass it around between themselves. What might happen with that data remains a matter of concern. We are probably primarily concerned with problems arising with commercially sensitive data, rather than intelligence-sensitive data. The point where there is

greatest danger of leakage, and of upset on the part of a company because its commercial information is in the public domain, is probably when the information about the telephone networks and other utility networks has been demanded and is in circulation. However, personal data about individuals could also be included. If we think about the public health issues that might arise here, such as those raised by communicable diseases, we could be dealing with personal data, and a category 1 responder requesting personal data from another category 1 responder. If they are both health bodies, that data will be incredibly sensitive.

My guess is that the ministerial response will say that this is covered by the Data Protection Act 1998—that tends to be the response to any question concerning the leakage of data—but that is large and all-encompassing and is rarely used. The notion of there being straightforward legal redress—the penalties imposed for the leaking of certain kinds of information—is perhaps not as current as it should be, or as Parliament intended. It remains quite a weak instrument, and the idea that there should be specific reference to sanctions, as proposed in the new clause, in the context of a Bill that gives category 1 responders a power to demand this kind of information is quite healthy. Where, for the public good we are stating that data must be handed over, it is appropriate to say that those people who demand the data have, in Government jargon, responsibilities as well as rights, and their responsibility is a responsibility of confidentiality, backed by sanctions if they step from the path set out for them.

Patrick Mercer (Conservative, Newark)

The path of righteousness.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

Indeed. It is entirely appropriate that if we have the ability to demand information, there should be an explicit corresponding responsibility to protect it. I did not feel that that was explicit enough when we discussed the matter in part 1. The Data Protection Act powers are there—speaking of long Committees, the Committee on that Bill was 10 times as long as this one, mentally, if not in actual time taken—but they are not in the common usage required for there to be immediate recourse for people if their data have been leaked.

Douglas Alexander (Labour, Paisley South)

I feel that I will disappoint the hon. Member for Newark once again by resisting the new clause. Throughout the Committee stage he has consistently implored us to take a practical approach. Indeed, it may be a matter of some quiet pride to him that one morning I was doing something as innocuous as shaving when he appeared on the ''Today'' programme making exactly these points and causing the Minister to have a rather more troubled breakfast than he had anticipated.

I will try to answer specific points about information sharing, which is important with regard to the Bill's intentions and the safeguards that form the substance of what the hon. Member for Sheffield, Hallam said. Information sharing is fundamental to the development of sound risk assessments and well founded planning and response arrangements. How could a fire authority assess risk and make response plans without a thorough knowledge of how a local

electricity generator works? That is a very straightforward example. We recognise, however, that while information sharing is vital, it is highly sensitive. The hon. Gentleman was right, therefore, to emphasise that the confidentiality of information disclosed as part of the civil protection arrangements should be protected. He is also right to seek assurances that where confidentiality is breached, enforcement action will be available.

While I am unable to accept the amendment, I hope that my explanation will at least throw light on the points he has raised. Information sharing, whether under clause 2(5) or clause (6), will not materially affect the law of confidence. If one responder passes confidential material to another, pursuant to the regulations, he will be able to rely on common law remedies to enforce that confidentiality. In addition, the draft regulations contain provisions that preserve the confidentiality of sensitive information shared between responders. Furthermore, a responder—or a Minister of the Crown—may bring action in the High Court in respect of a failure by a responder to comply with the regulations. As draft regulation 29 makes clear, provisions concerning the protection of sensitive information not only cover commercially sensitive information but information the disclosure of which would be contrary to the interests of national security or would endanger public safety, and personal data the disclosure of which would breach the Data Protection Act 1998. That was raised by the hon. Member for Sheffield, Hallam.

In addition to the remedies offered by the Data Protection Act, the enforcement mechanism under clauses 10 and 11 would also apply. On that basis, I hope that I have offered the assurance that the hon. Gentleman seeks and I urge him to withdraw the amendment.

Patrick Mercer (Conservative, Newark)

I am sorry if I spoiled the hon. Gentleman's breakfast; I have no doubt that he consumed all the sausages that he might otherwise have thrown to us. The analogy cannot go on; I have obviously had my chips. The Minister has made it clear that he is not going to give any ground, despite the eloquent intervention of the hon. Member for Sheffield, Hallam.

I have no doubt that we shall wish to return to this subject on Report, but in light of what the Minister said, I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.

New clause 3 - Compensation

Richard Allan (Liberal Democrat, Sheffield, Hallam)

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.

Patrick Mercer (Conservative, Newark)

Anything.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

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.

Oliver Heald (Conservative, North East Hertfordshire)

On recent form I would expect the Minister to reply by saying that yes, of course, he will certainly be thinking of paying compensation in almost all circumstances, unless there are compelling reasons for not doing so. That is what the new clause says, but I do not expect him to accept it.

Douglas Alexander (Labour, Paisley South)

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.

Michael Trend (Conservative, Windsor)

The Minister said ''often''. Can he give the Committee an idea of the circumstance, real or imaginary, in which compensation would not be paid?

Douglas Alexander (Labour, Paisley South)

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.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

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?

Douglas Alexander (Labour, Paisley South)

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.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

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.

Douglas Alexander (Labour, Paisley South)

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.

Oliver Heald (Conservative, North East Hertfordshire)

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.

Richard Allan (Liberal Democrat, Sheffield, Hallam)

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.

Elfyn Llwyd (Plaid Cymru, Meirionnydd Nant Conwy)

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?

Joe Benton (Labour, Bootle)

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.