§ 3.6 p.m.
§ Report received.
§ Clause 1 [Meaning of "emergency"]:
§ 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 756 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 757 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 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.
contamination of land, water or air
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 mattercovers 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 759 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.]760
§ 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 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".
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.
762 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.
763 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.
764 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.
765 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
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 767 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 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 768 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.
769 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.
770 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 771 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 772 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 773 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.774
§ 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.775
§ 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.776
§ 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 777 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.
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 778 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 779 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 780 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.
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 781 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 782 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 783 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.
784 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 785 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, 156.788
|Division No. 1|
|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.|
|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.|
|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.|
|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)|
|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.|
|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 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.
790 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 791 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.
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, 793 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 794 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 795 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 796 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—
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 797 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.
798 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 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 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 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 799 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 800 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 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 802 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 803 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".
804 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.
805 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 806 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 807 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 808 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.
§ 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 812 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, 127.815
|Division No. 2|
|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.|
|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.|
|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.|
|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 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.
§ On Question, amendment agreed to.
§ [Amendment No. 32 not moved.]
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 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 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 moved Amendment No. 38:
Page 8, line 13, leave out subsection (5).
§ On Question, amendment agreed to.
Lord Lucas moved Amendment No. 39:
After Clause 16, insert the following new clause—