Lords Sitting of 9 November 2004

Preamble
The House met at half-past two of the clock: The LORD CHANCELLOR on the Woolsack.
Prayers—Read by the Lord Bishop of Chelmsford.

Somalia
Lord Avebury Lord Avebury asked Her Majesty's Government:
What steps they are taking to further the peace process in Somalia.
The Minister of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, my colleague, Foreign and Commonwealth Office Minister for Africa, Chris Mullin, met the Somali transitional president in Nairobi on 20 October and the head of the Somaliland authorities in Hargeisa on 23 October. He encouraged both parties to engage in an early dialogue with each other to reject military solutions to the resolution of differences and to demonstrate a commitment to mutual respect, reconciliation and peace.
Lord Avebury: My Lords, I warmly welcome the efforts that Mr Mullin has made in the region in his visits to Somalia and Somaliland, and in his press conference with Prime Minister Meles Zenawi and President Abdullahi Yusuf in Addis Ababa, but are not new efforts required in the light of the aggression by Puntland, the former territory of the president, against neighbouring Somaliland and the occupation of part of that territory by the militias? What steps will either we or the international community take through the United Nations Security Council to put an end to this aggression?
Baroness Symons of Vernham Dean: My Lords, I thank the noble Lord for his kind words about Chris Mullin, which are well deserved. On 29 October we received reports about the outbreaks of fighting on the border between Somaliland and Puntland, to which the noble Lord, Lord Avebury, referred. Staff at our embassy in Addis Ababa are urgently trying to clarify what the situation on the ground really is. We urge both sides to show restraint and to cease hostilities. As for the international community, I understand that the United Nations believes that it is important to stay engaged on this issue and to support the transitional federal government, and it is seeking to do so through appropriate channels.
Baroness Rawlings: My Lords, does the Minister not agree that Somalia's mothers, because of all the troubles, are suffering an alarming healthcare crisis? According to the World Health Organisation, obstructed labour in childbirth, with its side-effects, accounts for a third of all maternal deaths. Even UNICEF estimates that as many
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as 97 per cent of the women are affected. Can the Minister say what steps Her Majesty's Government are taking to address this issue?
Baroness Symons of Vernham Dean: My Lords, the noble Baroness is quite right. Instability combined with the difficulties of the climate mean that Somalia suffers from some of the worst socio-economic indicators anywhere in the world. The malnutrition rates for children are running at around 15 per cent and the child mortality rate is one in four, which is extraordinarily high. The Department for International Development is in the final stages of drawing together a country engagement plan which identifies a number of areas on which to focus, including health and education, issues around HIV/AIDS and the all-important issues around conflict prevention, which often are the root cause of some of these difficulties.
Baroness Falkner of Margravine: My Lords, in light of the Minister for Africa's commitment of 22 October to help to disarm Somali militia, have Her Majesty's Government asked the United Nations for an investigation into reports that Abdullahi Yusuf has imported weapons from the Yemen, contrary to the UN embargo?
Baroness Symons of Vernham Dean: My Lords, I do not believe that a direct approach of that nature has been made, but, as I am sure the noble Baroness will understand, the fact that Somalia has been without an effective, functioning government since the fall of Siad Barre in 1991 means that many parts of the country have been largely anarchic and that there are frequent outbreaks of violence. It is very difficult to tell what is going on the ground; indeed, we do not have a mission there because there has not been a recognised government for so long. Issues surrounding terrorism and the way in which the country may attract the passage of illicit weaponry are very much at the top of the agenda of my honourable friend Mr Mullin.
Lord Alton of Liverpool: My Lords, in pursuing the question asked by the noble Baroness, Lady Falkner, does the Minister agree that conflict, the violence and the communal fratricide taking place in Somalia, Sudan, the Congo and throughout that part of Africa have already been responsible for the deaths of millions of people and for the destabilisation of the region? Does she further agree that unless we can stop the flow of arms and weapons into that part of the world, development will be almost impossible and that poverty, AIDS relief and all other related questions will be extraordinarily difficult to tackle while conflict remains unresolved?
Baroness Symons of Vernham Dean: My Lords, I strongly agree with that; indeed, I spoke yesterday at a conference dealing with the way in which we might restrict the flow of weapons around the world, including the small arms that cause so much damage. Sometimes we tend to concentrate on the big weaponry, but it is often the small weapons that do so much damage.

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Somalia is a particular case, simply because it has had no functioning government for so long. Given that there has been a change with the transitional government, there may be a way forward. There does at least seem to be a willingness to engage and a possibility of real dialogue in future, both between the factions within Somalia and with Somaliland. The noble Lord is quite right—conflict prevention runs at the root of these issues.
Lord Avebury: My Lords, given that the peace process in Nairobi was not complete, will the Minister consider asking the African Union whether it might invite the faction leaders to a meeting in Addis Ababa or elsewhere at which they might agree on a new measure to halt all fighting so that President Yusuf could return to his own country?
Baroness Symons of Vernham Dean: My Lords, I did not catch the first part of the noble Lord's question, but I think that he was saying that the peace process was not working. I take issue with that, if that was the purport of his question. We believe that the current transitional federal government may offer one of the best chances for some time for moving forward on the peace agenda. My honourable friend Mr Mullin, when he was in the region, felt that in Somaliland real progress was being made and he also felt that the willingness to engage among the leaders of Somalia that he met gave some hope that these issues would move forward.

Passive Smoking
2.42 p.m.
Baroness O'Cathain Baroness O'Cathain asked Her Majesty's Government:
Why they have not published the report of the Scientific Committee on Tobacco and Health on the dangers of second-hand smoke.
The Parliamentary Under-Secretary of State, Department of Health (Lord Warner): My Lords, health Ministers have been clarifying aspects of the committee's report. The report reviews previously published scientific literature on the health effects of second-hand smoke. It updates the committee's 1998 report on this subject. It will be published alongside the White Paper on public health.
Baroness O'Cathain: My Lords, I thank the noble Lord for that Answer, which he will not be surprised to learn I do not think is very satisfactory. Could he at least confirm that the report contains the most devastating indictment yet of the danger of second-hand smoke? Is it true that the report states that as a result of second-hand smoke there is an increased risk of 25 per cent for lung cancer and 24 per cent for heart disease; and that it recommends that no infant, child or adult should be exposed to second-hand smoke as it is a substantial public health hazard?
Lord Warner: My Lords, I am afraid that the noble Baroness will have to wait until the report is published.
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I have always found that deferred gratification makes the enjoyment of reading documents even richer. Over the past year the Government have taken a number of steps to raise awareness of the health risks associated with second-hand smoke. We funded the UK's first ever substantial campaign to raise public awareness of the health risks from second-hand smoke. Many noble Lords may have seen those advertisements on the television.
Lord Clement-Jones: My Lords, is it not clear that, in the light of the report, a key priority must now be to protect the health of staff in pubs and clubs through a ban on smoking in public places? In Ireland, where similar steps have been taken, some 90 per cent compliance is being achieved. Is that not the model that the Government should be following?
Lord Warner: My Lords, the Government do take the issue of second-hand smoke very seriously, as I have indicated. The noble Lord will, however, have to wait until the White Paper is published when he will see what the Government's policy is on that particular issue. I should say to the House, "You will not have very much longer to wait". Of course the Government have been following what has been going on in Ireland, but it is a question of one size not fitting all; in this area we have to do what is right for England.
Lord Faulkner of Worcester: My Lords, given the fact that the Government now apparently accept the argument that passive smoking is dangerous for people who have the misfortune to inhale it and given the Irish experience, which is based on the need to protect employees from the dangers of second-hand smoke, will my noble friend explain the possible justification for protecting employees who work in restaurants but not those who work in pubs and clubs, which apparently is what is going to be in the White Paper when we see it next week?
Lord Warner: My Lords, my noble friend is better informed than the Minister answering the Question on that particular issue. I should be happy to discuss with him the source of his information, but like everybody else in the House he will have to wait patiently for the Government's White Paper—but not too much longer.
Lord Chan: My Lords, is the Minister aware of the study done last year on Merseyside called Passive Smoking and Children? It demonstrated that parents, including those who are smokers, are particularly concerned about their children's health because so many of them have asthma and require emergency health at the Alder Hey Children's Hospital. It stated that 65 per cent of parents smoked; only 35 per cent did not smoke in the presence of their children and 40 per cent smoked at home. In view of that, is it not a good time for the Government to make clear the dangers of passive smoking and to take action to improve the health of our population?
Lord Warner: My Lords, as I said earlier, we are actively engaged in raising public awareness of this

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problem. The TV campaign that is currently being used should make all parents aware of the dangers to their children of second-hand smoke. I am aware of the study that the noble Lord mentions. It is good to see that people accept their responsibilities in relation to their children.
Baroness Hayman: My Lords, despite the Government's attempts to bring the matter to people's attention, is my noble friend aware that there are still 2 million workers in this country who have no protection whatever against second-hand smoke? Since he seemed to indicate that the White Paper content has not been completely settled yet, will he do his best to ensure that those 2 million people will in future he protected?
Lord Warner: My Lords, we are aware of all these figures and of the concerns. I would draw my noble friend's attention to the fact that we now have a situation where in total 88 per cent of people's workplaces either restrict smoking to specific areas or are completely smoke-free.
Lord Monson: My Lords, can the Minister say how many death certificates issued in the past 10 years have recorded passive smoking as the cause of death?
Lord Warner: My Lords, I am not aware of those particular figures. I do know that the Chief Medical Officer is actually reviewing the arrangements in relation to death certificates.
Lord Roberts of Conwy: My Lords, I confess to being an occasional smoker. I am somewhere between Mark Twain and St Augustine on this particular issue. First, will the noble Lord tell us whether the publication of the White Paper actually means a commitment on the Government's part to a ban on smoking in public places? Secondly, will he reassure me that, with all this talk of passive smoking, the Government are doing their utmost to help poor people like me who still cannot give it up?
Lord Warner: My Lords, the sinner who repents is much valued by this Government. I draw the noble Lord's attention to the availability of quitters' clinics in the NHS. We should be delighted to see him. I shall make any arrangements that he thinks may be helpful in that regard.
On the other issue, the noble Lord will, like everybody else, have to wait patiently for the Government's White Paper.
Baroness Howarth of Breckland: My Lords, would it not be helpful to the noble Lord, Lord Roberts, if the House of Lords set a good example?
Lord Warner: Well, my Lords, I am sure that that is right, but that is not a matter for me; it is a matter for the House authorities.
Viscount Simon: My Lords, the noble Lord, Lord Chan, mentioned children who need emergency
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treatment as a result of inhaling tobacco smoke. For the past 10 years, I have been one of those children who needs emergency treatment from time to time. Can my noble friend advise the House how much smoking-related diseases cost the health service and, if he can, what is the benefit the Exchequer receives from tobacco products?
Lord Warner: My Lords, I do not have those figures in my head now, but I shall write to my noble friend with them. We know that deaths from smoking are a serious feature of care and costs in the NHS.
Lord Glentoran: My Lords, can the noble Lord tell the House which costs the National Health Service more: obesity or passive smoking?
Lord Warner: My Lords, I am not sure that I heard the question: I shall find it out later from the noble Lord and reply to it.
Lord Grocott: My Lords, we are into the 16th minute.

Extradition to US
2.51 p.m.
Lord Goodhart Lord Goodhart asked Her Majesty's Government:
Whether, since the United States has not ratified the Extradition Treaty signed by the United Kingdom and the United States on 31 March 2003, they will revoke the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 and replace it with a new order which does not apply to the United States.
The Minister of State, Home Office (Baroness Scotland of Asthal): My Lords, the United Kingdom will not revoke the Extradition Act 2003 (Designation of Part 2 Territories) Order 2003 and replace it with a new order which does not apply to the United Slates. To do so would mean that extradition would no longer be possible between our two countries.
Lord Goodhart: My Lords, the treaty was unbalanced to begin with, and the imbalance has become worse because of the failure of the United States to ratify the treaty, which means that we now receive no benefit at all from it. Should not the Government at the very least say to the USA that it will not get the benefit of extradition on demand, which is what in effect it is, unless and until the Senate ratifies the treaty? When the order was debated on 16 December last year, we were told that the treaty would be ratified by the Senate early in 2004. Is it in fact the case that there is opposition to the treaty in the Senate and that it may never be ratified?
Baroness Scotland of Asthal: My Lords, I have no information to indicate that the latter statement is correct. It is right to say that the new treaty has not been published in the United States, and it must be. Until it has been formally sent to the Senate for advice and consent, it cannot be processed. It is also true that

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we must await the outcome of that Senate decision. As the noble Lord will know, constitutionally, the US Senate can decide that it will consent to the treaty only if the text is modified. I cannot tell your Lordships how quickly that will be done, but we have had no indication of any lack of will on the part of the United States Government.
Lord Archer of Sandwell: My Lords, can my noble friend confirm that the purpose of the treaty and of the Act was to facilitate the extradition of those suspected of terrorism? I invite her to speculate on a hypothetical situation: had it been envisaged when the Bill was before Parliament that it would be used against British citizens resident in the United Kingdom accused of committing an offence in London against a British bank, does she think that Parliament would ever have enacted it?
Baroness Scotland of Asthal: My Lords, as my noble and learned friend will know, that is a hypothetical question that I shall certainly resist answering. Terrorism was not the full picture of how we addressed the issue. The whole point of passing the Act was to ensure that we had a modern, effective, efficient procedure that could be adopted and which would be advantageous not only to the US but, more particularly, to us, because we want those who have behaved badly in our country and fled to other countries returned, and returned speedily.
Lord Lloyd of Berwick: My Lords, does the Minister agree—I think she does—that reciprocity is the only basis on which extradition can be justified; that reciprocity means reciprocity here and now, not reciprocity at some time in future; and that any other view could lead to a sense of great injustice among those affected?
Baroness Scotland of Asthal: My Lords, the noble and learned Lord will know that it is almost impossible to get absolutely identical reciprocity. If he means reciprocity in the round, I respectfully agree with him. We must remember that we have had a long and fruitful beneficial relationship with the United States and that, over time, we have had agreements that have worked and worked well. Obviously, we desire that the new arrangement be ratified as speedily as possible, but the rules that are in place are still sound and inure to our advantage.
Lord Lamont of Lerwick: My Lords, why are the Government so supine towards the United States, which extradites people from third countries to offshore centres and denies them access to the United States courts, while simultaneously trying to advance US jurisdiction into this country, even on tax matters?
With great respect to the Minister, I must say that, surely, the question raised by the noble and learned Lord, Lord Archer, is not hypothetical. There is a case before the UK courts now, that of Bermingham, Mulgrew and Darby. I am not asking the Minister to
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comment on that case, but surely it is wrong in principle that, in a case alleged against British citizens for alleged crimes against British entities and where all the documentary evidence is in this country, there should be an application for extradition to America.
Baroness Scotland of Asthal: My Lords, first, I would describe this Government as anything other than supine. We have taken appropriate action to protect our people in the proper way. The noble Lord suggests that his hypothetical question could be answered by me, but he knows well that that would be improper because the facts are very similar to a case that is currently sub judice. The noble Lord will also know that the Extradition Act sets out clearly the rules that apply, as does our previous jurisprudence. Our courts will be entitled to examine those and decide whether or not an extradition application is well founded in our law, and they can so determine.
Lord Hodgson of Astley Abbotts: My Lords, would the Minister be good enough to explain to the House the position of those cases of extradition to the United States that were in progress when the new Act came into force on 1 January 2004? Does she recall the undertaking that she gave to the House on Report:
"the Government's position is that the new legislation should apply to all requests received after the point at which the new Act comes into force"—[Official Report, 30/10/03; col. 415.]?
Can she confirm to the House now that the undertaking that she gave then is still being honoured?
Baroness Scotland of Asthal: My Lords, I can. The new treaty reflects the best modern practice. Of course, we must wait until it is ratified by the US before the US and we can take advantage of it. The noble Lord, Lord Goodhart, made it clear that we certainly desired that to be done, and I have affirmed that that is the position, because it is a good arrangement. I remind the noble Lord that, in the mean time, we have arrangements which have stood us in good stead that can still be used to good effect.

Iraq: UK Forces Weapons Training
2.58 p.m.
Lord Holme of Cheltenham Lord Holme of Cheltenham asked Her Majesty's Government:
What measures have been put in place to ensure that all soldiers on active service in Iraq have received adequate weapons training.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Bach): My Lords, all soldiers on active service in Iraq are required to undertake appropriate weapons training in accordance with clear standards laid down by policy.
Lord Holme of Cheltenham: My Lords, I thank the noble Lord for that reply, but I wonder whether he thinks that it is adequate to the very serious revelation made in a court martial acquittal verdict last week that

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2,300 reservists have been sent to Iraq despite having failed their weapons tests, in flat contravention of the rules on deployment and putting their own and other people's lives in considerable danger. How many reservists today serving in Iraq have still not passed their weapons test? Further, who made the decision to deploy them? If it was a military decision, who will be facing disciplinary proceedings? If it was a political decision, who will be coming before Parliament to accept responsibility?
Lord Bach: My Lords, I, too, saw the press reports of the case that the noble Lord mentions. Of course we are aware of and giving serious consideration to the comments made in those press reports of the recent trial, which, I remind the noble Lord, ended only six days ago. We are still awaiting the transcript. It is completely untrue that 2,300 reserves were deployed on operations having failed safety tests.
Lord Truscott: My Lords, to what extent has the largest deployment of Territorial Army and reservists since the Korean war been a success?
Lord Bach: My Lords, as the House knows, I think, the performance of the TA and the reservists in theatre has been a resounding success. Their record speaks for itself. They have once again earned the respect of their regular counterparts. More than 9,000 have served since TELIC 1 began. Part of that success can be put down to the excellent training that they received in the TA and reserves before mobilisation and afterwards. The House may wish to join me in paying tribute to them, their families, their employers and the communities who supported them. Noble Lords will be aware of the two gallantry awards made to TA soldiers: a Military Cross and a Queen's Gallantry Medal.
Lord Astor of Hever: My Lords, can the Minister confirm that there were weapons instructors at Chilwell who were themselves not properly qualified? Is he satisfied that the highest standards are now applied to instructors responsible for training TA soldiers about to go to war?
Lord Bach: My Lords, I am afraid that I do not know the answer to the noble Lord's first question. While we are giving serious consideration to the comments reported in the press on the recent trial of Corporal Blaymire, instructions have been issued to ensure that only personnel who have been trained strictly in accordance with the policy that I mentioned are deployed.
Lord Redesdale: My Lords, why does the Minister not know why training instructors have failed their weapons test? As a former TA range officer, I know that the amount of everyday training given to TA personnel is far from adequate for sending them on operations. The Minister must be aware that remedial training must have been available. How much
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remedial training was undertaken? If none was undertaken, someone at the MoD should take the blame.
Lord Bach: My Lords, I repeat that the success of our reserves and TA in Iraq is in part due to the excellent training that they received. I have said three times now that we are giving serious consideration to comments made in the press. But I can tell the noble Lord that no soldier has been deployed with a weapon to Iraq who has not passed the requisite safety tests. Only three individuals who have failed the safety test have been deployed to Iraq. All three were employed in a field hospital—one was a surgeon, one a chef and one a medical technician—and none was equipped with a weapon. Others who have not passed the safety test have just not been deployed.
Viscount Slim: My Lords—
The Lord Bishop of Chelmsford: My Lords—
Lord Grocott: My Lords, we have time for questions from the Cross Benches and the Bishops' Bench, in strict rotation.
Viscount Slim: My Lords, as we know, soldiers work mostly by night. It has come to my notice lately and it is my personal observation that weapons training and the testing of range-firing and weapons is perhaps not carried out sufficiently in the dark. It is a very important part of training. Will the Minister give me some comfort that proper attention is being paid to it?
Lord Bach: My Lords, I am sure that it is. However, because the noble Viscount, who has vast experience in the field, asks the question, I will give him a written answer, having confirmed what I have just said.
The Lord Bishop of Chelmsford: My Lords, does the Minister accept that, although it is quite proper for us to pursue the sorts of issues that have been raised in questions today and in others, while our troops are involved at a moment of considerable danger, it behoves all of us to exercise restraint in our conversation? Will he further accept that what the troops most need at this time are our prayers and affection?
Lord Bach: My Lords, I thank the right reverend Prelate. I had to resist making a comment from the Dispatch Box—not nearly as eloquently as the right reverend Prelate has done. The more we ask questions about this at present, I wonder who it gives succour to.
Lord Campbell-Savours: My Lords, in the light of well sourced reports that the United States military is denying the Iraqi army and its soldiers on active service the military equipment they need to undertake fully their security responsibilities, is it not an item that should be placed on the agenda in talks between the United States military and our military authorities?
Lord Bach: My Lords, I have not heard those reports. Indeed, I know that great efforts are being

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made here and in the United States to ensure that the new Iraqi army is properly equipped. If this is a real issue, then of course it should be on the agenda.

Civil Contingencies Bill
3.6 p.m.
Report received.
Clause 1 [Meaning of "emergency"]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 1:
Page 1, line 5, leave out from "means" to end of line 10 and insert—

"(a) an event or situation which threatens serious damage to human welfare in a place in the United Kingdom,

(b) an event or situation which threatens serious damage to the environment of a place in the United Kingdom, or

(c) war, or terrorism, which seriously threatens the security of the United Kingdom."

The noble Lord said: My Lords, the logical starting point for a Bill that establishes a framework for planning for, and responding to, emergencies is a clear definition of "emergency". It is therefore absolutely crucial that we get that definition right.
In Committee, the noble Lord, Lord Brooke of Sutton Mandeville, whom I see in his place, sought clarification of whether the list of threats to security listed in Clause 1(4) was sufficiently exhaustive. The noble Lord is very wise in such matters, and we looked carefully again at the drafting of Clause 1(4). We thought that, unlike subsections (2) and (3) of Clause 1, subsection (4) could be read as non-exhaustive. I undertook to involve myself in correspondence on the matter; I have shared that with a number of noble Lords and have written to the noble Lord. We can see no reason why the list of threats to security should not be exhaustive. Accordingly, Amendment No. 1 modifies the drafting. That mirrors our amendment to Clause 19(4) in Committee. I hope that the noble Lord can follow that point.
In Committee, the noble Lord, Lord Lucas, asked why flooding was specifically mentioned as an event or situation that could threaten serious damage to the environment. Having looked at the issue, we agree with the noble Lord that it is not necessary to refer specifically to flooding, because one of the effects listed would be included elsewhere in the definition of "emergency"—potential loss of life, damage to property, destruction of plant or animal life and so on. Amendment No. 4 removes the wording. Again, that mirrors an analogous amendment to Part 2, to which noble Lords have already agreed.
That does not mean that we are not asking local responders to prepare for flooding. As we all know, flooding can cause immense damage to property and threaten lives. It is clearly the sort of thing for which local responders should, and do, actively prepare. There is merely no need to refer specifically to it.
Noble Lords' interventions in Committee have aided us in improving significantly the definition of "emergency" in both parts of the Bill. There can be no doubt that the Bill will leave the House sharper, better
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focused and more transparent than it was when it arrived. I am grateful to noble Lords who made proposals and suggestions which are reflected in the amendments that I am moving today. I beg to move.
Lord Lucas: My Lords, I have some amendments tabled about the definition of the word "emergency" in Part 2. Depending on what the noble Lord says to those, I may come back to the matter at Third Reading.
Lord Dixon-Smith: My Lords, perhaps I may ask the Minister to explain a little more. I am constantly puzzled by the use of the word "war", particularly in the first part of the Bill, which deals with local arrangements. I completely accept that a war will likely give rise to all sorts of emergencies.
We are talking about the meaning of an emergency. In my estimation, the one thing that war is not is of itself an emergency. Wars are almost invariably extremely well planned and can be seen coming from a considerable distance. Even the Falklands War, when it finally became a war, was a very well planned operation. Of course, within wars there is enormous scope for emergencies to take place.
The heading of this part of the Bill is, "Meaning of 'emergency"'. We need to think seriously whether we think that war of itself is an emergency. I do not think that it is an emergency; it occurs after a great deal of thought and careful preparation.
Baroness Buscombe: My Lords, the Minister said that noble Lords agreed to similar amendments to Part 2 in Committee. But I assure the Minister that that does not entirely satisfy us with regard to the definition of the word "emergency". Therefore, perhaps the Minister may look forward to the debate that we will have on Amendment No. 58 and its group, to which my noble friend Lord Lucas has already referred.
I am pleased that the Government have removed the specific reference to "flooding". It simply did not make sense in this instance.
Lord Garden: My Lords, I welcome the amendments. On the point of the word "war", the Government might consider making it an "act of war", which would line it up to events like terrorism. For the rest, the amendments are helpful.
Lord Brooke of Sutton Mandeville: My Lords, the remarks of mine to which the Minister made kind reference were uttered in September. That seems to me to be the first good argument for sitting in September—that my remarks should have borne fruit from the Government in November—that I have heard.
Lord Bassam of Brighton: My Lords, I am grateful to the noble Lord for his comments. The noble Lord, Lord Garden, made an interesting point, which I shall pursue outside the Chamber. I am grateful to the noble Baroness, Lady Buscombe, for her advance warning that we will have some more fun and games on a group

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that I do not think that I shall be dealing with, so I shall smile about that. My noble friend Lady Scotland will of course deal with it expertly.
The noble Lord, Lord Dixon-Smith, said that war was not an emergency. I suppose that the noble Lord has a point, but obviously the effects of war and the conditions that it imposes on our society and communities at large can certainly be emergencies. I remember talking to my mother, who was in the fire service during the Second World War, about war. I am sure that she was a very brave lady. She just saw it as one succession of continuing emergencies. I do not think that she felt comfortable at any time, despite being extraordinarily well trained and well drilled. I am sure that she did a very good job, like many others.
The noble Lord is right. Wars can be well planned, but their outcomes are not as predictable as we would sometimes like. I am not sure that the noble Lord's point has any great further bearing on our debate today. We have tried to tidy up this part of the Bill. Having listened carefully, I think that we have succeeded in doing that.
The Earl of Onslow: My Lords, I refer to what the noble Lord, Lord Garden, said. His use of the phrase "act of war" takes very well into account what the noble Lord, Lord Bassam, and my noble friend Lord Dixon-Smith said. It tidies it up and makes it clear. It is such a simple thing to bring back, if the Government feel that it is nice to do, at Third Reading.
Lord Bassam of Brighton: My Lords, I indicated that I had listened to what the noble Lord, Lord Garden, said and that we would reflect on it.
On Question, amendment agreed to.
Lord Lucas Lord Lucas moved Amendment No. 2:
Page 2, line 4, leave out "harmful"
The noble Lord said: My Lords, in moving Amendment No. 2, I shall also speak to Amendment No. 3. Amendment No. 2 would remove the word "harmful". Clause 1(3) is subject to Clause 1(1), which states:
"'emergency' means an event or situation which threatens serious damage to …
(b) the environment".
Already we know that whatever it is, it threatens serious damage to the environment.
Clause 1(3)(a) refers to,
"contamination of land, water or air with … biological, chemical or radio-active matter",
which is qualified by the word "harmful". What is that qualification expected to achieve? All it can do is exclude. There must be some contamination which, although it threatens serious damage to the environment, because it is caused by a "harmless" biological agent, it is intended to exclude by that word. I do not see that that word has any function except to raise doubts.
If the,
"contamination of land, water or air"
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is threatening serious damage, by definition, it is harmful. The word "harmful" is not needed. It merely implies that there are some forms of contamination that threaten serious damage which are to be excluded from the Bill—not that I can imagine what they are.
Amendment No. 3 would remove the word "oil". Oil is a chemical; it is subsumed in the word "chemical". I do not see a need for it to be separate. What is an oil anyway? What is the definition of oil that the noble Lord is using? Does he merely mean a liquid and relatively inert hydrocarbon? What is the difference between oil and wax under that definition? It seems entirely irrelevant to have it there. Any oil is a chemical. Again, it merely creates confusion having it in the Bill.
Lord Elton: My Lords, before the noble Lord sits down, did he by intention or accident leave out his Amendment No. 62, which does the same thing in Clause 19?
Lord Lucas: My Lords, the noble Lord can speak to it if he wants, but because it does the same thing, I thought that there no need to speak to it. I beg to move.
Lord Monson: My Lords, there is a lot of sense in the amendment. After all, the famous European wine lake may not be very drinkable, but I doubt that it is harmful. Nevertheless, it could cause a great deal of environmental damage if it burst its banks or if millions of litres seeped out from storage tanks. The noble Lord, Lord Lucas, has a good case.
The Earl of Onslow: My Lords, in Committee, the noble Baroness, Lady Scotland, conjured up the glorious idea of an olive oil flood in the vale of Wensleydale. The reference to any,
"biological, chemical or radio-active matter"
covers everything and everyone knows where they are with that. To add "oil" or "harmful" is otiose and makes the legislation less clear than we all wish it to be.
Lord Dixon-Smith: My Lords, I merely want to reiterate the same point. The word "harmful" is dependent on where a particular product occurs. Of course, the classic is yeast. Yeast in bread is wonderful and a great help to the quality of the bread, but a few yeast particles in a bottle of wine will ruin it as quickly as anything.
Lord Bassam of Brighton: My Lords, picking up the point made by the noble Lord, Lord Lucas, at the start of his remarks, I agree that oil is a chemical matter. However, we consider that there is merit in specifying oil in its own right in Clause 1(3)(a)(ii) rather than relying on the reference to "harmful … chemical … matter" in sub-paragraph (i) because oil is capable of posing a threat to the environment. It does not make sense to try to distinguish harmful oils from safe ones since I think that we can accept the potential for all

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forms of oil to be harmful under certain circumstances. While I hear what the noble Earl, Lord Onslow, says, even olive oil could pose a threat.
What determines whether an oil spillage actually does pose a threat of serious damage to the environment is the circumstance of the spill—how much oil is spilt, the location, the weather conditions at the time and so on. Rather than refer to "harmful" oil, we think that it is clearer and more helpful to responders if we refer simply to "oil". This does not mean that every oil spill will be an emergency. An oil spill will be an emergency only if it threatens serious damage to the environment.
The same is not true of other classes of chemicals. There will be cases where contamination with a chemical substance would not be capable of posing a threat to the environment. A spill from a water tanker would not do any damage and so things of that sort would not be covered. But we think there is merit in separating out "oil" and that it would be wise to retain the wording as it stands.
I appreciate the desire of the noble Lord, Lord Lucas, to keep things simple and strip out words when they are not entirely necessary, but under the circumstances, and given how the legislation has been drafted, the logic of the Bill suggests that we should leave the wording as it is.
Lord Lucas: My Lords, the noble Lord argues against himself in defending the sub-paragraphs. His arguments are logically inconsistent. Whatever its definition, nothing separates oil from any other class of chemical or biological matter. In some circumstances oil will be harmful and in others it will not. That is what is governed by Clause 1(1)(b). Because we are governed by that, we are talking about a harmful substance that is threatening serious damage to the environment. It would have to be harmful. The word "harmful" is the qualifier here and has no function, so oil does not need to be excluded from "harmful" because I do not want that word anyway. If oil needs to be excluded from the qualifier "harmful", so do many other things.
Farmers spread vast quantities of sewage on their land. Under those circumstances, the contamination of land with sewage is not harmful. If you did the same over Milton Keynes, it might be considered harmful—or might not. However, all this structure does is to create confusion; it does not alter the breadth of the legislation in any way.
I shall give the noble Lord a few more days to think about it, and hit him with another amendment at Third Reading. For now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
The Deputy Speaker (Lord Lyell): My Lords, if Amendment No. 3 is agreed to, I shall not be able to call Amendment No. 4 for reasons of pre-emption.
[Amendment No. 3 not moved.]
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendments Nos. 4 and 5:
Page 2, line 6, leave out "(b) flooding,"
Page 2, line 8, leave out subsection (4).
On Question, amendments agreed to.
Clause 2 [Duty to assess, plan and advise]:
Baroness Buscombe Baroness Buscombe moved Amendment No. 6:
Page 3, line 11, at end insert ", and
( ) consult with voluntary organisations through the development of plans maintained under paragraphs (c) and (d) to such extent and in such manner as a person or body listed in Part 1 or 2 of Schedule 1 shall think fit."
The noble Baroness said: My Lords, in moving Amendment No. 6, I shall speak also to Amendments Nos. 9, 10, 12, 13, 15, 16, 18, 20, 41 and 42. The House will recognise these amendments from the Committee stage, when many noble Lords spoke on this subject. I said then and I say again now that Members on these Benches think it wrong that currently the Bill does not refer to voluntary sector organisations with regard to consultation. We were determined to correct this situation.
At this stage it would be otiose to repeat what has been said by many noble Lords about the fantastic work undertaken on a daily basis by our voluntary organisations. That was made clear in our debate on 15 September. Their work is enormously valued and highly regarded both in your Lordships' House and by all outside. Perhaps I read too much into what the Minister said at Second Reading and repeated in Committee. However, I felt then and continue to feel that there is a problem here in that voluntary organisations seem to be considered somewhat less than professional. However, noble Lords have succeeded brilliantly in illustrating the extent to which the voluntary sector is very professional, although people can mistake something that is voluntary for something that is amateur. I believe that our debate put that idea straight, and I wanted to ensure that it was put on the record.
However, I am extremely pleased that the Minister has listened to us. I know that since our debate in Committee the Government have worked with the voluntary sector in order to bring forward amendments of their own, although I am a little sorry that the Government were not minded to inform Members on these Benches of those proposed changes. Indeed, the voluntary sector itself was kind enough to copy to me a letter dated 27 October addressed to Virginia Beardshaw at the British Red Cross. It sets out the Government's reasons for their amendments and why they have not accepted our proposal to put in the Bill a duty to consult. Instead, the Government propose a duty to "have regard" to the activities of the voluntary sector.
I am pleased with the contents of that letter, of which the key sentence is as follows:
"Of course, a Category 1 responder will not be able to 'have regard' to the activities of the appropriate voluntary sector bodies if he does not know what those activities are. So the duty to 'have regard' to the activities of the voluntary sector encompasses a duty to consult the voluntary sector to determine what it can contribute".

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That is tremendously important and I hope that, when the Minister both responds to my amendments and brings forward the government amendments, he will repeat those words in order to assure us all that, notwithstanding that some of the inflexibility of the requirement to have a duty to consult might be removed, "having regard" is nevertheless an important safeguard to ensure that the views and expertise of the voluntary sector are taken very much into account when planning for civil contingencies.
However, we are pleased that the Minister is to bring forward government amendments. Our only concern at this stage, and certainly before I withdraw my amendment, is to question the noble Lord about the guidance to be produced. We believe that much of the meat in terms of the responsibilities to be placed on the voluntary sector and others will be set out in that guidance. If he is able to do so today, can the Minister explain a little further what it is to contain and when will we know more about it? Given that we are still waiting for the guidance to accompany the Licensing Act, which received Royal Assent around 15 months ago, I am very concerned that we may have to wait as long as that. We cannot have a recurrence of that sort of delay in terms of this Bill. I believe that a noble friend referred to our present situation as being a "phoney war". We must be sure that the guidance will be developed as quickly as possible so that all those who need to refer to it are provided with clear directions on how they are supposed to respond and exactly what will be their role. I look forward to the Minister's response.
I congratulate the charitable and logistical members of the voluntary sector—the British Red Cross, WRVS, the Salvation Army, St John Ambulance—on their tenacious approach to the Bill. It has been well worth it. I beg to move.
3.30 p.m.
Lord Garden: My Lords, the amendments stand also in the name of my noble friend Lord McNally and I speak on his behalf to support what the noble Baroness, Lady Buscombe, has said. We have had a satisfactory exchange of views and a number of meetings with all members of the voluntary sector. Generally, the government amendments will meet their concerns provided the guidance reflects the degree of consultation needed. They will do so if we can have an assurance from the Minister—perhaps today—that the Bill will contain the right kind of guidance.
Lord Archer of Sandwell: My Lords, I hope that I am not cast in the role Eeyore. I had hoped to be able to lavish praise on the Government for the two amendments standing in the name of my noble friend. I doubt that we could have hoped for a more robust form of draftmanship. The various eventualities for which it may be necessary to plan and the differing voluntary organisations which it may be reasonable to consult lead inevitably to the form of words "have regard to"; they preclude a more precise formulation. It is a form of words with which the courts are familiar and I cannot foresee any difficulties with them.
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I believe in recognising the merits of what the Government have done and certainly I would want to encourage them in well doing. With a bit of luck, they may do it again. I am pleased that the noble Baroness, Lady Buscombe, is content with what is on offer, subject to two matters to which she adverted. This is why my rather fulsome praise has been a little diluted.
First, the ice that our endeavours will cut depends upon what is in the guidance. It would have been helpful if we could have been told what is proposed for it. I follow that it is not yet in its final form but, if I am allowed to disclose what I was told behind closed doors, I understand that there exists at least a preliminary draft. I hope that on our agreement not to seek to hold the Government to every letter in the present draft, they may at least let us peer over their shoulders before Third Reading. As the noble Baroness said, our response at Third Reading may depend on the meat which lies at the heart of the sandwich.
The noble Baroness also adverted to the second reason which dilutes my paean of praise. Members of your Lordships' House who participated in the earlier debate were not told what was being proposed until it appeared as an amendment two days ago. As the noble Baroness said, our information came from the voluntary organisations—to whom I should like to add my congratulations on the fair and effective way in which they have handled this matter. Of course, I do not hold my noble friend personally responsible, but I hope that the department carrying the lead, whichever it is—I do not believe we have even been told—will practise the normal courtesies during the remaining course of the Bill.
The Government can and do make sensible concessions on occasion and they should be glorying in their listening ear, but somehow they always manage to convey the impression that they wish they were somewhere else. What they have done is right and sensible and it is a mistake to appear to be doing it grudgingly.
Baroness Masham of Ilton: My Lords, I support what has been done and I thank the Minister for his work in bringing the voluntary organisations into the Bill. It was terrible that they were left out.
Emergency disasters can happen anywhere at any time, and everyone who can give help should be prepared to do so. I feel that sometimes the statutory organisations do not work as well as they should with the voluntary organisations; they do not understand each other well enough. If the Government can do anything to bring the two together it will help society at large.
We live in difficult times—one only has to consider what happened to the train the other day—and co-operation is vital. But if people are not in at the planning stage they will not know who to call out; they will not know what is happening.

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I look forward to hearing the Minister's reply and what he has in mind for the guidance, which will be vital.
Lord Bassam of Brighton: My Lords, I took very much to heart what was said in the debate last time round on consultation and the voluntary sector. I was fairly much on my own in that debate. I read Hansard very carefully and listened to the arguments very thoroughly. I considered the matter and I thought that we had a logical position.
But I could certainly understand the almost overwhelming sense of slight from those who have done tremendous work over many years, over many decades in some cases, within the voluntary sector. Although obviously there was some discomfort for the Government to find that they were not so popular in this part of the Bill, we reflected on the matter—certainly I reflected on it—took it away and thought about it long and hard and, to perhaps defend our officials in this, we worked very hard with the voluntary sector to try to formulate something to go into the heart of the Bill which would work for everyone's best interests.
I take the point made by the noble Baroness, Lady Buscombe, that we would perhaps have been well advised to have shared early on the fruits of those consultations with the voluntary sector but, in defence of our officials, they were concentrating their efforts on getting it right. I think that was right, but I can understand that others have detected some discourtesy towards them as parliamentarians. As a Minister, I have to take responsibility for that and I apologise unreservedly to those who have felt a sense of being left out of the loop in the discussions. That was not the intention.
Putting that to one side, I should like to concentrate on what has been positive about the dialogue. I certainly understand the point made by the noble Baroness, Lady Masham, about the value of involving the voluntary sector early on. I come from a culture that encourages that. I have worked in the voluntary sector myself. As a council leader I had many dealings with the voluntary sector to ensure that there was adequate funding for important voluntary sector services provided in partnership, so I well understand the force with which that view is expressed.
I hope that we can collectively lend our support to the agreement that is now in words in the legislation. We have made important progress and it is only right that I should try to give a full response to the points that have been made because we need to set out very clearly our intention.
As I said, we have long valued the voluntary sector organisations and the important role that they fulfil, particularly in the field of humanitarian support for individuals, families and communities affected by emergencies. I am sure that it will not have gone unnoticed that Ministers in both Houses have paid tribute to the work of the voluntary sector in many of the civil emergencies that have occurred over the past few years.
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We have also tried to build on the active engagement of voluntary organisations in local civil protection arrangements. Where we have perhaps disagreed with Members of your Lordships' House, among others, has been not so much on the ends but on the means by which we seek to achieve collectively shared objectives. We now feel that we have got it about right, in capturing the role of voluntary sector organisations in statute. We believe that we can create a climate of expectation that will enable voluntary sector organisations and their skills, resources and expertise to be unlocked and used to the full.
In view of the strong views and expertise expressed on the issue, we decided that we would set out in some detail our objectives on the proposed amendments, the drafting of the amendments and how we planned to use regulations and guidance in this area—very much as has been desired in your Lordships' House. Amendment No. 17 will confer a power on Ministers to make regulations requiring category 1 responders to have regard to the activity of voluntary organisations when developing contingency plans. My noble and learned friend Lord Archer made it clear that he thought that "have regard to" was a well understood expression and a valuable one.
It is perhaps worth explaining why we have chosen that formulation, rather than that using the term "consult" in alternative amendments, and the practical and legal implications of doing that. A requirement to consult relevant voluntary organisations means exactly that: a duty to consult the voluntary sector in the course of performing the planning duties under the Bill could be fulfilled by category 1 responders sending a near final version of the plans to the appropriate voluntary sector bodies, allowing an adequate period for comments and then considering the comments.
Consultation processes can, when they work well, add significant value. However, in this context there is a risk that a duty to "consult" could lead to the voluntary sector being involved in the planning process too late in the day—that is, when the plans are in near final form. It would run the risk of responders, and the voluntary sector, for that matter, seeing the duty as a bureaucratic "paper pushing" process exercise. I believe that the noble Baroness, Lady Buscombe, remarked that consultation could end up being the new red tape. We do not want that to happen by default, and we are completely at one with her on that point.
We looked for an alternative form of words which would ensure that the capability of the voluntary sector was considered early in the plan formulation process and was worked out in emergency planning, training and exercise regimes, where appropriate. The aim is to ensure that the contribution that the voluntary sector can offer is actively considered in the course of plan formulation, rather than as an "add-on" at the end. We are seeking to achieve active and meaningful engagement between category 1 responders and voluntary organisations, and we believe the "have regard to" formulation delivers exactly that. What is crucial here for us is the climate of expectation that the requirement will generate.

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The formulation "have regard to" incorporates, but goes well beyond, the requirement to consult. A category 1 responder will not be able to "have regard" to the activities of appropriate voluntary sector bodies if he does not know what those activities are. As prominent figures in statutory responders have made clear to the officials preparing the amendment, no reasonable category 1 responder will develop a plan containing provisions relating to the voluntary sector without consulting them as part of the process. Similarly, no reasonable category 1 responder would consider a plan to be final without first clearing with relevant voluntary organisations the assumptions that it makes about their roles and capabilities.
3.45 p.m.
Some noble Lords may be concerned that "have regard to" sounds vague and perhaps—worse than that—woolly, and that it may give rise to misunderstandings. Cabinet Office officials have worked closely with key figures in the voluntary sector to ensure that the text of the amendment is right, and that the draft regulations and, importantly, the guidance, reflect our shared aspirations. We are committed to using the guidance to make clear the extent of the duty and set out models for compliance. It is absolutely crucial that category 1 responders and voluntary organisations know what they can expect from each other.
Before turning to the government amendments to Clause 4, it is perhaps worth reminding the House of the purpose of the provision. In an emergency, local responders will give all the assistance they can, but there is merit in ensuring that communities themselves are resilient. We believe that establishing a source of advice and assistance will raise business continuity awareness in the community and help businesses to help themselves in case of an incident.
Clause 4, as drafted, focuses on commercial organisations, and the reasons for that are straightforward. Experience from the Bishopsgate and Manchester bombs demonstrated that commercial organisations with business continuity arrangements in place were more likely to recover from major emergencies. However, a number of voluntary organisations have made a clear and convincing case for amending the Bill to bring the voluntary sector within the scope of Clause 4.
Voluntary organisations play a critical role in local civil protection arrangements; they also deliver a wide range of services that are crucial to the effective functioning of communities, providing care and advice, cultural and—importantly—spiritual services. Demands on those services are likely to increase in emergencies, and if they are unable to continue functioning it could exacerbate an emergency and its effects. Providing business continuity advice to voluntary organisations will help to build community resilience and to limit the impact of emergencies on its ability to function effectively.
We worked closely with key voluntary organisations to develop the text of the amendment, and we have involved them in developing the supporting regulations
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and guidance. The voluntary organisations that have been pushing for the change wholeheartedly support our approach—so much so that they have written many items of correspondence to a number of noble Lords urging them to support our amendments and have even mounted something of a media campaign. Voluntary organisations themselves do not support the proposal to prohibit local authorities from making a charge to voluntary organisations. Charity Logistics, which led the charge for the change, has said:
"We do not believe that local authorities should be prohibited from levying a charge for providing advice and assistance where this is appropriate. If, for example, a voluntary organisation requests specific detailed advice and assistance, perhaps in developing and exercising business continuity plans—then they should be willing to pay for it".
I was asked when the guidance would be available. We expect to publish the guidance in draft for full public consultation in early December—in about three weeks' time. As my noble and learned friend Lord Archer said, drafts are already circulating and have been shared with all key voluntary sector partners. Their development will very much follow on from those negotiations and discussions. That has been an important and valuable process for us.
Lord Archer of Sandwell: My Lords, as those drafts have been shared with those most concerned, would the Minister consider sharing them with Members of your Lordships' House?
Lord Bassam of Brighton: My Lords, I have no difficulty in doing that, and if there are drafts that can be provided to noble Lords who have expressed interest, I shall ensure that those drafts are made available.
Baroness Buscombe: My Lords, how long will the consultation process last? All noble Lords are keen to know when we will have the guidance—as opposed to the guidance in draft form.
Lord Bassam of Brighton: My Lords, as I said, the guidance will be there in draft form for full public consultation in December. Thereafter, I believe that it is intended to publish the guidance within 12 weeks, which would give more than ample time for any changes required to be made.
I am grateful for the interest that noble Lords and others are taking in this matter, as I believe that it will help us. Certainly the process has been very valuable to date. I thank noble Lords who have contributed to the debate for their persistence and indulgence on the issue. I commend to the House the amendments in my name.
Baroness Buscombe: My Lords, I thank the Minister for his full response and the explanation of his amendments. Following on what the noble and learned Lord, Lord Archer, said about when we might see the draft guidance, though without wishing to labour the point, I believe that it is tremendously important, especially when a Bill is going through your Lordships' House, that all noble Lords who take interest in that Bill at whatever stage should be kept in touch as much as possible. Obviously it

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is important for the voluntary sector to have as much opportunity as possible to meet Ministers, for example; notwithstanding that, noble Lords should be the first port of call in terms of communication.
That said, we are grateful to the Minister for responding to an extremely robust debate in Committee in such a positive way. I hope that the guidance will contain the kind of terminology that he used, and particularly a clear definition of "have regard to" so that everyone is absolutely clear, when picking up the guidance, what it means and the extent to which the voluntary sector will be properly involved. I agree with the Minister that the amendments will, to a large extent, avoid that awful creeping approach to response and consultation—the box-ticking that creates a bureaucratic nightmare. We certainly do not want that. We are looking for practical involvement, and the voluntary sector will be there to provide it.
It gives me pleasure to beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Lucas Lord Lucas moved Amendment No. 7:
Page 3, line 11, at end insert ", and
( ) maintain arrangements to inform the public about arrangements that may be made should an emergency occur"
The noble Lord said: My Lords, Clause 2(1)(g), which can be found towards the top of page 3, states that the bodies have to,
"maintain arrangements to warn the public, and to provide information and advice to the public, if an emergency is likely to occur or has occurred".
That is quite right, but there are many occasions when the bodies ought to look further ahead than that. Members of the public ought to possess information to help to deal with an emergency, and at such times it is necessary to some extent to exercise control over what people do when they become aware of one.
Subsequent to my raising the matter in Committee, we have at last developed that in this House. Before Committee, had someone created an incident here, none of us would have had a clue what to do and we would all have rushed for the exits. Now we know that we will immediately receive instructions from someone on the Government Front Bench on what we should do in any particular circumstances, inspired by the wisdom of the Clerks. This House can see the advantage of that; we know that there is a much greater chance that we will take the right action by following such a course in an emergency. I expect that most of us, if not all of us, would wait for those instructions rather than doing something that may, through our selfishness, jeopardise the lives of others.
If one is to take that picture wider, those who believe in the advent of global warming and higher sea levels must at some stage believe that there will be serious floods in East Anglia. People ought to know what to do should such a day occur. We do not want everyone jamming the roads so that those desperately trying to get in, with whatever rescue and flood-fighting
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equipment is needed, cannot move. People who live in low-lying areas ought to know what they are expected to do, so that if they go to a particular hump they will be rescued from it, and that they do not need to set out on the A 14 or whatever. People should know what to do in advance. Perhaps they should listen to a particular radio station in East Anglia, because it will be the one that tells them what to do when the disaster occurs.
If people know such things, their reactions become much more predictable and controllable, and it is much more likely that the emergency will be able to be controlled without interference from people looking after themselves or doing the wrong thing out of ignorance. If we get an emergency that involves any kind of infectious disease, it will be extremely important for people to know what to do. As one sees from history, people's reaction to the plague was to have a strong urge to get out, which very often resulted in it being carried elsewhere. We will be keen to avoid such a reaction, and the only way to do so is for people to know in advance that, should such a thing occur, a certain kind of behaviour is expected of them.
The English are generally pretty good at that. We queue in an orderly fashion. When two lanes of a dual carriageway converge, people generally behave in a rational way and everything goes perfectly. If I were trying to pursue the same legislation in France, I might have my doubts. Anyone who has been skiing in France knows that queues are a matter of combat, not of when one arrived in them. However, we can generally be counted on as a nation to behave pretty well, so long as we know what is expected of us.
I would like to see the duty in the Bill. I agree that it will not apply in every case, because it will not be appropriate to a lot of emergencies dealt with by the Bill. However, there will certainly he some to which it applies, such as the example of East Anglia. Having people know what is expected of them well in advance would be a great advantage, and I would like to see it in the Bill. I beg to move.
Baroness Buscombe: My Lords, I want to speak to Amendments Nos. 21 and 22, which are grouped with Amendment No. 7. I was a little disappointed by the Minister's response to similar amendments that we proposed in Committee. It is important that the Government do not underestimate the public feeling that everyone wants to know and to be informed of what might happen. People want to know what to do when something happens; they want to know the best way to protect themselves and their families.
One reason why I propose the amendments again is that, since the Bill began its passage through the House, Ofcom, the regulator, has put out a consultation document on the possibility of analogue switch-off, region by region, commencing some time in 2007. The idea is that we switch over gradually to digital. I would like the Government to take on board my concern about the possibility of having analogue switch-off, region by region, without being absolutely sure that all those living in those regions will have access to digital television.

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1 am concerned about how the public are to be informed in the event of a perceived threat or unprecedented act. What if some members of the public find themselves unable to access television because they are in a region where there has been analogue switch-off without 100 per cent digital coverage of every home? That is an example of where it is tremendously important that the Government do as they always say and have joined-up government. I am talking about the Cabinet Office having a clear line of communication on the subject with the Department for Culture, Media and Sport.
My noble friend referred to listening to particular radio stations. The intention is that analogue radio will not be switched off for some years to come, but I am deeply concerned that an awful lot of people do not listen to radio, or that if they do it tends to be very local radio. Therefore, it is tremendously important that we ensure that all channels of communication, the most important of which, in my view, is television broadcasting, are always available. We must also ensure that the Government do not proceed with a policy unless they can be absolutely sure that analogue switch-off will not deny to all those living in a particular region access to their television sets at any time. I hope that the Government will take that point on board in their discussions with Ofcom.
4 p.m.
Lord Jopling: My Lords, I strongly support the amendment moved by my noble friend Lord Lucas. I want to suggest, as an example, the type of thing that could well have been in his mind in moving the amendment. Some time ago when visiting the state of Georgia in the southern part of the United States, I was struck by the fact that the main trunk roads in the coastal regions have permanent notices describing those roads as "hurricane evacuation routes". They are routes which, in the event of a hurricane approaching, are designated as being kept open to allow the large-scale evacuation of those areas. I hope I am right in saying that that is exactly the type of example that my noble friend had in mind. That is done in the United States, and I should have thought that, in many cases, such preparations could be made here with great advantage.
Lord Garden: My Lords, while I sympathise with the amendment moved by the noble Lord, Lord Lucas, I think that there is a practical difficulty in terms of the range of emergency that we are discussing. I want to place on record my thanks to the Minister for delivering by hand my emergency leaflet, which the Post Office was unable to do. I have now used the website and the freephone number and have managed to obtain a second copy, so progress is being made.
However, ultimately, we are going to have practical problems both in terms of the extent of the information relating to possible emergencies and, as we have seen already even with a relatively simple emergency leaflet, in terms of distribution, which has been very patchy. Other people tell me that they have had similar problems.
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Therefore, I worry a little about having a catch-all amendment which might deluge the public with so much information that it becomes counter-productive. It is important—I should like the Minister's assurance on this—that the local authority will have prepared the necessary information so that it can he readily sent out to the people who will be affected by a particular emergency. If that happens, one probably does not need to go to the extent of the amendments that are now being proposed.
Lord Brooke of Sutton Mandeville: My Lords, I support both my noble friends Lord Lucas and Lady Buscombe in the spirit and thrust of the amendments. With regard to what my noble friend Lord Lucas said about the instinct of this nation for order, I recall an Australian friend, shortly after the war, queuing for a ski lift in Switzerland and, on reading the instructions, which told people waiting for the ski lift that they should not push, being gratified to find that they were recorded in three languages, none of which was English. That was itself a compliment to our nation.
On my noble friend's radio station example, I recall in the debates on the Communications Bill last year citing the case of a small town in Dakota which suffered a toxic explosion. That must be regarded as an emergency. The people of that town were much exercised as to what they should do, and they rang up the six local radio stations within their area. All six stations, which had been acquired by a conglomerate, were playing the same music, which had been determined 1,000 miles away in Chicago by the conglomerate which had taken them over. No one was manning the radio stations.
Of course I acknowledge, to paraphrase Laurence Sterne, that we order these things better than they do in the United States. But I agree with my noble friend that it would be prudent if people knew exactly where to seek assistance when a disaster as massive as that struck the place in which they lived.
Baroness Masham of Ilton: My Lords, I support this vital group of amendments. Without information and training, people are fairly useless when faced with a serious emergency. One never knows when an emergency is going to happen: it is completely unforeseen and we should be prepared. If we had emergency training schemes and first aid in all our schools, colleges and prisons and so on, that would become part of life. I do not think that terrorism and that kind of thing are going to go away, and the Government could do far more than they are doing to prepare society at large.
Lord Elton: My Lords, the noble Baroness has just uttered words of very good sense. We are dealing with matters of practicality here, and the danger is that one will view it all as a Civil Service administration. We look at the machinery to produce the results but, as my noble friend Lord Jopling said, the results have to be produced in advance. There are fairly simple ways of doing that. For example, different routes out of an

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area can be coded by different symbols on sign boards, but it is only when the location of the emergency is discovered that the public can be told whether they should leave town by the route marked with a triangle or a circle or whatever. These things are very simple to arrange if they are thought through in advance, but they cannot be done in a hurry at the last moment.
Lord Stoddart of Swindon: My Lords, I understand what these amendments are getting at and, indeed, one tends to sympathise with them. But I do not think that we should underestimate the innate common sense and ability of people generally. We have to be very careful that we do not confuse them with too many instructions about too many possible emergencies. A huge range of emergencies can exist and I do not see how people can be trained for every one.
I live in Reading, and unfortunately the recent terrible train crash occurred just outside Reading at Ufton Nervet. What was remarkable was not only the way in which the emergency services were able to cope and to arrive in double-quick time but the way in which the general public were able to help. Even the travellers on the train were able to help. They were on the spot; they recognised what the emergency was; and, like the marine who was injured but nevertheless went back in to help other people out of shattered carriages, they knew what to do and they did what they could.
Those of us with memories of the last war also know that in the terrible bombing of London people often knew instinctively what to do. Therefore, we must recognise the innate intelligence and ability of people, although, as other noble Lords have said, we must help them and give them as much information as we can without confusing them.
Baroness Masham of Ilton: My Lords, before the noble Lord sits down, I am fairly sure that the marine would have been trained in first aid.
Lord Stoddart of Swindon: My Lords, I accept that, but many other people are trained in the same way as the marine. In fact, I am surprised at the number of people who are trained in first aid who are always ready to help. I am not really quarrelling with the objectives of the amendments; I am only trying to say that many emergencies could occur and, as well as giving people as much information as possible, we must recognise that among people out there, as well as in here, there is much ability and intelligence.
Lord Bassam of Brighton: My Lords, it is perhaps wise to start where the noble Lord, Lord Stoddart, left off. His participation in the debate has been extremely valuable. He has demonstrated a common objective that we all share, which is to ensure that the duty on local responders to give advice, warnings and information to the public in the event of an emergency is effective. But, as the noble Lord, Lord Stoddart, says, we can take some comfort from people's innate sense of how to respond to emergency situations. I am sure that he is absolutely right
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about Ufton Nervet. Not only did the emergency services respond magnificently, but those involved and the local public provided the kind of support that speaks volumes about people's innate intelligence, common sense and practicality in such difficult circumstances.
I can certainly accept the intention of the thinking behind the amendments, but the approach that we have taken in the Bill probably holds good. It is worth reminding ourselves that the Bill imposes a duty on category 1 responders to make arrangements to inform the public about civil protection arrangements in their area. That will include information prior to an event and should include information about the potential for emergencies—for example, the risks, the actions that will be taken by the authority if an emergency occurs, and the actions that the public themselves can take.
In the past, I know that much opprobrium has been heaped on the dear old "protect and survive" approach, but we have moved on from that. A booklet that we are currently circulating, Preparing for Emergencies, is a marked improvement on that. It echoes the general change in approach. I hope that we are now going in the right direction. It is certainly the intention of the Government that we have a more transparent and involving process and one that seeks to help, to advise and to comfort people during the process of an emergency. The Bill will ensure that effective public information provision is built into the very fibre of the civil protection processes.
I shall take the amendments in turn, starting with that in the name of the noble Lord, Lord Lucas. It would require local responders to inform the public of arrangements that may be made should any emergency occur. I assume that the purpose of this change is to ensure that local responders take steps to inform the public about the statutory authorities' response arrangements and to publish sources of emergency information and advice in advance of an emergency occurring.
It is clearly very important that local responders do precisely that but, as I explained in Committee, the Bill already provides for that. Clause 2(1)(g) already obliges category 1 responders to maintain arrangements to warn, to inform and to advise the public should an emergency occur, and Clause 2(1)(f) already requires the publication of aspects of plans and assessments.
The need to make information available about local risks, response arrangements, and sources of warnings, information and advice in the event of an emergency are brought out more clearly in the current draft guidance. That guidance has been developed in close consultation with a working group of expert practitioners.
The amendments of the noble Baroness, Lady Buscombe, take a slightly different approach. Amendments Nos. 21 and 22 would enable a Minister of the Crown to require category 1 responders to undertake to establish a public information and public training programme in respect of emergencies. I fully accept the need to ensure that the public receive adequate and timely information and advice about emergencies. However, Clause 2 of the Bill already puts in place a duty

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on category I responders to advise, to warn and to inform the public in relation to emergencies, and I argue that Amendment No. 21 is simply unnecessary.
4.15 p.m.
The Government believe that the provision of information to the public is critical. Through this Bill, the Government are encouraging local responders to make more information available at a local level. Central government have also implemented a national strategy to make available more information and advice. The leaflet is a good example of that. The booklet will ensure that people across the United Kingdom have practical, common-sense information at their fingertips in the event of an emergency. The booklet promotes clearer understanding and the bringing together of advice that the Government have already issued into one practical guide for a better informed public who can help to play their part in preventing emergencies and dealing with them.
Although the publication has not always attracted universal praise, I believe that it is now one in which people have confidence. We have adopted other measures that are part of a deliberate strategy to ensure that we have increasing amounts of information available to the public on what the Government and the emergency services are doing to prepare for emergencies and how the public can help themselves. The main sources of advice for the general public are available through websites such as www.ukresilience.info, www.homeoffice.gov.uk and www.lonclonprepared.gov.uk. The Security Service has put advice to businesses and an overall analysis of the threat facing the UK on its website, www.mi5.gov.uk. I am told that it has already received something like 1.5 million hits, so people are obviously very interested in it. That has to be a first.
However, I would argue that training is different from information and advice. There is no such thing as a standard terrorist threat or major incident and, therefore, no such thing as a standard response. Our response to any incident, including chemical or biological incidents, accidental or otherwise, would depend on a number of factors; for example, what the danger is, who is affected by it, and how best to contain the incident. Trained personnel from the emergency services are best placed to decide the appropriate response on the ground.
To give detailed, prescriptive advice or training in advance about how to handle every potential threat could, in some circumstances, be misleading and unhelpful. Worse, it could lead to confusion in an actual incident. The advice given for one type of situation might be wrong in different circumstances.
That said, there are some basic precautions that householders can take that will help them in any number of disruptive incidents. The best first piece of advice in the event of an emergency affecting householders is: "Go in, stay in, tune in". That will ensure that they try to access, in the first instance, broadcast information which will be of critical importance.
We resist the amendment. We believe that we are doing pretty much exactly what the movers of the different amendments seek. I believe we have the ground covered. We are making good progress and the measures proposed are already best covered.
The noble Baroness, Lady Buscombe, asked me a specific question about the analogue switch-off. I can see that she is anxious that I reply to that point. I am advised that the switch-off will not affect contingency arrangements and that arrangements between the Government, the BBC and other broadcasters will continue regardless. It is worth reminding ourselves that not everyone has access to a television, so the strategy will need to ensure that there are many media in which the information is given so that the key messages can be put across. That is why it is important to promote relatively new media, such as the Internet, and ensure that long-established media such as the radio networks are effective as well.
I understand the spirit behind the amendments. I believe that we have the powers that we need within the legislation. The duties are there. I am confident that the local responders will play their important role in ensuring that information is in place and that their key personnel are trained in that regard. Certainly from my personal experience in local government, I know that it takes seriously its training role and the need to ensure that it has an active, valuable and timely form of communication with the local public. I am grateful to the noble Baroness and to the noble Lord for the amendments, but we do not believe that they are necessary.
Baroness Buscombe: My Lords, before the Minister sits down, will he assure me that he will ensure that there is communication between the Department for Culture, Media and Sport and the Cabinet Office on the issue of analogue switch-off? To be perfectly blunt, I am not convinced that this point has been taken into account.
Lord Bassam of Brighton: My Lords, I guess that the fact that the Cabinet Office is advising and briefing on this matter and was able to provide me with an instant response—no doubt not entirely adequate as far as the noble Baroness is concerned—indicates an awareness of this point. But I intend to pursue the point to satisfy the noble Baroness, and I shall communicate with her and others who have joined in the debate on this precise issue.
Lord Lucas: My Lords, it is important to know in advance what arrangements have been made for dealing with an emergency. As my noble friend Lord Elton points out, making a dash for the Gents, only to discover it has been turned into a Ladies, can lead to some anxious moments. However, the noble Lord, Lord Bassam, has convinced me that the Government will plan for these things rather better than the House authorities, so I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Jopling Lord Jopling moved Amendment No. 8:
Page 3, line 25, at end insert—
"( ) Regulations under subsection (3) may, in particular, make provision—

(a) requiring those authorities which control ports, airports or frontiers as well as local authorities to install special equipment to monitor the contents of lorries, containers or other objects for suspicious contents or persons;

(b) requiring those authorities which control ports, airport or frontiers as well as local authorities to install special equipment designed to monitor persons, ships, other conveyances or other objects for radiological material; and

(c) requiring local authorities and other public bodies to obtain specific static or mobile equipment which is designed to identify the presence of chemical material or biological organisms or radiological substances which might be used in a terrorist attack."

The noble Lord said: My Lords, I make no apology for returning to matters to which I referred on Second Reading and in Committee, and which we debated in a rather different form in Committee. The noble Lord, Lord Bassam, suggested at one stage that these matters were outwith the Bill, but he has been good enough now to agree that they are very much within the Bill.
The motivation behind the amendment is to attend to the matters we ought to be dealing with now. There are many things that we ought to be doing long before the ultimate horror of a terrorist strike using chemical, biological, radiological or nuclear devices or materials. The amendment is different from the one we discussed in Committee. I have dropped from it references to the Secretary of State having powers to require individuals in the emergency services to be vaccinated or inoculated against biological agents which might be used by terrorists.
Surely the first priority is to do everything we can in the United Kingdom to protect our points of entry so that there is a chance that any mean-minded people who wish to bring in the agents for a CBRN attack will be detected at the port of entry. Whether airports, ports or frontiers, it is essential that we have, in adequate quantities, the most up-to-date equipment to try to monitor what is coming into the country if it is likely to be used by terrorists.
A great deal of this equipment exists. I have with me a pile of specifications for various pieces of equipment that I shall be talking about. There are many companies which produce this type of equipment; I have had discussions in the United States with SAIC in San Diego, southern California, and with the Smiths Group, a notable British company based in Watford. I have no connections with either of those companies, but I shall use some of their equipment as examples of what can be done and what in my view most certainly ought to be done and provided in adequate quantities.
In paragraph (a) of my amendment, I suggest giving to the Government powers to require those authorities which control points of entry into the country as well as local authorities to install special equipment, which does exist, to monitor the contents of lorries, containers and other vehicles for suspicious contents or for people who might he bringing noxious substances into the country.
I told your Lordships in Committee that I have seen a piece of equipment called VACIS, produced by SAIC in San Diego, which, miraculously, can see inside containers and pick out people who might be inside them and other objects. That is an astonishing piece of equipment. I dare say there are other similar pieces of equipment in the world, but I use that purely as an example.
Paragraph (b) would provide for similar powers, giving the Government the authority to require those same authorities to install other pieces of equipment at points of entry which can detect radiological material surreptitiously being brought into the country. I have not seen that equipment but I understand that it exists.
The noble Lord, Lord Bassam, said in Committee that we have some of this equipment. Yes we do. He said that the Government are doing their best. My point is that I do not think that the best is good enough. I shall most certainly not retail tonight just how much of this equipment there may be at our points of entry and where the gaps may be. That would be totally irresponsible. But I believe that it is inadequate—I shall say no more than that.
Some of the authorities specified in paragraphs (a) and (b) of the amendment may be slow or reluctant to install this equipment. In my view, the Government ought to have the power to insist on it being installed. That is the purpose of the amendment.
Paragraph (c) of the amendment is different. It covers the importance of being prepared if the ultimate horror happens and a CBRN strike occurs as an act of terrorism. The vital thing in an emergency of that sort is to know at the earliest possible moment that a strike has been made. If there is chemical, biological or radioactive material in the atmosphere, in the environment, it is crucial to know as early as possible that it is there and present as a hazard. I have not inquired, but I am sure that this sort of equipment was used when, in another place, a few weeks back, an amount of what was described as blue flour was thrown at the Prime Minister. That is a prime example of how important it is to know at the earliest possible moment.
Again, this equipment exists. Smiths of Watford has been kind enough to send me specifications of equipment that it makes. I am not necessarily peddling its equipment, but it is a world leader and I am sure that there are other companies, of which I am not aware, which make similar equipment. In my view, it is absolutely essential that one has, around the country, under the control of local authorities and the emergency services, an adequate amount of this equipment which can, at the earliest moment, detect whether there are chemical, biological or radioactive substances in the environment which could be a serious hazard to the population.
4.30 p.m.
I take the case of smallpox to show the essential nature of finding out at the earliest moment. There is a very narrow window of opportunity in the event of, for example, a smallpox attack. We are told that the

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incubation period between exposure to smallpox and the arrival of clinical symptoms is between seven and 17 days, with the incubation period most commonly being between 12 and 14 days. As I understand it, the victim is infectious only after the symptoms of smallpox—high temperature, headaches and boils or pustules on the body—appear, but the vaccination is effective only within four days of exposure to the smallpox organisms. Hence, if one waits until the symptoms appear in a victim, one is almost certainly too late in vaccinating those who may have been in contact with that victim in the earlier stages of the infection, before clinical symptoms appear. I cite that example to demonstrate the absolutely essential nature of finding out at the earliest possible moment that that hazard exists.
As I said, I have details of the availability of the equipment. The need for urgency in identification applies across the whole spectrum of CBRN. It is essential that the Government have powers to direct local authorities and other public bodies to obtain that equipment in adequate quantities, to ensure—although this is not stated in the amendment—that a sufficient number of properly trained operatives is available to work it and find out whether this hazard exists. This is a crucial amendment. I hope very much that your Lordships will accept it. I beg to move.
Lord Renton: My Lords, I was hoping to ask my noble friend to deal with a point before he concluded his speech. He has raised a very important matter. I just wonder which local authorities are to be responsible. There is a wide range of local authorities, and fulfilling the requirements set out in paragraph (c) will cost some of them quite a lot of money. It would help us to know whether the requirements could be confined to, shall we say, city, borough or county councils, and not apply to local authorities below that level.
Lord Jopling: My Lords, my noble friend raises an important matter. However, some local authorities, particularly the county councils in shire counties, already have responsibility for civil defence and for these matters. I deliberately did not make the amendment more specific because I thought that one could leave it to the Government to decide to which local authorities it would be most appropriate to issue an instruction to obtain this sort of equipment. That is why I put "other public bodies" into this part of the amendment as well. One has to leave the decision to the discretion of the Government. The Government do not have to do any of these things. I am not saying that they "shall" do them; I am saying that they "may" do them.
Lord Evans of Temple Guiting: My Lords, I remind the noble Lord that we are at Report stage. He will have an opportunity to answer the questions when he sums up.
Lord Elton: My Lords, I have put my name to the amendment. However, my noble friend has been so thorough and convincing in what he said that there is
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little necessity to add to it. In his last intervention—which was theoretically before he sat down—he touched on the point that I wish to make. Although governments hate prescriptive advice in legislation when they are faced with the unknown, this is permissive advice. It is a permissive provision. The amendment states:
"Regulations under subsection (3) may, in particular, make provision",
for these areas which are extremely sensitive.
Therefore, if the Minister is going to resist the amendment, he will have difficulty in doing so on that ground and, in view of everything else that my noble friend has said, on any other grounds as well.
Lord Walton of Detchant: My Lords, while I fully sympathise with and understand the motivation underlying the amendment, perhaps I may point out to the noble Lords who tabled it a problem in the terminology. The subject of radiology refers normally to a professional discipline practised by doctors who are concerned with the interpretation of x-ray images and other forms of imaging produced in the course of medical practice. Admittedly, the term has been used somewhat loosely, as for instance when the National Radiological Protection Board was established perhaps to consider looking at issues involving radioactive matter. However, paragraph (b) of the amendment, dealing with objects designed,
"to monitor persons, ships, other conveyances or other objects for radiological material",
could be construed as monitoring someone who might be carrying a chest x-ray, which in fact is radiological material.
If this amendment is pursued, then the wording should certainly be "radioactive matter" which occurs in other parts of this Bill, and not "radiological material" which normally covers other issues that are not relevant to this particular problem.
The only other point that I would add is that there are excellent means of monitoring for radioactive material. Those are available widely and, I wholly agree, should be extensively used in this kind of situation. However, the monitoring for biological organisms and viruses is an exceptionally difficult and very complex matter. It is not easy to see how that could conceivably be carried out under the terms of the amendment.
The Earl of Onslow: My Lords, I would not like to be the Minister coming to this or another place if something had happened and he had to say, "We did not have the power to ask people to install this piece of equipment, to have foreseen it". Surely the expenditure envisaged is not very much in the great scheme of things: we have just spent God knows how many millions on finding that the heptarchy is not going to be reintroduced. Surely this proposal is so sensible that no one who is a libertarian could object to it. No one who is keen to defend the realm could do anything other than encourage it.
Lord Monson: My Lords, this amendment is a great improvement on the amendment that was tabled in

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Committee. One must pay tribute to the noble Lord, Lord Jopling, for the enormous research that he has undertaken into this matter. Nevertheless, certain reservations remain. For example, who will pay for this equipment, some of which is presumably pretty costly? Will it be the taxpayer, the council tax payer, the business rate payer or the traveller by air or sea indirectly in higher port and airport charges? How much time will local authorities, port authorities and so on be given to obtain the equipment, which may he in short supply even though it apparently currently exists, as the noble Lord, Lord Jopling, informed us? Will the requirement extend to very small airfields with short landing strips that cater for single or twin-engine aircraft, either privately owned or charter, with very few weekly passenger movements? I think that all those questions need an answer.
Lord Swinfen: My Lords, when moving the amendment my noble friend Lord Jopling briefly mentioned inoculation against smallpox. In Committee I asked the Minister how long it was before an inoculation against smallpox and anthrax became effective. The noble Lord promised to write to me. I do not know whether he has, but I have not yet received his letter, should he have written. Perhaps he is now in a position to let the House know how long it takes for inoculations against these two deadly diseases to become effective so that we have properly protected medics able to cope with any sort of outbreak that might occur.
Lord Garden: My Lords, I am grateful to the noble Lord, Lord Jopling, for removing part of this measure that was present in Committee so that we can support what is now a very important set of paragraphs. We need to remember that we are talking about a Bill which will last for many years. While we are desperately interested in the technology that is available now which is good for radioactive substances, is not bad for chemical substances but is not really very good at all for biological substances, things will change over time. It seems to me that these paragraphs are important in terms of our search for ways to protect ourselves against real and increasing threats. Technologies will improve as time goes on. At the same time we want to ensure that local authorities are kept up to date all the time. One of the effects of putting a duty on local authorities will be to get the industry to do more work to provide the kind of things we need. I believe that this is a useful provision. I fully support the need to change the word "radiological" to "radioactive" at some stage. If the amendment is passed, we can do that at the next stage.
Baroness Masham of Ilton: My Lords, I would like to thank the noble Lord, Lord Jopling, for updating us on some of the equipment that is now available, which perhaps is not available in this country. This is a very important matter. Perhaps it is the spirit of the amendment that we should consider at the moment. The amendment may need improving at Third Reading, if the spirit were decided upon. Is the Minister aware that some time ago some smallpox
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vials disappeared from a laboratory in Russia and have never been found? It is a terrifying matter. Ebola and SARS, and other such horrible diseases, might be used in acts of terrorism. Therefore, this is a very important matter. I hope that the Minister will give a convincing response; otherwise, I hope that the noble Lord, Lord Jopling, will divide the House.
4.45 p.m.
Lord Berkeley: My Lords, I am sorry to put a spanner in the works regarding what seems to me to have been a lovely big sales pitch for equipment manufacturers who presumably want to sell the Government lots of equipment to do things that we cannot do at the moment.
For my sins, I spent about l0 years building and operating the Channel Tunnel and listening to equipment manufacturers. The Government required Eurotunnel to install machines to check lorries for all kinds of nasty substances. We were told that the machine which was first installed would work, but it did not do so for five years. Then a mark two version was sold at vast expense that caused enormous delays to traffic using the tunnel and great expense to Eurotunnel.
The same thing happened a few years ago regarding illegal immigrants. My noble friend Lord Bassam was involved in dealing with that matter at some stage. The illegal immigrants got into containers and no one could really check whether they were in there. Some of them stayed in; some of them very sadly died; some of them jumped out somewhere along the road from Folkestone onwards. They were not protected. Then they found that a better way to get across the Channel was to land on a beach.
Therefore, I am not quite sure what the point of all this is when we have several thousand miles of coastline where people can smuggle things in if they want to, although they do not always do so. The cost, he it to the Government or to the ports or to the shippers — incidentally, this amendment has forgotten the Channel Tunnel completely so that will clearly be a good way in—will be absolutely enormous. As I say, even if the equipment is installed with the delays and the anti-competitiveness to our trade that will result from that, people will still bring in these horrible things and themselves if they want to.
Perhaps some of the relevant equipment works now but the experience of Eurotunnel was that the sales people said that the equipment would work, but it did not. That cost Eurotunnel and everyone else involved an enormous amount of money. I am very cautious about accepting this amendment as, first, I do not believe that half of the relevant equipment works now, and, secondly, because I do not believe that the amendment will achieve its objective as people will be able to come in, perhaps with nasty equipment, some other way.
Baroness Buscombe: My Lords, I wish to speak briefly in support of this amendment, to which I have added my name. I say to the noble Lord, Lord Berkeley, that I

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approach this matter in a much more positive way. I take on board the words of the noble Lord, Lord Garden. We are talking about primary legislation that we understand is intended to remain on the statute book for years to come. Notwithstanding the fact that the equipment which my noble friend envisages may not be so brilliant at present we should feel encouraged given the speed of technological change and development. It is crucially important that this Bill takes account of this kind of equipment that we should have at whatever cost. That may seem rather rash but the reality is that we are talking about having civil contingency planning that will protect the citizens of this country to the best of our ability.
I believe that one should consider this amendment in the positive light that my noble friend intended. With regard to the Channel Tunnel, I hope that the word "frontiers" would automatically encompass and include any reference to the Channel Tunnel.
Lord Dixon-Smith: My Lords, I support my noble friend's amendment. The noble Lord, Lord Berkeley, is right to say that there are many avenues through which materials can be brought into this country which one would far rather could not be brought in. However, modern transport has made it much more difficult for the normal authorities to check whether anything which you do not want to come in is being brought in.
In one of my earlier metamorphoses I travelled to Southampton to see what happened when a container ship came in. A 120,000 tonne container ship may carry 2,000 or more containers. It arrives in a port and in the space of the next 12 hours 400, 500, 600 or 700 containers might be offloaded and another 400 or 500 put back on. At that rate of handling it is impossible to check every one absolutely immaculately to ensure that its contents and its bill of lading are identical. The whole purpose of the operation is to get the ship out of the port again as quickly as possible. The containers are then manhandled off to their individual destinations. In such a system there are immense technical difficulties in checking every container, as the noble Lord, Lord Berkeley, rightly indicated.
However, one should not rule out the possible development of further equipment. Certainly if detection equipment could be built into the handling equipment—that seems to me a perfectly proper thing to do—one might have a system in which every container is checked automatically as it arrives. As regards how that is paid for, it would become part of the normal handling charge which applies to each and every container.
I do not think that we should raise obstacles; we should recognise difficulties. My noble friend's proposal is a good one and it deserves serious consideration.
Lord Avebury: My Lords, I do not want to raise an obstacle but I want to ask the noble Lord, Lord Jopling, a question which arises out of what the noble Lord, Lord Dixon-Smith, has just said. If a container is refrigerated can any of the equipment that is available now detect what is inside it, bearing in mind that most of the biological agents that might come in through our ports would have to be kept in
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cold conditions, and so the obvious thing for anyone wishing to smuggle such material into the country to do would he to include it in a shipment of otherwise legitimate refrigerated materials?
Unless we have equipment which can detect the contents of refrigerated containers without opening them, the objection raised by the noble Lord, Lord Berkeley, is valid. One obviously could not open up every single refrigerated container that came in a container ship to see whether there might be minute quantities of biological agents sealed in a shipment of otherwise legitimate material.
Lord Bassam of Brighton: My Lords, I am grateful to the noble Lord, Lord Jopling, for provoking this important debate. The issues that it raises have a heavy bearing on the Bill. The noble Lord is seeking to probe our capacity to detect and deal with chemical, biological, radiological and nuclear incidents. The amendment would enable Ministers to require local responders to purchase equipment designed to identify the presence of CBRN material and deploy that equipment at ports and airports.
I shall begin with the issues raised by the noble Lord, Lord Onslow. He posed the right question, because he said that any government who missed the opportunity to take the powers to impose this kind of requirement and later found that they did not have the powers to do something that they plainly should have done would be negligent. That is absolutely right. The Government already have the powers to impose the type of requirement that the noble Lord, Lord Jopling, seeks in the amendment.
Those powers are contained in the Airports Act 1986, under which the Secretary of State may give directions to the operators of airports in the interests of national security. There are also extensive powers under the Aviation and Maritime Security Act 1990, which require port authorities to undertake screening and monitoring. In addition, under Clause 5 of the Bill an order could be made requiring local authorities to perform their functions in a particular way. In a sense, that misses another point of the amendment, which is to seek assurance about the importance that the Government attach to developing our counterterrorism framework and developing a high state of the UK's preparedness.
Part 1 of the Bill is about establishing a clear framework of roles and responsibilities for those involved in local civil protection work. It is merely one part of the Government's wider counter-terrorism and resilience agenda. Just because that is not contained in the Bill does not mean that we do not see that as being important. We are not complacent about the threats that we face, nor are we indifferent to the problems that confront us in having frontiers and boundaries through which some 85 million people travel each year. That is a challenge in the context of the types of issues that have been raised in this debate. I wish to offer some reassurance on those issues.
The resilience to disruptive challenges is already high. There is a strong tradition of effective planning and response at the local level and 30 years of Northern

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Ireland terrorism has established a capability within government and an awareness among businesses and the public which puts the UK in a comparatively strong position. But we are not complacent. Since 11 September 2001, the Government have substantially increased the country's counter-terrorism efforts and have improved contingency planning and resilience to a range of emergencies.
We have set ourselves the strategic goal of,
"reducing the risk from international terrorism so that our people can go about their business freely and with confidence".
Reducing the risks breaks down into four broad mission areas: preventing terrorism by tackling its underlying causes, pursuing terrorists and those that sponsor them, protecting the public and UK interests, and, importantly, preparing for the consequences. Developing our capacity to detect and deal with chemical, biological, radiological and nuclear terrorism is a key part of that agenda.
I referred to this matter at Second Reading and it has been debated in Committee. We have put in place the Key Capabilities Programme to develop that preparedness. This programme identifies the generic capabilities that underpin the UK's resilience to disruptive challenges, however they are caused, and ensures that these capabilities are developed. There are 17 such capabilities, including dealing with CBRN material.
This work is co-ordinated by the Home Office and is delivered through the cross-government resilience programme. This aims to improve co-ordination of CBRN research across government; focus that research on developing the capabilities needed for a resilient response; be linked to anticipated developments in the threat so that enhanced capability—provision of equipment—is available at the correct time; and provide the evidence base on which to build policy and planning decisions, so that we can fill capability gaps and ensure that resources are allocated and targeted to the highest priority programmes.
The emergency services have the best detection equipment currently available and the Government are working with them to develop this capability still further, in line with their specific needs. The police have a well developed capability which is being strengthened through specialist training at the National Police Training Centre. The fire service, through the New Dimension Programme, incorporates the procurement of radiation monitoring equipment for deployment at incidents involving radiation to give early on-site indication of the release of hazardous radioactive material or radioactivity.
The noble Lord, Lord Jopling, is particularly anxious that the resilience of our ports to the smuggling of illicit persons or materials is strengthened. For that reason, the Government long ago put in place Programme Cyclamen, which is designed to screen for the illicit movement of radioactive materials by traffic entering the UK by air, sea and the Channel Tunnel. The screening programme includes container and road freight, post and fast parcels, vehicles and passengers, and will use a combination of fixed and mobile detection units.
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As noble Lords will appreciate, it would not be in the interests of national security to give details of the implementation programme—precisely the point made by the noble Lord, Lord Jopling. But I hope that what I have said will go some way to reassuring the noble Lord on this point. We are not complacent about chemical, biological, radiological or nuclear terrorism. We will continue to invest in the capabilities that our assessments of risk show that we need. As a number of noble Lords have said, it is right that we harness new technologies to this endeavour. I am grateful to noble Lords who have taken part in this debate for sharply highlighting this issue, and, in particular, I am grateful to the noble Lord, Lord Jopling.
As a number of noble Lords have said, the amendment contains defects. The noble Lord, Lord Walton of Detchant, very astutely made the terminological point. We need to be concerned to ensure that we stay on the case and have equipment and powers that may be needed to match the challenge. I am confident that we have those powers—I made specific reference to them—and I hope that noble Lords will take careful note of that point.
I owe an apology to the noble Lord, Lord Swinfen. I wrote a generic letter on 1 November that covered some of the points raised by the noble Lord, Lord Jopling, regarding smallpox vaccination. Included in that correspondence was a reference to the particular issue about which the noble Lord, Lord Swinfen, asked. I shall read that into the record now, because it would help and I shall ensure that the noble Lord has a copy. If other noble Lords have not received the letter, I shall ensure that they have a copy of it. In any event it is already placed in the Library. The noble Lord asked for a quantification of the risk of vaccination against anthrax. Our response stated:
"A licensed anthrax vaccine is available and independent medical advice confirms that it is safe to use. It has been used for many years for those who are at high risk of occupational exposure to anthrax, such as those working on imported hides in the tannery industry or with infected animals, and laboratory staff who may be conducting research on the bacterium and its spores. As part of our contingency planning for dealing with biological threats, we have put in place medical countermeasures to treat those who may be exposed to a deliberate release of anthrax.
Anthrax is not contagious and cannot be spread from person to person. The usual treatment of those exposed to anthrax is antibiotics. We have in place a substantial stockpile of appropriate antibiotics, and arrangements are in place for their rapid deployment across the UK. We also have in place a stockpile of vaccine for use for those people who may be subject to ongoing and prolonged risk of exposure to anthrax, and we are currently assessing our overall future needs for anthrax vaccine, given that current licensed vaccine only has a two-year shelf life."
I hope that answers the noble Lord's point. If not, I shall seek further and better particulars and advise the noble Lord accordingly.
5 p.m.
Lord Swinfen: My Lords, I thank the noble Lord for giving me that information, but it does not actually answer my question. The question I asked was: how long after being given the inoculation is the person protected against anthrax? I also asked the same question about smallpox—how long does it take for the person to become protected? If anthrax or

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smallpox is released into this country it is important to know how long it will take to protect people who may have to deal with the problem and to help those who have been infected? Otherwise, we could have an epidemic that would go on for a very long time.
Lord Bassam of Brighton: My Lords, with regard to the noble Lord's question on smallpox vaccination, the advice given in the correspondence is that people are,
"generally considered fully protected after successful response is demonstrated at the site of vaccination by production of a pock about seven days after vaccination. In a person with normal immune function, neutralising antibodies appear about ten days after primary vaccination and seven days after re-vaccination. Following exposure to the disease people can still be vaccinated. Vaccination up to four days from exposure is considered likely to completely prevent or significantly modify the disease in the majority of people".
Further points on that were made during the debate by the noble Lord, Lord Jopling. I do not think that it covers entirely the point on anthrax raised by the noble Lord, Lord Swinfen, but I shall ensure that we find further particulars and advise the noble Lord.
Lord Jopling: My Lords, in response I must begin by pleading guilty to the noble Lord, Lord Walton. In spite of having a science degree, I have fallen into the trap of using the word "radiological" when I really mean "radioactive". I apologise for that. I should have known better. I hope that the noble Lord will agree that the matter can easily be altered at Third Reading.
A number of questions have been raised about the amendment. I was asked who would pay for the equipment and what the time limit would be to install it. The question was asked: will it work? I have drafted the amendment so that all these questions can be answered by the Government, helped by their advisers, because it is not for your Lordships to say exactly who will pay, how much time authorities will be given to install this equipment or whether it will work.
The amendment gives the Government the opportunity to see the specific pieces of equipment which they feel will work. They are not going to use this power unless they feel that the equipment will work. It is up to them to tell whatever authorities there are how long they have to install it. It is for the Government, not for noble Lords in this House, to say who will pay. It is for the Government and local authorities or port authorities, and so on, to deal with that in the legislation.
I listened to what the noble Lord, Lord Bassam, said with regard to present cover. It sounded much too vague. I think that we would be very sensible indeed to put these powers on the face of the Bill, so that the Government can use them to protect the civilian population of this country against a terrorist attack at some future time.
I am extremely grateful to my colleagues on all sides of the House who have spoken, but in order to make sure that the Government do have these powers, I should like to test the opinion of the House.
5.5 p.m.
On Question, Whether the said amendment (No. 8) shall be agreed to?
Their Lordships divided: Contents, 196: Not-Contents, 156.

Division No. 1

CONTENTS

Addington, L.

Gardner of Parkes, B.

Allenby of Megiddo, V.

Garel-Jones, L.

Anelay of St Johns, B.

Geddes, L.

Arran, E.

Gilmour of Craigmillar, L.

Astor of Hever, L.

Glentoran, L.

Attlee, E.

Goodhart, L.

Avebury, L.

Greenway, L.

Baker of Dorking, L.

Hanham, B.

Barker, B.

Hannay of Chiswick, L.

Beaumont of Whitley, L.

Hanningfield, L.

Biffen, L.

Harris of Peckham, L.

Blaker, L.

Harris of Richmond, B.

Blatch, B.

Hayhoe, L.

Bledisloe, V.

Henley, L.

Bowness, L.

Higgins, L.

Bradshaw, L.

Hodgson of Astley Abbotts, L.

Bramall, L.

Holme of Cheltenham, L.

Bridgeman, V.

Hooper, B.

Bridges, L.

Hooson, L.

Brooke of Sutton Mandeville, L.

Howe of Aberavon, L.

Brougham and Vaux, L.

Howe of Idlicote, B.

Burnham, L.

Hunt of Wirral, L.

Buscombe, B.

Inglewood, L.

Byford, B.

Jenkin of Roding, L.

Caithness, E.

Jopling, L.

Campbell of Alloway, L.

Kimball, L.

Carlisle of Bucklow, L.

King of Bridgwater, L.

Carnegy of Lour, B.

Kingsland, L.

Chelmsford, Bp.

Laidlaw, L.

Clement-Jones, L.

Laing of Dunphail, L.

Colville of Culross, V.

Laird, L.

Cope of Berkeley, L.[Teller]

Lamont of Lerwick, L.

Courtown, E.

Lane of Horsell, L.

Craig of Radley, L.

Lawson of Blaby, L.

Craigavon, V.

Lester of Herne Hill, L.

Crathorne, L.

Linklater of Butterstone, B.

Crickhowell, L.

Liverpool, E.

Cumberlege, B.

Livsey of Talgarth, L.

Darcy de Knayth, B.

Lucas, L.

Dean of Harptree, L.

Luke, L.

Dearing, L.

Lyell, L.

Denham, L.

McAlpine of West Green, L.

Dholakia, L.

McColl of Dulwich, L.

Dixon-Smith, L.

MacGregor of Pulham Market, L

Donaldson of Lymington, L.

Dykes, L.

Mackie of Benshie, L.

Eccles of Moulton, B.

McNally, L.

Eden of Winton, L.

Maddock, B.

Elles, B.

Mar, C.

Elliott of Morpeth, L.

Mar and Kellie, E.

Elton, L.

Masham of Ilton, B.

Emerton, B,

Mayhew of Twysden, L.

Falkland, V.

Methuen, L.

Falkner of Margravine, B.

Miller of Chilthorne Domer, B.

Fearn, L.

Miller of Hendon, B.

Feldman, L.

Monro of Langholm, L.

Ferrers, E.

Montagu of Beaulieu, L.

Finlay of Llandaff, B.

Montrose, D.

Flather, B.

Morris of Bolton, B.

Fookes, B.

Mowbray and Stourton, L.

Forsyth of Drumlean, L.

Moynihan, L.

Fowler, L.

Murton of Lindisfarne, L.

Freeman, L.

Naseby, L.

Garden, L.

Neuberger, B.

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Newby, L.

Sanderson of Bowden, L.

Noakes, B.

Scott of Needham Market, B.

Northesk, E.

Seccombe, B.

Northover, B.

Selborne, E.

Norton of Louth, L.

Sharples, B.

O'Cathain, B.

Shaw of Northstead, L.

Onslow, E.

Shutt of Greetland, L.

Park of Monmouth, B.

Simon of Glaisdale, L.

Patten, L.

Skelmersdale, L.

Peel, E.

Smith of Clifton, L.

Perry of Southwark, B.

Soulsby of Swaffham Prior, L.

Phillips of Sudbury, L.

Steel of Aikwood, L.

Pilkington of Oxenford, L.

Steinberg, L.

Plumb, L.

Stevens of Ludgate, L.

Plummer of St. Marylebone, L.

Stewartby, L.

Quinton, L.

Swinfen, L.

Rawlings, B.

Taverne, L.

Razzall, L.

Thomas of Gresford, L.

Redesdale, L.

Thomas of Walliswood, B.

Rees-Mogg, L.

Thomson of Monifieth, L.

Rennard, L.

Tordoff, L.

Renton, L.

Trefgarne, L.

Trenchard, V.

Richardson of Calow, B.

Trumpington, B.

Roberts of Conwy, L.

Ullswater, V.

Roberts of Llandudno, L.

Vinson, L.

Rodgers of Quarry Bank, L.

Waddington, L.

Rogan, L.

Wade of Chorlton, L.

Roper, L.[Teller]

Wallace of Saltaire, L.

Rotherwick, L.

Walmsley, B.

Russell-Johnston, L.

Walpole, L.

Ryder of Wensum, L.

Wilcox, B.

St John of Fawsley, L.

Williams of Crosby, B.

Saltoun of Abernethy, Ly.

Williamson of Horton, L.

Sandberg, L.

Willoughby de Broke, L.

NOT-CONTENTS

Acton, L.

Eatwell, L.

Ahmed, L.

Elder, L.

Alli, L.

Evans of Parkside, L.

Amos, B. (Lord President of the Council)

Evans of Temple Guiting, L.

Falconer of Thoroton, L. (Lord Chancellor)

Ampthill, L.

Andrews, B.

Farrington of Ribbleton, B.

Archer of Sandwell, L.

Faulkner of Worcester, L.

Ashton of Upholland, B.

Filkin, L.

Bach, L.

Fitt, L.

Barnett, L.

Fyfe of Fairfield, L.

Bassam of Brighton, L.

Gale, B.

Berkeley, L.

Gibson of Market Rasen, B.

Bernstein of Craigweil, L.

Giddens, L.

Bhattacharyya, L.

Golding, B.

Billingham, B.

Goldsmith, L.

Bragg, L.

Gordon of Strathblane, L.

Brennan, L.

Goudie, B.

Brooke of Alverthorpe, L.

Gould of Brookwood, L.

Brookman, L.

Gould of Potternewton, B.

Campbell-Savours, L.

Graham of Edmonton, L.

Carter, L.

Grocott, L. [Teller]

Carter of Coles, L.

Harris of Haringey, L.

Chan, L.

Harrison, L.

Christopher, L.

Hart of Chilton, L.

Clark of Windermere, L.

Haskel, L.

Clarke of Hampstead, L.

Haworth, L.

Clinton-Davis, L.

Hayman, B.

Cohen of Pimlico, B.

Henig, B.

Corbett of Castle Vale, L.

Hilton of Eggardon, B.

Crawley, B.

Hogg of Cumbernauld, L.

David, B.

Hollis of Heigham, B.

Davies of Coity, L.

Howarth of Breckland, B.

Davies of Oldham, L.[Teller]

Howie of Troon, L.

Desai, L.

Hoyle, L.

Drayson, L.

Hughes of Woodside, L.

D'Souza, B.

Hunt of Kings Heath, L.

Dubs, L.

Hylton, L.

788

Irvine of Lairg, L.

Rendell of Babergh, B.

Jay of Paddington, B.

Richard, L.

Jones, L.

Rooker, L.

Judd, L.

Rosser, L.

Kilclooney, L.

Rowlands, L.

King of West Bromwich, L.

Royall of Blaisdon, B.

Kirkhill, L.

Sainsbury of Turville, L.

Laming, L.

St. John of Bletso, L.

Lea of Crondall, L.

Sawyer, L.

Leitch, L.

Scotland of Asthal, B.

Lipsey, L.

Sewel, L.

Lockwood, B.

Sheldon, L.

Lofthouse of Pontefract, L.

Simon, V.

McIntosh of Haringey, L.

Smith of Leigh, L.

McIntosh of Hudnall, B.

Snape, L.

MacKenzie of Culkein, L.

Stone of Blackheath, L.

Mackenzie of Framwellgate, L.

Strabolgi, L.

McKenzie of Luton, L.

Symons of Vernham Dean, B.

Marsh, L.

Taylor of Blackburn, L.

Mason of Barnsley, L.

Temple-Morris, L.

Massey of Darwen, B.

Thornton, B.

Maxton, L.

Tomlinson, L.

Merlyn-Rees, L.

Triesman, L.

Mitchell, L.

Truscott, L.

Monson, L.

Tunnicliffe, L.

Morgan, L.

Turnberg, L.

Morgan of Drefelin, B.

Turner of Camden, B.

Morris of Aberavon, L.

Uddin, B.

Morris of Manchester, L.

Varley, L.

Parekh, L.

Wall of New Barnet, B.

Patel, L.

Walton of Detchant, L.

Patel of Blackburn, L.

Warner, L.

Pendry, L.

Warwick of Undercliffe, B.

Pitkeathley, B.

Weatherill, L.

Plant of Highfield, L.

Whitaker, B.

Ponsonby of Shulbrede, L.

Whitty, L.

Prosser, B.

Wilkins, B.

Prys-Davies, L.

Williams of Elvel, L.

Radice, L.

Winston, L.

Ramsay of Cartvale, B.

Woolmer of Leeds, L.

Rea, L.

Young of Norwood Green, L.

Resolved in the affirmative, and amendment agreed to accordingly.
5.16 p.m.
[Amendments Nos. 9 and 10 not moved.]
Lord Garden Lord Garden moved Amendment No. 11:
Page 3, line 47, at beginning insert "efficiently"
The noble Lord said: My Lords, I shall speak also to Amendment No. 14. The aim of the amendments is to ensure efficient co-operation between category 1 and category 2 responders by a fairly minor insertion of the word "efficiently" in page three at line 47 and page four at line two. My noble friend Lord McNally wrote to the noble Baroness, Lady Scotland, to explain the background to that on 2 November. We have not received a reply, but I should like to explain for the benefit of your Lordships the thinking behind the amendment.
The example that we cited was mobile network operators, which are entirely supportive of the Bill and already contribute to several of the emergency planning bodies, including the Telecommunications Industry Emergency Planning Forum, the London Resilience Forum utilities sub-committee and the Cabinet Office emergency planning exercise steering group. However,

789
unlike most category 2 responders, they have five competing national infrastructures and are not national or local monopoly suppliers. Furthermore, their responses to local, regional and national emergencies are planned and managed nationally. They are all competitors with each other, so they feel that they would not adequately be able to represent each other with category 1 organisations, which may also be customers for mobile phone services.
The mobile network operators feel that it would be highly inefficient for the large number of local resilience forums separately to specify their planning and information requirements from national service providers. Such an approach would generate an unnecessary cost burden on mobile operators and other industries and may fragment the existing, consistent national emergency response process.
So it would be much better for such category 2 respondents—of course, the Bill will apply in future, when we do not know what will be the arrangements between other utilities, so we want the Bill to cover all events—to communicate their consistent national plan and information to the local resilience forums on a regional or national level, rather than to every local authority and other category 1 responder in the UK. A standardised approach would allow those private sector companies to focus their limited resources on providing specialist support for high-risk installations or extraordinary requirements that need to be met in the most sensitive locations.
We are looking for efficient arrangements so that lots of co-ordination is not repeated. We ask the Minister, when looking at the draft regulations and guidance documents, to consider aspects relating to communication providers separately from those relating to utilities. Like other category 2 responders, the mobile network operators provide services to category 1 responders, but they are also the means by which category 2 responders communicate with category 1 and other category 2 responders.
My explanation is complex, but the amendment is simple: it adds the word "efficiently" in a couple of places, which will also cover us for the future. I beg to move.
Baroness Buscombe: My Lords, I wish to speak to Amendments Nos. 46 to 48, 52, 55 and 56, which are grouped with Amendment No. 11. Through these amendments we are trying to address what we perceive to be serious omissions from the list of bodies that should be included as category 2 responders.
In many emergencies, maintaining adequate food and fuel supplies, evacuation assistance and general information is critical to the success of an emergency response plan. Therefore, the failure to include services such as major bus and coach services, as detailed in Amendment No. 55; the petrol and diesel industry, as detailed in Amendment No. 46; the food distribution industry, as set out in Amendment No. 48; and the national, chemical and radiological hazard identification and response schemes, as detailed in Amendment No. 56, is a striking flaw in the legislation.
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The amendments would widen the scope of category 2 responders to include industries that will presumably play a large role in any emergency response plan. We understand that the Government intend to focus on the core organisations at the heart of the emergency planning process; therefore, it is important that they address these issues.
Let me touch briefly on our two new amendments not tabled in Committee. Amendment No. 48 would include the food and distribution industry. Surely, the resources available to the likes of Tesco, Sainsbury's and Asda would make them invaluable in any emergency. They have significant distribution networks that could be used to transport food and other basic supplies around the country or to a specific area affected by an emergency.
We welcomed the opportunity to discuss issues such as food distribution with the Minister before today's debate. The Minister explained that already there were arrangements with some local authorities for food distribution. But if the Bill is to provide properly coherent, clear direction on civil contingency planning, there should be a specific reference to food distribution.
Amendment No. 52 would incorporate airlines in the same category as airports. The question is short: why airports but not airlines? Surely the likes of British Airways or even easyJet could transport hundreds of thousands of people out of an affected area in a matter of hours. Should civil aviation not be utilised alongside its military counterpart in any emergency?
The Minister will notice a subtle change to Amendment No. 55 that now allows the Secretary of State to decide on the nature and, more realistically, the size of the coach or bus company that could be included in the clause. The Minister's argument in Committee that that was impractical given the plethora of small bus companies has, therefore, been overcome. The Minister should therefore have little problem in accepting the amendment.
The amendments would ensure that the Government, in co-ordination with private industry, could effectively and efficiently respond to emergency situations. I do not agree with the Minister's comments in Committee that existing legislation is sufficient to provide for that co-ordination. What is the purpose of a Civil Contingencies Bill that relies on other arrangements to govern emergency responses?
I note with interest that the Minister has tabled an amendment that would include electricity generators and distributors as category 2 responders, therefore it is impossible to lengthen the list. I can only take from that that the Government are unsure about who should be included in the list—unless the Minister can reassure us otherwise after this debate.
We hope that the Minister will give us a full and proper explanation of why it is crucial that electricity generators are now included as category 2 responders. I must press the Minister: if those involved in the production and distribution of electricity are to be included, why not those in the production and distribution of petrol and diesel, as set out in

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Amendment No. 46? Why are the London Underground and trains, but not buses and coaches, included? Why airports but not airlines?
There appears to be no clear rationale behind the Government's approach to category 2 responders. That said, I hope that the Minister listened to our discussions and that he will reassure us today. I support entirely all that was said by the noble Lord, Lord Garden, on network operators and the prudence of taking a different approach to communications systems that do not necessarily fit in with the way that they are expected to in the Bill.
Lord Monson: My Lords, I have no quarrel with the thrust of the amendments, but I should point out that, if Amendment No. 14 is agreed, it will result in a split infinitive. Of course there are many worse things in the world than a split infinitive; nevertheless, I do not think that one should be incorporated into an Act of Parliament.
Lord Berkeley: Follow that, my Lords! I shall speak to Amendments Nos. 49 to 51, 53 and 54, which are tabled in my name. I also support the amendments tabled in the name of the noble Lord, Lord Garden, and the noble Baroness, Lady Buscombe, some of which duplicate my amendments to some extent, but I shall leave that matter aside for the moment.
I still have problems with who is in and who is out of Schedule 1. Managers of infrastructure such as ports, rail, roads and airports are all included, as should be the case; it is a totally consistent approach. The problem arises at the next level—what one might loosely call operators, perhaps even network services, telecoms and other services. I am grateful for the meeting that my noble friend had with me and others before this stage. We gained some useful information. But why are certain organisations included? Is it because they are a source of danger or because they can be helpful in an emergency?
If it is a source of danger—we were told that rail freight was—then buses and coaches are such a source. I do not know why rail freight is deemed a source of danger. If it is because trains carry nuclear flasks, then ships carrying nuclear material should be included, because operators of such services travel into ports. If buses are a source of danger, then any other vehicle that moves by means of an internal combustion engine is a source of danger, too, but they are not included. Is being a source of danger a reason for inclusion or exclusion? I do not think that it can be both.
I wish to ask about organisations that operate locally. Rightly, this Bill provides for local work, so it includes organisations that operate locally. I do not think that any rail freight organisation operates locally; they are national. Conversely, buses operate locally. The noble Baroness, Lady Buscombe, summed up the situation very well. I do not accept that there are too many bus companies, as we told the Minister at our meeting. In Cornwall, there is one company—First Devon and Cornwall—so there would be only one bus company to talk to. In Oxford, where I live,
792
there are two bus companies, which are well known national operators. Of course there are lots of little companies, but the two main ones, which probably provide 90 per cent of the traffic in an area, are well known and possibly should be involved in the discussions.
I question whether trains can help very much. I had an interesting discussion with someone who had just returned from New York. I was told about the experiences after the 9/11 attack, after which the underground and railway system of New York was closed for five hours. In the subsequent eight hours the system carried only 3,000 people because nobody wanted to use it. They walked, however far their journey. We must put such issues into perspective.
My amendments are a small attempt to rationalise matters but I am not sure that they are the right answer. I had a telephone call from a passenger train operator only this morning. That company does not want to be in this category and thinks that it could be represented by Network Rail. I suspect that the airlines might suggest that they could be represented by the airport operators. Similarly, some of the shipping lines might be represented. But there must be some logic. If the Government insist on keeping rail freight in this category, while accepting that Network Rail can generally deal on its behalf, then they should accept that ferries and air services should be in it and that the harbour authorities and the airport operators could attend meetings on their behalf.
I suspect that the Minister will not like the text of my amendments. But he could say that the matter is too complicated and that the infrastructure managers, who I mentioned earlier, could be left in and everybody else could be taken out. Clause 13 could then be relied on. It allows the Government to add in other organisations that it could justify and find useful in an emergency and in planning. That seems to me to be a much more logical way of taking this forward. The only exception to that might be buses because, whereas ships and ports, airlines and airports, and trains and Network Rail have relationships, I am not sure that buses have a relationship with the Highways Agency. I shall be very interested to hear what my noble friend has to say about my last suggestion.
Lord Lucas: My Lords, the Bill is all about looking forward. It is not hard for, say, Tesco, to set up a system to supply emergency food to a flooded East Anglia, should that ever happen, from its big distribution centre near East Anglia. But, if it has not been arranged beforehand, when the time comes, two days will be spent arguing because Tesco will not want lorries driving up and taking away undocumented loads of goods. It will not have been thought about.
It seems to me that if we are going to plan for big emergencies then we ought to do it now for all the large vital services that are likely to be concerned. I agree that those poor services should not be stuffed into every quarterly meeting of local forums but they must be involved because, come anything serious, the planning has to be in place. So I very much support the amendments in the names of the noble Lord,

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Lord Berkeley, and of my noble friend and I hope that the Government will be able to make progress in this direction.
Lord Bassam of Brighton: My Lords, I apologise in advance for what will be a long response. Noble Lords have raised important points that require a response. Some of the issues have been rehearsed before but it is right that we put on the record why we are proceeding in this way. I enter that as a caveat to what I am now going to go through.
In essence, the amendments probe the rationale for inclusion in category 2. Other amendments in the group ensure that the regulatory burdens on category 2 responders are kept to a minimum. There are also some government amendments in this group that are largely technical but which require the explanation sought by the noble Baroness, Lady Buscombe.
The best place to start is by setting out why we have category 2 responders, and what we require of them. We have subjected the civil protection framework in Part 1 to two public consultations, to pre-legislative scrutiny and to a very thorough regulatory impact assessment process. The list of category 2 responders is based on experience and is widely supported by category 1 organisations. I urge noble Lords to bear that in mind when considering these amendments.
Local responder bodies have variable roles and involvement in local civil protection. To ensure that the duties imposed by the Bill are proportionate to the role organisations play in civil protection, the Bill splits local responders into two categories, and imposes a different set of duties on each. Category 1 responders are the core organisations that are most likely to be closely involved in preparing for, and responding to, most incidents. This category includes emergency services and local authorities. They are subject to the full range of civil protection duties; risk assessment, emergency planning and warning and informing the public. On the other hand, category 2 responders are co-operating responders, which are less likely to be involved in the heart of multi-agency planning work but will be heavily involved in incidents that affect their activities.
The duties of category 2 bodies are much less demanding and reflect their supporting role. Category 2 responders will be required to co-operate with category 1 responders through local resilience forums only and to supply relevant information when asked to do so. Category 2 responders are generally organisations that already have direct responsibilities to the public, either because they administer risk sources or because they deliver essential services. In most cases, category 2 responders are already subject to a range of sector-specific civil protection duties by virtue of their licensing or regulatory activity. For example, the Water Act sets out requirements in terms of the amount of water to be supplied to households in the event of an emergency.
We have given these bodies a more limited set of obligations in order to avoid confusion or conflict with their particular and specific regimes. The objective here is to ensure that category 2 responders
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are more closely engaged with wider multi-agency planning. Category 2 status does not mean that they are subject to the direction of category 1 responders locally, nor does it mean that they are no longer subject to sector-specific regulatory regimes on a national basis.
What is the rationale for inclusion and exclusion within these categories? There are two principal criteria for inclusion in category 2. They are, first, being an organisation that operates a risk source or, secondly, being an organisation that has a role to play in responding to emergencies. In other words, to use the terminology of the noble Lord, Lord Berkeley, those who are a risk and those who are there to be helpful.
There are also two key criteria for excluding bodies from category 2 responders. The first is that some bodies are already covered by other arrangements. The Bill is focused on local arrangements for responder bodies that have an operational role in emergencies. It does not directly concern itself with national arrangements in relation to the critical national infrastructure, which fall outside its local focus. They are a matter for the lead government department to manage. For example, the Department of Trade and Industry, as the lead government department, co-ordinates a national fuel contingency plan. To take up the issue raised by the noble Baroness, it ensures that fuel suppliers and other key stakeholders are involved appropriately in the contingency planning process. While there may be a local response to its consequences, the root cause of a major disruption to fuel supplies is likely to be systemic and is best dealt with nationally.
As noble Lords may be aware, well-established regulatory regimes exist for civil contingency planning for major chemical and nuclear hazards. The Control of Major Accident Hazards Regulations (COMAH) and the Radiation (Emergency Planning and Preparedness) Regulations (REPRR) set out clear multi-agency arrangements for managing the risks associated with particular sites and for managing the consequences of incidents when they occur. The Bill does not trespass on those regimes. In order to avoid unnecessary duplication and confusion, both COMAH and REPPR have been carved out of the Bill by way of regulations.
Secondly, inclusion in the framework is governed by practical considerations. While we might wish to bring in more bodies than we have currently, we need to be careful not to overburden the local arrangement infrastructure. Priority has been given to those bodies that local responders themselves judged to be important, and some bodies that we might like to have included—for example, buses and road freight—have been excluded for this reason. In a moment, I will explain how we have applied that rationale to the various sectors about which noble Lords have concerns, in particular, transport. But, first, I will address the nature of this engagement at the local level. I know that the noble Lord, Lord Garden, is concerned about the regulatory burden that category 2 status will impose on private sector organisations. The noble Lord's amendment would provide that regulations

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made under clause 2 could require only co-operation that was efficient. That is an understandable objective, in which I can see some merit.
The Government are already committed to striking the right balance between establishing what are necessarily robust civil protection arrangements and ensuring that we keep the regulatory burdens on business to a minimum. So right from the start we are engaged with that issue. We think that we have got the balance right. We went through a very thorough regulatory impact assessment process on the Bill. Its conclusion was that the regulatory impact on the private sector is small and that the costs are significantly outweighed by the benefits.
We estimated that the costs of the Bill to the private sector are likely to be between £1,060 and £2,310 per local resilience forum (LRF) area. We have worked closely with the widest range of category 2 bodies to keep this burden to a minimum. The regulations will require category 2 responders to attend meetings only when category 1 responders judge it to be necessary—for example, when their sector is being discussed.
The current draft regulations provide that responders need to be "effectively represented" at local resilience forums. That means that one company could represent the whole sector at an LRF or another responder could represent them where appropriate. The guidance will give a clear steer on what is reasonable in terms of information demands and will ensure that the burden of information demands is kept to a minimum.
We have also made it clear that by proactively making information available, category 2 responders will effectively choke off demand for individual pieces of information, which can become very burdensome. We are committed to minimising regulatory burdens. In fact, it is fair to say that we have been careful to accommodate the concerns of private sector firms; I can see every reason for the private sector to play its part in civil protection arrangements alongside the public and voluntary sectors. The noble Lord, Lord Lucas, in a sense made the case for their involvement.
But that should not come at the expense of effective civil protection arrangements and improved public safety. Category 1 responders—that is, the police, fire and local government services—have all emphasised to us the importance of ensuring that category 2 responders are engaged in local arrangements. We must not ask them to take forward that important work without the tools to do the job effectively.
There are a number of amendments in this group that relate to the transport industry. To summarise, some noble Lords would like to add additional responders and others would like to remove them; sometimes I think that the same noble Lord wants to do both things at once. But that perhaps is beyond our wit.
Transport responders must be involved in local civil protection arrangements. If the case needed to be made, it was made very well as a product of this weekend's
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tragic events in Ufton Nervet in Berkshire. There was an excellent multi-agency response, which gave us a clear illustration of why that is. In the first instance, we have focused on bringing in the infrastructure managers—that is, Network Rail, the ports, the Highways Agency and airports. Probably, there would be a consensus on the importance of having them involved.
There is then of course the secondary question of how we approach the operators who use the infrastructure. Essentially, there are three options. All the companies could be brought in at once—the "big bang" approach—which would risk overburdening local arrangements; a point that I made earlier. There could be the mirror image of that: they could all be excluded. That risks excluding some bodies that self-evidently are crucial to local civil protection arrangements, which would include passenger train companies and organisations that are currently closely involved in the provision of a service. The final option is that there might be what we see as the pragmatic approach of going through a process with local responders to decide which of these sectors is of most concern to them.
5.45 p.m.
In keeping with what generally has been recognised as the pragmatic and consultative approach that we have taken throughout the Bill process, we have opted for the third option. We have determined that we should do what works best in practice, not what works best in theory.
It is self-evidently important to bring in the passenger train companies now. Thankfully, despite this weekend's tragic event, rail accidents are rare, but when they occur they often have—as demonstrated by the accident at the weekend—very major implications.
My noble friend Lady Scotland and I have said in correspondence to our noble friend Lord Berkeley that freight trains represent a source of risk in terms of causing a major incident in a way which experience has shown that road freight simply does not on the same scale. The noble Lord pointed out to me in recent discussions—
Lord Berkeley: My Lords, can my noble friend explain when there was last a major rail freight accident that caused multiple fatalities? I believe that it was in the last war when an ammunition ship blew up.
Lord Bassam of Brighton: My Lords, I will not get into the business of trading examples. My point is that there is a much greater likelihood of a freight incident that would cause more widespread emergency problems than would necessarily be the case with a road accident. The noble Lord is right: accidents involving freight trains are very rare. But when they occur they have the potential to cause major problems. The other important consideration is that they also share the same infrastructure as passenger train operators.
We have sought to minimise the burden on rail freight companies by brokering a deal whereby Network Rail would represent them wherever possible

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at local resilience forum meetings. That means that all rail freight interests would be represented at minimal cost to the companies. I believe—and I think that key figures in the rail freight industry agree—that that is a fair compromise.
As regards broadcasters, it is not appropriate for media organisations to be included within the list of category 2 responders. To make their participation in local civil protection arrangements a statutory requirement might impact on their independence as news reporting and investigative bodies in the context of emergencies.
We already have a long-standing arrangement with the BBC and there is an agreement in broadcasting legislation concerning broadcasters' contribution to defence and emergency arrangements. In practice, media organisations have shown themselves to be valuable partners in multi-agency plans for informing the public during and after an emergency. That is expected to continue under new arrangements. This must be a relationship of co-operation, not obligation.
Amendment No. 56, in the name of the noble Baroness, Lady Buscombe, recommends including a number of schemes and national advisory bodies relating to chemical and nuclear hazards; that is, CHEMSAFE, RADSAFE, the NRPB and so forth. Those suggestions were made to us during the pre-legislative scrutiny process. But it was decided that it would not be appropriate to include them.
CHEMSAFE and RADSAFE are schemes which bring together a range of responders already covered by the Bill. These responders—for example, the fire service—will be well sighted on how those schemes operate and will bring that understanding to discussions.
The Chemical Incident Management Support Unit, based at Llandough NHS Hospital Trust, and the Chemical Incident Response Service, based at Guy's and St Thomas' hospitals, are very small expert advisory groups which do not need to be involved and do not have the capacity to be involved in local resilience forums. They are a national capability that can be built into plans, not a local responder that needs to be engaged in the locality of planning. The National Radiation Protection Board will be integrated into the Health Protection Agency—a category 1 responder—as of April next year. So, in a sense, it will already be covered.
The noble Baroness asked about the gas and electricity amendments. These government amendments would make a number of changes to the range of bodies in the gas and electricity industry that will be category 2 responders. Following detailed discussions with the DTI and the industry, these amendments would bring references up to date with changes following the Energy Act 2004. They would remove the operators of small private electricity and gas networks, which we never intended to capture, and they would add gas and electricity interconnectors—that is, offshore power lines. These amendments ensure that only the most appropriate bodies are subject to category 2 duties and, in essence, are a matter of fine tuning.
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We have worked closely with practitioners over two public consultations and I believe that the list of responders set out in Schedule 1 is about right. Furthermore, category 1 responders believe it to be the right list as well. In the end, this is a flexible framework. As I have explained before, Clause 13 provides that responders can be added to or removed from the list. This gives us the ability to develop, build on and improve the framework in the light of experience.
I think that I have covered in my response most of the points that have been raised and I hope that it is helpful to noble Lords. I should also point out that I shall move the two government amendments in this grouping at the appropriate time. I apologise once again for the length of my reply, but the subjects raised were significant.
Lord Garden: My Lords, I thank the Minister for his comprehensive and extensive reply to a long list of amendments which covered a number of different topics. I am not sure that within all that the particular and peculiar concerns of the mobile network operators were covered in any detail and I trust that we shall have a letter in response to our letter so as to allow us to look at that point more thoroughly.
I am slightly surprised that the Minister is not prepared to accept the word "efficiently", which presumes that he wants this to be done inefficiently. However, should the Minister decide in the mean time that it would be quite a useful word, I hope that we shall not split the infinitive. For now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 12 to 16 not moved.]
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 17:
Page 4, line 11, at end insert—
"( ) permit or require a person or body, in maintaining a plan under subsection (1)(c) or (d), to have regard to the activities of bodies (other than public or local authorities) whose activities are not carried on for profit;"
On Question, amendment agreed to.
Clause 4 [Advice and assistance to business]:
[Amendment No. 18 not moved.]
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 19:
Page 5, line 9, after "public" insert ", or the continuance of the activities of bodies other than public or local authorities whose activities are not carried on for profit,"
On Question, amendment agreed to.
[Amendment No. 20 not moved.]
Clause 5 [General measures]:
[Amendments Nos. 21 and 22 not moved.]
Lord Elton Lord Elton moved Amendment No. 23:
Page 6, line 9, after "(1)" insert "or (2)"
The noble Lord said: My Lords, in moving Amendment No. 23 I shall speak briefly also to Amendments Nos. 24 to 28 in the group. In view of the

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generous amount of time expended on the last amendment, I shall attempt to be extremely brief and try to use this as an opportunity for an equally short reply from the Minister.
Noble Lords may remember that in Committee I took exception to the different treatment allocated under Clause 5 to Scottish Ministers as opposed to everyone else. Clauses 1 and 2 list the people empowered under Clause 5, while subsection (3) makes it clear that anyone getting an order has to obey it. Under subsection (4), Ministers of the Crown are told precisely what they have to do. However, Ministers in Scotland sit collectively waiting until they get to subsection (5), at which point they have to construe a rather complicated piece of drafting:
"Subsection (4) shall have effect in relation to subsection (2) as it has effect in relation to subsection (1), but as if—".
The subsection goes on to list the various exclusions.
Before today I had intended to give the Scots equal treatment with the English and others, but that was something to which the Minister was predictably opposed because it would have meant writing out again in a new subsection almost everything set out in subsection (4). Since then it has been suggested to me that it is simple to do as I have done in this group of amendments; that is, to incorporate the Scots with the English, disposing of all discrimination in subsection (4).
If noble Lords can follow that, they are doing very well. I beg to move.
Lord Bassam of Brighton: My Lords, I believe in doing my research before I get into debates of this sort. I thought that I should consult with someone who knows the noble Lord, Lord Elton, rather better than I. Probably some 30 to 40 years ago, the noble Lord, Lord Elton, taught a good friend of mine. My friend remarked that the noble Lord was a very particular teacher who believed in getting things right in the detail, and that is exactly what he is trying to do here. However, in doing so, the noble Lord, Lord Elton, has overstepped the mark. Indeed, he has probably offended his noble friend Lord Lucas who, in these matters, goes for brevity, simplicity and transparency. In seeking to be absolutely precise in detailing the effect of this part of the Bill, I think that the noble Lord, Lord Elton, has broken what I now refer to as "Lord Lucas's rule". I shall endeavour to explain why this has been so drafted, although I acknowledge that the amendments tabled by the noble Lord have a laudable aim.
Civil protection is largely devolved in Scotland. However, the Scottish Parliament passed a Sewel Motion giving its agreement to the UK Parliament to legislate on its behalf. Following Royal Assent, Scottish Ministers will make regulations and orders, and will issue guidance for bodies under their jurisdiction. In a sense, what the noble Lord, Lord Elton, is doing with his amendments is querying the way that is set out in the Bill, which is fair.
As currently drafted, Clause 5(1) enables a Minister of the Crown to make an order requiring a category 1 responder in England or Wales to perform a function
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for the purpose of dealing with the emergency. Subsection (4) gives further detail about what kind of provision may be included in such orders. For example, paragraph (a) provides that the order may require a responder to consult a particular person, while paragraph (d) requires that the order may require category 1 or 2 responders in England and Wales to co-operate with other responders in the course of performing their duties under the order.
Clause 5(2) confers a similar power on Scottish Ministers to make orders in relation to responders in Scotland who are within their devolved competence. In general, there is no reason why Scottish Ministers should not be able to include in such an order exactly the same provisions as may be included in an order made by a UK Minister. So why not provide that subsection (4) applies to Scottish Ministers in the same way as it applies to Ministers of the Crown?
There are aspects of the list in subsection (4) which are not right for Scottish Ministers. In particular, while it might be appropriate for a UK Minister to confer a function on a Minister or a devolved administration, it would be inappropriate for the Scottish Minister to confer a function on a UK Minister or one of the other devolved administrations. Similarly, it would be inappropriate for Scottish Ministers to be able to require responders in England and Wales to co-operate or share information with responders in Scotland.
Rather than repeat the relevant provisions of subsection (4), the draftsman has applied it with the relevant modifications. This has meant that, rather than having an extra 21 lines of text, we have only 10 lines. Thus we have conformed to the "Lord Lucas rule". The draftsman has chosen this formulation because it is the clearest and most economical way of accurately reflecting the devolution settlement.
Having heard that information, I am sure that the noble Lord, Lord Elton, is going to be entirely satisfied.
Lord Elton: My Lords, the Minister has put the next old boys' meeting that I go to in a very different light. However, I shall read with great interest what he has said. I have not infringed the rule of my noble friend Lord Lucas and I would not dream of doing so. I have shortened the noble Lord's own drafting by 10 lines. It may have escaped his notice that Amendment No. 28 would delete subsection (5), which becomes otiose as a result of the insertions made by Amendments Nos. 23 to 27.
I shall not delay noble Lords on this point other than to say merely that I go away surprised and unsatisfied, and reserve the right to return to the point at a later stage when we have a little more time. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 24 to 28 not moved.]
Clause 7 [Urgency]:
Lord Elton Lord Elton moved Amendment No. 29:
Page 7, line 16, leave out "a Minister of the Crown thinks that"
The noble Lord said: My Lords, this amendment is a rather different matter with more serious consequences. I think that noble Lords are agreed that it is our hope and intention that the courts will oversee the processes which we are setting up, protecting the rights of individuals and restricting the powers of officials or Ministers strictly to what it is necessary to allow. The test of what is illegal and what is not must therefore be extremely clear and simple—not only for the courts but for Ministers who have to exercise the powers and for the public who will either benefit or suffer from them.
6 p.m.
Into this necessity for clarity the Government have intruded the concept of what the Minister thinks. Having been a Minister, I know that Ministers think and that what they think may often be quite mistaken. That is the contingency for which we have to provide.
In regard to Amendment No. 29, at present, on page 7, line 16, the Bill reads:
"This section applies where a Minister of the Crown thinks that—
(a) there is an urgent need to make provision of a kind"—
and so on. Presumably, the court will have to consider the condition of the Minister's mind and whether he was acting reasonably. What would be the change, other than the removal of one layer of legal dispute, if the Bill, as I suggest, were to read:
"This section applies where—
(a) there is an urgent need to make provision of a kind that could be made"—
and so on? I submit that in the long-term there would be no difference, but in the short term it would save a degree of delay and uncertainty.
The same applies to Amendment No. 34 in regard to Clause 8, "Urgency: Scotland", which refers to Scottish Ministers. Under this clause, we have to consider not what they think individually but what they think collectively. That is a difficult test. It is one that could be protracted for a length of time, during which the regulation in question would presumably be operative, and damaging if it was illegal.
Amendments Nos. 71 and 73 deal with Clause 22, "Scope of emergency regulations". At line 41, subsection (1) states that,
"Emergency regulations may make any provision which the person making the regulations thinks is for the purpose of preventing, controlling or mitigating an aspect"
and so on. We are here faced with the possibility, raised by the draftsman, that a person making a regulation may think that it is for a purpose different from that for which it is designed. So he could be arraigned for closing all the magnificent new casinos that we expect to spring up all around the country because they were being used as a source of disaffection, when he actually thought he was saying something about transport. Surely that cannot be the case.
It is difficult to visualise any circumstances in which a Minister may make a regulation which he thinks is for one purpose when it is for another, so it seems to
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me that Amendments Nos. 71 and 73 would be the easiest for your Lordships to agree to. The other amendments follow suit, and I am grateful to noble Lords who have put their names to them.
I have made my position clear: the intrusion of the Minister's thoughts in the tests required in the Bill is superfluous and confusing. I beg to move.
The Deputy Speaker (Baroness Ramsay of Cartvale): My Lords, I have to inform the House that if Amendment No. 29 is agreed to, I cannot call Amendment No. 30.
Lord Archer of Sandwell: My Lords, I hope I am not about to dilute the gratitude of the noble Lord, Lord Elton. Although I added my name to Amendment No. 29, I hope he will find it in his heart to forgive me when I say that I am having second thoughts. I have not been able to discuss the issue with the noble Lord, and I am springing this on him.
The intention is that the urgency provision shall take effect if there is an urgent need to make the provision. So someone will need to decide whether that condition is satisfied—and that someone will have to be either a Minister or the court. If the words "a Minister of the Crown thinks that" are not there, the test will be an objective one; and if the power is challenged, the court will have to decide whether it is satisfied.
On reflection, I can foresee problems with that. The court will require evidence of the need to make the provision. That may entail taking a substantial body of evidence—one can envisage a lengthy hearing—at a time when the whole question is whether there is urgency. Perhaps even worse, some of it may rest on intelligence which it would not be in the public interest to disclose; and the disclosure might endanger the source of the intelligence and there could be questions of the court going into camera and so on.
I understand that it would avoid those difficulties if the decision is required to be made by the Minister; that is, if he thinks there is an urgent need. I agree with what my noble friend Lady Scotland said at an earlier stage that the court may nevertheless require to be satisfied that the Minister really has applied his mind to the questions, has received information on which he can make his judgment and that his judgment was within the parameters of reasonableness. At that stage, I am deserting the ship.
However, the case is very different in respect of Amendments Nos. 71 and 73. What the Bill requires there relates to the purpose of making the regulations. Again, had the clause stated that a regulation must be shown to be "required" for one of the purposes listed, a court would need to be satisfied that it was required, and again there would be problems relating to evidence. If the clause had stated that the Minister must be satisfied that the regulation is necessary for that purpose, I could have understood why it was drafted in that way.
I am most grateful to my noble friend Lady Scotland, who has lavished on me a great deal of time and care in discussing the merits of various formulations which will

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avoid all our difficulties. So far we have been unsuccessful. Even that team has broken down at the moment.
However, the clause states that the Minister must think that the regulation he is making is for that purpose. As he is making the regulation, he must know what the purpose is; the purpose is in his own mind. He cannot be in doubt about what was in his mind. If we allow something which is nonsense—in the literal, logical sense that it does not make sense—we will be held up to ridicule by future generations.
I have looked at the cases cited in Committee by my noble friend Lady Scotland. They establish that if, as a condition of taking a certain step, an official must be satisfied that something is the case, the court may inquire whether he was so satisfied. But, as my noble friend properly pointed out, the court may also inquire whether his satisfaction was reasonable.
So, on any formulation, there is a safeguard. What matters is: of what must he be satisfied? His satisfaction may be that the provision is necessary for the purposes listed—that is understandable—but it remains nonsense to require him to think that something is going on in his own mind. The formulation suggested by the noble Lord, Lord Elton, at the moment appears at least to avoid that absurdity.
Lord Lloyd of Berwick: My Lords, I support the amendment. I apologise to the House for joining in the discussion of the Bill at such a late stage in the proceedings. However, having read the debate that took place on Clause 7 in Committee, I wish to add one matter to the debate.
The question has little to do with whether the Minister is under a public law duty to think reasonably, a point made by the Minister on the earlier occasion. It seemed to me that he was on much sounder ground when he said that,
"the best approach is the one that results in the simplest drafting with the fewest words that is least likely to cause confusion".—[Official Report, 14/10/04; col. 467.]
That is exactly the approach that I would adopt in supporting this amendment, which has the effect of leaving out seven words from the Bill that add nothing or almost nothing, could well cause confusion and, in any event, to my mind, look extraordinarily odd when one sees them in statute.
Of course, the clause relates to a very urgent situation, but this is not the first time that Parliament has had to deal with urgent situations. The thought occurred to me that it is not dissimilar to a provision in the Regulation of Investigatory Powers Act 2000. The analogy is quite close, because that Act enables the Secretary of State to give or make a warrant for the interception of communications which, in the ordinary event, he would have to sign with his own hand. That was the original provision under the original Interception of Communications Act 1985. But it also provides, in Section 7(2), for what is described as an "urgent case".
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One can imagine a case in which someone arrives in this country and it is essential that his telephone should be intercepted at once, but for some reason the Minister is not available in London to sign a warrant. What does the Act provide in that case? It says that in such a case the Secretary of State can authorise an official to sign the warrant himself, provided that the warrant states on its face that it has been authorised in that way. All that that provision states is that the Secretary of State can do that in an "urgent case". It does not say that the Secretary of State can do that if he "thinks" that there is an urgent case. The test is purely objective—and with great respect to the noble and learned Lord, Lord Archer, I cannot see an objection to an objective case here.
There are many occasions when Parliament correctly imposes an objective test on Ministers when in reality there will not be time for the courts to intervene between whatever direction has been given and the time when it takes effect. The fact that there will not be time for the court to intervene and test whether the case is urgent does not seem a very serious objection. On the other hand, the Regulation of Investigatory Powers Act 2000 seems a good model, which the draftsmen of this Bill should have followed. Either there is a situation of urgency or there is not; if there is, it really adds nothing for the Minister to say that he thinks it is urgent. Obviously, he will give a direction. But if a situation is not urgent, his thinking cannot make it so.
The amendment introduced by the noble Lord, Lord Elton, is entirely desirable in leaving out words which are at best superfluous and may be positively deleterious.
6.15 p.m.
Lord Lester of Herne Hill: My Lords, I, too, owe the House an apology, but for a rather better reason than the noble and learned Lord, Lord Lloyd of Berwick. Not only have I not taken part in the earlier stages of the debate, but also I follow two noble and learned Lords, and while I may be noble, I am certainly not learned.
To add to what those two previous speakers have said, I very much doubt that the words,
"a Minister of the Crown thinks",
would be construed by the courts as different from,
"where a Minister is satisfied on reasonable grounds".
Those of your Lordships who studied law will remember the appalling case of Liversidge v Anderson—the wartime emergency powers case—on Regulation 18B. Lord Atkin interpreted words in an objective way, which were interpreted by the majority of the House of Lords in a subjective way when they affected personal liberty. He explained that any other interpretation would be the language of Humpty Dumpty. Years later, Lord Diplock said that the dissenting judge, the great Lord Atkin, had been right.

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I would be interested to know whether the Minister agrees with me that although the words,
"a Minister of the Crown thinks".
look very subjective, in practice, under modern principles of administrative law, the courts would interpret them as requiring objective satisfaction. If that is so, either the words do not need to be there at all or it would be better if they did not look so subjective, because it gives a cosmetically misleading impression. What it should say, if the words are needed, is,
"where a Minister is satisfied on reasonable grounds".
That is the true position in modern administrative law.
I wholly agree with what the noble and learned Lord, Lord Archer of Sandwell, said about the two later amendments on purpose. Both the noble and learned Lords are right in saying that, ultimately, the courts would demand objective and not subjective satisfaction. But it is important to hear what the Minister says about that.
Lord Stoddart of Swindon: My Lords, now that we have had the erudite opinions of three legal minds, perhaps I could draw attention to the fact that I have two amendments in this group—Amendments Nos. 30 and 35. They deal with the question of "thinks" in a different way.
What I am proposing is that "thinks" should be replaced with,
"believes on the available evidence".
That puts the matter in a nutshell and cannot be argued with.
I am attracted to the amendment tabled by the noble Lord, Lord Elton, because it uses fewer words. I am always pleased when legislation contains fewer rather than more words. But we are in this situation because of the loose wording of this part of the Bill. It is really as simple as that. We must be extremely careful, when passing very important legislation that may impinge on the freedom and rights of citizens, that we get it right. As I and other noble Lords said in Committee, it is simply not good enough. When such serious decisions will be taken not necessarily by a highly placed Minister but by a lowly one such as a Lord Commissioner, we must get it right.
One can think of all sorts of instances of this issue. For example, the Prime Minister thought that Iraq had weapons of mass destruction that could be used in 45 minutes. The fact of the matter is that he did not really have any evidence on which to base his decisions, but, because he thought that Iraq had weapons—which, of course, it did not—and he did not have proper evidence or, indeed, advice, we are now at war in Iraq and British soldiers are being killed and wounded.
Mr John Prescott thought that people of the north-east wanted regional assemblies. He only thought that—he did not have any evidence. The evidence was available. I knew how they were going to vote in the north-east, and if I knew that, and based my thoughts
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on the evidence, of course Mr Prescott should have known. He thought he knew, because he had no evidence, and he was wrong. He will now regret that he thought, instead of looking at the available evidence.
Something has to be done about that little word "thinks". I hope that the Minister will accept the amendment. If she did, I would be very grateful and so would other Members of this House. If she does not and if the noble Lord, Lord Elton, presses the amendment, I shall support him.
Lord Lucas: My Lords, I have tabled two amendments in the group. I care passionately about Clause 22, which is one of the vital parts of controlling the use of the powers in Clause 19 and onwards. To have it regulated by "thinks" is entirely unacceptable. I had not realised until I listened to the noble and learned Lord, Lord Archer, that it was also ridiculous. We must have a change of wording. I would much prefer the amendments of my noble friend Lord Elton, if the Government will accept them. If they will not, let us use words that they have found satisfactory elsewhere in the Bill—"is satisfied" rather than "thinks"—which are those used in my amendments.
One of the unfortunate consequences of the specialisation of legislation is that the words were presumably put together by specialist parliamentary draftsmen. No ordinary official would ever allow the provision, because "thinks'" is something that Ministers can do on their own, whereas to be satisfied they would have to consult civil servants. That surely must recommend it to the officials, if not the Minister. I would like to see my noble friend's amendment accepted.
Baroness Buscombe: My Lords, I was very pleased to add my name to the amendment of the noble Lord, Lord Elton. The House will remember that I proposed amendments in Committee that referred to a Minister being satisfied on reasonable grounds. Following extensive debate, I decided that I preferred the amendment of the noble Lord, Lord Stoddart, with regard to evidence base. Now, however, I am absolutely certain that we should support the noble Lord, Lord Elton, for all the reasons given by all noble Lords who have spoken in the debate.
I am sorry that the noble and learned Lord, Lord Archer of Sandwell, has chosen to withdraw his very express support for the amendment. The noble Baroness, Lady Scotland, briefly attempted to lavish time and thought on me with regard to the sensibleness of the amendment but, unlike the noble and learned Lord, I decided to deflect her arguments.
All noble Lords who have spoken in support of the amendment have been absolutely clear. We are talking about simple drafting with the fewest words possible, as referred to by the noble and learned Lord, Lord Lloyd of Berwick. Surely we are all aiming to do our best to ensure avoidance of error. We want to

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ensure due consideration, so I hope that the noble Lord, Lord Elton, will press his amendment if necessary.
Lord Donaldson of Lymington: My Lords, I want to say a brief word in support of the amendment. As the clause stands, it requires that,
"a Minister of the Crown thinks that".
The "that" is a prelude to two relatively simple questions of fact. They are, first, whether there is an urgent need for a particular kind of regulation and, secondly, whether there is time to do it. It does not require rocket science to resolve either, although I agree that two views are slightly more possible on the first than the second.
The plain fact is that, if the administrative court is faced with an issue of whether,
"a Minister of the Crown thinks that",
I expect that it would adopt exactly the traditional attitude laid out in the Wednesbury case. There is authority for one not having to explain Wednesbury in the way in which it was originally explained. However, the way in which it was explained was that all Ministers were reasonable men and women. That is a given; we all know that they are. If they therefore reach an unreasonable decision—if, where there is a simple question of fact, they decide something different—they must have misdirected themselves in law. In the real world, that is a bit fanciful but, nevertheless, it is the law.
I have no doubt whatever that if a Minister wrong-headedly thought something, contrary to the evidence, the courts would simply quash it. Why not say so, as the noble Lord, Lord Elton, proposes?
Lord McNally: My Lords, I want to help the Minister, if she is doing some quick calculations. She could stick rigidly to a brief, but I want to make it clear that if the noble Lord, Lord Elton, divides the House, we will support him.
Baroness Scotland of Asthal: My Lords, I too can count, and I see that there is unanimity in the House. However, that does not prevent me seeking to bring a little reason to the way in which the Government have put our case. The noble and learned Lord, Lord Donaldson, is right in his assessment of the current law, as was also reflected by the noble Lord, Lord Lester. They are quite right to give the chronology of the cases. We had the Wednesbury principle; Liversidge is seen as an aberration; then there was Ridge v Baldwin; and we have the famous judgment that I referred to previously by the noble and learned Lord, Lord Donaldson, who made it absolutely clear that a Minister was not entitled to go on a frolic of their own but had to act reasonably. If they step outside that ambit of reasonableness, that decision can properly be challenged.
I say straightaway to the noble Lord, Lord Elton, and those who support his view that of course I see the attraction of the simplicity. However, there is a flaw. Someone has to make the decision. The noble and
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learned Lord, Lord Donaldson, referred to the two issues about which a Minister would have to be satisfied, which are relatively clear. They have to be satisfied that, as a matter of urgency in relation to Clause 7(1)(a),
"there is an urgent need to make provision of a kind that could be made by an order under section 5(1)".
Noble Lords will remember the nature of Clause 5(1), which deals with general orders about,
"reducing, controlling or mitigating the effects of an emergency".
They are requirements in relation to who authorities or bodies should consult. Clause 6 is about the sort of information that can be conveyed or disclosed.
Under Clause 7(1)(b), all that can be done by direction only if,
"there is insufficient time for the order or regulations to be made".
The decision that the Minister of the Crown has to make in exercising his discretion—that is what "thinks" is there to do—is predicated on those two issues. That would be the basis of the decision, which could be reviewable. That is why the word is there.
I shall deal with the point made by the noble and learned Lord, Lord Lloyd. He refers to a different Act, which requires a different approach. In this case, whether or not it is appropriate to make an urgent direction under Clause 7 or include particular provision in emergency regulation is a question of judgment. It will have to be answered quickly, and made on the basis of information put before the Minister. We think it right and proper that the Bill should indicate clearly whose judgment will be necessary in order to activate this action. If we were to remove Clause 7(1), which states that what the Minister thinks is the determinant fact, we would not have something that was capable of review.
6.30 p.m.
Lord Lloyd of Berwick: My Lords, surely that question is answered by Clause 7(2). It is the Minister who makes a direction in certain circumstances if it is urgent. What if he thinks that it is urgent?
Baroness Scotland of Asthal: My Lords, I respectfully disagree with the noble and learned Lord because both are needed. First, there must be an exercise of discretion that the matter is urgent and that there is a need for the kinds of direction that we would ordinarily make by order, pursuant to Clauses 5 and 6. That is consultative, as the noble and learned Lord will see. Then, there must be a decision that there is insufficient time. One then goes on to say that, once the Minister has determined those two things, he may, by direction, make provision of the kind that he could have made pursuant to an order or regulation in Clauses 5 or 6. Clause 7(4) sets out the basis upon which the Minister can give directions and states what he can do, and it sets that clearly within 21 days.
Therefore, I respectfully suggest that the first part is not otiose; it is important that someone be given the authority to make the initial decision, which could be capable of subsequent review. It is right to reaffirm the fact that Ministers are allowed only to think

809
reasonably—I am sure that the noble Lord, Lord Elton, remembers that well. Unfortunately, where we do not think reasonably, the court has a wonderful ability to point that out to us and to quash our decisions.
Lord Lester of Herne Hill: My Lords, obviously it is crucial that we are clear about the test before the House decides on the question. Does the noble Baroness agree that the Wednesbury test is incomplete and that, these days, one issue is whether the principle of proportionality applies? Does she accept that, subject to whatever the courts say, if the discretion is exercised under Clause 7 disproportionately—that is, if excessive use is made of it—that is something that no reasonable Minister should do? The old Wednesbury test is, in any case, tautologous and states something like, "Whether the Minister acted reasonably in doing something which no reasonable Minister could do". That is the old, very loose test. Does the Minister accept that the principle of proportionality is crucial when, under rule-of-law considerations, one comes not to use the ordinary law-making power in this case? That will affect very much the way that I approach the matter.
Baroness Scotland of Asthal: My Lords, the noble Lord is right to say that all the legislation that we now pass must be subject to the Human Rights Act compliance test. Therefore, the noble Lord would doubtless say that any of the provisions should be HRA compliant. Indeed, specific reference is made to proportionality in Clause 20. Noble Lords will remember that Clause 20(5)(b)(iii) states, in particular, that the person making the regulations,
"is satisfied that the effect of the regulations is in due proportion to that aspect or effect of the emergency",
and so it will certainly be expressly provided with proportionality. I have no doubt that, when construing the provisions, the courts will be entitled to take into account the way in which the Human Rights Act applies to this and every other application. I make it clear that the Human Rights Act is not excluded from operating in relation to this legislation.
Lord Lester of Herne Hill: My Lords, I am very grateful, but that does not quite answer my question because the Human Rights Act does not cover the whole of this ground. I am saying that we should forget about the Human Rights Act, and I am asking whether the Minister agrees that, if the discretion were used excessively and with a lack of proportionality, regardless of whether any human right was violated, that itself would be a misuse of power.
Baroness Scotland of Asthal: My Lords, there are two answers to that. One is an answer from me, and the other is an answer that I should make under consideration from the Government's point of view. I should say that the answer to that question was "yes", but that would be very much predicated on what I have just said about the way in which the courts would be entitled to construe it.
810
The noble Lord knows as well as I do the way in which the jurisprudence has been developing. The courts take into account the way that proportionality will work, particularly bearing in mind the ECHR considerations, which clearly operate under our Human Rights Act, and that is a growing degree of jurisprudence. Therefore, I cannot say that the court would not so determine; I would expect it to be a consideration that the court would take into account. I do not think that I can say any more than that.
On considering the way that the provision is crafted, I respectfully concur with my noble and learned friend Lord Archer that the amendment to Clause 7 proposed by the noble Lord, Lord Elton, is mistaken. Of course, I understand why noble Lords have urged the amendment upon us. Certainly, I understand the arguments put forward by the noble and learned Lord, Lord Lloyd, and therefore I understand the concerns expressed by the noble and learned Lord, Lord Donaldson. However, for the reasons that I have just explained, I am comfortable about the way in which the measure is drafted.
I turn to the matters raised by the noble Lords, Lord Stoddart and Lord Lucas, and the noble Baroness, Lady Buscombe, and to Clause 22. On this occasion, I do not stand by the analysis of my noble and learned friend Lord Archer, but I commend him for his judgment in seeing the error of his first construct—not least because the noble Lord, Lord Elton, will know that there is much rejoicing in heaven at the repentance of every sinner. That is a slightly private joke between the noble Lord, Lord Elton, and myself; we are both members of a particular group. I notice that the noble Baroness on the opposite Front Bench took exception to that, but I say it very much in that context.
Lord Lucas: My Lords, if the Labour Government is heaven, what is hell like?
Baroness Scotland of Asthal: My Lords, I think that a number of people will say that hell comes in different forms for different people. We all find our own.
There is a clear difference between shifting the burden from acting reasonably in decision making and being able to act only with objective certainty. We say that the way in which noble Lords have drawn the amendments would mean that there would have to be absolute certainty before one could act.
Clause 22(1) has caused a lot of contention. The subsection states:
"Emergency regulations may make any provision which the person making the regulations thinks is for the purpose of preventing".
Again, with the word "thinks" we go back to the discretion that the Minister will have to exercise in order to satisfy himself or herself that the regulations are necessary for the purpose of preventing, controlling or

811
mitigating an aspect or effect of the emergency. There again, the Minister would have to act reasonably in exercise of discretion.
If that matter had to be challenged, of course, it would be clear that the Minister would not be entitled to act on a frolic of his own, but would have to have clear information on which that assessment or judgment was made. The only way of guaranteeing whether those provisions will be absolutely necessary is likely to be with hindsight. On the information that is then available to him, the Minister has to come to a judgment about what orders and regulations may be necessary on the facts then known of the nature of the emergency which is contemplated or is then in being.
Lord Archer of Sandwell: My Lords, the word "necessary" is not in that subsection. What is at issue is what the person making the regulations believes is the purpose of making them. That cannot be challenged in any court because he knows what the purpose is; he cannot be wrong about it.
Baroness Scotland of Asthal: My Lords, I disagree. It would be important for the Minister to base what he thought on some form of information. If one looks at the matter in a concrete way and says, "Was X required as a regulation?", it would be very difficult to say that there was evidence that was absolutely required. One may say that it may be necessary, particularly if one is contemplating an emergency. A number of things may be necessary and prudent, but subsequently they may prove to be unnecessary, although at the time they were thought to be of importance to deal with the emergency as it arose.
To stipulate that the test for acting has to be objectively perfect, so that one has to have perfect knowledge, would simply be to paralyse the decision-making process. One could ask: At what point could the Government decide that the evidence is objectively watertight? To introduce an element of doubt in situations where response is needed urgently could risk delaying the response and allowing the effects of the emergency to spread or intensify. Then an important decision would have to be made. As I have made absolutely clear, any decision that the Minister takes must be subject to the ordinary principles of public law and, therefore, such decisions must be reasonable.
Lord Lester of Herne Hill: My Lords, I am sorry to have to speak again about a matter of law. Surely, the way in which the Minister has put the advice about Clause 22 is that she has forgotten about a different principle of administrative law; that is, the principle of legality—not the principle of rationality but the Padfield principle. It is quite clear that where a Minister exercises a power that is beyond the purpose of the power being conferred, that is an abuse of power. Therefore, one simply does not need the word "thinks" in Clause 22 because the Padfield principle will ensure that the power
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is exercised only for the statutory purpose. Therefore, forgive my saying so, but it is constitutionally illiterate to suggest that the words are needed in that clause.
Baroness Scotland of Asthal: My Lords, we would disagree. The noble Lord is quite right to say that there are two principles: the Padfield principle deals with illegality. Nothing that I propose to say would in any way take away from that statement. We would say that those two issues are important here. We have considered whether it would be possible to add "required" or "necessary" and the view is that it would not be appropriate so to do.
We considered this issue. Clearly, emergency regulations should be made only if it is necessary to make provisions to deal with an emergency, but should each individual provision of the regulations be necessary? We believe not. When one is considering the appropriateness of individual provisions of the regulations, necessity is not the right test.
Let me give your Lordships an example. In the event of a chemical or nuclear incident, which leads to the contamination of large numbers of people, it may be necessary to take additional powers to deal with the situation—powers to quarantine people and powers to requisition buildings for that purpose. In other words, it may be necessary to make emergency legislation. Can it be said that it is necessary to requisition one particular building and require contaminated people not to leave that building? Requisitioning the building next door or in the next street, and requiring people to remain in the location, might be equally effective. Therefore, one would find it difficult to satisfy the necessity test in that particular instance. When one gets down to the nitty gritty of what goes into particular regulations, we believe that "necessity" is not the right test.
We shall certainly take these issues away. This matter has been given much anxious attention. I shall be happy to return to it at Third Reading, but these issues have been subject to quite intense discussion, both with lawyers and parliamentary counsel, and the advice so far is that this construct is the best that can be devised.
Lord Elton: My Lords, I am grateful to the noble Baroness for her reply which has failed in its gallant attempt to persuade me that she is right. I do not think it necessary to particularise all the respects in which she has failed to convince me. However, she said that she would think about the matter between now and Third Reading. I shall return to that point in a moment.
I thank other noble Lords who have taken part in this debate, with far more wisdom than me. I am slightly less grateful to the noble and learned Lord, Lord Archer, than to others. In considering how he should be received, I thought of the first person to leap out of the Trojan horse, but then I remembered that Troy fell after that, so I prefer to put myself in the place of St Paul when the Galatians suddenly defected and expected salvation by works rather than faith. I am glad to see that he proposes to redeem himself, as they

813
did, when we come to Amendments Nos. 71 and 73. In the mean time, I beg leave to test the opinion of the House.
6.47 p.m.
On Question, Whether the said amendment (No. 29) shall be agreed to?
Their Lordships divided: Contents, 142; Not-Contents, 127.

Division No. 2

CONTENTS

Addington, L.

Howard of Rising, L.

Allenby of Megiddo, V.

Inglewood, L.

Alton of Liverpool, L.

Jenkin of Roding, L.

Anelay of St Johns, B.

Jopling, L.

Attlee, E.

Kimball, L.

Avebury, L.

King of Bridgwater, L.

Barker, B.

Kingsland, L.

Blaker, L.

Lawson of Blaby, L.

Blatch, B.

Lester of Herne Hill, L.

Bonham-Carter of Yarnbury, B.

Listowel, E.

Bowness, L.

Liverpool, E.

Bridgeman, V.

Livsey of Talgarth, L.

Brooke of Sutton Mandeville, L.

Lloyd of Berwick, L.

Brougham and Vaux, L.

Lucas, L.

Buscombe, B.

Luke, L.

Byford, B.

Lyell, L.

Campbell of Alloway, L.

McColl of Dulwich, L.

Carlisle of Bucklow, L.

MacGregor of Pulham Market, L.

Carnegy of Lour, B.

Chan, L.

Mackie of Benshie, L.

Colville of Culross, V.

McNally, L.

Colwyn, L.

Maddock, B.

Cope of Berkeley, L.[Teller]

Mar, C.

Craigavon, V.

Mar and Kellie, E.

Crathorne, L.

Masham of Ilton, B.

Crickhowell, L.

Methuen, L.

Cumberlege, B.

Miller of Chilthorne Domer, B.

Dean of Harptree, L.

Miller of Hendon, B.

Dearing, L.

Monro of Langholm, L.

Denham, L.

Monson, L.

Dixon-Smith, L.

Montrose, D.

Donaldson of Lymington, L.

Morris of Bolton, B.

D'Souza, B.

Mowbray and Stourton, L.

Elles, B.

Moynihan, L.

Elliott of Morpeth, L.

Murton of Lindisfarne, L.

Elton, L.

Naseby, L.

Emerton, B.

Neill of Bladen, L.

Falkland, V.

Newby, L.

Falkner of Margravine, B.

Noakes, B.

Ferrers, E.

Northbrook, L.

Fookes, B.

Northesk, E.

Forsyth of Drumlean, L.

Norton of Louth, L.

Garden, L.

Oakeshott of Seagrove Bay, L.

Gardner of Parkes, B.

O'Cathain, B.

Geddes, L.

Park of Monmouth, B.

Glenarthur, L.

Peel, E.

Glentoran, L.

Perry of Southwark, B.

Goodhart, L.

Peyton of Yeovil, L.

Goschen, V.

Phillips of Sudbury, L.

Griffiths of Fforestfach, L.

Prashar, B.

Hamwee, B.

Quinton, L.

Hanham, B.

Redesdale, L.

Hannay of Chiswick, L.

Rees, L.

Hanningfield, L.

Renton, L.

Harris of Richmond, B.

Roberts of Conwy, L.

Hayhoe, L.

Roberts of Llandudno, L.

Higgins, L.

Rogan, L.

Hodgson of Astley Abbotts, L.

Roper, L.

Hooson, L.

Rotherwick, L.

814

St John of Fawsley, L.

Tordoff, L.

Saltoun of Abernethy, Ly.

Trumpington, B.

Seccombe, B.[Teller]

Ullswater, V.

Selsdon, L.

Vinson, L.

Sharples, B.

Waddington, L.

Skelmersdale, L.

Wakeham, L.

Wallace of Saltaire, L.

Smith of Clifton, L.

Walpole, L.

Steel of Aikwood, L.

Watson of Richmond, L.

Stewartby, L.

Wilcox, B.

Stoddart of Swindon, L.

Williams of Crosby, B.

Sutherland of Houndwood, L.

Williamson of Horton, L.

Swinfen, L.

Windlesham, L.

NOT-CONTENTS

Acton, L.

Hoyle, L.

Ahmed, L.

Hughes of Woodside, L.

Amos, B. (Lord President of the Council)

Hunt of Chesterton, L.

Hunt of Kings Heath, L.

Andrews, B.

Irvine of Lairg, L.

Ashton of Upholland, B.

Jay of Paddington, B.

Bach, L.

Jones, L.

Barnett, L.

Judd, L.

Bassam of Brighton, L.

King of West Bromwich, L.

Berkeley, L.

Kirkhill, L.

Bernstein of Craigweil, L.

Layard, L.

Bhattacharyya, L.

Lea of Crondall, L.

Blackstone, B.

Leitch, L.

Borrie, L.

Lipsey, L.

Bragg, L.

Lockwood, B.

Brooke of Alverthorpe, L.

Lofthouse of Pontefract, L.

Brookman, L.

McIntosh of Haringey, L.

Campbell-Savours, L.

McIntosh of Hudnall, B.

Carter, L.

MacKenzie of Culkein, L.

Chandos, V.

Mackenzie of Framwellgate, L.

Clark of Windermere, L.

Massey of Darwen, B.

Clarke of Hampstead, L.

Maxton, L.

Clinton-Davis, L.

Merlyn-Rees, L.

Corbett of Castle Vale, L.

Mitchell, L.

Crawley, B.

Morgan, L.

David, B.

Morgan of Drefelin, B.

Davies of Coity, L.

Morris of Aberavon, L.

Davies of Oldham, L. [Tetter]

Parekh, L.

Desai, L.

Patel of Blackburn, L.

Drayson, L.

Pendry, L.

Dubs, L.

Pitkeathley, B.

Elder, L.

Plant of Highfield, L.

Evans of Parkside, L.

Prosser, B.

Evans of Temple Guiting, L.

Ramsay of Cartvale, B.

Farrington of Ribbleton, B.

Randall of St. Budeaux, L.

Faulkner of Worcester, L.

Rea, L.

Finlay of Llandaff, B.

Rendell of Babergh, B.

Fyfe of Fairfield, L.

Richard, L.

Gale, B.

Rooker, L.

Gibson of Market Rasen, B.

Rosser, L.

Golding, B.

Rowlands, L.

Goldsmith, L.

Royall of Blaisdon, B.

Gordon of Strathblane, L.

Sawyer, L.

Gould of Brookwood, L.

Scotland of Asthal, B.

Gould of Potternewton, B.

Sewel, L.

Graham of Edmonton, L.

Sheldon, L.

Griffiths of Burry Port, L.

Simon, V.

Grocott, L.[Teller]

Smith of Leigh, L.

Harris of Haringey, L.

Snape, L.

Harrison, L.

Symons of Vernham Dean, B.

Hart of Chilton, L.

Thornton, B.

Haskel, L.

Tomlinson, L.

Haskins, L.

Triesman, L.

Haworth, L.

Truscott, L.

Hayman, B.

Tunnicliffe, L.

Henig, B.

Turnberg, L.

Hilton of Eggardon, B.

Turner of Camden, B.

Hogg of Cumbernauld, L.

Varley, L.

Hollis of Heigham, B.

Wall of New Barnet, B.

Howie of Troon, L.

Warner, L.

815

Warwick of Undercliffe, B.

Wilkins, B.

Weatherill, L.

Williams of Elvel, L.

Whitaker, B.

Woolmer of Leeds, L.

Whitty, L.

Young of Norwood Green, L.

Resolved in the affirmative, and amendment agreed to accordingly.
6.58 p.m.
The Deputy Speaker: My Lords, since Amendment No. 29 has been agreed to, I cannot call Amendment No. 30.
[Amendment No. 30 not moved.]
Lord Lucas Lord Lucas moved Amendment No. 31:
Page 7, line 22, leave out "may be written or oral" and insert "shall be in writing"
The noble Lord said: My Lords, there are some occasions when an oral direction is better than a written one, this being one of them. There are others when it is the other way around. I am delighted that the Government have converted themselves to the same point of view as myself, and I welcome them. I beg to move.
Baroness Buscombe: My Lords, I should like to speak to Amendments Nos. 32 and 37 in this group. It is clear that the Government have tabled very similar amendments to mine on this point, which achieve the end that we were all aiming for in Committee. I say "all", but I mean those who spoke against the Government. I thank the Government for listening to the debate and realising that we had a good point.
These clauses detail what will happen in the most urgent of situations in England, Wales and Scotland. The current drafting of the Bill allows a Minister to make emergency provisions either orally or by written instructions. We feel that in emergency situations, it is best practice to write directions down. We very much appreciate the need for swift action, and I want to put it on record that we in no way want to slow the response to an emergency. There is a real danger, however, that if oral directions are given, they are open to misunderstanding or misinterpretation.
Taking time to write something down also allows a little time for reflection on one's actions. Writing something down will also help those who are looking at the exercise of any such powers by a Minister after the emergency is over. If his orders are written down they are there, in black and white. Memories—particularly those in the grip of an urgent situation—are not always reliable, even if the person recalling the incident is completely well meaning.
We are very grateful to the Minister for responding to our debate. We are pleased that he has seen fit to respond with similar amendments.
Lord McNally: My Lords, we completely associate these Benches with those sentiments and hope that they are understood clearly in Downing Street.
Lord Bassam of Brighton: My Lords, rarely has such generosity been expressed across the Floor of your Lordships' House. I rise simply to speak to the government amendments. The purpose of our amendments is well understood, but I shall put it on the record.
Both the government amendments and the opposition amendments aim to remove the possibility of directions under Clause 7, or in Scotland Clause 8, being given orally. Understandable concerns were expressed by the Delegated Powers and Regulatory Reform Committee about the need for oral directions, and that point was pressed in Committee. Our amendments remove the possibility of directions being issued by oral means and should entirely meet opposition concerns on the point.
Lord Lucas: My Lords, let us continue the rest of this debate in this same happy frame of mind.
On Question, amendment agreed to.
[Amendment No. 32 not moved.]
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 33:
Page 7, line 32, leave out subsection (5).
On Question, amendment agreed to.
Clause 8 [Urgency: Scotland]:
Lord Elton Lord Elton moved Amendment No. 34:
Page 7, line 38, leave out "the Scottish Ministers think that"
On Question, amendment agreed to.
[Amendment No. 35 not moved.]
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 36:
Page 8, line 3, leave out "may be written or oral" and insert "shall be in writing"
On Question, amendment agreed to.
[Amendment No. 37 not moved.]
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 38:
Page 8, line 13, leave out subsection (5).
On Question, amendment agreed to.
Lord Lucas Lord Lucas moved Amendment No. 39:
After Clause 16, insert the following new clause—

REPORT TO PARLIAMENT
The Secretary of State shall make arrangements for an annual report to Parliament on the preparations made by government in relation to civil contingencies and on the performance of the persons or bodies listed in Part 1 or 2 of Schedule I in respect of their duties under this Act."
The noble Lord said: My Lords, I apologise to the Front Bench of the Liberal Democrat Party—I regard this sort of amendment as their territory. Indeed, I voted for an amendment like this in yesterday's debate on the Pensions Bill. Sadly, I was just in the minority. If anything along the lines of the amendment proves attractive to that Front Bench, I would be delighted if they would bring it back at Third Reading and I shall support them then.
The purpose of the amendment is to hold the Government to a promise that they made in Committee. They promised that they would consider how government would report to Parliament on the performance of their duties in return for their not being given any duties under the Bill. I look forward to the Government's response. I beg to move.
Lord Bassam of Brighton: My Lords, annual reports are a popular amendment in your Lordships' House, and I can well understand why opposition parties seek to move them. Annual reports have that feel to them—as if to say, "We're jolly well going to hold the Government to account. Make them report annually to us. Have things placed on the record. Ensure that we extract every last piece of information from them, and then we'll move on and do something else". But what does this amendment seek to prove? It proves nothing. It would achieve very little.
We already have a clear and convincing strategy in place for developing our counter-terrorism and resilience capabilities. We know that we have robust contingency planning and exercising arrangements in place. Local responders understand how they fit into the wider picture. The amendment of the noble Lord, Lord Lucas, develops the theme simply by seeking to introduce a mechanism to ensure that the Government are transparent about their civil contingencies work. However, we are transparent. We have made clear what we are doing. We have set out our plans. There are more than ample opportunities for your Lordships' House and another place to debate and consider how we are working.
I understand why people call for annual reports to be presented to Parliament, but we make regular Statements on the issues that will undoubtedly be covered by an annual report. The Home Office regularly reports on these issues. The Home Secretary has made many Statements to another place on them. When an emergency has arisen in the past, account has regularly been made to Parliament. We do not see any need at all for an annual report in the form in which the noble Lord, Lord Lucas, is requesting it. Plenty of mechanisms are already in place in Parliament for reporting on the detail of the quality, quantity and robustness of contingency planning.
We provide maximum public information. In our earlier debate about providing advice and information, I thought that our comments were received well and our reassurances were to some degree accepted by Members of your Lordships' House. We are trying to be as open as we possibly can about our counter-terrorism and resilience arrangements. We have made available a large amount of practical and helpful information to businesses, voluntary organisations and individuals about emergencies. I believe that the regularity with which we report on these matters to Parliament gathers respect. We set out our plans and thinking in these matters in a whole range of documents that are appropriate to the issue. I am sure that most people would agree that, despite all the difficulties in this field,
818
Parliament already has access not only to information about the Government's approach, but also to the tools to hold them properly to account.
I can understand why the noble Lord, Lord Lucas, might want to have an annual and regular report. However, I suspect that, in the end, like all such matters, it will get lost among all the other annual reports in various guises that amendments down the years have proposed in order to hold government to account for the detail of their activity.
I do not think that the amendment is necessary. I think that we already have sufficient reporting mechanisms. We have transparency on the issue. That would be a far more effective and, ultimately, flexible way of dealing with this. If the issue is important enough for the Government to be held to account, then that needs to happen not just annually but at regular intervals and on occasion when there is a real cause to hold the Government to account for their activities in this field.
As much as I respect the noble Lord, Lord Lucas, for proposing the amendment, I do not think that it takes us forward in any particular direction. I think that, ultimately, it is inflexible in its extent and operation.
Lord Lucas: My Lords, that is a fairly clear no. I shall let the matter lie there but I shall come back to it under the next group, which is where the consequences of this will come to light. If the Government will not tell us in any formal way how, for instance, they have been exercising to deal with a major flood, or a shortage of fuel, or whatever else it might be, I want to be sure that we shall be able to find out those things informally and that we shall not just be told, "It is none of your business".
In not involving themselves in this Bill the Government are saying that we can trust them to do all the exercising and the preparations. But how do we hold them to account if they just will not tell us what they have been doing? That is what worries me. The noble Lord says that there will be all these reports but I am not aware of any of them. I have never seen any of them. Perhaps the noble Lord could give me a list of the things that are available at the moment to say what exercises the Government have been doing. I asked him for that last time but I think I got an answer that they could not answer.
It is all very well saying that there is no need for a formal reporting mechanism, but it has to be very clear that these things actually are available when we want them and are not just bits of information that are not collected because the Government cannot be bothered. It is absolutely crucial to this whole thing working that the Government do their bit. If it is not in this Bill and they are not going to tell us about it in a formal way, I really would like to know where I go to find out details of the Health Department's

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exercising for civil contingencies. Where should I look? If the noble Lord can answer that question in writing, I shall not return to the matter at Third Reading.
Lord Bassam of Brighton: My Lords, I shall endeavour to invoke more Cabinet Office correspondence on the matter and put the noble Lord's mind at rest. Many publications outline what we do and plan and how we engage with the issue. I am happy to provide the noble Lord with that information.
Lord Lucas: My Lords, I am grateful for that but I should be clear that it is not the good intentions that interest me but what actually gets done. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 18 [Interpretation, &c.]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 40:
Page 12, line 23, at end insert—
""terrorism" has the meaning given by section 1 of the Terrorism Act 2000 (c. 11), and
"war" includes armed conflict."
On Question, amendment agreed to.
[Amendments Nos. 41 and 42 not moved.]
Schedule 1 [Category 1 and 2 Responders]:
Baroness Buscombe Baroness Buscombe moved Amendment No. 43:
Page 23, line 5, at end insert—
"Central Government

1 In relation to England and Wales

(a) a Government department or ministry,

(b) an executive agency or non-department public body,

(c) the National Assembly for Wales, and

(d) an executive agency or non-department public body of the National Assembly for Wales.

2 In relation to Northern Ireland—

(a) the Northern Ireland Executive, and

(b) a Northern Irish executive agency or non-department public body."

The noble Baroness said: My Lords, in moving Amendment No. 43, I shall speak also to Amendment No. 44. I am eager once again to address the crucial issue of central government's role as a responder in a major emergency.
I believe it is imperative that this legislation clearly defines central government's role in an emergency. While local responders and local emergency plans are certainly comprehensive and developed, the question still remains of what action central government are to take in co-ordinating the response to a large-scale emergency situation.
The very nature of an emergency is that it creates chaos and uncertainty. Therefore, should not this legislation include provisions to ensure that the Government have adequate resources to plan for such a situation? Is it not our duty, in addition to modernising the legislative framework for civil protection, as the Minister stated in Committee, to
820
provide that national emergency planning, training and exercising are integrated with that of local responders?
With respect I do not agree with the Minister's statement that the Government do not need specific legislative authority to plan for an emergency. It would be irresponsible in our view to pass legislation that goes only halfway towards providing a solution for the management of emergency situations.
The noble Lord, Lord Bassam, remarked in Committee that devolved administrations and local government are in charge of emergency planning within their sphere of responsibility. The Minister also stated that the UK Government work very closely with the devolved administrations. I hope so. Therefore, I do not see the objection to amending this legislation to codify the Government's role in emergency preparations and in requiring the involvement of central government resources.
Recent examples where central emergency planning was lacking include the fuel crisis and the foot and mouth outbreak. Certainly those experiences have taught us only that central government play a central role—a key role—in containing emergency situations.
These amendments therefore, by widening the scope of category 1 responders to include central government departments and their agencies throughout all countries of the United Kingdom, would allow for far greater oversight of emergency response preparations and the efficient co-ordination of resources.
It is the strong opinion on these Benches that this group of amendments would greatly improve the legislation. Indeed, in proposing these amendments we are responding to what the Joint Committee said in its report:
"We recommend that the role and responsibilities of Government Departments, the National Assembly for Wales and regional government are outlined on the face of the Bill and that they are given a statutory duty to undertake their responsibility".
I beg to move.
7.15 p.m.
Lord Garden: My Lords, we have looked at this matter in different ways at different stages and I still think that the Government have not addressed the concerns which the noble Baroness, Lady Buscombe, has outlined.
We are looking at the ways in which we can have joined-up government, both vertically and horizontally, for unknown emergencies. It seems very strange that each time we consider this the Government are unwilling to place themselves under the same requirements as they do local authorities and other category 1 and category 2 responders.
On the last occasion I tabled an amendment that specifically identified the Ministry of Defence as having a role in this matter. I have not tabled it this time but the rather neat amendment of the noble Baroness, Lady Buscombe, returns to the idea that we need local authorities to know what central government will provide so that there is no duplication. We need a whole

821
range of joined-up activities that are missing at present as there is no reference to the central government area. I strongly support the amendment.
Lord Bassam of Brighton: My Lords, as both the noble Baroness, Lady Buscombe, and the noble Lord, Lord Garden, said, we have had this debate more than once already. I shall not disappoint or alarm the House when I say what I have said before; namely, that we remain to be persuaded. This is not a measure that we consider we can support.
Much has changed over the past three or four years. I return to a point that the noble Baroness, Lady Buscombe, made a few moments ago about earlier crises. We have learnt a lot from those. In the time since the fuel crisis, the foot and mouth outbreak, flooding and so on, we have demonstrated a very clear commitment to the resilience agenda. That agenda is championed at Cabinet level by the Home Secretary, who gives a very firm and clear lead. I do not think that anyone would deny that our Home Secretary is very clear in his intent.
I consider it is almost unarguable that there has been a major change in the quality of contingency planning in central government since 2001. As I say, that was because we reflected on some of the weaknesses which had been exposed by crises. The previous foot and mouth outbreak occurred back in the 1960s. Flooding does not occur every year and a fuel crisis does not arise every year. However, we had to deal with those three major problems all within a fairly short period of time. We had to take account of changes that had occurred in the period that had elapsed since those crises arose in the past. We had to take account of things that had happened nationally, the way in which local government had been reorganised, the impact of technology, the way in which distribution networks work and so on. That caused us to think long and hard about our approach. As I said earlier, I believe that we now have a very robust strategy in place for developing our counter-terrorism and resilience capabilities based on wisdom accumulated over many years. We have detailed contingency planning and exercising arrangements in place within central government. As I said a few moments ago, local responders understand how they fit into the wider picture. More than that, they now have a clear understanding and a good working relationship with central government. This will, of course, be enhanced through the guidance supporting the Bill.
I can see why it might be argued that in future another government might attach less priority to the issue. We went through a period prior to this Government coming to power where civil defence—this is not a criticism of the previous Conservative administration—had a lower order of priority, as did some emergency work. We have moved on from that, due to the exigencies of events. We have set out our stall regarding what we want to do. We are establishing a clear legislative framework. It also has to be said that there are few precedents for imposing high-level duties on central governments. The Government do not consider that it is possible to do so in this case.
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Government exercises a huge range of functions ranging from legislation to the delivery of essential services and the management of public finances and advisory services. Each department has different functions and exercises its functions in a different way. As a consequence of governments diversity, any duty would have to be extremely broad.
The noble Lord, Lord Garden, said that the amendment was a neat solution. I am not convinced. We solve the problem in relation to the local response through a heavy reliance on regulations and guidance. There is sufficient commonality between the functions exercised by local responders that it is possible to impose a single statutory duty them. If we applied the same principle here, central government would be regulating and guiding themselves. That would be an interesting conundrum.
Essentially, a future government would be free to take a narrow interpretation of any such duty on themselves. So, as is the case now, the key factor in central government's efforts would not be the shape of any duty but the level of ministerial commitment. That is why we do not believe that a meaningful contingency planning duty—one that would change behaviour—could be imposed on central government. What matters is ministerial will, which is of the utmost importance.
The Government are already committed to a clear performance framework for central government in this area. Noble Lords may be aware of the document The Lead Government Department and its role—Guidance and Best Practice. It was published recently and is a type of document that, no doubt, the noble Lord, Lord Lucas, would like to see more of. I am more than happy to ensure that copies are made available. The document sets out a clear audit regime. Lead departments will be required to incorporate contingency planning into the annual assurance and risk control mechanism. That will form part of the central government corporate governance regime.
The process will require senior officials to ensure that contingency plans are adequate and that they are validated. It will form part of the department's statement of internal control. The Civil Contingencies Secretariat at the Cabinet Office will co-ordinate the work, ensuring that standards are maintained. However, the results will not be published. Noble Lords will understand some of the difficulties of exposing strengths and weaknesses to those who wish to do us harm.
We take counter-terrorism and resilience issues extremely seriously. We have invested heavily in that work and have in place much improved arrangements as a result of that work and that investment. It is not possible to craft a meaningful duty on central government to ensure that future governments match this Government's commitment to countering terrorism and enhancing resilience. Introducing a defective duty could even hinder effective contingency planning.
What is important at the end of the day is ministerial will. We have that will, and we have a framework that has been given a clear lead in Cabinet. That is the best

823
way for us to organise our arrangements. For those reasons, I must resist the amendment tabled by the noble Baroness.
Baroness Buscombe: My Lords, I thank the Minister for his response, although it is deeply disappointing. Yes, the Minister has repeated what he said in Committee. It seems that it is one matter for local authorities and local government and another for central government.
The Minister talked about having a clear framework. I cannot understand why central government cannot be part of that framework. It might be the case that central government is at the moment taking counter-terrorism seriously, but the Minister said himself that previous governments had not necessarily treated the matter as a priority.
We live in a different climate from the one in which we lived even four or five years ago. What we are looking for is, as the noble Lord, Lord Garden, said, joined-up government. Surely, if we have any legislation at all, if we are to repeal all of the current emergency legislation, why are we not taking the opportunity in primary legislation to have in the Bill a primary duty on the part of our central government departments to do their duty, as local responders, local authorities and others are required to?
I mentioned foot and mouth disease and the fuel crisis. Yes, I hope that the Government have learnt from those experiences, but what if we have a 9/11 experience tonight or tomorrow? We are talking about the possibility of some unprecedented act or acts, the kind of which none of us has perhaps ever considered. I do not believe that anyone beyond those who make extraordinary horror films could have conceived of what took place on 9/11 in America. It is extraordinary. We have an opportunity here to place in the Bill, and to amplify within a framework, the role of central government and its relationship with local government in civil contingency planning.
I shall not divide the House on the amendment, but I am deeply disappointed. The matter illustrates the fact that the Government, on purely practical issues, are being entirely and unnecessarily inflexible. That is deeply disappointing. However, for now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 44 not moved.]
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 45:
Page 25, line 6, leave out paragraphs 19 and 20 and insert—
"19 (1) A person holding a licence of a kind specified in sub-paragraph (2) and granted under section 6 of the Electricity Act 1989 (c. 29).
(2) Those licences are—

(a) a transmission licence,

(b) a distribution licence, and

(c) an interconnector licence.

(3) Expressions used in this paragraph and in the Electricity Act 1989 (c. 29) shall have the same meaning in this paragraph as in that Act.
20 (1) A person holding a licence of a kind specified in sub-paragraph (2).
(2) Those licences are—

(a) a licence under section 7 of the Gas Act 1986 (c. 44), and

(b) a licence under section 7ZA of that Act."

On Question, amendment agreed to.
[Amendments Nos. 46 to 56 not moved.]
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 57:
Page 26, line 6, leave out paragraphs 30 and 31 and insert—
"30 (1) A person holding a licence of a kind specified in sub-paragraph (2) and granted under the Electricity Act 1989 (c. 29), in so far as the activity under the licence is undertaken in Scotland.
(2) Those licences are—

(a) a transmission licence,

(b) a distribution licence, and

(c) an interconnector licence.

(3) Expressions used in this paragraph and in the Electricity Act 1989 (c. 29) shall have the same meaning in this paragraph as in that Act.
31 (1) A person holding a licence of a kind specified in sub-paragraph (2), in so far as the activity under the licence is undertaken in Scotland.
(2) Those licences are—

(a) a licence under section 7 of the Gas Act 1986 (c. 44), and

(b) a licence under section 7ZA of that Act."

On Question, amendment agreed to.
Lord Bassam of Brighton: My Lords, given the hour, I beg to move that consideration on Report be now adjourned. In moving the Motion, I suggest that the Report stage begin again not before 8.30 p.m.
Moved accordingly, and, on Question, Motion agreed to.

Health and Social Care (Community Health and Standards) Act 2003 (Commission for Healthcare Audit and Inspection and Commission for Social Care Inspection) (Consequential Provisions) Order 2004
7.29 p.m.
Lord Warner Lord Warner rose to move, That the draft order laid before the House on 28 October be approved [32nd Report from the Joint Committee].
The noble Lord said: My Lords, this draft order makes changes that are consequential to Part 2 of the Health and Social Care (Community Health and Standards) Act 2003. Yesterday afternoon it was debated in another place. There my ministerial colleague, Stephen Ladyman, made a declaration that the draft order is compatible with the European Convention on Human Rights.
A regulation or order-making power providing for consequential changes to legislation is normally a standard power included in primary legislation to recognise that, despite best efforts, it is not always

825
possible to identify during the passage of the Bill every consequential change that might be needed to primary legislation.
The House of Lords Select Committee on Delegated Powers and Regulatory Reform, which considered the 2003 Bill, recommended in its 24th report, which was published on 10 September 2003, that the affirmative procedure should apply for all orders that amend Acts.
Section 195(5) of the 2003 Act applies that recommendation to Section 201 under which this order is made. That explains why this order is before the House today. The 2003 Act established the Commission for Healthcare Audit and Inspection, known as the Healthcare Commission, and the Commission for Social Care Inspection. On 1 April this year they both began their functions, and the former bodies—the Commission for Health Improvement and the National Care Standards Commission—were abolished.
The order introduces no contentious provisions, but is simply a tidying-up exercise intended to update legislation by replacing redundant references to the Commission for Health Improvement with references to the Healthcare Commission. It also adds references to the Commission for Social Care Inspection, where appropriate, so that both commissions are on an even footing.
Turning to the specific changes made by the draft order, Article 2(1)(a) substitutes a reference to the Healthcare Commission for the existing reference to the Commission for Health Improvement in Section 33(6)(c) of the Audit Commission Act 1998.
Article 2(1)(b) of the draft order adds a reference to the Commission for Social Care Inspection and also replaces the reference to the Commission for Health Improvement with a reference to the Healthcare Commission in the definition of "Crown" bodies for the purposes of Section 48 of the Copyright, Designs and Patents Act 1988.
Article 2(1)(c) substitutes a reference to the Healthcare Commission for the reference to the Commission for Health Improvement in Section 21(2) of the National Health Service and Community Care Act 1990.
Article 2(1)(d) concerns Section 20 of the National Health Service Reform and Health Care Professions Act 2002. The draft order replaces the reference in subsection (7) to the Commission for Health Improvement with a reference to the Healthcare Commission as being one of the bodies to whom the Commission for Patient and Public Involvement in Health might report a matter under this section.
Article 2(1)(e) adds the Healthcare Commission and the Commission for Social Care Inspection to the list of bodies that are subject to obligations under Section 71 of the Race Relations Act 1976. The current reference to the Commission for Healthcare Improvement is repealed by Article 2(2) of the draft order.
Article 2(1)(f) replaces the reference to the Commission for Health Improvement with a reference to the Healthcare Commission in Section 144(2) of the Road Traffic Act 1988. It also adds a reference to the Commission for Social Care Inspection.
Article 2(1)(g) makes similar changes in relation to Schedule 2 to the Vehicle Excise and Registration Act 1994.
Lastly, Article 2(2) of the draft order makes a technical repeal to the Race Relations Act 1976 and a revocation to related subordinate legislation so as to remove from that legislation superfluous references to the Commission for Health Improvement.
The amendments in this order are not expected to have any financial or adverse impact or burden on the commissions, businesses or public bodies.
Under the 2003 Act, we are required to consult the National Assembly for Wales in relation to the Healthcare Commission and the abolition of the former regulatory bodies before the order is made. We have done so and the Minister for Health and Social Services, acting on behalf of the Assembly, has confirmed that she has no comments.
As the draft order makes changes to some UK-wide legislation, the Scottish Executive and the Northern Ireland Department of Health, Social Services and Public Safety have been made aware and have made no comments on the draft. The Healthcare Commission and the CSCI have also been consulted and did not wish to make any points.
Finally, as I said earlier, the draft order is compatible with the European Convention on Human Rights. I beg to move.
Moved, That the draft order laid before the House on 28 October be approved [32nd Report front the Joint Committee].—(Lord Warner.)
Lord Skelmersdale: My Lords, this is a very simple order. It updates, as the Minister has just said, miscellaneous references in a wide range of legislation to take account of the existence of the Commission for Healthcare Audit and Inspection—known by the acronym CHAI—and CSCI, whose full name is the Commission for Social Care Inspection. Both bodies came into existence by virtue of the Health and Social Care (Community Health and Standards) Act 2003.
That Act also amends the law relating to the recovery of NHS charges, makes changes to primary dental and medical services, and provides for a replacement of the Welfare Food Scheme, none of which applies to this order. But there is a third issue about which I would like to ask the Minister. It also provided for the establishment of NHS foundation trusts, which we said then and believe now were neither fish nor fowl nor fine red herring. So complicated was the procedure for applying that my own local hospital, Musgrove Park Hospital in Taunton, applied and then withdrew its application when it found out exactly what was involved. I should therefore like to know how many others were in that position.
Since the Act came into force the Government have announced that they plan to reduce the number of health quangos. How will that affect CHI in particular? As far as CSCI goes, I wish it well. I spent a year of my life in Northern Ireland trying to get social security staff to publish results of their research and practical achievements, which they were very reluctant to do,

827
mainly because it was a time when anonymity brought personal security. CSCI would have helped dramatically to counter that particular attitude.
Going back to the Bill, the House will recall that my noble friend Lord Howe fought a successful rearguard action to have the chairmen of these bodies independent of government. As a result, both they and their staff are appointed by the National Health Service Appointments Commission, making the organisations they chair just that little bit more devolved from government, which in my view had leaned rather too much on their predecessor authorities.
I was delighted to hear the Minister talk of Article 2(1)(e) and the Race Relations Act and its relationship to Article 2(2)(a) and (b). That was one of the questions I was going to ask and now do not need to.
However, I should like to ask something about Article 2(f). Section 144(2) of the Road Traffic Act 1988 is about exemptions from the requirement of third-party insurance or security. Are the vehicles, which will clearly have to be used by staff of both these bodies, insured at all? If not, why not?
That said, I have absolutely no complaint about the order, except to say that your Lordships' Select Committee on Delegated Powers and Regulatory Reform was absolutely right to suggest during the course of the Bill that this should be an affirmative order because of course it amends primary legislation.
Baroness Barker: My Lords, having spent many happy hours going through the Act from which these regulations are derived, I have no intention of going over them in detail. I echo the sentiments expressed by the Government and the Opposition in another place, which welcomed CSCI in the early months of its operation. Given that I work in the field of social care, I welcome the regulations with a slightly more tempered view than others, only because I listen to practitioners who have been subject to inspections. Some have had much more mixed experiences than was implied in last night's debate.
I wish to raise two points. The first relates to Article 2(1)(a), under which CHAI takes on some of the Audit Commission's functions. The relevant section in the Audit Commission Act 1998 is entitled "studies for improving economy etc. in services". Throughout our debates on the Health and Social Care Bill we had many discussions about how the emphasis was on evaluating the economy rather than the effectiveness of health services. To what extent will the role that CHAI assumes from its predecessor be driven by economic considerations rather than those of clinical effectiveness? My second question is simple. I can understand that the bodies may need to be given powers under the Copyright, Designs and Patents Act 1998 but will the noble Lord explain what they would do with them?
828
Apart from those points, I echo the view of the noble Lord, Lord Skelmersdale, that there is very little in the order to detain noble Lords.
Lord Warner: My Lords, I am grateful for the helpful remarks from noble Lords opposite. The noble Lord, Lord Skelmersdale, asked about the Government's policies on foundation trusts. The straight answer is that I do not have the numbers in my head. It is a little outside the scope of the order but I shall write to the noble Lord with the details. I am sorry that his local hospital appears to have been disappointed in the progression of its application.
The noble Lord asked about the insurance of vehicles operated or owned by the Healthcare Commission and the Commission for Social Care Inspection. I am reliably informed that they are all currently taxed and have insurance cover for third-party risk.
The noble Baroness, Lady Barker, asked about the role of the Healthcare Commission in carrying out its inspections. The 2003 legislation provided for the Secretary of State to set out standards for the NHS against which the Healthcare Commission would develop its own assessment criteria and inspect whether trusts adhered to and met the standards set by the Secretary of State. The Secretary of State has published the national standards. I will certainly be happy to send the noble Baroness, Lady Barker, those standards if she has not seen them. We await the assessment criteria, being developed by the Healthcare Commission, which I expect to receive before too long. It will then be for the Secretary of State to sign off those criteria. They will be the criteria against which the Healthcare Commission will inspect and assess performance against the national standards for NHS trusts. That is how the system is provided for in the 2003 Act.
Article 2(1)(b) in the draft order replaces the reference to Section 48 of the Copyright, Designs and Patents Act 1998. I shall have to look into the precise details of the Act. Generalist though I am, I do not carry the full details of the legislation with me. But I shall look into the matter and answer the noble Baroness's question by letter.
Lord Skelmersdale: My Lords, before the Question on the Motion is put, with which we will agree, perhaps he could answer my earlier question. Given the Government's intention to reduce the number of health service quangos, what effect will that have, particularly on CHI?
Lord Warner: My Lords, as I thought I had said in my opening remarks, the Commission for Health Improvement (CHI) disappeared on 31 March 2004. The new Healthcare Commission came into operation in April and will continue to operate. We made clear in the arm's-length body review, published on 22 July this year, that there would be no changes in the position of the Healthcare Commission.
On Question, Motion agreed to.

Scotland Act 1998 (Functions Exercisable in or as Regards Scotland) Order 2004
7.46 p.m.
Lord Evans of Temple Guiting Lord Evans of Temple Guiting rose to move, That the draft order laid before the House on 9 September be approved [29th Report from the Joint Committee].
The noble Lord said: My Lords, I shall speak also to the Scotland Act 1998 (Modifications of Schedule 5) Order 2004 and the Freedom of Information (Scotland) Act 2002 (Consequential Modifications) Order 2004.
Noble Lords will be aware that the orders are made under three different Scotland Act powers: Sections 30(2), 30(3) and 104. Many of us are, by now, familiar with those sections of the Scotland Act, but I hope that it will be helpful if I briefly outline what the powers allow us to do and the background to each order.
Section 30(2) orders have the purpose and effect of altering the legislative boundaries of Scotland's devolution settlement. They do so by either increasing or reducing the list of matters reserved by Schedule 5 to the Scotland Act. The order makes full use of the power by adding one reservation, removing aspects of another and making a small technical amendment to an existing reservation. Orders made under Section 30(3) allow functions—for example, in an Act—to be classed as "in or as regards" Scotland so they can be exercised by the Scottish Ministers. The Scotland Act requires that orders made under Sections 30(2) and 30(3) are subject to affirmative procedure in both the UK and Scottish Parliaments.
Section 104 orders are used when changes are required to the law of England and Wales and, in some cases. Northern Ireland, or when modifications of reserved law are needed, all as a consequence of legislation in the Scottish Parliament. Such changes would be outside the legislative competence of the Scottish Parliament, which is why Section 104 orders are considered only by the UK Parliament.
The subjects of the three orders that we are considering today are quite different. However, it is normal practice for orders under the Scotland Act to be considered by Parliament at the same time. This House and the other place have done that on numerous occasions. It simply means that we can ensure the optimum use of parliamentary time.
I shall deal first with the Section 30(2) order, which is the draft Scotland Act 1998 (Modifications of Schedule 5) Order 2004. Article 2, which concerns elections, is entirely technical. It is a tidying-up provision that is consequential on a defect in the European Parliamentary Elections Act 2002. Briefly, the 2002 Act consolidated the legislation on European parliamentary elections and in doing so amended Section B3 of Schedule 5 to the Scotland Act. Unfortunately, it neglected to make a necessary consequential to disapply the interpretation provision in paragraph 5 of Part 3 of Schedule 5 to the Scotland Act. This was an oversight and, while it has no practical effect, the Government believe that it makes sense to take this opportunity to reinforce the coherence of the statute hook by making this change.
The second element to this order concerns the reservation of the Arts and Humanities Research Council, the AHRC, and its funding. The purpose of this modification is to add the AHRC to the current reservation in Section C12 of Schedule 5 to the Scotland Act relating to "research councils". I have no formal interest to declare on this matter, but noble Lords will wish to be aware that I was one of the original board members of the Arts and Humanities Research Board, which is being replaced by the AHRC.
This part of the order will complete a package of legislation that was agreed by Ministers in all the UK administrations in January 2003. This was to create a UK-wide, statutory AHRC which will take over the role of the existing UK-wide Arts and Humanities Research Board, the AHRB. It places the AHRC and its funding on a similar basis to the seven existing UK science research councils, recognising the increasing opportunities for interdisciplinary and collaborative working within the research sector and acknowledging the contribution of arts and humanities to the economy.
The proposed conversion has received widespread support among the academic community across the UK. It was also welcomed throughout the passage of the Higher Education Bill through both Houses of Parliament to Royal Assent this summer.
The final element of this order amends the reservation in Section E2 of Schedule 5 to the Scotland Act. In doing so, it extends the legislative competence of the Scottish Parliament. Section E2 has previously been amended by two other orders. They are SI2000/3252 and SI2002/1629. Parliament: agreed the need for both statutory instruments during the passage of the Scotland Act.
Among other things, SI2000/3252 enables the Scottish Parliament to legislate to transfer to certain Scottish public authorities the same rail responsibilities exercised by a passenger transport authority or executive. It also enables the allocation of functions among such new public authorities. This exception to the reservation cannot include a transfer of rail functions directly to the Scottish Ministers. This is because the Scottish Ministers do not fall within the definition of a body set up wholly or mainly to exercise functions in relation to transport.
Article 4 of the Section 30(2) order before us today amends the exception to the reservation introduced by SI2000/3252. This will allow the Scottish Parliament to legislate in forthcoming Scottish transport legislation proposed by the Scottish Executive to transfer the rail functions presently exercised by Strathclyde Passenger Transport (SPT) to the Scottish Ministers.
Noble Lords will be aware that there have been a series of Parliamentary Questions in this and the other place on this part of the order. They have asked what consultation has taken place with SPT, whether the economic costs of transferring functions from SPT have been assessed and why no regulatory impact assessment has been prepared for this order. We believe that the first two questions put the cart before the horse. If agreed, the order before us, which has

831
been agreed by the Local Government and Transport Committee of the Scottish Parliament, will simply extend the legislative competence of the Scottish Parliament on these issues. It will then be for the Scottish Parliament to decide, should such a measure be put before it, whether and how to exercise its new power to transfer the rail responsibilities of SPT to the Scottish Ministers.
I hope noble Lords will find it helpful to note, however, that the Scottish Executive have advised that they are enjoying constructive discussions with SPT on this issue and they have signalled their wish and desire to build on the strengths of SPT in delivering better transport services, not only in the West of Scotland, but across the whole of Scotland.
The order before us makes no change to the status or functions of SPT. The decision not to provide a regulatory impact assessment, then, is in accordance with the guidance Better Policy Making: A Guide to Regulatory Impact Assessment issued by the Cabinet Office. The draft order varies the competence of the Scottish Parliament. It does not in itself have a direct or indirect impact, whether benefit or cost, on business, charities or the voluntary sector. It would not therefore have any regulatory impact.
I turn to the Section 30(3) order, which is the draft Scotland Act 1998 (Functions Exercisable in or as Regards Scotland) Order 2004. As the explanatory material notes, the order will make a technical provision in relation to a new CAP reform council regulation, which comes into effect on 1 January 2005.
There are farmers who come within the ambit of the CAP reforms who farm both in Scotland and in other parts of the United Kingdom. This order will make clear that the powers of the Scottish Parliament and the Scottish Ministers, in relation to those farmers, are exercisable "in or as regards" Scotland. Noble Lords may wish to note that there is a long-standing protocol in place between the agricultural departments as to who administers a claim in a cross-border situation. The administration in charge is usually the one where the majority of the holding lies. All administrations turn-around previous land declarations to their producers so that for existing claimants there is a well established relationship.
The final point to make about this order is that it will be complemented by a further order made under Section 106 of the Scotland Act. This is another technical measure and concerns functions that provide for quantitative obligations in relation to such holdings to be exercisable in or as regards Scotland. The Section 106 order is subject to negative procedure in the UK Parliament. It is our intention to make it later this Session.
The last order before us today is the draft Freedom of Information (Scotland) Act 2002 (Consequential Modifications) Order 2004. The order, which is again technical in nature, is being brought forward in time for the Freedom of Information (Scotland) Act coming into force on 1 January 2005. It covers three areas, making amendments to or extending UK Acts
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in relation to the Scottish FoI regime. These amendments are being made in this order as they are outside the legislative competence of the Scottish Parliament.
The first amendment is an extension to data held by Scottish public authorities, which are subject to the FoI Scotland Act 2002, of provisions in the Data Protection Act 1998. This amendment will simply ensure that we continue to have a single data protection regime in the United Kingdom and that the same rights of access enjoyed by individuals will apply to personal information held by UK and Scottish public authorities.
The second amendment relates to information sharing and facilitates the work of the Scottish Information Commissioner. The order inserts a new Section 76A in the Freedom of Information Act 2000 to provide for the passing of information by the UK Information Commissioner to the Scottish Information Commissioner. Section 63 of the Freedom of Information (Scotland) Act 2002 allows the Scottish Information Commissioner to pass certain information to the UK Information Commissioner. The new Section 76A makes reciprocal provision for the disclosure of information by the UK Information Commissioner to the Scottish Information Commissioner. This ensures a consistent regime across the UK. It could not have been achieved on the face of the Freedom of Information Act 2000 since, at that time, the office of Scottish Information Commissioner did not exist.
The final element of the instrument concerns copyright, which is a reserved matter. The order extends the protection of provisions of the Copyright, Designs and Patents Act 1988 and the Copyright and Rights in Database Regulations 1997 to allow disclosure of materials supplied under the Freedom of Information (Scotland) Act 2002. That will ensure that copyright and database protection rules will not hamper disclosure of information by Scottish public authorities, which is otherwise permitted under the Freedom of Information (Scotland) Act 2002. Again, that will ensure a regime which is consistent with that in the rest of the UK.
In drawing to a close, the orders are a sensible use of the powers that are provided by the Scotland Act and are consistent with the principles of Scotland's devolution settlement. I beg to move.
Moved, That the draft order laid before the House on 9 September be approved [29th Report from the Joint Committee].—(Lord Evans of Temple Guiting.)
8 p.m.
The Duke of Montrose: My Lords, I begin by thanking the Minister for the trouble that he has taken to inform me and others in advance of the arguments that the Government were likely to make with regard to each of these statutory instruments. Whatever complaints any noble Lords might have about the involvement of Scots in the legislative process after the setting up of the Scottish Parliament, it can hardly be about the way in which we deal with statutory instruments.

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It would appear that the Government have been able to work seven different subjects into the various aspects of these three statutory instruments. There is a hope that we will get through the whole business in 45 minutes. I shall skip any comments about the EU elections legislation.
As the Minister has declared that he is likely to know a great deal more about the Arts and Humanities Research Council than most of us, perhaps I may ask him if he can tell the House whether the purpose will be primarily to allocate funding to various higher education bodies which propose to undertake appropriate research in those fields. If that is so, will that preclude those bodies from looking for further grants from their local administrations? Otherwise, will it gather its own body of experts to carry out the research directly in its own name?
Article 4 of the order seems to have stirred up rather more contention. The Government proposals for the devolution of rail services in Scotland were set out, they tell us, in the White Paper entitled, The Future of Rail. Judging from the Government's Answers to Written Questions in another place, they consider that it will be necessary to have a railways Bill to give primary legislative power to some of the proposals that are contained in it. Is the Minister conscious of any reasons that the Scottish Executive felt it necessary to pre-empt that proposal with their own White Paper entitled, Scotland's Transport Future? Has that been drawn up in co-ordination with the Government's proposals? Would it not have been better to have all the primary legislation in place first or do the two not coincide at all?
Perhaps I may further inquire of the noble Lord, if the Scottish Ministers are given the Strathclyde Passenger Transport functions, they will presumably have to devolve these to several regional transport authorities. Have the Government been given any view on what the role of the Strathclyde Passenger Transport Authority will be? As the noble Lord pointed out, it has been having talks with the Executive. But I gather that, as yet, it has not really grasped what it might be asked to do.
As regards the order concerning functions in or as regards Scotland, I must declare my own interest as a farmer in Scotland. I find it rather puzzling that the Minister's statement says that the powers that the order is conveying to the Scottish Parliament is,
"in relation to farmers that are exercisable in or as regards Scotland".
Yet the Explanatory Notes state that it is all to do with farmers whose holdings are situated wholly or partly in Scotland.
I am told that that is regarded as an issue of cross-border farmers. I can only say to your Lordships that until it is all resolved and made absolutely clear, it is an issue that will produce some very cross Border farmers. Can the Minister tell the House how many of those farmers there are north and south of the Border?
At this point, Scottish farmers who do not have those complications have been given a very clear idea of what payments they can expect under the single
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farm payment, whereas the cross-border farmers have had nothing. Of course, we all understand that the basis of the single farm payment is different in different parts of the United Kingdom. So I can see that there are complications in that it would appear that entitlements at least for arable land will be calculated under the part of the United Kingdom in which the land lies.
But it will be rather more difficult when dealing with entitlement based on the historical basis of the livestock grants where the animals concerned may have spent part of the year in one part of the United Kingdom and part in another. I am told that within holdings in Scotland some system for resolving that by a method known as "stacking" and "consolidation" has been evolved. But that is bound to be more difficult when it occurs between different areas of the United Kingdom. Can the Minister say whether all this will mean that those holdings will have to apply for their single farm payment separately to the different government departments or is it envisaged, for instance, that the Scottish Environment and Rural Affairs Department will have to receive instruction from Defra as to what is the appropriate payment in regard to the English element of the claim and then pay it all in the one cheque?
The final order covers three elements of the Freedom of Information Act. It is of course a good thing that that legislation will ensure that legislation in England and Scotland will apply equally to both. I hope that it will be to everyone's mutual advantage.
Lord Steel of Aikwood: My Lords, I do not wish my appearance on this Front Bench to be misunderstood. I have not received any sudden, unexpected or undeserved promotion. I simply have a watching brief on these highly controversial orders. They are not controversial at all of course. They all have the effect of making the administration of the law both north and south of the Border more sensible. They are tidying-up orders; nothing more and nothing less. Therefore, because they are broadly devolutionary in effect, of course I give them a warm welcome.
It is eminently sensible that, for example, the freedom commissioner should feel free to exchange information without falling foul of the Data Protection Act. As one who represented cross Border farmers for many years, as well as very agreeable Border farmers, I take note of what the noble Duke has said about improving the administration of payments for those who own or farm territory both sides of the Border.
However, I want to say something about the order dealing with railway matters and the transfer of responsibility to Scottish Ministers. That of course is consistent with the intended abolition of the Strategic Rail Authority in Scotland. In my view, that cannot come too soon.
The current Minister for Transport in Scotland, Mr Nicol Stephen, is an old friend of mine. That does not necessarily mean that he will get everything right, but he certainly cannot do any worse than the Strategic Rail Authority. The other day, one of its major spokesmen, when referring to the proposed reopening of the Border

835
railway line that is under consideration in a Bill currently before the Scottish Parliament, suggested that that was a waste of time and that it would be better for people to go by bus. For a spokesman for a rail authority, that seems a very odd view. But it is consistent with the views of the rail authorities over many years.
That remark took me back to an episode at the time when the original Border Union Railway was under threat of closure. I went to see the head of the then British Rail Scotland at his office in Glasgow to look at the alleged costs and losses being built up over the running of the railway on the Waverley route, as it was known then, from Carlisle to Edinburgh. We looked at the figures, and he showed me among them the sum of £25,000—quite a lot of money in the late 1960s—which was the allocated share of the cost of the upkeep of Waverley station. I said, "If you cut the Border railway line, you will not save that £25,000. It will be shifted somewhere else". He took out a pencil and drew a line through that item on the sheet of paper. It is that kind of casual attitude on the part of the railway authorities over the years which has bedevilled life in the Borders.
I am all in favour of transferring this power to Scottish Ministers. However, anyone who suggests taking the bus on the A7 has never, as I have, travelled by that means on the road. More important, they have never followed a bus on the A7, which is a road on which it is almost impossible to overtake between Galashiels and Edinburgh, particularly if traffic happens to be coming the other way.
I give this order, as part of the series before us, my support as a means of ensuring that in the future Ministers have greater control over policy. I hope very much that we will see the reopening of the Waverley line and I hope that there will be a faster and more imaginative service than the one currently being considered in the Bill before the Scottish Parliament. I know that my noble friend Lord Mar and Kellie may want to say something about the aspects of this order which affect the Strathclyde passenger authority, but in general I am in favour of Ministers taking responsibility to the Scottish Parliament for the future pattern of railway life in Scotland.
Lord Faulkner of Worcester: My Lords, I am happy to follow the noble Lord, Lord Steel, and to agree with him in his comments about the reopening of the Waverley route. It was one of the very important railway lines in Britain which should not have been closed under the provisions of the Beeching report and it is scandalous that it has taken this long for the reopening to take place.
I do not dissent from anything that has already been said by noble Lords and I want to say only a few words about Strathclyde Passenger Transport. This is an opportunity to draw attention to the very substantial contribution made by SPT to the provision of rail services in the west of Scotland at a time when other passenger transport authorities and local authorities have been finding it difficult to support railway services. The record of SPT in maintaining a very high
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level of service at fares which the majority of residents can afford, along with the programme of reopening and refurbishing stations, is one for which it deserves enormous credit. I hope very much that what my noble friend on the Front Bench said about future co-operation between the Executive and SPT will indeed come to pass, because it would be most unfortunate if the advances achieved by SPT with rail services in its area are not continued and further improvements made.
My noble friend Lord Elder, who cannot be in his place this evening, has asked me to say to noble Lords that he relies heavily on SPT for his transport around Glasgow. He is fortunate enough to live in a suburb of Glasgow which is served by no fewer than 16 trains an hour into the city centre. His life would be impossible if SPT was not able to maintain the level of service it currently offers from Hyndland.
With these words I want to emphasise that SPT's contribution should be recognised and a continuation of co-operation must be assured.
Baroness Carnegy of Lour: My Lords, I am so glad that the noble Lord has just talked about SPT, which covers the part of these orders that I have found most difficult to understand. I have not been involved in the railway scene and I am glad that the noble Lord has been able to use his knowledge to make those remarks, as did the noble Lord, Lord Steel. Until recently the noble Lord was a Member of the Scots Parliament, since its inception as its Presiding Officer, and it is excellent that he has been able to take part in this debate.
I thank the Minister for supplying in advance of our discussion background material on the three orders. I am glad he did so because I found his speech quite convoluted. I am sure that everything is there, but if I had to understand the orders only from his remarks, that would not be easy because these are complicated matters.
I shall speak to the orders as they appear on the Order Paper. The first relates to the payment of agricultural subsidies. I think that I understand the effect of the order, but I should be grateful if the Minister could confirm that I am correct in thinking that its effect is quite simple. I hope that I am right. The European regulation altering the arrangements for subsidy for farmers is drafted with the usual CAP definition of a farmer being a person having a holding within the Community. Here in the United Kingdom, as the my noble friend the Duke of Montrose made clear, we have decided, as we are permitted to do, to allocate the subsidy in different ways north and south of the Border. In England the allocation is based on output over previous years, while in Scotland it is based on hectares farmed.
That differentiation is easily achieved, as both agriculture and the environment are matters devolved to Scotland. The only problem lies with those farmers who have holdings in Scotland and south of the Border. They must be able to receive the subsidy by way of Scottish Ministers and the Scottish regime for

837
their Scottish holdings, and by way of Westminster and Defra for their English holdings. Can the Minister confirm that that is precisely the effect of the order and that it will enable that to happen?
My noble friend on the Front Bench asked why there were two separate references, one to Scottish farmers and one to cross-Border farmers. It will be interesting to hear the Minister's answer. I think the effect is quite simple, and I hope that the Minister will be able to confirm that.
The second order adjusts the list of reserved matters in Schedule 5 to the Scotland Act 1998 in three unrelated ways, as has already been discussed. Article 2 of the order amends Section B3, which relates to elections. It simply corrects an anomaly because of what turned out to be an error in the European Parliamentary Elections Act. That error should not have been made, of course, but I suggest that the House should not object in any way to its being rectified.
Article 3 adds the new Arts and Humanities Research Council to the list of matters reserved to Westminster in order that it may, together with the other research councils, operate UK-wide and be funded by the Office of Science and Technology. That seems to he absolutely unexceptional and should happen. I was one of those who, during the passing of the Scotland Act and during the discussion of the previous White Paper, asked the Government to ensure that the research councils should operate and be funded at UK level. It is in Scotland's interest. This research council will be handling devolved material, but that does not mean that it should be other than funded at Westminster. After all, the Scots Parliament can fund any research it likes in addition through its own funding in its own universities and elsewhere.
I have some questions about Article 4. The Minister explained that in their White Paper earlier this year Scottish Ministers announced their intention to transfer the role of Strathclyde Passenger Transport to themselves or to bodies set up by them. I have been told that SPT was not consulted at all before the order was laid. There was no discussion, and it wrote to say so.
Lord Evans of Temple Guiting: My Lords, it would be helpful if the noble Baroness could tell us who gave her that information.
Baroness Carnegy of Lour: My Lords, it was in a letter from Strathclyde Passenger Transport. However, the Minister said that it is now in discussions. These may have started after the SPT letter was written. However, it is rather surprising.
Strathclyde Passenger Transport wonders what the rush is for; the order is not needed until legislation is brought forward. It wants to know how its role as a regional body looking specifically at the west of Scotland will be carried on. As others have said, it is a success story, and it wants to know how that will be carried on. It will be interesting to hear the Minister's comments on that.
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Why does the centralisation have to he carried out so quickly and without apparently, until now, much examination of the detail of what the effect will be? I may be going up the wrong street. The noble Lord, Lord Steel, who has been familiar with the matter for a long time, seems to think that the whole thing will probably be all right, but we need to know the justification for doing it in this way at this time. Would not it have been wiser to have waited for the legislation to come forward before going into the detail?
The third order on freedom of information simply amends two Acts to make them compatible with the more recent Freedom of Information (Scotland) Act, which was passed subsequent to them.
There will be many occasions when this House is asked to amend the Scotland Act, as only this Parliament can, because of legislation passed by the Scots Parliament. That is in the normal run of things. I am sure that we will all he interested when those orders come through. I would be grateful if the Minister can answer my, I hope, simple questions.
The Earl of Mar and Kellie: My Lords, like other noble Lords, I am interested in that part of the first order dealing with the devolution of railway powers, and in particular the devolution of the railway interests of the Strathclyde Passenger Transport Executive—or SPTE. These are very extensive, for the west of Scotland has the most extensive urban passenger rail network in Britain and is arguably the envy of many a transport strategist.
About eight years ago, as the chairman of an inquiry, I prevented those railway interests from being even more extensive, when we turned down a tram scheme for Glasgow. I have spent the past eight years trying to atone for that decision, and I suppose tonight, in trying to talk up SPTE, I am making another attempt. But the Scottish Parliament has legislated for the return of a railway that would pass my home, as encapsulated in the StirlingAlloa-Kincardine Railway and Linked Improvements Act 2004. That proves that railways that have been closed can be returned and that it is not just a pipedream.
What we are being asked to do tonight is to devolve an element of Scottish railway activity, when we all know that there is a much greater devolution of railway powers in the offing, as announced by Alistair Darling in the summer. What is in tonight's first order could well be included in a United Kingdom transport Bill, which will, I hope, be in the gracious Speech later this month. This is a quiet moment, so perhaps the Minister could whisper some confirmation of that.
SPTE has been lobbying noble Lords and Members of the other place to ensure that the Scottish Executive do not dismantle SPTE's extensive railway interests ahead of a full-scale and lasting railway and transport settlement. There is no doubt that this Parliament in general and this House in particular cannot devolve something and then send the subject matter off with tightly drawn instructions and limitations. That would be constitutionally absurd.
What we seek tonight is a limited assurance that this matter is in this order only for reasons of legislative and drafting expediency and is not a harbinger of a two-stage

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upheaval. I certainly hope that my honourable Scottish friend Nichol Stephen, the Transport Minister, would see it this way.
Lord Monro of Langhoim: My Lords, my noble friends asked some of my questions, so I can be brief. First, were these statutory instruments subject to the Sewel convention? The problem of dealing with these statutory instruments is that, as we all know, we cannot amend them. But has enough consideration gone into their preparation, and were they thoroughly discussed in Edinburgh before they were agreed and sent to London under the Sewel convention arrangements? Perhaps the Minister could confirm that.
The first order refers to farming. My noble friend the Duke of Montrose elicited that we are not talking about farmers or farms stretching across the Border, but those who have separate farms in England and Scotland. Those farms that cross the Border must be very few and far between, though there are possibly more at the end of the Border, which is an area the noble Lord, Lord Steel, knows even better than I do. But certainly at the west end of the Border, I doubt that any farms cross the borderline as such.
Could the Minister confirm what my noble friend asked him? Also, will there be any simplification in the application as regards the farmer on either side of the Border? I am a farmer on the Scottish side of the Border, and with farming today the administration and red tape is becoming almost impossible with the amount of information required by not only the Scottish Office and the department, but also by every Tom, Dick and Harry. For instance, on Friday I was subject to a spot check by two officials from the department, who said that they had arrived to check all the ear tags on the farm. For one of my staff to handle many hundreds of cattle and bring them in is simply impossible. Of course, they were back on Monday to have another shot. Look at the time it takes to do all that, and whether it is of any practical importance. Many of us begin to wonder.
I shall move on to the rail order. The letter that I have from the director-general of Strathclyde Passenger Transport is dated 3 November, which is only last week. He is very disappointed at the amount of consideration that the Government have given to the position of SPT. It feels that there should have been much more consultation with an effective decision made at the end, rather than finding that the decisions have all been made for it without its approval. That is quite a serious issue. SPT does not stretch quite to my old constituency, but it covers Ayrshire and Lanarkshire and does a good job. Under the order, it could be handed over either to the railway authority, whatever it may be, or to other public bodies. It is important that we should have further consultation in Scotland before a final decision is made.
I was very nearly born on the Waverley line—my mother was hurrying to hospital—so I knew it intimately well all my life until it was closed by Lord Beeching. There is tremendous enthusiasm on the
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Border to have it rebuilt and reopened, certainly the part from Galashiels to Edinburgh. However, it seems a very difficult decision when we look at the economics of alternatives.
The Minister ended by saying that the last order would have no cost to the public purse. Who is paying for the Scottish Information Commissioner? Surely that will be a substantial cost. Can we know how many staff he or she has and what it is reckoned that the administrative costs will be? They certainly must be far above nothing, which is what the order implies.
I agree with the orders going through. However, whichever House of Parliament one is in, one always feels that statutory instruments are cut and dried before they arrive, and that there is very little one can do to see them improved as they could be if they were discussed in greater detail in committees.
8.30 p.m.
Lord Evans of Temple Guiting: My Lords, I am most grateful to noble Lords for what has been a very interesting debate. A considerable number of questions have been asked, and I shall try to answer them as quickly as I can. If I miss any out, I shall write to noble Lords as quickly as possible.
The first question related to AHRB and its funding policy. Its funding is subject to a UK-wide competition rather than being allocated on a strict territorial basis, a move that the noble Baroness, Lady Carnegy, would welcome. That will continue with AHRC, which will distribute funds on the basis of quality, like the other research councils. If a university organisation receives funds, it does not preclude it getting funds elsewhere.
I move on to the questions about railways, which have dominated this discussion. The first question asked by the noble Duke, the Duke of Montrose, and the noble Baroness, Lady Carnegy, was: why now; what is the hurry? The Government do not believe that the order pre-empts any primary legislation that will affect our railways White Paper; nor do we accept that it is unnecessary. The order simply recognises that the current legislative framework does not allow the transfer of a passenger transport executive's rail powers to Scottish Ministers. Therefore, we have agreed with the Scottish Executive that it is appropriate that the Scottish Parliament should be able to legislate on the matter. As a consequence, we are seeking at the earliest opportunity to give the Scottish Parliament that competence.
There is also nervousness and concern about the effect of passing the powers to the Scottish Executive. The order does not, in itself, give any powers to the Scottish Executive or to Scottish Ministers. It gives the Scottish Parliament the legislative competence to allow the transfer of rail functions from Strathclyde Passenger Transport to Scottish Ministers, should the Scottish Parliament wish to do so. Of course, the Government recognise that there has been nervousness in the SPT, but we are confident that the Scottish Parliament and Scottish Ministers will, as always, respect the intention and spirit of the order before us. They already recognise,

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as do the Government, the huge contribution that SPT has made to the development of rail services in the west of Scotland.
I was asked why the provision was necessary. A change in EC law means that the orders now require that we do something to ensure that correct references to Community law continue to be effective under devolution.
I was asked how many cross-Border holdings there were. The order provides the legal framework to ensure that Scottish Ministers have the appropriate powers to pay subsidy in the light of the new European regulation. The most recent figures available to us from the Scottish Executive show that 117 Scottish producers have land in England; three Scottish producers have land in Northern Ireland; and one Scottish producer has land in Wales. In answer to the point raised by the noble Lord, Lord Monro, the Executive's register of farm businesses shows that two straddle the English/Scottish border. Regional payment agencies in England deal with applications from 107 producers with land in Scotland.
I was asked whether the order meant that a cross-Border producer administered by Scotland would be paid Scottish rates on his English land. CAP reform legislation allows flexibility to implement the single farm payment scheme differently in each administration. A producer would be paid in accordance with the English scheme for his English land and in accordance with the Scottish scheme for his Scottish land. All UK administrations are working towards establishing the eligibility for subsidy of the land within their own borders.
I was asked whether, once the scheme was set up, there would be no problems relating to the movement of cattle without passports. Noble Lords will note that that question bears no relation to the order before us. The order simply provides the legal framework to ensure that Scottish Ministers have the appropriate powers to pay subsidy in the light of the new European regulation. Questions relating to the operation of the scheme would rightly be for Defra or the Environment and Rural Affairs Department of the Scottish Executive.
How does a cross-Border farmer know to whom to apply? A longstanding protocol is in place between the agricultural departments as to who administers a claim in a cross-Border situation. Basically, the administration in charge is the one where the majority of the holding lies. All administrations turn around previous land declarations to their producers so that there is a well established relationship for existing claimants. Producers will receive one combined payment from the managing administration. Having established their eligibility, the administrations will exchange that information in order that a single payment may be made.
Baroness Carnegy of Lour: My Lords, may I have clarification on what the Minister has just said? He spoke of a farmer receiving one payment from the part of the United Kingdom in which he has the most
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hectares. Does that simply apply to a farmer who has one single farm on both sides of the Border? I may have misunderstood the order.
Lord Evans of Temple Guiting: My Lords, I was trying to establish the point that producers will receive one combined payment from the managing administration. So England and Scotland will combine and make one payment; farmers will not receive two payments, one from Scotland and one from England.
I was most grateful for the constructive comments of the noble Lord, Lord Steel, for his very helpful contribution to this debate and particularly for his comments on the rail matter. The Scottish proposals are consistent with a UK rail review. Both are concerned with ensuring that Scottish Ministers have the appropriate statutory power to deal properly with the rail network in Scotland as in England.
A point was made by a number of your Lordships about whether this order pre-empts the outcome of primary legislation that will be needed to effect the Government's railway White Paper. The Government do not believe, as I have said before, that this order pre-empts any primary legislation, nor do we accept that it is unnecessary.
The noble Baroness, Lady Carnegy of Lour, asked how the CAP reform schemes will be administered in the light of the new European regulations. Her understanding of this matter is absolutely correct, as I hope I have already explained.
An error was made, and one of the orders corrects it. We agree that the mistake should not have been made. The Scotland Office was only recently made aware of the defect and has sought to correct the error as soon as possible. I can assure the noble Baroness and the House that we shall make every endeavour to ensure that such oversights do not happen in future.
On the consultation, about which the noble Baroness, Lady Carnegy, asked, neither the Scotland Office nor DIT consulted SPT about the Section 30 order, as the Scottish Executive had already consulted on the policy in its consultation document, Scotland's Transport: Proposals for a new approach to transport in Scotland. That, in turn., led to the Executive's White Paper, Scotland's transport future. The DIT developed The Future of Rail White Paper proposals, having agreed in principle with the Scottish Executive's proposals.
What will happen to the rail services in the west of Scotland as a result of this order? The Scottish Executive is committed to the development, management and monitoring of rail services being undertaken by a new strong regional transport partnership for the west of Scotland. The Executive has confirmed that development means rail enhancement such as the Glasgow cross-rail and a host of other smaller crucial developments to meet the needs of rail passengers in the west of Scotland. Those will continue to be taken forward by the new partnership.
The delivery of rail services such as Glasgow Airport rail links and Larkhall will continue to be delivered by the new partnership for the west of Scotland. The

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monitoring and managing of the franchise will be undertaken by the Executive with support of the new partnership unlike other transport agencies. This is unique and reflects the high intensity of the rail network in the west of Scotland and especially retains and utilises the skills and experience that exist.
I was asked by the noble Lord, Lord Monro, about whether the orders are subject to the Sewell convention. The answer is no. Sewell relates only to primary legislation. Section 32 and 33 were agreed by the Scottish Parliament.
Finally, the noble Lord, Lord Monro, asked who pays for the Scottish Information Commissioner and the answer is the Scottish Parliament.
As I said at the beginning I have attempted to answer all the questions asked. If I have failed, my colleagues in the Scotland Office will write letters in the next few days. I commend the order to the House.
On Question, Motion agreed to.

Scotland Act 1998 (Modifications of Schedule 5) Order 2004
Lord Evans of Temple Guiting Lord Evans of Temple Guiting rose to move, That the draft order laid before the House on 9 September be approved [29th Report from the Joint Committee].
Moved, That the draft order laid before the House on 9 September be approved [29th Report from the Joint Committee].—(Lord Evans of Temple Guiting).
On Question, Motion agreed to.

Freedom of Information (Scotland) Act 2002 (Consequential Modifications) Order 2004
Lord Evans of Temple Guiting Lord Evans of Temple Guiting rose to move, That the draft order laid before the House on 12 October be approved [31st Report from the Joint Committee].
Moved, That the draft order laid before the House on 12 October be approved. [31st Report from the Joint Committee]—(Lord Evans of Temple Guiting.)
On Question, Motion agreed to.

Civil Contingencies Bill
8.40 p.m.
Consideration of amendments on Report resumed.
Clause 19 [Meaning of "emergency"]:
Lord Lucas Lord Lucas moved Amendment No. 58:
Page 12, line 32, leave out "threatens serious damage to" and insert "seriously threatens"
The noble Lord said: My Lords, in moving Amendment No. 58, I should like to speak to Amendments Nos. 59, 60, 61, 66 and 67 as well.
Amendments Nos. 58 and 59 do the same thing in different places. Amendment No. 60 is misdrafted and should have been sitting along with Amendments Nos. 61, 66 and 67, removing the words "damage to". They are all of a piece, replacing the words "threatens serious damage to" with "seriously threatens".
I take these amendments extremely seriously. Ever since I have been involved with this Bill and its draft. I have been worried that the gateway to an event becoming an emergency is left too open. The noble Baroness was quite correct in the way in which she described this in Committee. Quite a remote threat of something extremely serious can trigger the Bill. I do not think I am fussed about that; it is the way of expressing it, the words that are used and what breadth is attributable to them.
I suppose that I had turned over a lot of alternatives in my mind as well as listening to all the thoughts that were expressed in the Joint Committee; I had not arrived at any comfortable conclusion when the noble Baroness put down her own amendment, using words that seem perfect, changing the wording in subsection (1)(c) to "seriously threatens". I find that much more satisfactory.
It is very important that the wording in the Bill is right legally but that, at the same time, it is expressed in a way which sounds right to ordinary people. The Bill may have to be, in extremis, interpreted and understood without the help of constitutional lawyers. Although we had a fascinating discussion earlier on various principles of administrative law, they meant absolutely nothing to me. Your average general will never begin to understand what is meant by that, whereas I think that they will understand "seriously threatens". That encapsulates the concepts of whether it is a serious threat and whether it is threatening serious damage very nicely in one phrase, which allows those two aspects of a potential emergency to be balanced and for a conclusion to be drawn in language and understanding which is in common usage.
It is far too easy, in English usage, to interpret the phrase "threatens serious damage to" as meaning, "Does it threaten serious damage to?", not "Is it a serious threat?". It is very easy to threaten serious damage to something. You just say, "I will do it". That is a threat, but it is not a credible threat. None the less, it is something which "threatens serious damage to" in the use of English.
I find that looseness worrying. This is the gatekeeping phrase. When we come to the other aspects of the triple lock in Clauses 20 and 22, we are referred to,
"an aspect or effect of the emergency".
By that time, it has been assumed that there is an emergency and the likelihood of an emergency coming to pass is no longer relevant. It is a question of whether this "aspect or effect" of it will be dealt with by the regulations.
So we lose our grip on proportionality and our grip on what is necessary if we let through in the wording of Clause 19 something that is inherently unlikely, but none the less extremely damaging, without being able

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to look at it together and say that it "seriously threatens" human welfare or the environment. That is a formulation that I would be happy to live with. I would not be happy to live with "threatens serious damage to". I am very grateful to the noble Baroness for having provided this solution to my little dilemma. I wish to encourage her to take that solution and apply it to the rest of the clause. I beg to move.
Baroness Buscombe: My Lords, I rise to support the amendment, to which my name has been added. My noble friend Lord Lucas has picked up a very sensible use of language. As he said, the wording is already used in Clause 19(1)(c). It is quite clear that a number of noble Lords, including those on these Benches, are still concerned about the scale of emergency that should sensibly trigger the provisions of the legislation.
These are simple amendments, but they would enormously improve the drafting of the Bill and help to allay our remaining fears about the operation of Part 2. The definition of "emergency" is still too wide and needs to be tighter so that the powers are not abused or used too readily.
As I said repeatedly in Committee, I am not talking only about this Government. One has to contemplate governments of the future who may be more willing to invoke these draconian measures. They are draconian and we should not pretend otherwise. Nor should we underestimate the extent of these powers. I hope, therefore, that the Government have given serious thought to the small changes that the amendment proposes. If they were accepted, the Opposition would feel much happier with the clause.
While thinking through some of the issues, I looked again at the Joint Committee's report on the Draft Civil Contingencies Bill. At that stage, the Joint Committee was concerned about the generality of the overarching definition of "emergency". Notwithstanding the fact that the Government have responded in a number of ways to the Joint Committee's concerns, the spirit of what the Joint Committee was trying to convey is still with us. "Emergency" is still defined incredibly broadly in the legislation. It continues to give rise to a number of questions that merit further explanation.
As the definition is still wide, there is ample scope for ambiguity and misinterpretation of events. For example, the Joint Committee referred to the possibility of questioning whether we are talking about major accidents or serious economic crises. We no longer have to concern ourselves with the question whether we are talking about a serious economic crisis, but we are looking for a way of trying to raise the threshold of what is sensibly meant by the term "emergency".
I hope that the Minister has thought about this matter. I hope that she will accept and take as a compliment the fact that we believe her wording in Clause 19(1)(c) really does raise the threshold of what is meant by an emergency. I hope, therefore, that the Minister will consider the amendment seriously.
Viscount Goschen: My Lords, it sounds like a tiny point of drafting. If one had heard the debate in isolation, one might have thought that this was about pedantic drafting, but it is not. I agree with my noble friend that this is an extremely important amendment.
What we are talking about must be the combination of the likelihood of an event happening and the seriousness of the damage that that event would cause if it did happen. It must be the product of those two things. I certainly agree with my noble friend that, the way the Bill stands at the moment, the level of the damage is specified but not the level of threat. The combination has to comprise a very serious situation in order for such potentially draconian powers to be triggered.
I certainly support my noble friend's amendment. I would go further than him: I am concerned about emergency powers being invoked because of an event that could be absolutely catastrophic to the planet but which constituted a very, very remote threat, for example, an asteroid collision. There may be a millionth of one per cent chance that such an event would happen, but if it did happen it would not be especially good news.
I hope that the Minister has listened to the arguments that have been put forward. I would even prefer the expression, "seriously threaten serious damage", but that would be much clumsier than the term suggested in my noble friend's amendment. I support the amendment.
Lord Elton: My Lords, the noble Baroness is persuaded of the importance of seeing that the powers are not improperly used through the use of the triple lock in which she has asked us to repose our confidence. However, every lock has a little piece that slides over it. I think that it is called the scutcheon or the escutcheon. This is what my noble friend is proposing. His amendment would add just that little bit more security. It would also make the situation much more easily understood by the man in the street or, as my noble friend would probably say, the general on the Clapham omnibus. I hope that the Government accept the amendment.
Lord McNally: My Lords, I hope that Ministers recall the serious mauling of Clause 19 in Committee and the concerns that were expressed then and that at this stage their briefs are not too rigidly written. The amendment seems to me entirely constructive. I hope that Ministers will show flexibility in trying to meet the concerns that have been expressed.
Baroness Scotland of Asthal: My Lords, I hope that I will not disappoint the noble Lord, Lord McNally. I well remember our interesting debates in Committee; in fact, I think they will stay for ever in my memory.
I say to the noble Baroness, Lady Buscombe, and to the noble Lord, Lord Lucas, that we take these issues seriously. We understand the concerns that they have expressed. We also understand the desire expressed elegantly by the noble Lord, Lord Elton, that there

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should be a little bit extra security if it can be managed. We understand those sentiments. However, regrettably, I am not able to agree. I shall explain why.
I preface my comments with a reminder to the House—the noble Lord, Lord Lucas, will remember this well as he was a member of the Joint Committee that considered the matter—that the Joint Committee in considering this very part of the Bill queried the use of, and the reference to, a serious threat in the draft Bill. Your Lordships will remember that previously the damage was not referred to. The Joint Committee prayed in aid the suggestion that the Government should amend the draft Bill to ensure that damage comprised serious damage. That is what we have done in Clause 19(1)(a) and 19(1)(b). That was done in response to that recommendation.
As your Lordships mentioned, we have for drafting reasons taken a slightly different approach towards the reference to threats to security in Clause 19(1)(c). I thank the noble Baroness, Lady Buscombe, for her warm words in relation to that matter. Your Lordships will find the reference to the text of the consultation on page 8 of the Joint Committee's recommendations.
I should state clearly that the Government agree that emergency powers should be used only in the most serious of emergencies that have large scale effects. I do understand the comments made by the noble Viscount, Lord Goschen, regarding the need for that to be emphasised. The Government believe that this is inherent in the language of the Bill. A threat of serious damage to human welfare in the UK, a part or region implies very strongly the scale of incident in question. A disruption to the supply of electricity affecting only a few hundred people is not a threat of serious damage to human welfare in the UK, a devolved territory or an English region. The loss of electricity to a wide area housing millions of people on a long-term basis may, however, be such a threat, given that it would clearly threaten human life and disrupt essential services and supplies.
Even in such a serious emergency, where the risk of serious damage to human welfare is obvious, there are very clear limits regarding what may be done if it is determined that use of emergency powers is appropriate as existing powers are insufficient. The Bill is very clear that regulations can be made only if they are needed urgently, aimed at preventing, controlling or mitigating the emergency and are both necessary and proportionate in the circumstances.
It is important to continue to keep those requirements at the forefront of one's mind when discussing the seriousness of the events regarding which emergency powers may be invoked. The Bill sets out an overlapping range of tests of which seriousness is just one part. Even if it is clear that an event is very serious it may not be possible to invoke the powers to make specific provisions if one or more of these tests is not satisfied. Clause 19 is very much just the starting point in considering whether, and how, the powers may be used.
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I turn to Amendments Nos. 58 and 59. To require the list of events and situations listed in Clauses 19(2) and 19(3) seriously to threaten human welfare or the environment, as opposed to seriously threaten damage to these, would shift the emphasis away from the significance of their effects and onto the seriousness of the threat itself. Any use of emergency powers will be based upon a reasonable assessment of both the likelihood of an event occurring and the consequences of it doing so. Ultimately, however, it is the potential consequences and not the level of threat itself that must trigger the use of the powers. I was grateful for what I have taken as the assent given by the noble Viscount, Lord Goschen, in relation to that principle, although the judgment that an event may cause "serious damage" must be reasonable.
It is important to keep in mind that the tests in Clause 19 are just the starting point for a set of overlapping safeguards. Even if a situation or event is said to meet the tests in Clause 19, it must also require the urgent making of emergency regulations as existing powers are insufficient. Any regulations made must be proportionate to that situation. It is simply not the case that an emergency is said to exist and unlimited powers are taken on that pretext. The tests in the Bill must be satisfied.
In some cases the threat may not be that serious but the consequences, as we discussed in Committee, may be so grave as to justify the use of the powers. On that occasion we used the example of what would happen if there was a nuclear device where the consequences would be overwhelming. The seriousness of the consequences would be the key factor in determining whether action is necessary. The likelihood of the threat materialising may be debatable, but the consequences of inaction would be disastrous.
9 p.m.
As to Amendments Nos. 60 and 61, it has been suggested that the requirement for an event or situation threatening serious damage to the environment falling within the definition of emergency should be removed. That would mean that any event or situation within Clause 19(3) could constitute an emergency. Thus contamination of land by radioactive matter would automatically satisfy Clause 19(3) without any consideration as to its effect. It would therefore automatically satisfy the requirement at Clause 19(1)(b) as a threat of serious damage to the environment of the UK, a part or a region and thus remove one of the layers of the test to be satisfied before emergency regulations can be invoked.
Amendments Nos. 66 and 57 are on very much the same theme. They remove the requirement for an event or situation threatening damage to human welfare before an order under Clause 19(4)(b) could be made and instead require it to simply threaten human welfare. That would not alter the meaning of the clause, but it would, if I may respectfully say so, reduce its clarity. Clearly, disruption to supply, systems, facilities and services can be said to threaten welfare only if they threaten to damage it in some way.
We have talked at length about this issue. I can certainly reassure noble Lords that we have given the matter a great deal of thought. We think that the balance is about right and that the Joint Committee was right to suggest that we should include damage. We do not think that it would be appropriate to expunge that criterion now, and the test for the threat to security is the same as that for the human welfare and environment categories because it still provides that the threat must have serious consequences before the test is met.
The drafting is slightly different for the category of security and for human welfare and the environment. We think that the way in which we have done that is now appropriate. I would invite the noble Baroness and the noble Lord on consideration of those matters to feel perhaps a little more content than they did before.
Lord Lucas: My Lords, I shall read very carefully in Hansard what the noble Baroness has said. My impression is that she has outlined one substantial difference between us, which is that she believes this clause should be triggered by a remote threat of a substantial event. In extremis, I do not think that one of Mr Öpik's asteroids should trigger the powers of the Bill. Although the noble Baroness keeps saying "proportionality", it is proportionality not to the event as a whole but to an aspect or effect of that event.
So, once you have got to those clauses, you have assumed that this thing is actually going to happen. You are measuring whether the measures you are taking will be effective to prevent or deal with the consequences of a nuclear explosion in central London or wherever it is, and just in the absolute and not in anyway connected with the likelihood of that event occurring.
Therefore, the triple lock does not operate in the way the noble Baroness is trying to allege that it does. I really think that we must concentrate our thoughts on Clause 19. I suspect that I will accept her comments—I shall certainly look at them—on my subsidiary amendments. Perhaps they are not necessary, which is fine. But she has not attempted to outline at all the reasoning behind the different wording in paragraphs (a), (b) and (c); she has just said, "That is the way we prefer it". No justification has been forthcoming, nor has any illustration of the consequences of accepting my first two amendments in terms of particular situations which she would wish to have triggering these powers. That would not then work because of the change in wording. I find that extremely unsatisfactory.
I hope that the noble Baroness may feel able to advance some further thoughts before we get to Third Reading. I am very happy to listen to serious argument on why I am wrong and she is right, but just the mere assertion that the Government are right will not get us any further. If that is where we remain, we will certainly see this issue again at Third Reading. For now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 59 to 62 not moved.]
Baroness Scotland of Asthal Baroness Scotland of Asthal moved Amendment No. 63:
Page 13, line 13, leave out paragraph (a).
The noble Baroness said: My Lords, in Committee, there was a lot of discussion about the ability to amend the definition in a limited, fashion under Clause 19(4). That raised a lot of concern. The Government therefore propose that the purpose of Clause 19(4)(a) is to allow the Government to specify more precisely whether a particular event or situation, or a particular class of event or situation, falls within or outwith the definition of emergency. That would, in situations where such an event or situation is expected, enable Parliament to have a say on whether it might be appropriate to exercise emergency powers. That would allow the Government to determine the mood of Parliament on using the powers and for Members to highlight any concerns that they may have.
In Committee, I used the example that we were faced with when dealing with the millennium bug in December 1999. As I indicated in Committee, the Government have reconsidered whether that is absolutely necessary. The Government believe that, on reflection, although it may add some value, it is not essential and is unlikely to be used in practice given that, by their nature, emergencies tend to arrive with little warning. With that in mind, and following concerns raised in Committee, the Government are content to remove Clause 19(4)(a) from the Bill. That renders unnecessary Amendment No. 64. Therefore, with the permission of the noble Lord, Lord Lucas, no doubt supported by his Front Bench, I shall not deal with Amendment No. 64 on the basis that that is not a matter that needs to trouble them.
On Amendment No. 65, although the Government are happy to concede on the earlier point, we must resist the removal of Clause 19(4)(b), which contains the power to make limited updates to the definition of emergency. Perhaps I may explain that a little further. As we all know, emergency powers legislation exists to provide a legislative safety net, in part from recognition that legislation may become outdated as time goes by. If the definition for when it can be used becomes itself outdated, it will no longer be able fully to perform this function.
One need only look at how much things have changed since the days of the 1920 Act. The rapid development of technology; changes in lifestyle; the patterns of employment; the growth of new means of production; and the networks of supply and delivery since 1920 are startling. If we consider only what has happened in the past five years, the speed of change is startling.
In the 1920s, before the NHS, it is unlikely that disruption to health services would in itself be considered so serious as to trigger emergency powers. The same could not be said of disruption to systems of communication or the supply of money. With the pace of change seemingly ever increasing, we feel that it would be irresponsible not to allow for the updating of

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the list of specified means of supply, systems, facilities and services to ensure that it reflects future developments whose disruption may threaten human welfare.
Clause 19(4)(b) allows for this, but only for this—it does not do anything more than that. It does not allow for wholesale changes to the definition of emergency to be made that would subvert the limits of the definition in Clause 19(1) to (3). Any changes would require the approval of Parliament. It would not necessarily mean that emergency powers would be used if and when such an event occurred; that would depend on the circumstances. But it would allow the Government to indicate that they were considering their use if the worst happened in the kinds of scenarios in question.
On Amendment No. 68, consequential amendments may be required if the powers in Clause 19(4)(b) are exercised to ensure that any change to the definition of "emergency" can be followed through in the other parts of the Bill. Thus, were Clause 19(2) to be amended to remove the reference to disruption of an electronic system, for example, it might also be appropriate to remove the reference in Clause 21 to regulations being made for the purpose of protecting or restoring such systems.
The power is limited to making provision that is consequential on an order under Clause 19(5) and is subject to the affirmative resolution procedure. It is very difficult to see how an amendment to any of the safeguards set out in the Bill could ever be said to be "consequential" on such an order, allowing as it does only the limited ability to update the list of items that can be said to constitute an emergency if the safeguards are met.
I hope that I have said enough to reassure noble Lords that this is a limited and proportionate power which would be used appropriately and would be subject to parliamentary scrutiny through the affirmative resolution procedure. I beg to move my amendment and invite the noble Lord, Lord Lucas, not to resist.
Lord Lucas: My Lords, I agree that Amendment No. 63 is better than Amendment No. 64, tabled in my name. I thought that I was offering an olive branch in Amendment No. 64; I am delighted to receive an olive tree in return. I am quite content with that.
Provisions such as paragraph (b) belong in primary legislation. I shall be very much guided by what other noble Lords say, but we are dealing with fundamental matters and I cannot see how those categories would change fast. It is argued that the ability in 50 years' time to include an unforeseen issue that might become important will save us primary legislation. However, in 50 years' time we should have primary legislation. The downside is that we have very limited protection, even under the current constitution regarding the House of Lords. If we believe Mr Hain, it will be attacked in the Labour Party manifesto, and our ability to deal with secondary legislation will be severely curtailed.
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Under those circumstances we would be very unwise to agree to this critical legislation being added to or even subtracted from by secondary legislation. It is possible to imagine what might be added to the list. In Australia one might add the beer supply; in France one might add the wine supply; in this country one might add the supply of football. If the legislation were less serious, I would be relaxed about it. It is a crucial part of the Bill. It says what is meant by "human welfare, which is one of the main avenues to using the Bill. We owe it more respect than to say, "We think it might change in 30 years' time, and to accommodate that possible and unlikely event we will leave the list open to trivial or malicious change under other circumstances". It does not seem right or proportional.
Baroness Buscombe: My Lords, I was delighted to see Amendment No. 63. Noble Lords will know that we had a very extensive debate on the issue in Committee. I was deeply concerned about the wording of Clause 19(4)(a), which would have enabled the Secretary of State to,
"provide that a specified event or situation, or class of event or situation, is to be treated as falling, or as not falling, within any of paragraphs (a) to (c) of subsection (1)".
It was an extraordinarily broadly defined approach to an amazingly wide-ranging power. It was a blanket power for the Secretary of State to act at will. I am very pleased. The Minister had assured me that she would write to me on the issue, but how much nicer it is to see an amendment that does the trick instead. I wish to add to my noble friend's words of appreciation to the Minister for listening to us on Clause 19(4)(a). I am delighted to see Amendment No. 63.
On Question, amendment agreed to.
9.15 p.m.
The Deputy Speaker (Baroness Pitkeathley): My Lords, I remind the House that as Amendment No. 63 has been agreed to I cannot call Amendment No. 64 because of pre-emption.
[Amendments Nos. 65 to 68 not moved.]
Clause 20 [Power to make emergency regulations]:
Lord Lucas Lord Lucas moved Amendment No. 69:
Page 14, line 15, at end insert "and
( ) protecting or restoring public access to justice"
The noble Lord said: My Lords, in moving Amendment No. 69, I shall speak also to Amendment No. 77. The Minister has been extremely kind to table Amendment No. 77 in my name, as I had nothing to do with the drafting of it. It is really her amendment. I appreciate the honour enormously. I am going to have to listen to what the Minister has to say about the amendment.
With my limited legal knowledge, it seems to me that it answers the question that I posed, which is how we make sure that due consideration is given to the necessity of having the courts in operation for the protection of the public and Parliament in operation for the scrutiny of the legislation. I would appreciate it

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if the Minister could explain how her drafting bites, but I look forward to supporting her, and I do not intend to press Amendment No. 69. I beg to move.
Viscount Goschen: My Lords, access to justice, access to Parliament and the proper functioning of justice and Parliament were major themes in Committee. I, too, am delighted to see that the Minister has tabled the amendment. It is a major improvement. If I had drafted it, it would not have been as elegant, but I think I would have gone further than,
"must have regard to the importance",
and would have ensured that nothing done under such an order should hinder the operation of Parliament and the courts. None the less, it would be churlish to go too far on those lines. With this amendment and with the previous amendment, deleting one of the biggest "get out of gaol free" cards that the Secretary of State had awarded himself, the Bill has certainly been improved.
Baroness Buscombe: My Lords, I shall also speak briefly in support of the amendments. I was keen to see what the Minister was going to do to strengthen access to justice. In particular, we were all concerned about judicial review. The amendments will support the strengthening of access to judicial review. I join my noble friend in saying that this is a significant improvement to the Bill and its intent. By that, I am very pleased. Notwithstanding that, I shall look forward to debating later amendments in connection with ensuring that we have proper safeguards, in addition to this strengthening of access to justice. We need further safeguards before our fears with regard to the wide-ranging provisions of the Bill are entirely allayed.
Lord Elton: My Lords, perhaps I may join the general welcome to this regard for the protection of the law in Parliament, which is entirely in the right direction.
Baroness Scotland of Asthal: My Lords, it gives me considerable pleasure to give pleasure to noble Lords twice in one evening. I think that I have rarely had unanimity of view expressed with such great enthusiasm. I genuinely thank each of the noble Lords who have been so generous as to make those comments.
The Government do not feel able to support Amendment No. 69, but we took into account very seriously all that was said during our last debate. It was clear that we all had the same intent; namely, we wanted to ensure that these matters were strengthened as much as possible within the law.
Emergency regulations could, where it is necessary and proportionate to do so, contain provision aimed at protecting or restoring public access to justice. Clause 22(2)(1) creates a clear presumption that emergency regulations should protect or restore the performance of public functions, which includes the justice system where that is required.
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It is however conceivable that in some emergencies, such as a highly infectious epidemic, it may be necessary to place restrictions on travel and assemblies in order to control the spread of disease, which may affect the ability of the courts to operate. We discussed the nature of that difficulty in Committee. A blanket obligation to protect or restore public access to justice might prevent such action being taken and thus weaken efforts to contain such an outbreak. Such a provision in the Bill would fail to differentiate between the seriousness of the cases to be heard too. Those were issues that we discussed. I absolutely welcome the fact that that matter has been taken on board by everyone.
I hope that Amendment No. 77 demonstrates how keen the Government are to reassure the House that emergency regulations themselves will be subject to appropriate parliamentary and judicial safeguards. We propose to amend the Bill to put the maker of the regulations under a duty to consider what steps can be taken to protect or to preserve the ability of Parliament to scrutinise the regulations and action under them, and the ability of the High Court, and the Court of Session in Scotland, to entertain challenges to them.
The courts will expect the maker of the regulations to act reasonably. So the amendment would mean that a failure reasonably to make emergency regulations to protect Parliament or access to the courts would mean that the Government were acting outside of the law.
It may assist noble Lords if I provide two examples of how we see this operating. If parliamentarians have been exposed to an infectious disease and it is necessary to quarantine them or to close the Palace of Westminster, it should be possible to do so. But the maker of the regulations should consider what provision can be made to allow Parliament to continue functioning; for example, by quarantining MPs in a building that has videoconferencing facilities. If a cloud of radioactive material is heading towards London and it is necessary to evacuate, the maker of the regulations should be able to do so. But he must consider what steps should be made to protect Parliament and the operation of the courts.
In these circumstances, the regulations may need to requisition property elsewhere for Parliament to use and to give High Court judges a priority place in the list of evacuees. The Government hope that the House will appreciate that this approach will ensure appropriate provision is included in the regulations to ensure Parliament and the courts can scrutinise them and actions taken under them. It will also ensure that where action needs to be taken that may affect Parliament or the courts that is necessary to respond to the emergency, that can also be done.
Perhaps I may assure the noble Baroness, both in relation to this and on the last occasion, that the Government well remember spending 18 years as Her Majesty's loyal Opposition. We are as anxious as she that any government to come after us, no matter what the complexion, should carry out and discharge their duties as we would jointly wish them to do. Therefore we are happy to strengthen these powers. Like the noble Baroness, and noble Lords on the Liberal

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Democrat Benches—who have such noble aspirations for government in the next millennium—we want to ensure the administration.
Lord Lucas: My Lords, I am grateful to the noble Baroness and I take great comfort from the way she has expressed this power and how it is to work. I see no trouble with it. I should also say that I am most grateful to her officials, Mr Hargreaves and his team, who spent a considerable amount of time with me and were unfailingly helpful and courteous. No doubt they played a large part in giving birth to the amendment, which I shall now withdraw.
Amendment, by leave, withdrawn.
Clause 21 [Conditions for making emergency regulations]:
Lord Phillips of Sudbury Lord Phillips of Sudbury moved Amendment No. 70:
Page 14, line 23, at end insert—
"( ) The fourth condition is that not less than four Privy Councillors from a standing panel appointed by the Prime Minister to be comprised of not more than twelve shall agree with the relevant senior minister of the Crown that conditions for making emergency regulations have been satisfied."
The noble Lord said: My Lords, I regret that I have not been able to take part in the deliberations on the Bill thus far. In all the proper concern about the extraordinary powers that this legislation will bestow on Ministers and the government in an emergency situation, one aspect strikes me as still inadequate and capable of improvement. I refer to the trigger: the definition of an emergency. Our debate just now on the grouping under Amendment No. 58 provided a good example of how imprecise is that definition. I accept that it is bound to be imprecise if you try to define in a form of words circumstances unknown at some point in the future. Inevitably you will be drawn to a formulation which admits of various interpretations.
Where extreme powers are to be bestowed, and I do not think that anyone would suggest that we have ever in our history brought forward a piece of legislation that gives such wide powers, surely they must be warrantable only if they are applied to extreme circumstances. Clauses 22 to 24 provide powers for a Minister or a government to confiscate property, to limit assembly and movement, to disapply or modify any Act of Parliament, and let us not forget the power to prohibit other specified activities. The remit is total.
I suggest that rather than endlessly waltz around the definition of an "emergency", one should have in the Bill a provision such as I have suggested in Amendment No. 70 which would require a check before an individual Minister could say, "I determine that there is an emergency", and proceeds—as the Minister could on his or her own authority—to issue emergency regulations. I propose that there should be a standing panel of Privy Counsellors, appointable and removable by the Prime Minister, to comprise a group of not more than 12. Before any Minister could declare an emergency, he or she must have the consent of at least four members of the standing panel to the fact that it is an emergency under the Bill.
That is an extremely pragmatic endeavour to provide some reassurance that the Bill will only be used properly and in a sensible way. But I think that its pragmatism is a virtue. As a lawyer, I have to say that there are times when we put too great a strain on words, which is why in this amendment I have provided a mechanism rather than a form of words.
Some may say that the mechanism is too feeble. I have intentionally drafted it so that in extreme circumstances, where it might be difficult to locate members of the standing panel, one can none the less proceed on the say-so of four of them. I have a certain confidence that if asked by a Minister to endorse an emergency, the Privy Counsellors on that panel would act with propriety and good sense.
9.30 p.m.
In the other place, the Conservative Front Bench tabled an amendment to set up an emergency powers panel comprised of Privy Counsellors—a Joint Committee from both Houses—but that was for a slightly different purpose, which was to vet the emergency regulations when they were passed. As the Bill has provisions for both Houses to endorse emergency regulations, I do not believe that that amendment was sufficiently helpful.
This has nothing to do with the regulations which may be passed pursuant to an emergency having been declared; this is simply and solely to ensure that there will be public confidence in the judgment of the Minister who is claiming that the emergency exists.
Where we are legislating for an unprecedented delegation of powers to individual Ministers, we need to be at our most cautious—indeed, at our most sceptical—a point made by other noble Lords. As the noble Baroness, Lady Buscombe, said a few moments ago, it is not at all adequate for us to assume that we will all be the same nice, sensible people that we now are. If we cannot legislate in a Bill such as this for the exceptional government and the exceptional House, we are missing the point.
One has only to think of what happened in the United States in the wake of 11 September where the so-called Patriot Act, consisting of some 342 clauses, was passed in a matter of a few hours by the Senate with only a handful of amendments put forward—none of which were properly debated, let alone passed—to realise that in extreme circumstances legislative assemblies can be carried along by public fervour and fear. For those reasons, this modest but practical check on starting the whole process should commend itself to the Government.
The Government may say, "Well, we have got the triple lock". But, of course, the triple lock does not apply at all to the onset of these powers. In forming a view as to whether or not there is an emergency, the Minister is not bound in any way by the triple lock. That comes later with regard to the emergency regulations.
Once passed, the regulations will come into immediate effect. It is true that unless both Houses of Parliament endorse them they will die, but none the

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less they will come into immediate effect. For example, if one was thinking of mobilisation on a grand scale, there could be a huge amount of activity in the country before Parliament got round to considering the emergency regulations in debate.
I do not need to tell the House that we have defeated a statutory instrument only four times in the 20th century. We know very well that the nature of secondary legislation is heavily weighted in favour of the Government of the day and that we cannot amend it. This is of course why it is always passed except in the rarest of circumstances.
For these reasons, with some diffidence—I am well aware that we are to some extent in uncharted waters—but with a sense that this may help to make it a better Bill, I propose the amendment. I shall be interested to hear what other Members of the House and the Minister have to say in response to it. I beg to move.
Lord Elton: My Lords, in the last little debate, the Minister made it clear that what lies at the back of all our minds is the danger of the misconduct of some future government. Therefore, I should like to leave in the mind of the noble Lord, Lord Phillips, between now and Third Reading, that possibly giving the nomination of the panel to the leader of the putative dangerous government in years ahead is like giving the key to the burglar. Could he not think rather of some arm's-length body, such as a panel of High Court judges to be chosen by the Lord Chief Justice? I leave that thought in his mind.
Viscount Goschen: My Lords, as we have said throughout the consideration of this Bill, this is an extraordinary case of Parliament effectively lending its powers to the Administration for the period of a week, during which they can do absolutely anything—apart, of course, from making people who are on strike go back to work. Apart from that, they can do anything. I suppose that they could shoot the people who were striking; that would come to the same thing.
But seriously, any other power can be commanded by the government. So however we consider the matter, we are being invited to sign the most substantial blank cheque imaginable in parliamentary terms. I agree with the noble Lord, Lord Phillips, that some form of counter-signature on that blank cheque at the time would be an additional safeguard. I am quite sure that the Minister will say that this is a question of speed, that we shall have to act incredibly quickly, and that if that process was delayed too long we would be up against the seven days after which Parliament must consider the matter. However, there are ways to get around that.
High Court judges might be asked to consider the matter within four hours, for example, with Ministers being able to act up to that point. It is possible to get hold of a judge at very short notice. If special arrangements were made, I am sure that one could find enough members of a nominated panel in time—be they Privy Counsellors, High Court judges, or whoever.
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With regard to the proposal for Privy Counsellors to be involved, one could say that in the Prime Minister, the Chancellor of the Exchequer, the Home Secretary and the Lord Chancellor, there were four Privy Counsellors there already—and they could say, "Right, we've got our permission". The proposal would have to be drawn a bit wider than that. But in principle I support the intention behind the amendment and hope that we can make some progress before the next stage.
The Lord Bishop of Worcester: My Lords, I, too, feel a good deal of sympathy with what the noble Lord, Lord Phillips, seeks to do. However, as currently worded, I could not repose as much trust in the proposal as I should want. I have said before that I find many provisions in this Bill quite chilling, and I do not have too much difficulty thinking of how these powers could be abused. But I do not think that it would do to have a panel of 12 of which only four even need to be consulted and need to say "yes". What would be the level of public confidence, given a situation in which four members of the panel had been sought by the Government and had said "yes", only to find a few days later that six others who had not been consulted were all against it?
I hope, even at this late hour, that the Government might be prepared to consider an amendment such as this. In the process, there would have to be a good deal more discussion and negotiation to make the noble Lord's intention, with which I am totally sympathetic, possible to fulfil in practice.
Baroness Buscombe: My Lords, I echo the words of my noble friend Lord Lucas, as the amendment raises questions about what happens in practice in the event of an emergency, and about how quickly matters are put in place. I have to say, with great reluctance, that I cannot support the amendment. It is the kind of amendment to which we on the Front Bench of Her Majesty's Opposition have given a lot of consideration. We thought long and hard about how we could add more safeguards to the Bill, which has such extraordinarily wide powers. On one level, it seems to make sense to insist that at least four Privy Counsellors, but perhaps not more than 12, should be involved in the early stages.
However, we rather reluctantly came to the conclusion that, if we had an event like 9/11, it would be important that a responsible Minister would be able to act quickly and respond, without having to scrabble around to find the other Privy Counsellors and make sure that he or she had at least three on board. The event could happen at any time of night or day; it might be unseasonable, in the sense that Privy Counsellors could be away.
We want sufficient safeguards in the Bill, which is why we have yet to debate, for example, the sunset clause and our concern that any Act can be disapplied, now with the exception of the Human Rights Act. We want to be sure that there are sufficient safeguards to allow us to feel confident that the Secretary of State or the Prime Minister of the day will act responsibly in an emergency. I entirely understand where the noble

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Lord, Lord Phillips of Sudbury, is coming from, but, with some regret, we are not able to support the amendment.
Lord McNally: My Lords, I am pretty confident that my noble friend will not press the amendment. He says, "Hmm", but he will be on his own if he does. I was at first reluctant when he suggested the amendment to me. When noble Lords have sweated long in the vineyard, it is a bit unfair for others to come in with afterthoughts. However, I thought it worth putting forward as a probing amendment, not least because a theme running through the Bill is that no one doubts the good intentions of the current range of Ministers.
However, there is a certain impatience on the government Benches about what they will have to do in an emergency. One thing that separates democracies from authoritarian states is that they still manage to hold to certain basic principles, even in emergencies. That is what makes them what they are. Therefore, the Government have to be very careful about writing powers into legislation. The Minister charmingly referred to concerns about the rights of opposition. Quite often, those on both the Conservative and government Benches cite their vast experience in dealing with certain matters. However, we have more opposition experience than either of them. Therefore, I think that we speak with a certain authority when we claim to be protecting the rights of the Opposition.
But our most serious concern—again, we have tabled this as a probing amendment in order to hear the response—is that, in dealing with these emergencies, we should not succumb to the politics of fear which would lead us to stampede across the basic liberties that we all hold dear.
9.45 p.m.
Baroness Scotland of Asthal: My Lords, I absolutely agree with the sentiments expressed by the noble Lord, Lord McNally. That is why we took such a long time to scrutinise the Bill. The Joint Committee did a wonderful job, and we are taking a great deal of time now because we all want to get this matter right. These are important powers that we shall need to use in the event of an emergency when we are dealing with situations in extremis. Most of us do not want the circumstances in which the powers would be used ever to come about, but we have to prepare properly. Therefore, I absolutely agree with the noble Lord on that issue.
Many of the things feared by the noble Lord, Lord Phillips, have been provided for in the Bill in a way that would prevent them happening. For example, the noble Lord raised the question of the Patriot Act, but that is not in accordance with our constitutional and court arrangements, and the whole structure of the Bill would make that impossible. One has to bring forward regulations as soon as reasonably practicable and only for so long as necessary. The regulations can be discharged if their utility is proven long before the seven-day period comes into being. In Committee, I gave
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examples of when we have done that in the past. What we have just done together on Report—for example, strengthening the need to bring back Parliament—will mitigate against the fears of the noble Lord, Lord Phillips.
The noble Lord is wrong to say that parliamentary scrutiny will not be sufficient in part because the regulations cannot be amended. Given the exceptional nature of the powers, we do not think that it is appropriate for Parliament to be able to amend the regulations. That is to be found in Clause 27, and I wanted to lay that issue to rest.
I also want to take issue with the noble Viscount, Lord Goschen, on the question of the right to authorise the use of lethal force. I am sure that he made his comments half in jest, but I think that it is the second time that this matter has been raised. Emergency regulations must be compatible with convention rights. The convention protects the right to life. It is not possible to derogate from the right to life except in relation to deaths resulting from lawful acts of war. Thus the regulations could not authorise a shoot to kill policy or anything similar. Of course, the usual rules of engagement would apply to armed police troops performing functions in the emergency, and those allow the reasonable use of force.
Viscount Goschen: My Lords, what would happen if, for example, there was an outbreak of a disease and London had to be isolated but people did not want to be isolated? The police and the Army would be deployed to prevent people acting in a certain way, but would they be armed and say, "But we can't shoot you". How would that work?
Baroness Scotland of Asthal: My Lords, I need to be absolutely clear. In that kind of situation, there would be no shoot to kill policy. I notice that the noble Viscount looks surprised. This Government believe that that would be inappropriate. I absolutely accept that noble Lords opposite may take a different view.
Viscount Goschen: My Lords, with the leave of the House, perhaps I may respond. I know that this is the Report stage but the noble Baroness drew conclusions about what I was saying. It has been said over and over again that we are not talking about the Government or the Opposition or our view; we are talking about what a future administration might do. I was merely trying to draw out from the noble Baroness what the limit of the powers would be. The noble Baroness appeared to say that it would not be possible for the Government to enforce such a situation with armed force.
Baroness Scotland of Asthal: My Lords, we are absolutely clear that nothing in the Bill will entitle any government—not this Government, nor noble Lords opposite—to act, using emergency legislation, in a way that would be incompatible with convention rights. We have made that absolutely clear. No Government using this legislation would be able to do that. We were very clear that that was something that we would not wish people to be able to do.

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This is not an amendment, as I hope I have made clear, that we feel able to support or to accept. Emergency powers are for responding to the most serious of emergencies and must be deployed as quickly as possible in order to prevent matters becoming worse. The noble Baroness, Lady Buscombe, was absolutely right about that. I can understand the logic of the position that she and those opposite have taken in travelling that journey. It is the same journey that we ourselves have travelled and we came to the conclusion that it would not be a practicable alternative.
The need to form such a panel and bring it together to discuss the proposed regulations in any meaningful way would cause considerable delay to their implementation. Perhaps I may suggest that its value, given that there would be a government majority in any case, may be limited. However, the Government are very sympathetic to the principle of wider consultation, with representations from the key parties, if emergency powers are to be used, but do not believe that establishing a dedicated "emergency powers panel" is the best way forward.
In response to the question posed by the noble Lord, Lord Lucas, on the current procedure, I hope that the House is aware that there is a long-standing convention that in times of emergency the Government will seek 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. That was the process adopted by the previous government and governments before that. It is a very longstanding practice. I do not believe that any noble Lords on any Bench, irrespective of whether they are in government or opposition, would doubt that that will continue. I acknowledge the long experience in opposition of the noble Lord, Lord McNally—long may he enjoy that position and I would not seek to deprive him of it for a second. He does it so well.
Those tried and tested procedures allow the Government to take the views of senior parliamentary figures in a flexible and efficient way, tailored to the needs of the situation in hand. The regulations will be scrutinised by Parliament and the Government will be accountable to Parliament for their actions throughout any use of emergency regulations. These tried and tested arrangements offer a more meaningful and effective approach to parliamentary scrutiny. It is not clear what a committee of Privy Counsellors would add to the process and there are obvious weaknesses with the proposal.
We too have the greatest respect for the judiciary. The judiciary's role is quite clear in terms of judicially reviewing the acts of government, but it would be difficult if we were to ask the same judges to make the decisions that we then ask some other brother judges to review. It would not be a practicable position.
We believe that these arrangements will work. There is nothing in our history to indicate that they will not inure to our benefit long term. The one thing that we have to rely on so far is that when this country has found itself in acute difficulty, our historical experience has been that political parties in this country pull together for the
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benefit of our nation. That is something on which the citizens of this country have been able confidently to rely for many generations. There is nothing that I have seen in the current generation of politicians to make me believe that the citizens of this country will not continue to be capable of relying on their good sense in that regard.
Lord Phillips of Sudbury: My Lords, I am grateful to the noble Baroness for her response. I am also very grateful to the six or seven Peers who contributed to this mini debate. I shall study closely what everyone has said, particularly the Minister. She said that we have a tradition of consultation and so on. I echo what has been said by many speakers on all sides of the House that this is a very particular piece of legislation, bestowing uniquely wide powers and, therefore, to rely upon age-old decencies is perhaps indecent for us as legislators. Having something in the Bill that requires this initial check may—in my view, it does—seem warranted.
I understand the point that the noble Baroness, Lady Buscombe, made about speed. A standing panel with only four people needed to give consent should enable that issue to be dealt with. I understand that after 11 September, the United States did not use a single one of the Patriot Act powers, but relied exclusively on pre-existing law.
Finally, under the Emergency Powers Act 1920, in order for an emergency to be deemed to arise, there is a royal proclamation, the sort of check that everybody who spoke, bar the noble Baroness, Lady Buscombe, would favour.
I shall read what has been said. I may have a word with the Minister outside the Chamber and, if necessary, revert to the final stage of the Bill. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 22 [Scope of emergency regulations]:
Lord Elton Lord Elton moved Amendment No. 71:
Page 14, line 41, leave out from "provision" to "for" in line 42.
On Question, amendment agreed to.
[Amendment No. 72 not moved.]
Lord Elton Lord Elton moved Amendment No. 73:
Page 14, line 44, leave out from "provision" to "for" in line 45.
On Question, amendment agreed to.
[Amendment No. 74 not moved.]
Baroness Buscombe Baroness Buscombe moved Amendment No. 75:
Page 15, line 46, leave out paragraph (j).
The noble Baroness said: My Lords, I shall be reasonably brief on this group of amendments. In moving Amendment No. 75, I shall also speak to Amendment No. 86.
I hope that, to a large extent, the amendments speak for themselves. They are different amendments which cover a similar point. Amendment No. 75 would remove Clause 22(3)(j). A similar amendment was debated at length in Committee. We felt very strongly, and,

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notwithstanding the improvements to the Bill and the concessions which the Government have made, for which we are extremely grateful, we continue to feel deeply concerned at the extraordinarily wide power in Clause 22(3)(j).
The power to,
"disapply or modify an enactment…or a provision made under or by virtue of an enactment"
is just too broad. Notwithstanding the fact that the Minister has given us some confidence in terms of increasing safeguards with regard to access to judicial review, we remain firmly of the view that access to judicial review will be protected only if those Acts which allow access to judicial review have not been ousted. Even now, I am not convinced that we can be assured of that.
Amendment No.86 would approach that challenge in a different way. I recall my noble friend Lord Goschen suggesting that perhaps we should have a list of Acts that should be protected under the legislation from Clause 22(3)(j). We thought long and hard between Committee and Report about the Acts which might be included. We are also aware of the fact that that approach was considered at length by the Joint Committee when considering the draft Bill.
I know that concerns were expressed about which Acts could be included. Our concern is to ensure that the very core of our freedoms is protected. That is why we have included the Habeas Corpus Act 1816, Section 7 of the Parliament Act 1911 and the Bill of Rights 1689.
10 p.m.
I am intrigued that the Government have brought forward an amendment now on Report to protect the Human Rights Act. In our debate on Second Reading, I put to the Minister the need to protect that legislation. I was told that night, and indeed was informed in a letter from the Minister dated 19 July, that such protection was not necessary. In the letter, the Minister stated:
"The reasons for the Government's view that express protection for constitutional enactments, such as the Human Rights Act, is unnecessary are set out in brief in the Government's response to the report of the Joint Committee (at paragraph 34)".
I shall not take your Lordships' time tonight to revisit paragraph 34 in detail. However, the Government went to enormous lengths in paragraph 34, and again in response to my concerns about the Human Rights Act, to assure us that it was simply not necessary to protect the Human Rights Act or other constitutional enactments.
I would urge noble Lords—perhaps following the debate, if they have not already—to read paragraph 34. Notwithstanding my legal background, I find some parts of it jolly difficult to understand. I am rather pleased that perhaps the Government have not entirely understood it either. Now, the Government have decided that the Human Rights Act should be protected. They have clearly thought long and hard about the issue and moved away from the reasoning that was set out in such detail in paragraph 34.
While I accept that the Government have decided to change their mind, I do not understand why they have done so with regard to human rights, but have continued to refrain from listing other core Acts which should be protected by this legislation.
The Government may say that since they have listed the Human Rights Act, there is no need to list the Habeas Corpus Act, but we would not agree. The Government may say that habeas corpus is subsumed by the Human Rights Act, in which case there is no point in arguing that derogation from the Habeas Corpus Act is possible. However, we are certainly of the understanding that derogation from the ECHR is possible in time of national emergency, but that derogation from the Habeas Corpus Act is not. Moreover, the Habeas Corpus Act provides a specific and well understood procedure as against the Human Rights Act, which requires judicial interpretation which we suggest would be a much more drawn-out process.
I am trying in a sense to pre-empt what the Minister will say in response to our amendments. However, we remain strongly of the view that we should clearly protect within the Bill these core Acts, core freedoms and core constitutional enactments. I beg to move.
Lord Lucas: My Lords, I have two amendments in this group. The first is Amendment No. 76, which I am delighted to see the Government support. It is a purely technical amendment. I am pleased that my arguments have been accepted, partly in that amendment and partly in government Amendment No. 85.
So far as my Amendment No 83 is concerned—I echo an amendment of my noble friends—some things ought to be set down in stone that we cannot envisage any emergency wanting to attack. They have been unamended for so long that I believe they form foundation stones and we should not start to allow people to dig them up by way of regulation.
I hope that we might find something more—not much—to add to this list. I should like to see something there which would give me comfort that our system of democracy would continue. The amendment proposed by the Government protects the operation but not the constitution of Parliament. So far as I understand the Bill as it stands at present, it will be possible to postpone elections indefinitely and to operate with a rump Parliament as, indeed, was done not so long ago. That was done less than 400 years ago. That is something one can imagine governments doing in an emergency as a way of controlling Parliament. I should like to he sure that there is an imperative somewhere in this to get back to elections and representative democracy. I do not see it at the moment. I do not understand my constitutional law well enough but I hope that my noble friend on the Front Bench will be able to find the answer to that before Third Reading.
Viscount Goschen: My Lords, as the basis of this Bill I see a presumption by the Government that it is possible to legislate oneself out of an emergency. The first thing that Ministers would want to do if an

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equivalent of the 9/11 disaster occurred here would be to reach for the statute book to rip out pages from it to try to create a situation where they could act more freely.
However, experience has shown us—I take the 9/11 disaster as the best example of this—that what was required in the 9/11 disaster was not immediate repeal of statutes in the US but rapid decision-taking, bringing into play emergency plans, co-ordination of rescue, the deployment of fighter cover to prevent attacks from other aircraft and so on. It was not a case of tackling the statute book to produce a quicker reaction to the disaster. I do not believe that many statutes should be affected by this Bill. I believe that there should be a list of what can be done. If we do not have that, we must have a list of what cannot be done. Surely what we are talking about here constitutes a fraction of the statute book that could realistically be used, or that one would want to use, in the event of an emergency. The number of legislative powers that might be set aside must be very small vis-à-vis the great bulk of statutes.
I cannot believe that the Government seriously have in mind the possibility of the Parliament Act or the Habeas Corpus Act being amended. Of course, those pieces of legislation were not envisaged in this regard. I am sure that the noble Baroness will say that and that her Government have no intention of repealing the Parliament Act 1911. None the less we must face the fact that the Bill we are being invited to consider and, in due course pass, allows those measures to be amended.
My noble friend Lord Lucas put it very well when he spoke of guaranteeing at a very minimum the operation of Parliament and of justice. As I say, I welcome the noble Baroness's earlier amendments but all they do is to prevent the physical incapacitation of Parliament rather than protect its make-up. For example, the Government could by regulation fundamentally alter the way in which Parliament works. They could set aside the House of Lords. They could do almost anything to the constitution. I certainly accept that those would be very rare eventualities. None the less, we are being asked to pass legislation that would allow this, and we should not do that. The House of Lords, as the revising Chamber, should make it clear that certain parts of the constitution, at the very least, should be off limits. I would very much prefer a list of statutes that could be amended or set aside.
If the Government are correct to claim that they are taking their emergency planning seriously in the consideration of the Bill, then surely they will have applied the resources that they possess to have a good trawl through the statute book and ask, "What could realistically be obstacles to rapid reaction to a disaster?" They should have done that. If they have, I see no reason whatever why they should not bring forward that list and say, "This is a list of statutes that we wish to be controlled by the Bill". If they refuse to do that, there can be no argument against guaranteeing in the Bill the sanctity of our constitution against attack.
Baroness Falkner of Margravine: My Lords, we welcome Government Amendment No. 85 and are extremely pleased that it includes a specific reference to the Human Rights Act. We sympathise with the aims of Amendments Nos. 83 and 86 to safeguard basic civil and political rights against the abuse of power. We associate ourselves with the remarks of noble Lords who have just spoken.
We suspect that we shall be told by the Government that those safeguards are now mainly contained in the Human Rights Act and the European Convention on Human Rights, and are therefore stronger than the Bill of Rights 1688 or the Magna Carta. That is precisely why we welcome Amendment No. 85; but the Parliament Act 1911, referred to in Amendment No. 86, would benefit from the same ring-fencing as that in Amendment No. 85.
To achieve more broadly the aims of the noble Baroness, Lady Buscombe, we would require a British written constitution with an entrenched Bill of Rights. The Liberal Democrats strongly support such constitutional reform. It would bring us in line with most democratic Commonwealth countries, not least Canada, India and South Africa, as well as all the other member states of the European Union—but I recognise that this is probably not the time to make that point. So, if Amendment No. 86 is not adopted, we would hope to see a strengthening of Amendment No. 85 at a later stage, but have deep sympathy with its aims.
Baroness Scotland of Asthal: My Lords, I am very conscious of the hour, but I wish to give a proper response to the issues that have been raised by noble Lords in this short debate. I agree that it is important for us to have proportionality in responding. Perhaps I may say to the noble Viscount, Lord Goschen, that that is the point of having a single Civil Contingencies Bill—so that we have a clear understanding of the limits and the nature of the steps that we will have to take, or may be permitted to take, or any future Government may be permitted to take, in responding to an emergency.
As we all know, emergency powers exist to make temporary changes to the law where effective response is prohibited by insufficient powers. We have considered in Committee, and now extensively on Report, the nature of those limitations. The Bill ensures that any such changes will be necessary, proportionate and compatible with the Human Rights Act and scrutinised by Parliament. So, noble Lords who foreshadowed that that would be my answer were absolutely right.
The possibility of temporarily amending legislation of constitutional importance was examined in detail by the Joint Committee. That committee undertook pre-legislative scrutiny of the Bill; and during debates in both Houses this matter has been discussed. Discussions have also taken place at official level with civil liberties groups. The Government remain convinced that the absence of an express power to amend such legislation, coupled with the clear expression of the purposes for which regulations

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can be made and the safeguards set out in the Bill, ensures that substantive amendments to constitutional legislation are not possible.
I know that we had a lot of debate about the Human Rights Act on the previous occasion. The Government have sought, as noble Lords will have noticed, to respond to the concerns expressed in Committee and in both Houses and where appropriate and possible to reflect that in the moves that we have made. There are those who would still argue—some would say argue properly and with force—that the Human Rights Act provision that the Government now bring forward in Amendments Nos. 85 and 76 is not strictly necessary. We have taken the view that, as the piece of constitutional legislation expresses protection, it may be justified for the following reasons.
The Government believe that, unlike other constitutional legislation, the Human Rights Act sets out the relationship between the individual and the state that is at the heart of the operation of the emergency powers and fundamental to concerns about their possible misuse. We have listened carefully to that. It has always been the Government's intention that the emergency regulations should be entirely compatible with the Human Rights Act and should not be used to modify or suspend it. Since we were all at one on that issue, we tabled the amendments.
The Government remain convinced that nothing in the Bill would allow the Government or any future government acting under the provisions to disapply or amend the Human Rights Act. However, in the light of concerns expressed by civil liberties groups and in Parliament, the Government believe that an express provision to the effect that emergency regulations cannot disapply or modify any provision of the Human Rights Act would offer the certainty and reassurance that some seek.
It is important too that Part 2 of the Bill should similarly be incapable of being amended by emergency powers, in order to ensure that the tests and protections it contains cannot be amended. The Bill also expressly provides that emergency regulations cannot be used to modify Part 2. The Government intend to amend the Bill to move the prohibition from the clause on scope to the clause on limitations on emergency regulations where, as noble Lords argued vigorously in Committee, it sits more naturally. I think that this is the third occasion when I have hoped that I would give considerable pleasure to your Lordships' House by having, first listened so carefully; secondly, acted so swiftly; and, thirdly, perhaps done even more than that which was reasonably expected of us.
While the Government agree that the specific enactments referred to in Amendments Nos. 83 and 86 are likely to be considered "constitutional enactments", they do not think that there is merit in mentioning them expressly. While being of considerable constitutional and historical importance, they do not have the same wide-ranging and fundamental importance in protecting the individual from state action that would lead them to fall into the same category as the Human Rights Act. Given the purposes for which emergency powers can be made,
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as set out at Clause 23(1), it is difficult to think of a plausible scenario where the making of emergency regulations could engage the provisions in these other enactments.
We wish, however, to emphasise that there are other enactments of constitutional importance, which we believe could not be amended by way of emergency powers, such as the Government of Wales Act 1998 and the Scotland Act 1998, which are the legal bases for those two devolved administrations. However, we do not feel that it is necessary to mention such Acts expressly in a list, as the noble Viscount, Lord Goshen, would have us do. Any list would inevitably be an inaccurate attempt to list exhaustively all such "constitutional enactments". To extend the list further would be dangerous—the more so-called constitutional enactments which are expressly protected, the more likely a court is to conclude that the list is an exhaustive one—and would suggest that Parliament envisages constitutional enactments which are not specified being amended by way of emergency regulations—which, I say for the record, we do not. Given that there is not a defined body of constitutional law on which everyone agrees in this country, that poses obvious difficulties.
I would be happy to discuss the effect of Magna Carta (1297) and why we do not suggest that it be given express protection; the Bill of Rights of 1688, which is mentioned in the amendments; the Habeas Corpus Act 1816 and the Parliament Act 1911. Section 7 of the Parliament Act provides that the Septennial Act should be amended to limit the life of a Parliament to five years. I would be happy to write in detail about why we think that those instruments should not be considered, but I hope that my general comments cover those matters and respond to the points raised by the noble Baroness, Lady Falkner, and other noble Lords who have participated in this debate.
I hope that noble Lords will feel that the strengthening that we all agree is necessary, which has already been provided in part in the provisions on Parliament and ensuring that it is there, together with this Human Rights Act 1998 provision and Amendments Nos. 76 and 85, go a considerable way to reassuring noble Lords that we have covered the issues that should properly be included.
I shall write in greater detail about the specific nature of the other matters, because it might be more convenient for the House. My general comments encompass the other issues.
Lord Monson: My Lords, whereas the Minister has argued fairly successfully that Magna Carta, the Habeas Corpus Act and the Bill of Rights are subsumed for the purposes of the Bill into the Human Rights Act 1998, does she not agree that the same does not apply to Section 7 of the Parliament Act 1911? Extending the life of a Parliament would not conflict with the Human Rights Act.
Baroness Scotland of Asthal: My Lords, I am not suggesting that all those constitutional Acts are subsumed within the Human Rights Act. The reason that we have made the specific concession in relation to the Human Rights Act is that it includes juxtaposition

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between the individual and the state, and that relationship. The issues that have exercised people at Second Reading, in Committee and now on Report are how those powers will be used and how we can challenge the powers taken by the state and exercised against the individual. We see the strength of including in the Bill the provision in these amendments.
However, our other constitutional legislation, which is equally important, is also not affected or amended by the Act; nor do we believe that any government could so construe it. For the record and for the purposes of interpretation, I make it clear that, in crafting this Bill, that is the interpretation that this Government intended to be used in interpreting the provisions. It does not include any constitutional arrangements.
The only reason that we are not including a list is that we may inadvertently leave something out; then you have the sceptre of lawyers. I can see that, if I were not standing at this Dispatch Box, at some stage I might be standing at another Bar, where I might be advocating that Parliament must have intended to exclude or include something—because otherwise why did it not so provide? That is a common debate in which noble Lords would not wish people to engage. There should be no doubt that this Bill does not seek to amend constitutional Acts which have not been specifically referred to here. That is the general rule. I would not like to breach it because I am afraid of what might happen if we did.
Lord Northbrook: My Lords, before the Minister sits down, she said that Magna Carta came into force in 1297; I thought that it was 1216.
Baroness Scotland of Asthal: My Lords, if Earl Russell were with us, he would tell us precisely which date is right.
Noble Lords: My Lords, it is 1215.
Baroness Scotland of Asthal: My Lords, I almost feel like asking "Any more offers?" We may be about to get a "going, going, gone". I have just received a briefing paper which refers to "Magna Carta (1297)". We learn something new every day.
Baroness Buscombe: My Lords, I shall be extremely brief. I thank the Minister for her response to our amendment. We thought long and hard about having a very modest approach to this amendment. We were tempted by the list that was recommended by the Joint Scrutiny Committee on the draft Bill. But, for all the reasons that the Minister has explained, we have sought to minimise that list to ensure that we could circumscribe it very tightly to those Acts that control the life of Parliament and underpin the role of the judiciary and the monarchy.
I am sorry that the Minister has not felt able to respond to our amendments. I accept her argument that her amendment to protect the Human Rights Act is not, in her view, strictly necessary. That is helpful to our debate because, if the Government are going to protect
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the Human Rights Act, surely there is little harm if they respond to our wishes to protect the Bill of Rights and habeas corpus, perhaps on the same basis, which would be a great comfort to all noble Lords. Notwithstanding the fact that the Government may not consider protection of those Acts strictly necessary, we do. We take this matter extremely seriously.
I shall read what the Minister has said in Hansard. Given that we are only one week away from Third Reading, I urge her to write as quickly as possible to set out in further detail the reasons why she feels unable to respond positively to our amendments. I urge her to take on board the fact that this is not an amendment that will go away easily. On that basis, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Lucas Lord Lucas moved Amendment No. 76:
Page 15, line 46, leave out "(other than a provision of this Part)"
On Question, amendment agreed to.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 77:
Page 30, leave out lines 33 to 35.
On Question, amendment agreed to.
Clause 23 [Limitations of emergency regulations]:
Baroness Buscombe Baroness Buscombe moved Amendments Nos. 78 to 80:
Page 16, line 20, leave out from "only" to end of line 21.
Page 16, line 22, leave out "that the provision is"
Page 16, line 25, leave out "that the effect of the provision is"
On Question, amendments agreed to.
Baroness Buscombe Baroness Buscombe moved Amendment No. 81:
Page 16, line 31, leave out from "service" to end of line 33.
The noble Baroness said: My Lords, I shall attempt to be brief. This amendment is to Clause 23, which deals with the limitation of emergency regulations. As I outlined in Committee, this clause currently prevents the Government doing two things: the first is requiring a person to take part in military service and the second is interfering with strike action. We object to the latter category.
We on these Benches see no reason why the Government are choosing to make such an exception. There are many reasons why we feel that this provision should not be part of the Bill. We are talking about situations where something awful will happen, is happening or is about to take place. In such a situation, ambulance drivers, firemen and workers on the London Underground may very well be essential to minimising the damage, treating the injured and transporting people to and from the area of the emergency. However, any such operations would be severely hindered if the union connected to those actions was out on strike. In such situations, it is essential to have trained professionals manning the essential services and the current drafting of the Bill may well mean that that does not happen.
During the debate on 21 October, many of your Lordships questioned the Government on why this provision is an exception in the Bill. In his reply, the

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Minister made an attempt to justify the inclusion of such a provision. The main thrust of that argument was that it is a historic exception. That is due to the fact that it was contained in the 1920 Act. Perhaps I may say that that is a rather hollow argument: the Government are repealing the Act and many of the provisions contained within it.
10.30 p.m.
We have also heard that we should put our faith in those on strike to do the right thing and return to work should such a situation occur. I am sure that that is the case, but we must remember that we may well be talking about people's lives. It is quite worrying to have to rely on blind faith that individuals will do the "right thing".
That is particularly the case after my noble friend Lord Luke brought some interesting statistics to my attention regarding strikes during the Second World War. Noble Lords may think that when the country was going through some of its very darkest times, people would not even think to strike or place a further strain on their country. However, figures from the Office for Central Statistics show that during 1941, 1,077 working days were lost to strikes; that figure was 1,530 in 1942 and by 1944 it stood at 3,696. Those were supposed to be the days when people could be relied on to "muck in" and help out whenever help was needed. I hope that the Government will think again about this provision. I look forward to hearing what the Minister has to say. I beg to move.
Lord Lucas: My Lords, I have two amendments in this group. Amendment No. 82 merely suggests, "Well, if we are going to have this provision, let us make sure it works". I gave an illustration in Committee about what would happen if we had a strike by HGV drivers and none the less the Government required goods to be moved and therefore had to relax legislation in order to enable other people to drive heavy goods vehicles.
The noble Baroness wrote to me. That part of her letter ended,
"It is possible however that it may be necessary and proportionate to relax some conditions relating to the use of HGVs, perhaps those relating to licences or to working hours, providing it is safe to do so in the circumstances. There is nothing in the Bill that would prevent this, providing all the safeguards had been met".
At the moment, the Bill clearly reads,
"Emergency regulations may not … enable … any activity in connection with, a strike".
If one is enabling people who are not normally permitted to drive HGVs to drive HGVs, "in connection with a strike"—it is only because the strike is happening that it is necessary to do that enabling—how does that not fall within this condition?
I intend this as an entirely helpful amendment. I shall not pursue it. But I urge the noble Baroness to think about whether she has got that right. I cannot see how, on picking out that aspect of Clause 23(3), it does not have the effect that I think it does. It is therefore a danger
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to a proper response to an emergency situation where a strike is involved. The intention of my amendment is to remove that possibility.
I shall not labour over Amendment No. 84. I merely put it down to draw out an answer on whether penalties in existing legislation could be amended if the circumstances were right. But the noble Baroness has replied to me that, yes, they can, which I accept.
Viscount Goschen: My Lords, in Committee, my noble friend Lord Lucas asked the Minister not only whether people could be prohibited from doing a particular function but also whether they could be directed to do a particular function. As I recall, the answer was that, yes, they could.
Therefore, we have the bizarre prospect that, in the event of Tube drivers going on strike and their services being urgently required, the only group of people in the whole land who could not be directed to drive Tube trains would be Tube drivers. Lorry drivers or main line rail drivers could be directed to drive them. That strikes me as a provision in the Bill that could be envisaged and useful, but is being denied to the administration of the day.
I find that particularly strange. When we considered this issue in Committee I asked the Minister whether, during the recent firemen's strike, the Government had envisaged or at least considered bringing forward legislation that would make such strikes illegal. I did not receive an answer. It has been reported that the Government did consider whether such provisions should or could be brought forward, and made that known to the Fire Brigades Union.
In the light of those circumstances, it seems irresponsible for the one power that could be so useful in extremis to be denied to the administration. I urge the Government to accept the amendment moved by my noble friend Lady Buscombe.
Lord Monson: My Lords, Amendments Nos. 81 and 82 seek to rectify an anomaly whose possible unintended consequences were well pointed out in Committee when we discussed this issue at considerable length. However, Amendment No. 84 addresses a totally different topic. It is obvious that the noble Lord, Lord Lucas, has done a vast amount of research on this Bill and it is clear that he feels that, under the Bill, the Minister could by regulation increase the maximum sentence for a given offence from, say, three months to 14 years. I hope that the noble Baroness can reassure us that that is not in fact the case. If not, we shall certainly have to come back to it at the next stage.
Lord McNally: My Lords, I still have the same problems that I had in Committee about the amendment moved by the noble Baroness, Lady Buscombe. We have an exclusion that has lasted for more than 80 years, through some very perilous times. Indeed, her quotation of statistics from the Second World War does not support her argument. When the nation faced its greatest peril, we retained the freedom to withdraw labour as one of the basic freedoms in a free society. There is also the difficulty I mentioned in Committee; that in the past

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governments have found that you cannot coerce people to work. Often they have got into even deeper water when they have tried to do so.
I have mentioned before that, not in an emergency situation but in a broader context, the Government should look at no strike agreements in certain industries in order to underpin public service. But I do not see that as a part of emergency powers, rather as a more sensible approach to industrial relations in certain sectors.
Members on these Benches would still find it very difficult to support the amendment.
Baroness Scotland of Asthal: My Lords, I agree with the last comments of the noble Lord, Lord McNally. Since the 1920 Act has been in force, governments have had to use emergency powers on 14 occasions, notwithstanding the limitation of the no strike action provision. Each occasion has been one in response to industrial action. It is perfectly possible to do what needs to be done to respond to an emergency and yet continue to allow people the freedom we have in this country to withdraw labour where it is within their right to do so. I hear, too, what the noble Lord has said about no strike agreements, but that is a matter outwith the Bill. However, I understand why he raised the point.
We do not agree with the amendments and the Government cannot support them. Allowing the use of emergency powers to prohibit strikes would risk straying into the realm of political interference rather than emergency response. The Government have made it very clear that emergency powers are to be used as a mechanism for dealing with the most serious threats to human welfare, the environment and security only, and only in a responsible and proportionate manner. We have deliberately crafted the Bill to avoid the possibility of powers being used for political purposes.
Allowing the prohibition of strike action would weaken that position and open up the possibility of the powers being used for the wrong reasons. The Government and Parliament have made very clear throughout the passage of the Bill that that is something that must be avoided at all costs.
The right to withdraw labour within the law is, as the noble Lord, Lord McNally, said, a fundamental right that should be protected even during emergencies. Of course I have heard what the noble Lord, Lord Monson, the noble Viscount, Lord Goschen, the noble Baroness, Lady Buscombe, and the noble Lord, Lord Lucas, have said about that matter.
Deliberate endangerment of human life or property, or causing illness or injury, are matters for criminal law, be it in normal times or in the midst of emergencies. Existing industrial relations law ensures that those who wilfully and maliciously go on strike where they know, or have reasonable cause to believe, that the probable consequence of doing so will be to endanger human life or cause serious bodily injury, or to expose valuable property to destruction or serious injury, commit an offence. This places a very real limit on the potential effects of industrial action.
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This reflects the Government's position, as set out in the Bill, that existing legislation should always be used where it will be effective. We come back to the point made by the noble Lord, Lord McNally, which was echoed by the noble Viscount, Lord Goschen, in relation to the 1911 incident. In fact, in the end, people used the legislation that was already in being.
The Government accept that industrial action may have a disruptive effect on services. The Bill ensures that they can act to mitigate the worst effects of a particularly disruptive strike without resorting to its prohibition. The legislation it replaces contains an identical prohibition and has been used effectively for just such purposes.
The Government believe that as long as industrial disputes remain within the law they are matters for employees and employers. The emphasis must be on their resolution. The Government taking sides and interfering in a draconian manner would be likely only to inflame the situation.
As to Amendment No. 82, I have responded already to the comments made by the noble Lord, Lord Lucas. We believe that the amendment is unnecessary. Its effects are already achieved in the current drafting of the Bill. However, I thank the noble Lord for raising these issues. I understand the care that he has given to these matters and the importance that he attaches to them.
As the noble Lord, Lord Lucas, is not pressing Amendment No. 84, I hope he will understand if I do not respond to it. I therefore invite the noble Baroness not to press the amendment.
Lord Monson: My Lords, why cannot the noble Baroness respond to Amendment No. 84?
Baroness Scotland of Asthal: My Lords, I am not going to respond to it because the noble Lord, Lord Lucas, whose amendment it is, has not sought to speak to it and does not invite me so to do. If the noble Lord, Lord Monson, or any other noble Lord, had spoken to it, I would of course have responded in full. If the noble Lord did speak to it, I apologise to him. I do not recall him doing so.
Lord Monson: My Lords, I did.
Baroness Scotland of Asthal: My Lords, I apologise for not responding. I thought the noble Lord had raised only general issues.
Amendment No. 84 deals with emergency regulations. These can be made only for the purpose of preventing, controlling or mitigating an aspect or effect of the emergency. They must be needed urgently, existing legislation must be insufficient—so, if there is already legislation that can cover the emergency, these regulations should not be used but that legislation should be—and they must be in due proportion to the aspect or the effect of the emergency that they are aimed at. These tests apply to any attempt temporarily to amend existing legislation using emergency powers.

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It is difficult to envisage situations where these tests might be reasonably considered to be met in relation to extending penalties set out in the existing legislation. There may however be occasions where it may be more important to deter certain activities than it perhaps is in times of normality. For example, during a major fuel shortage hoax calls may result in ambulances and fire engines being sent to non-existent incidents, wasting limited fuel resources that may be necessary to respond to real emergencies. It may be necessary and proportionate in those circumstances to increase the penalties for such offences in order to increase the deterrent effect and to reflect the increased seriousness of the offence. That is why we say that it would be appropriate to deal with the matter as we have drafted it.
10.45 p.m.
Baroness Buscombe: My Lords, I thank the Minister for her response, although I am disappointed by it. I appreciate that there are criminal laws in place whereby, if individuals go on strike knowing that they will endanger life, for example, they are committing a criminal offence. What if they are already out on strike when an unprecedented act takes place? That would mean that they did not have the mens rea to commit a criminal offence, to put it in legal terms, but the reality would be that they were already out on strike. In that case, surely it would be sensible to have some protection in place to ensure that those people were then brought back into operation.
I cite an example that I used in Committee and at Second Reading. Individuals working in the fire service use highly technical equipment, and they are the only individuals who know how to use it. Let us suppose that we had an act such as 9/11; for a start, it would be jolly hard to understand how we can talk about having a proportionate response to such an act. We would want to act with speed and efficiency, without the possibility that at that time we might be compromised by having people out on strike, who we could not feel that we could lean on to use equipment that might save lives. Maintaining the freedom to withdraw labour in such instances could seriously threaten lives in a way that is not per se criminal—because an act might take place without any warning.
I wish that noble Lords who are not in support of the amendment had heard what I said with regard to the strike figures during World War II. It is depressing to think that just because the right to withdraw labour has been on the statute books since 1920, it should remain. Surely the point of the debate is that we are being told by the Government that for all sorts of reasons we must repeal that 1920 Act and other emergency legislation—that we need to be flexible, responsive and take account of the world that we are living in today. In that light, I do not understand why the Government feel comfortable ignoring the amendments. However, the hour is late; I will seriously consider returning with the amendment at Third Reading, but now I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 82 to 84 not moved.]
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 85:
Page 16, line 42, at end insert—
"(5) Emergency regulations may not amend—

(a) this Part of this Act, or

(b) the Human Rights Act 1998 (c. 42)."

[Amendment No. 86 not moved.]
Clause 25 [Establishment of tribunal]:
Baroness Buscombe Baroness Buscombe moved Amendment No. 87:
Page 17, line 35, leave out "he thinks it" and insert "this is"
On Question, amendment agreed to.
Schedule 2 [Minor and Consequential Amendments and Repeals]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 88:
Page 30, leave out lines 33 to 35.
The noble Lord said: My Lords, the Delegated Powers and Regulatory Reform Committee in its 30th report drew to the attention of the House the new Section 22D(5)(d) of the Road Traffic Regulation Act 1984, now included in Schedule 2 to the Bill. The provision would allow an anti-terrorist traffic regulation order to provide that a constable may authorise an employee of a traffic authority to do anything that the constable could do by virtue of this subsection.
I explained in Committee that this provision was seen as affording a degree of flexibility in the partnership between the police and local traffic authorities in dealing with terrorist threats. However, in the light of the committee's comments about Section 22D(5)(d), I said the Government would review the need for it and table a suitable amendment on Report if necessary.
Although the proposed new paragraph would afford a degree of flexibility, we have been mindful in our further considerations of the Committee's concerns on the sensitivities of exercise of powers by employees of a traffic authority which are otherwise exercisable by a constable. Having given the matter some further thought, we have concluded that the provision is not absolutely essential and could be dispensed with.
The amendment removes proposed new Section 22D(5)(d) from the new provisions to be inserted into the Road Traffic Regulation Act 1984. I beg to move.
On Question, amendment agreed to.
Baroness Buscombe Baroness Buscombe moved Amendment No. 89:
After Clause 35, insert the following new clause—

EXPIRY AND REVIVAL
(1) The provisions in this Act shall cease to have effect at the end of the period of one year beginning with the day on which it is brought into force.
(2) The Secretary of State may by order provide—

(a) That a provision of this Act which is in force (whether or not by virtue of this subsection) shall continue in force for a specified period not exceeding twelve months.

877

(b) That a provision of this Act which is not in force (whether or not by virtue of this subsection) shall come into force and remain in force for a specified period not exceeding twelve months.

(3) An order made under subsection (2) shall not come into effect unless it has been laid before and approved by both Houses of Parliament."
The noble Baroness said: My Lords, the amendment is quite evidently a sunset clause for the Bill. We on these Benches feel very strongly about this legislation. We are encouraged by the improvements in the Bill through the concessions that Ministers have made thus far. However, after all consideration, we believe it seriously important to have a sunset clause.
The powers in the Bill are not only far-reaching and wide-ranging, but contain the tools to increase those powers further and for the Government to allow themselves to pretty much do anything that they wish. Although I am concerned at giving any government such huge powers, I concede that the times in which we are living are dangerous indeed, and that this country is exposed to the threat of terror on a scale which we have not seen before. However, I sincerely hope that there comes a time when our children do not have to live under such a threat and when some of the provisions in the Bill are no longer necessary.
Of course I understand that there will always be the risk of a natural disaster occurring. If we are to believe some of the scientific reports being published, natural disasters may well be on the increase. I realise that for that reason we will always need some form of civil contingencies Act. With the amendment, I am saying that we are simply not sure that the Government are entirely right, and we are asking whether a civil contingencies Act need necessarily be this one.
On a different point—this is envisaging a worst-case scenario—what if the government of the day are very different from the one whom we have now? We have kept returning to this point, from Second Reading onwards. Some people might think us daft, but we in this House are being conscientious by contemplating a government in power, the type of whom we would rather not even conceive to be possible. But anything is possible. What if the government of the day are not working for the greater good and acting in the best interests of the country, as we all try to do? Notwithstanding that some will think that far-fetched, we know that it is possible.
Our amendment would allow Parliament to consider the Act contemporarily, and allow changes to be made should both Houses feel that they are necessary. We have drafted the amendment to, in a sense, mirror the sunset clause in the Anti-terrorism, Crime and Security Act. We are also recalling the Northern Ireland Acts, which it was mandatory to consider annually in both Houses of Parliament. If the Government have nothing to fear from this legislation, they should have nothing to fear with the amendment. I beg to move.
Lord McNally: My Lords, the hour is late for debating a sunset clause, but two points are worth making. One is that the Bill replaces legislation that was in one case 55
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or 56 years old, in another case 80 years old, and in a third case 90 years old. That is too long a period for legislation to lay on the statute book without Parliament considering its implications. Therefore, I think that there is a case for a sunset clause of some length. Perhaps it should not be an annual one, but a clause of some length would be worthwhile.
My second point concerns a recurring theme in the Bill—that is, the rapid changes in technology which may change circumstances. I think that some provision should be built into the Bill to take account of that. I say that because of the points raised by the noble Baroness, Lady Buscombe, concerning the awesome powers that the Bill conveys to government, because of the changes in technology, and simply because we should not leave this kind of legislation on the statute book without an opportunity for Parliament to check on it. We think that a sunset clause is well worth considering, perhaps not tonight but at Third Reading.
Baroness Scotland of Asthal: My Lords, I regret to say that the Government cannot support the amendment—perhaps for the reasons that the noble Lord, Lord McNally, has just made clear. We are replacing Acts that have stood us in good stead for 84 and 56 years respectively. It has never been suggested that the 1920 Act, in particular, was not needed; nor can it be said that it has been used in a disproportionate or inappropriate way. It has been used appropriately and judiciously by governments of various complexions in order to meet the emergency needs of the people that they have served.
The Bill is designed to enhance the resilience of the United Kingdom. It delivers a new framework for civil protection and a mechanism for making temporary regulations, where necessary, in the worst emergencies. I do not in any way take away from the importance of our critical analysis of the minute detail of the Bill. But I remind your Lordships that the Bill has generally been greatly welcomed by many as a significant improvement on what has gone before it. It is sometimes easy to forget the plaudits that were showered by all sides upon the work of the Joint Committee and upon the work carried out on the draft Bill, but I think that we should remember that now.
The need for the legislation does not disappear. I wish I could say to the noble Baroness that the kind of contingencies for which we are planning will disappear in a year. I wish I could say that the legislation will not be necessary as we shall not have floods, the threat of terrorism attacks or any such things and that, in a year's time, all will be well. But that is not the world in which we live and we all know that that is not the truth. We must plan for the world in which we now find ourselves, and at times that is a very dangerous place.
Part 1 establishes a framework for local civil protection planning. There is no reason why it should lapse after one year. The framework that it will deliver will remain necessary. The risks that it addresses are long-term generic matters, such as flooding, which unfortunately will still be with us for years to come. Part 1 is deliberately designed to allow that framework to be updated over time. The details of the duties that

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it contains will be set out in regulations and guidance, and the lists of responder organisations covered by them can be amended.
Therefore, there will be opportunities to revisit parts of the Bill when we consider affirmative resolutions and when we come to review the legislation. But the framework or structure will remain in place because it will be needed. So, by time-limiting or calling into question this sensible planning framework every year, we would succeed only in undermining the certainty that is needed for effective long-term planning and investment at the local level. That is why we have put huge investment into this matter; that is why the Government increased their commitment to local authorities; and that is why we want to build stability. Such planning will be necessary for us all for a very long time.
Part 2 is an enabling mechanism that will provide the necessary powers to deal with a large range of emergencies, including catastrophic terrorist attacks, flooding or disruption to essential services and resources. While the Government hope that the need for such a mechanism does not exist in a year's time, as I have said already, that is unlikely to be the case.
It is the Government's view that sunsetting legislation is appropriate where the powers that it contains are expected no longer to be needed after a certain length of time or where their application should be reviewed by Parliament. This is not appropriate for a piece of enabling legislation that simply creates a mechanism for the creation of temporary legislation.
11 p.m.
It should be noted that existing emergency powers legislation, as we have already said, lasts for a very long time. I know that no one in the Chamber would like to give me a time when, they reasonably anticipate, the legislation will no longer be necessary. It falls foul of the criterion that we usually use to apply a sunset clause. I would love to be able to say that we could sunset it. If I could, I would sunset it for six months, but it is not possible. That is not the world in which we live.
The key point to bear in mind is that Part 2 itself does nothing. It is simply a mechanism to make temporary legislation that sits there until it is needed.
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The regulations that may be made, using the mechanism, will actually affect people in the real world. Emergency regulations under the Bill will be scrutinised by Parliament. If I have learnt anything in the past five years, it is to anticipate that they will receive the most rigorous, the most vigorous and the most wholesale scrutiny of any legislation. I rely on the House to do just that.
Baroness Buscombe: My Lords, I thank the Minister for her response. With all due respect, I believe that the Minister has missed the point. We are not saying that all will be well a year from now. I entirely agree with the Minister on that. I wish that, in moving the amendment, we were contending that—far from it.
The reason we proposed the amendment is that we believe that it is tremendously important to revisit these extraordinarily wide provisions on a regular basis. The reality is that the stakes in terms of terrorism may change, so we believe that it is necessary to revisit the provisions, given that they are so wide-ranging, particularly in Part 2. The idea that proposing such an amendment means that we assume that matters will improve is far from the case.
We believe that a sunset clause, given the wide-ranging, enabling powers in the Bill, would probably be the most important clause of the Bill. I urge the Minister to consider the amendment in a different light and from a different perspective between now and Third Reading. Sadly, the world in which we live is extremely dangerous, and we should revisit those dangers and revisit the breadth of powers in the Bill on a very regular basis. We suggest that that should be done annually, mirroring the Anti-terrorism, Crime and Security Act. There is such a sunset clause in that Act and, therefore, I cannot see why the Government should not accept the necessity for a similar clause in this Bill. I urge the Minister to consider those points, but at this late hour, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.

Civil Partnership Bill [H.L.]
Bill returned from the Commons agreed to with amendments and with a privilege amendment; it was ordered that the Commons amendments be printed.
House adjourned at three minutes past eleven o'clock.