FINANCIAL ARRANGEMENTS FOR LOCAL AUTHORITIES

HL Deb 14 October 2004 vol 665 cc454-516

(1) Any expenditure incurred by a local authority (as defined under paragraph 1 of Schedule 1) arising from this Bill including initial start up costs will be met in full by central Government through additional grant paid to each local authority.

(2) To ascertain this figure the Audit Commission will, twelve months from the date on which this Act received Royal Assent, undertake a full evaluation of the annual running costs and start up costs arising from this Act incurred by each local authority."

The noble Baroness said: I return to the difficult subject of financial arrangements, but this time I am focusing specifically on local authorities, the category 1 responders. With this amendment we turn to one of the key issues that has received considerable attention throughout the passage of the Bill and at Second Reading in your Lordships' House; namely, the cost of this measure on local authorities. Unlike the Civil Defence Act 1948 and associated regulations, neither the Bill nor the draft regulations make any explicit commitment to the funding of the function within local authorities.

There is ample evidence that an increase over existing levels of funding will be necessary if local authorities are to deliver their category 1 duties effectively. Until the draft regulations and guidance are finalised, it is not possible to know exactly what implications there will be—which is a point I made in relation to category 2 responders as well. However, Part 1 sets out seven duties for all councils, all presenting significant new financial burdens. The Government have maintained that the Bill will be cost neutral to local authorities, although I must say that we have heard that before in relation to other Bills, but in the event it was not the case. We find it hard to believe that statement, and certainly so do local authorities.

It is clear that in the light of the proposals in the legislation, the vast majority of emergency planning units have said that they will need to increase their staffing levels. This pattern is similar across all councils and areas. The cost of appointing a new emergency planning officer in the authority to undertake work as a result of the new legislation will be approximately £40,000. The average estimate of expenditure on emergency planning per top tier authority in 2002–03 was £178,857. Grossing this figure up to provide a picture at the national level would give an overall cost of just over £32 million for England and Wales, with over £21 million spent on salaries and staff-related costs alone. The current civil defence grant is £19 million. The average staff salary costs per emergency planning unit is £114,898.

Councils have received no extra money for counter-terrorism work following 9/11, unlike the fire and police services. A major survey conducted by the Local Government Association in 2003 showed clearly that the emergency planning service was already severely underfunded even before the new duties are added, with councils contributing £17 million over and above their central government grant. This money has to he drawn from other service budgets and puts pressure on council tax levels.

The Local Government Association has estimated that for local authorities to meet the additional requirements of this Bill in terms of initial start-up costs and to finance those tasks already being undertaken but not covered by central government, a figure of £90 million annually would be required. I am fully aware of the announcement made by the Chancellor in this year's spending review regarding additional resources for local authority emergency planning. While I welcome the increase, it is estimated that local authorities, on current and projected expenditure, will still be short by around £50 million annually of what is actually required.

This amendment would therefore ensure that the full costs incurred by local authorities as a result of this Bill would be met in full by central government. This can only be right when so many of the new challenges and responsibilities that this Bill brings will fall on local government. To ascertain accurately the figure, the second part of my amendment would empower the Audit Commission to undertake a review of both the start-up and annual costs on each local authority, 12 months from the Bill being enacted. I beg to move.

Lord Garden

I strongly support the amendment moved by the noble Baroness, Lady Buscombe. No doubt the Minister will tell us how well the Government are doing in terms of providing financial support in so many different areas, in which case this will be a no-cost amendment because he will already have provided sufficient money. However, the truth of the matter is that whenever you talk to emergency planning staff around the country, they are seriously concerned.

Like any other public spending authorities, local authorities have pressures on their budgets so that they tend to go for what is obvious and needed today rather than deal with a future risk. By taking this into the Bill, we would be showing what the Minister has agreed is necessary; that is, that we see this as a very urgent activity. In comparison with the funds being put into either defence or the intelligence services, which are also about the defence of this country, these sums are relatively small. We need to make sure that local authorities do not hold back on the process of getting on with providing defences against the possibility of these sorts of emergencies. Again, I strongly support the amendment.

Lord Stoddart of Swindon

So far I have not intruded into the discussions on this Bill, although my correspondence has persuaded me that perhaps I ought to take an interest in it from now on. I rise to support the amendment proposed by the noble Baroness, Lady Buscombe. Having a local authority background I know how these impositions on local authorities pile up, one by one. It is essential that when duties of the sort contained in this Bill are put on local authorities, they are fully financed by central government. I say that because this is something which applies to the whole of the nation.

One of the problems with civil defence was that it was badly funded. It was so badly funded that people did not take it seriously. They thought that civil defence planning was a joke because the Government refused to finance a proper civil defence system throughout the country. Only £19 million a year was spent on it. I believe that circumstances have changed and that both the public and local authorities need to take planning for emergencies seriously. However, they will not do so unless they are properly funded. That is why I believe it is essential for the Government to take this amendment on board.

We all know and we all recognise that local authorities up and down the country are hard-pressed for cash. If they are not properly funded, and if they do the job properly, then the hard-pressed council tax payer will have to pay more rates. I would not have thought that that is what the Government would want at this point in time. So, from the point of view of their electoral well-being, the government party should take the amendment and local emergencies seriously and ensure that local government can carry out the tasks being assigned to it under the Bill.

Lord Jopling

I strongly support my noble friend's amendment. I also endorse and support what the noble Lord, Lord Stoddart, said. Far too often governments of all colours are happy to pass legislation, in either your Lordships' House or the other place, regardless of' the implications of the costs to local authorities, in particular. The Government's refusal so far to accede to, or even to propose, what my noble friend has proposed is a reflection of the complacency to which I referred at some length earlier.

I know that the Minister cannot promise, unless his brief allows him to do so, that the Government will do what my noble friend asks them to do, but I hope that he will take the matter away and seriously contemplate the fact that, by not specifying that the costs of these measures will he provided through additional grant, people will doubt that the Government take this issue seriously. If he is not able to do so, I hope that my noble friend will seriously consider bringing back an amendment on Report with which to test the opinion of the House. I should be very surprised if the overall view of noble Lords was not that this matter is so urgent that the extra costs ought to be fully met.

The Earl of Onslow

Eighty-five million years ago when I was a National Service subaltern I was told that time spent on reconnaissance was seldom wasted. That applies surely to planning. It is actually cheaper for a community to have proper planning carried out at local authority level. If something happens—God forbid—and the plans are not properly prepared, the results will be more expensive, and more discombobulation will occur. It will generally be a bad thing.

If we are going to go down the route of asking local authorities to prepare the planning, for heaven's sake give them the tools to do the job properly—and that, I am afraid, means paying for it. A disaster in Somerset or Surrey affects people in Berkshire or Buckinghamshire; it becomes a national as well as a local issue and therefore it should be paid for nationally, and properly paid for.

3.45 p.m.

Lord Bassam of Brighton

Amendment No. 47A would require the Government to meet all local authority costs in implementing the Bill. Obviously I am aware that funding is an issue for local responders. In another incarnation I had some responsibility for putting together an estimate of the new burdens visited on local government in the emergency planning field during the late 1980s and the early 1990s, and I am well aware of planning officers' views on the subject from that time.

We believe not only that local authorities should be funded appropriately for civil protection work, but that it is most important. It is for that reason that the Cabinet Office worked very closely with the Local Government Association in the run up to SR 2004 to ensure that it received the appropriate level of funding as part of that package. Noble Lords will have heard me say before—and I am quite happy to repeat it today—that, as a result, the Government doubled their contribution to the cost of local authority civil protection activities to £40 million per year, running from 2005 through to 2008.

This was widely welcomed by local government and was seen as an excellent result which will significantly enhance its capacity to deal with the effects of a wide range of emergencies, whether caused by natural disasters, accidents or terrorism. The Emergency Planning Society said of the outcome that it was excellent news for the practitioner, which is a resounding thumbs-up for the Government's commitment in terms of money to this field of activity.

The amendment would require the Government to make available funds to cover a local authority's startup costs in implementing the requirements of the Bill. But the Bill is, by and large, organisational and in large part simply codifies existing best practice. So we do not anticipate that local authorities will face significant start-up costs of the kind implied by the amendment.

We accept that it will take local authorities time and effort to digest and implement some of the requirements of the legislation in year one. However, these burdens were taken into account by the Government in the cost assessment that we developed as part of the SR 2004 cost assessment process. Start-up costs were smoothed across the provision made for the three years of the review period—that is, from 2005 through to 2008. That approach was supported and endorsed by the Local Government Association.

The amendment also suggests that the Audit Commission should be required to measure local authority expenditure on the Act in its first year of implementation and that the Government should be required to reimburse this money. There are already public expenditure processes in place to establish appropriate funding levels across government. The spending review cycle exists to establish funding requirements for subsequent years. Spending levels in the early years of the new Act will form part of the evidence base for the SR 2006 exercise.

I can make this commitment because it is a sensible one: if new burdens emerge during the spending review period they can be met from the £100 million counter-terrorism pool that the Government have created. We have made significant new investment in local authority resilience capacity and local authorities have warmly welcomed that. The challenge now is for central government and local authorities to work together to deliver improved civil protection arrangements across the country.

The noble Baroness, Lady Buscombe, said that the LGA wants £90 million. Simply put. I do not think that that is true. I have no evidence in front of me to suggest that it is. We have doubled our contribution—and that doubling was in agreement with the Local Government Association, which strongly supports the new level that has been established.

I make one final point which goes to some of the politics behind the funding issue. The level of the civil defence grant since this Government have been in office—from 1997 through to the present time—has risen by something in the region of 180 per cent. To put that in context, in the years running from 1990 to 1997, the civil defence grant fell by 42 per cent. Objectively, I ask noble Lords to consider who has made the greater commitment towards the civil defence grant—my government or the government that was in place before we came into power? I believe that we have done an excellent job.

The Earl of Onslow

Am I to understand from that long and rather complicated answer that the Government have given them the money to do it? If so, why cannot that be placed straight on the face of the Bill? Through the verbiage and the comparison between this Government and the previous one and so on, I understood the Minister to be saying, "Yes, we have provided the money". Is that the case?

Lord Bassam of Brighton

A detailed exercise was carried out with the LGA in identifying new burdens. We have put £40 million in place by way of grants to local authorities. That process had the LGA's agreement and endorsement. I read out the endorsement from the Emergency Planning Society.

The money that we have put in place has been broadly welcomed by local government. I can do and say no more than that. I think that we are making adequate provision; I have already said that if there are problems with that, of course they can be identified as new burdens in the usual cost round process, and that can be reflected in grant settlements in later years.

The Earl of Onslow

I am such a simple soul, and I am asking an incredibly simple question. Have the Government provided the amount of money which is required? I think that the Minister is saying yes. If the answer is "yes", why cannot he say "yes"? It is much quicker for everybody and gives the Hansard writer less to write down.

Lord Bassam of Brighton

The answer is yes, we have provided the money which we think is necessary. That money has been provided in agreement with the Local Government Association.

Baroness Buscombe

Then it would be nice if we could have Amendment No. 47A on the face of the Bill.

Clearly the Minister and I will have to agree to disagree. From what I have been hearing from the Local Government Association, it is clear to me that the money that has been put in place is simply not enough. Do the Minister's costings include the startup costs?

Noble Lords will recall that I made reference to the costs of staff salaries alone, not including all the add-on costs in terms of implementing the seven duties that are being placed on local authorities. They are emergency planning, risk assessment, internal business continuity planning, provision of warning and information to the public, provision of business continuity advice and information to commercial bodies, co-operation and information sharing. "Co-operation" is pretty open-ended.

Perhaps both the Minister and I should return to the Local Government Association to make sure we know who is right. We are not satisfied that there are enough resources for this.

The Government are imposing statutory obligations, particularly on local authorities and emergency services, while being unwilling to see any imposed on themselves. Even with this Bill, it is still not clear that the Government's response to a disaster would not be as confused and unco-ordinated as it was during the flooding and fuel crisis of 2000 and the foot and mouth crisis of 2001. Any government contribution to the response to an emergency must be well co-ordinated with clear leadership and well tested plans, and it must be properly funded. Indeed, the absence of any additional financial resources to meet the new duties and responsibilities contained in the Bill must be considered a great weakness and will put at risk the intent it tries to achieve. As the noble Lord, Lord Garden, pointed out, we must not, in any way, put the local authorities in a position whereby they hold back the process of providing adequate defence.

The Minister has given me a robust response. I cannot accept it because my figures differ from his. Certainly, I do not feel comfortable that sufficient funding has been forthcoming or is forthcoming. One of the reasons is that much of the detail of the roles and the responsibilities under the legislation will be set out in guidance. Neither we nor the local authorities will see that guidance until it is published, after the Bill has received Royal Assent. So we do not know what additional responsibilities to be placed on local authorities may come to light. Local authorities are being given a key role. Therefore, we want to be sure that they are being properly funded to underpin the crucial role they are being asked to play.

I thank all noble Lords who have taken part in this debate. I also take encouragement from my noble friend Lord Jopling in terms of perhaps returning to this on Report. But for now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 7 [Urgency]:

Baroness Buscombe moved Amendment No. 48:

Page 7, line 12, leave out "thinks" and insert "genuinely believes on reasonable grounds"

The noble Baroness said: In moving Amendment No. 48, I shall speak also to Amendment No. 62. These amendments refer to Clauses 7 and 8 which detail what will happen in the most urgent of situations in England, Wales and Scotland.

It is clear to all of us that there may well be situations in which there is real urgency and immediate action needs to be taken. Any such situation could be confused and the pressure on the Minister great. However, while we understand that swift action will need to be taken in such situations, we want to be sure that any decisions made are reasoned and thought out.

Our amendment would replace the word "thinks" with the phrase, genuinely believes on reasonable grounds in terms of there being an urgent need to make emergency provisions. We feel that this is a much stronger phrase and would help to ensure that Ministers who exercise this crucial power have had the situation explained to them and the decision they are making is based on a balanced understanding of all the facts. We should remember that decisions taken in haste are often not the best ones.

We believe that the word "thinks" is far too subjective and that some objectivity should be brought into this provision. I beg to move.

Lord Dixon-Smith

I support my noble friend on this amendment. I do not "think" that this amendment is appropriate, although some of my friends doubt whether I think at all. The real trouble is that some of the actions that might be taken because a Minister "thinks" they are appropriate might be inappropriate. If a court had to make a judgment on what a Minister "thinks", it might be rather difficult, whereas "reasonable grounds" is a fairly well understood phrase. If he had reasonable grounds for believing something, a court could make a judgment on it; if he did not have reasonable grounds, a court would have some difficulty. So although I am not a lawyer, I think that this amendment has a great deal of value.

Lord Archer of Sandwell

At a later stage, we will be debating questions arising out of Ministers' thought processes, and we are all interested in those.

I think there is a problem which the noble Baroness attempted to face but from which, in the end, she backed away. By definition, we are dealing with a situation where urgency is written right through it—where the whole question is how to get something done quickly. If action is to be taken quickly and we write in some kind of condition about the validity of what is done, it has to be tested somewhere. Presumably, it will be tested in the courts, since there is no other obvious place for testing it. How do we test it in the courts if the whole point is that the situation is urgent and will not wait?

I fully share the noble Baroness's general concern about delivering such powers into the hands of the executive. However, I think we are probably dealing with a situation in which we may have to trade in some of our traditional protection in order to ensure that we are protected from the emergency which has arisen.

The Earl of Onslow

We have heard two very interesting speeches, and I find myself agreeing with both of them. It is obviously true that very careful thought must be given to an urgent situation, without jumping to conclusions. As they say in carpentry, measure twice and cut once. In such situations you have to be very careful because you are faced with all sorts of horrid things coming at you all the time and you have to make very careful decisions. Therefore, "thinks" is possibly too sloppy a word, for want of a better.

Equally, I completely understand the noble and learned Lord's point about urgency. But I think—I am using that word again—that my noble friend is right. It may not be that her amendment is exactly right, but I think that we should put down something which underlines that the thought process must be careful and urgent.

4 p.m.

Lord Stoddart of Swindon

I too agree with the intent of the amendment, but I fear that it is rather defective. Let us weigh the word "thinks". One can think anything, but one really needs some evidence when one is making a decision of this kind, particularly if one is a relatively junior Minister such as a Lord Commissioner of the Treasury. One really should have some advice and evidence before one does something that one "thinks" one should do. The wording of the Bill is loose and it must be tightened up.

However, unfortunately, I do not agree with the wording of the amendment, which proposes that we should insert "genuinely believes". Do not all Ministers always genuinely believe that what they are doing is correct? The amendment is a little tautological, although some recent experiences might make us doubt the genuineness of ministerial decisions. The amendment also states, "believes on reasonable grounds". What are those reasonable grounds? If I might suggest it, a better amendment would be insert, "believes on the available evidence". The amendment would then be fair and perhaps even I or someone else might table it on Report. It is, however, essential that, on a matter of urgency, we have something far more substantial than a Minister "thinks". God help us if legislation is going to proceed on the basis of what Ministers think.

Viscount Goschen

I certainly accept the point of the noble and learned Lord, Lord Archer, that one has to be very careful about putting any hurdles in the way of an urgent decision that requires speed above all else. However, the phrase that was suggested by my noble friend—"believes on reasonable grounds"—is a fairly low hurdle, but it is a hurdle of sorts. The Bill as a whole, particularly in Part 2, invites this House to write a great number of blank cheques. At least some qualification such as the Minister must believe on reasonable grounds, as my noble friend suggests, or some similar wording—perhaps the Minister can come up with something better—would be appropriate.

Lord Archer of Sandwell

I thank the noble Viscount for giving way. Does he appreciate that the fundamental problem is that anything less than a subjective test would have to be decided on somewhere? It would require someone to adjudicate upon it. The only place where that can be done is in the court. Will that not slow down the process?

Viscount Goschen

I would never cross swords with experienced lawyers in this House. Surely the Minister makes the decision. A court would have to make a decision only if there was a challenge. The Minister would make his decision on reasonable grounds. Unless the Minister is going to tell us that Ministers will make decisions on unreasonable grounds, surely it is reasonable to ask them to make their decisions on reasonable grounds as my noble friend suggests.

I share the misgivings of the noble Lord, Lord Stoddart, about the word "genuinely". It is akin to saying "to be honest" or something of that nature. Of course the Minister's belief would be genuine. However, I support my noble friend's amendment or something very similar.

Lord Armstrong of Ilminster

What is the difference between "thinks" and "genuinely believes on reasonable grounds"? I suspect that the Prime Minister genuinely believed on reasonable grounds that the Iraqis had weapons of mass destruction. I do not know whether there is a sufficient difference between the two forms of wording to justify the amendment or whether it would be better to look at something else that achieves a worthy objective.

Lord Dixon-Smith

Perhaps I may add a second thought, prompted by the noble and learned Lord, Lord Archer, although a second thought in the same afternoon might be a little dangerous. On other Bills, I have heard Ministers argue that to do something "on reasonable grounds" was a proper form of wording to put into a Bill, because it opened the possibility of challenge.

We are assuming that emergency action is at issue. The action will be taken. The reason for allowing it to be challenged in court is not to prevent the action, but to open up the possibility of damages in the event that that action was deemed to be improper and someone subsequently suffered damages that they would not otherwise have suffered. A distinction can be drawn. I have certainly heard that form of wording advanced and advocated by Ministers previously when we have tried to replace it with something stronger or to remove it.

Lord Monson

It is generally the custom of this Government and, up to a point, all governments to resist fine-tuning amendments of this nature, but they would be wrong to do so in this case, because the adverse consequences in terms of time, trouble and money if the Minister were to jump the gun on wholly inadequate evidence would be considerable.

However, having listened to the contributions from all quarters of the Chamber, I think that the noble Lord, Lord Stoddart, had a very good point in the wording that he suggested. "Available evidence" is better and it would get round the problem that was raised by the noble and learned Lord, Lord Archer. I shall await the Minister's reply with great interest.

Baroness Buscombe

Before the Minister replies, I would like to add that the amendment has to be read also in the context of the fact that the Minister would be able to do something that he or she "thinks" is right and be able to give, as the Bill is drafted, an oral direction. Nothing would have even to he written down.

We are talking about an extraordinarily wide power. I apologise to noble Lords for not having made the point clear and I shall make the point again in later amendments. We are talking about the ability to do something which a Minister "thinks" is necessary, on the spur of the moment perhaps, without having to have reasonable grounds. I would argue that the Prime Minister may have genuinely believed that there were weapons of mass destruction, but we have learnt that there were no reasonable grounds.

So there is a difference between "thinks" and genuinely believing on reasonable grounds. Basing that belief on evidence, as the noble Lord, Lord Stoddart, suggested, is entirely right, particularly given that we are talking about a fantastic power that the most junior Minister would have to be able do something by oral direction, because of insufficient time to produce regulations. I urge noble Lords to consider the bigger picture in relation to the whole of Clause 7.

Lord Bassam of Brighton

These are not amendments that we feel we can support. Before I get into the specifics, it is perhaps worth reminding ourselves of the purposes of Clauses 7 and 8. I think that a number of noble Lords have rumbled precisely why they are in the legislation.

The provisions are designed to enable action to be taken by Ministers or, in the case of Scotland, Scottish Ministers in a situation of urgency where there is insufficient time to make legislation. It is an exceptional power that is designed to ensure that, in those cases of real urgency, the Government can arrange for coherent and effective action to be taken at a local level. I can therefore understand why a number of noble Lords who have been party to the debate are keen to test the extent to which the Government feel that these powers are necessary: more importantly, to understand the circumstances in which they might be used; and to ensure that robust safeguards are in place.

There will he circumstances when an emergency appears imminent when consistent, decisive and swift action must be taken. I think that most noble Lords will accept that very simple but important point. The response required to an emergency might fall outside existing emergency frameworks. Local responders, for example, might lack the information or advice to deal with it effectively, or it may not be apparent to local areas how best to deal with the situation, for whatever reason. In such situations urgent directions might be required; for example, in the case of a sudden heightening of a terrorist alert or immediately following a severe attack. Furthermore, urgent directions might be required when local responders are faced with a new scale or type of risk or threat. In such situations it is important to act swiftly.

The amendments would require that the Minister's belief that an urgent direction is needed has to he reasonable. On the face of it, that seems entirely reasonable. However, the power to issue an urgent direction is a very unusual one and could be used coercively. I can therefore understand why the noble Baroness has tabled these amendments. Indeed, I can agree with the sentiment of the amendments—that we should expect all Ministers to exercise their powers in a reasonable and justifiable way. I do not think that anyone could argue against that point. We think, however, that the amendments are unnecessary.

In issuing an urgent direction, any Minister would in any event be under the important public law duty to act reasonably. It has been argued that the requirement to act reasonably should be expressly provided for, to put the issue beyond doubt. However, to duplicate the public law requirement on the face of this Bill could cast doubt on its application to legislation where it is not explicitly expressed. I shall repeat that. If we put the provision on the face of the Bill, it could cast doubt on its application to legislation where it is not explicitly expressed.

Lord Dixon-Smith

I hope the Minister will explain that a little more. He seems to be arguing that something written in one Bill would give the same licence under another Bill in which it is not written. I have seen the word "reasonable" written into Bills before. If he is saying that it is reasonable for a Minister to act unreasonably if he is using powers under another Act which does not use the word "reasonable", I think he is using an unreasonable argument.

Lord Bassam of Brighton

The noble Lord makes a neat point. As I explained, the effect of other legislation might be undermined if we put the provision into the Bill in the terms that the noble Baroness has suggested. When the Select Committee on Delegated Powers and Regulatory Reform looked at this power and at how the Government have responded to those concerns, it did not express any concern itself about the absence of an express duty to exercise the power reasonably.

There is already a clear requirement on Ministers to act reasonably when exercising the powers in the Bill. The fact that this obligation derives from public law rather than statute law does not, I am advised, in any way affect the strength of that requirement or the manner in which it can be enforced. Action taken by Ministers in breach of public law obligations will of course be challenged in the courts in the same way as action that breaches an express statutory requirement.

It is for those reasons that we resist these amendments, though I can well understand the nervousness and caution that lies behind them.

Lord Archer of Sandwell

I do not want to embarrass my noble friend the Minister by shooting him a question of which I have not given him notice. However, I wonder whether the Wednesbury principle was in his mind when he spoke. If it was, I give notice now for when we debate this matter at a later stage that I believe it is a fairly vacuous protection in these circumstances. The Wednesbury rule extends only to someone who behaves as no reasonable person could behave. If the Minister is saying that in any event these matters can be tested in the courts, I would have thought that he had undercut his own argument. Surely the whole point is that one has to take action before they can be tested in the courts.

The Earl of Onslow

A slither of fear runs through many Members that the whole Bill gives far too much power to people in government. However well meaning and good those people are, be they Conservative, Liberal, Green or whoever they might be, it is the sort of power which, unchecked, can be abused. It is that which worries a lot of us, which is why we want the little bits of the provision to be tightened up. We want string and sealing wax, nuts and bolts, chains and hawsers, to ensure that these powers are not abused, however well meaningly.

4.15 p.m.

Lord Stoddart of Swindon

I do not know whether the Minister has sat down or whether we are just having a little conversation. I am just as worried about what the Minister said—certainly with reference to the test of reasonableness—as the noble Earl, Lord Onslow, who makes a very good point. Many people are very worried about the powers contained in this Bill, particularly in Part 2.

Another worry which concerns me is the question of which Ministers are deemed to be senior Ministers, who can take these decisions. One group of Ministers, the Lord Commissioners, are empowered to take these decisions. I can tell the Minister from my own experience about Lord Commissioners, who are near the lowest level of ministerial responsibility though not at the very lowest—assistant Whips are at the very lowest level. They occasionally have to sign guarantees. I believe that I signed guarantees for about £400 million when the Electricity Board wanted to borrow money from Germany. The other extent of their duties is signing the warrants which give firms the royal seal of approval. Apart from that, Lord Commissioners have no governmental experience at a senior administrative level.

In a matter such as declaring a state of emergency, I wonder whether someone who lacks that sort of experience should be given that power. I must say that I would not have wanted to exercise such power, if it had been given to me. Without the administrative experience of high office in government, I would be very frightened of using that power. That is the sort of thing that concerns not only Members here today but many other people throughout the country.

Lord Jopling

I can add to what the noble Lord, Lord Stoddart, has said. As another Member of this House who was at one time a Lord Commissioner of the Treasury, I remember in the Heath administration that the Treasury used to send documents around for signing without filling in the amount of money. At that stage, a number of us were referred to as the "revolting Lord Commissioners", because we refused to sign them until the Treasury filled in the amount. The situation in those days was even worse—but certainly, in the rest of my time, there were never again any of those orders for signing by Lord Commissioners unless the entire amount was entered.

Lord Monson

Even if one accepts the Minister's argument that the word "reasonable" should not be used—and I can see that it was a fairly convincing argument, if one accepts the argument of the noble Viscount, Lord Goschen, that the word should not be used generally—what is wrong with the wording suggested by the noble Lord, Lord Stoddart of Swindon? He suggested the words, believes on the available evidence". That is surely something to which the Government could not possibly object.

Lord Armstrong of Ilminster

Perhaps the Minister could consider another alternative. It might read: The Minister has reason to believe that".

Lord Bassam of Brighton

I see that the debate is exercising Members of the Committee more than somewhat. It has certainly provided me with some food for thought. It is worth the Committee reflecting a little more on my points about including the amendment.

If Parliament expressly provides in the Bill the powers conferred on the Minister—it is worth saying that it is a Minister of the Crown—why should that not be the same in subsequent Bills? If the provisions had to be expressed in those terms in all subsequent Bills, it might ultimately make it impossible to confer on a Minister—or, for that matter, a public authority—the responsibility without expressly requiring that it be exercised reasonably. Inevitably, that would cause confusion, particularly in relation to old powers drafted without reference to reasonableness—a consideration in itself—and to the occasional power that is unqualified.

In the end, I am drawn to conclude that the best approach is the one that results in the simplest drafting with the fewest words that is least likely to cause confusion or cast doubt on the application of public law. If we were to depart from that principle, it would be more difficult to make our legislation work efficiently, particularly with legislation such as this that is designed to deal with very urgent situations, as I set out at the beginning of our debates.

The noble and learned Lord, Lord Archer, asked a very important question—whether we meant to apply the Wednesbury test. That is what is meant, but we think it a robust test. It has stood the challenge of time and can be adjudicated in the court, albeit after the direction has been issued. It is an important protection that has been relied on for a very long time. The wording that we have is the best in the circumstances. It provides the necessary flexibility and, importantly, relies on the public law duty of reasonableness that must apply to all Ministers in the circumstances in which they have to make a decision and give a direction.

Lord Lucas

If the Minister wants to keep things simple, he should leave out subsection (1) entirely. Then the clause would have the same effect, but we would have none of the confusion arising from subsection (1).

Baroness Buscombe

I thank the Minister for his response, and thank all Members of the Committee who have taken part in the debate. As I pointed out earlier, I have real concerns in relation to the wording in the Bill, particularly given the fact that we are talking about oral directions and very junior Ministers. I take on board the point made by the noble Lord, Lord Stoddart—that we are giving an extraordinary power to Ministers who might be very junior and have to act in extremis with very little experience. Perhaps we should all go away and think further about that in relation to amendments on Report.

Like the noble Lord, Lord Monson, I am drawn to the wording suggested by the noble Lord, Lord Stoddart, which was, "believes on the available evidence". Notwithstanding the Minister's reply, I believe that there should be recognition that a Minister has to have some grounds for making the decision, no matter how urgently. It is all very well saying that action can be challenged in the courts, but that is so long as the Acts that allow for judicial review have not been disapplied under Part 2. We will have to come that point when we reach Part 2.

Obviously, we all have to envisage the possibility of someone acting way beyond their powers and without reasonable care. But that is our duty when scrutinising legislation—particularly legislation such as this—that gives such extraordinary powers; powers about which many people beyond your Lordships' House are deeply concerned.

I shall think more about the Minister's reply. I hope that before we come to Report stage he will think more about some of the serious and intelligent contributions made by all noble Lords. For now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton moved Amendment No. 49:

Page 7, line 14, leave out from first "by" to "but" in line 15 and insert "an order under section 5(1) or by regulations under section 6(1),"

The noble Lord said: First, I shall deal with the government amendments in this group. In our discussion on the previous group of amendments I outlined the purpose of the power to issue urgent directions. While the Government firmly believe that these powers are necessary, we have looked again at their precise detail in light of the comments by the Delegated Powers and Regulatory Reform Committee.

As currently drafted, Clauses 7 and 8 enable Ministers to issue a direction to a responder containing a provision that could be included in legislation under Part 1. A direction may be made only where there is an urgent need to do that, and where there is insufficient time for legislation to be made.

The Delegated Powers and Regulatory Reform Committee argued that, where regulations can be made using the negative resolution procedure, urgent directions are not required because regulations can be made against similar timescales. It also argued that the Government needed to give greater explanation as to why they needed oral direction powers, particularly in relation to Clauses 2 and 4, which relate largely to contingency planning.

Having looked again at the issue in the light of the committee's comments, we agree that the case for urgent direction powers under Clauses 2 and 4—which are about planning for, rather than responding to, emergencies—are not sufficiently robust. On those grounds, the Government have tabled a set of amendments to turn off the urgent direction powers, both written and oral, for these clauses.

However, the Government propose to retain powers of urgent direction in relation to Clauses 5 and 6. Clause 5 permits Ministers to make regulations requiring responders to perform a function in order to prevent the occurrence of an emergency; reducing, controlling or mitigating the effects of an emergency; or taking another action in connection with an emergency. It is a wide-ranging power designed to enable the Government to ensure that preparation for, and response to, a specific emergency or threatened emergency is coherent and effective.

As the Delegated Powers and Regulatory Reform Committee recognised, the case for an urgent direction power in relation to Clause 5 is very different, as regulations are made according to the affirmative resolution procedure. There may well be situations where there is insufficient time to arrange for a debate in both Houses before issuing a direction. Furthermore, whereas Clauses 2 and 4 relate exclusively to contingency planning, Clause 5 does not, and contains powers that will be useful in responding to an emergency or threatened emergency. We therefore believe that it is justifiable to retain the oral direction powers under Clause 5. The case for urgent directions under Clause 6 is also strong, since it allows Ministers to make provision about information sharing, which may be required urgently in the face of an emergency.

Turning to the other amendments in this group, Amendments Nos. 55 and 69 would mean that any urgent direction lapsed after seven days, rather than 21. I can agree with the sentiment behind that amendment—the Government are committed to ensuring that directions are kept in force only for the shortest possible time. To that effect, Clause 7(4)(b) provides that directions must be revoked as soon as is reasonably practicable.

However, I cannot accept those amendments. While, in many cases, seven days will suffice for legislation to be made in the ordinary way, this will not always be the case. For example, regulations under Clause 5 are made according to the affirmative resolution procedure and a debate will need to be arranged. This could mean that seven days was not sufficient, particularly if Parliament was not sitting. It is for that reason that a maximum period of 21 days, along with a requirement to revoke as soon as is practicable, is more appropriate.

4.30 p.m.

Amendments Nos. 57, 58, 71 and 72 would limit the ability of Ministers to reissue a direction once it had lapsed. In effect, these amendments would prohibit the Minister from making more than two successive directions. We think that the amendments are largely unnecessary. The Bill provides that urgent directions can be made only where there is insufficient time for legislation to be made. Before making a further direction, the Minister must first be satisfied that that is, in fact, the case.

In the case of directions containing provision requiring a responder to exercise one of its functions, the relevant legislation—an order under Clause 5—would be subject to an affirmative resolution. It might not be possible to ensure that the affirmative procedure had been completed before the first direction lapsed. But that should generally be possible by the time the second direction lapsed.

None the less, there may be extreme cases where it is not possible to make appropriate legislation before the second direction expires. The obvious example is where the approval of both Houses is needed before legislating and Parliament is in recess. In the light of that possibility, we cannot accept the amendments.

In Amendments Nos. 60 and 74 the noble Baroness seeks to probe the legal effect of an urgent direction. The Bill currently provides that a direction shall be treated for all purposes as if it were a provision of legislation made under the Bill. That means that a direction can be enforced through the courts under Clause 10. It also means that the provision for liaison with the devolved administrations applies to directions and that the powers to monitor compliance also apply. I beg to move and trust that the noble Baroness will not move her amendments.

Baroness Hamwee

Amendments Nos. 55, 58, 69 and 72 in this group (paired as 55 and 69, and 58 and 72) stand in our name. This is the kind of situation where I should like to read all the responses together because we have prepared our arguments on each part. Having heard what the Minister had to say, and knowing that the noble Baroness, Lady Buscombe, does not wish to proceed with some of her amendments, the jigsaw is beginning to fall apart slightly.

I heard what the Minister said about seven days being too short a period if Parliament is not sitting, and so on. I shall read what he said but, bluntly, I remain concerned about the possibility of considerable sloppiness if it is not necessary to take more formal steps more quickly than within the 21-day period mentioned in the Bill. When we are talking about oral directions which do not have to be produced in writing almost instantly, then one's concern is obviously increased.

The Earl of Onslow

One argument produced by the Minister was that this period of time could not be too short in case Parliament was not sitting. I should have thought that if an emergency was urgent, Parliament should be made to sit fairly sharpish. It should be summoned almost immediately if, as I assume, we are dealing with something extremely serious. If the situation is not serious, it should not have this amount of legislation devoted to it and such powers given to a Minister. One cannot have it both ways. If it is very serious, Parliament must come back almost instantly and then the Minister will have time to justify his regulations. If it is not serious, he will not need the power to give all the directions and so on within seven days.

Lord Bassam of Brighton

I say in response to the point made by the noble Earl, that that is a debating point but I believe he would accept that there may well be circumstances when it is simply not appropriate to recall Parliament. We do not believe that the desire to apply normal periods of time is right in those circumstances. Of course, all governments would want to ensure that during an emergency Parliament was available and accessible so that matters could be debated properly. But we are trying to deal with some very difficult situations and trying to anticipate circumstances in which that may not be possible. It is for that reason that we believe that what we have in place achieves the right balance. One hopes that one is never in the position of the worst-case scenario, where the fundamentals of democratic scrutiny are undermined, but one can never be entirely sure.

On Question, amendment agreed to.

Baroness Buscombe moved Amendment No. 50:

Page 7, line 16, leave out "insufficient" and insert "no"

The noble Baroness said: In moving Amendment No. 50 I shall speak also to Amendment No. 64. They are straightforward amendments that we believe are necessary to clarify and to underpin the triple lock test to which the Government referred at Second Reading. We have tabled these amendments in order to ask the Minister to explain some of the drafting in Clauses 7 and 8. The current drafting states that a Minister can make directions if he feels that there is an urgent need to do so and that, there is insufficient time for the regulations or order to be made". Our amendments would leave out the word "insufficient" and insert the word "no". We would like the Government to explain how much time would be regarded as insufficient. Would that not vary from Minister to Minister and be open to interpretation? Would it not be more sensible to have the drafting that we suggest, which seems a much more final and easy to understand test?

We are talking about emergencies and the power of Ministers to act in exiremis; powers that are enormously wide-ranging and, frankly, quite vague. Of course, we must not prevent the government of the day responding quickly to an emergency. However, a balance must be struck. In our view, "urgent" means so urgent that there is no time.

The Bill in its title plays down the fact that we are debating the issue of emergencies and what they might include. We believe that it is important that through the passage of the Bill we make it clear that we believe that only in extremis, when there is no time, should those powers be enacted or played out by the Ministers concerned. I beg to move.

Baroness Hamwee

I agree with the sentiment of the argument of the noble Baroness. But perhaps I can ask her what the difference is between "no time" and "insufficient time". I assume that she does not mean the words "no time" to mean literally from one minute to the next, or does she? Does "no time" in this situation mean overnight? I am trying to understand the distinction. I am quite puzzled.

Baroness Buscombe

By "no time" I mean no time in terms of allowing an opportunity to do anything other than issue, say, an oral direction. "Insufficient time" could be interpreted far more widely. One could say that "insufficient time" means, "There was not enough time for regulations to be made as we had only a day or two, so I"—a single Minister can carry out this function—"felt it was better to get on with it and issue an oral direction. Whereas "no time" makes it absolutely clear that it is so urgent that an oral direction could be deemed reasonable in the circumstances. I hope that that is clear.

Lord Bassam of Brighton

I always take some minor delight when opposition parties argue among themselves. I have taken no especial delight in it during the course of this debate but it does help to clarify some of the issues.

Clauses 7 and 8 provide for urgent direction powers to be used and that they must be in sufficient time to make legislation in the normal way. Amendments Nos. 50 and 64 would provide that there must be no time to make legislation in order for the powers to be used.

I appreciate the noble Baroness's concern to ensure that the test is as tight as possible. I concede that this power is unusual and should be available only where there is a real need for it.

We have had a lot of discussion around these points and we have looked at the power again in light of the amendments tabled by noble Lords on the particular subject and also in the light of the comments made by the Delegated Powers and Regulatory Reform Committee. It is for that reason that we limited the urgent direction power to Clauses 5 and 6. It might just help if I explain some of the situations in which urgent directions of this kind would be issued.

Clause 5 enables orders to be made which require a responder to exercise its functions in relation to an emergency. Such orders can be made only after both Houses have approved a draft of the order. The time taken to secure a debate in each House might be significant and Parliament may be adjourned or prorogued. In such cases, there may he insufficient time to make an order under Clause 5 and an urgent direction would be appropriate.

Regulations under Clause 6 can require responders to share information with each other. These are subject to negative resolution. In the vast majority of cases it would be possible to make regulations. Clause 6 regulations could be made extremely quickly and could be brought into force before the regulations had been laid before Parliament, if need be. None the less, there may be cases where it is not possible to make regulations in this way. It would still take time to draft the legislation and there may not be a lawyer available to draft it.

In an emergency, even an hour's delay could be dangerous. As we shall discuss in further detail on the next group of amendments, there may be situations where there is insufficient time to commit the direction to writing and send it to the recipient. There may well be situations where time is so pressing that an oral direction to share information is what is required.

For example, in Japan in 1995, following the terrorist attack on the Tokyo underground, the inability of government to put other health bodies immediately in touch with medical scientists with direct hospital experience of sarin and its effects, is claimed to have inhibited diagnosis and treatment of casualties. If time permitted, regulations would be made under Clause 6 to require responders to share certain information. But, if there was insufficient time to draft and make regulations, it may be appropriate to require, by way of direction, a local responder to provide information to another responder.

It is in those sorts of circumstances, which I think one could fairly argue are health-related and simply humanitarian, that one would seek to use the direction powers in the way in which we have described.

I can assure the Committee that the Government would use urgent directions only where they were quite genuinely necessary and where they had to be used in the circumstances that I have described. Where at all possible they would always seek to legislate in the normal way. The requirement that there is insufficient time to legislate achieves this effect.

I hope that, having heard that explanation, the noble Baroness will feel able to withdraw the amendment.

Baroness Hamwee

Building on that example, and looking back at Clause 6, is the Minister suggesting that regulations under Clause 6 about disclosure of information will require a direction for them to bite? Unless that is the case, perhaps I may gently suggest that sharing information is not a very good example because the previous clause deals with it.

Lord Archer of Sandwell

I wonder whether that was an intervention by the noble Baroness, Lady Hamwee, on my noble friend's speech. If so, I shall reserve what I have to say until a later stage.

Baroness Hamwee

I apologise. I was not being very formal because we are in Committee.

Lord Bassam of Brighton

I have heard what the noble Baroness has said.

4.45 p.m.

Lord Archer of Sandwell

Before the noble Baroness, Lady Buscombe, replies, I would like her to resolve a puzzlement in my mind. I understand her to be arguing that there is a distinction between "no time" and "insufficient time". On that basis, supposing that there is some time to make regulations but that it is insufficient to make them, is she saying that there should not be a power to make a directive, so that we would have neither the regulations nor a directive?

Baroness Buscombe

The point is well made by the noble and learned Lord, Lord Archer of Sandwell. Perhaps I should think about it. My point was that we believe that the power to make an oral direction should be given only if there is so little time that nothing could be written down. I understood that even in days of old when we went into battle, somebody wrote notes to tell everybody what to do.

We are talking about somebody just giving an oral direction. Therefore, we are focusing on the extent of the power, with precious few safeguards, if I may put it that way. However, I take on board what the noble and learned Lord said: perhaps we are going a step too far, in the sense that we would remove the opportunity for any direction if there were no time. On that basis, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton moved Amendments Nos. 51 and 52:

Page 7, line 16, leave out "regulations or order" and insert "order or regulations"

Page 7, leave out line 18 and insert "an order under section 5(1) or by regulations under section 6(1)."

On Question, amendments agreed to.

Baroness Buscombe moved Amendment No. 53:

Page 7, line 19, leave out "may be written or oral" and insert "shall he written"

The noble Baroness said: The amendment relates to the question of whether a direction should be oral or written. It is important to debate the issues, to help us appreciate why such extraordinarily wide powers are being introduced in this enabling Bill. In moving Amendment No. 53, I shall speak also to Amendments Nos. 59, 67 and 73. The amendments deal with the question of urgency, covered in Clauses 7 and 8. They would ensure that any direction by a Minister to make regulations urgently would be written.

We hope and understand that Clauses 7 and 8 would be used only in a real emergency—that is, not very often, if at all. We also understand that any such use would be in a situation that would require swift action. However, we feel that, even in such a situation, it is best practice to write such directions down; indeed, it would be common sense to do so. We are talking about situations in which spur of the moment decisions may not be the best ones. Taking the time to write something down may give a Minister a chance to think.

British Telecom wrote to us with concerns about the matter as follows: we believe that the ability to make oral directions where an emergency has not been declared is not warranted".

That is an important point. If an emergency has not already been declared, such a measure is not warranted. The letter continues: If it is determined that speed is of the essence in establishing important requirements in such circumstances, then a written Notice under the hand of the relevant Minister should be issued to the relevant body or person. Oral directions are open to interpretation and abuse and it is difficult to envisage when oral direction would be necessary in a non-emergency situation, where speed of reaction cannot be that critical".

It is also important, when the crisis—whatever it might be—is over, to be able to review how things were handled and consider what went right and what went wrong. It will be essential to see how the Government reacted to what happened, so a written record should be kept of what the Minister ordered. I have in mind an expression used in the Butler report—"sofa politics", I think it was. That impinges on the point. With regard to the government of the day or any succeeding government, it is surely better for everybody concerned, including the Minister and his or her colleagues and officials, that, no matter how urgent the situation, something is written down to clarify matters.

I wish to refer to a letter, dated 22 July, addressed by the Minister to the noble Lord, Lord Dahrendorf, in response to a concern that he expressed at Second Reading. The Minister referred to the report of the Select Committee on Delegated Powers and Regulatory Reform in response to the Civil Contingencies Bill and its concerns regarding oral versus written directions. He said: ln light of the Committee's report, I have asked officials to look at these points again and ensure that the power to issue an urgent written direction in these circumstances is warranted, particularly in relation to clauses 2 and 4. I expect that work to be completed in time for the Committee stage".

I apologise to noble Lords; I am trying to be brief rather than read out the whole letter. The Minister continues in his letter: The Committee query in particular the circumstances in which a written direction would be given under Clause 7 … which contains a provision which would otherwise be contained in regulations subject to the negative procedure".

I hope that the Minister has considered what the noble Lord, Lord Dahrendorf, said at Second Reading and the response of the Select Committee on Delegated Powers and Regulatory Reform to the Bill. I hope that he will respond positively to our amendments. I beg to move.

Lord McNally

We give the strongest possible support to the amendments. Ministers should ponder the fact that one of the strictures mentioned in the Butler report was the habit: that has grown under this administration of informal meetings, with various memories of what was decided. Even in the height of battle it is very sensible to record what is ordered and what the responses are. Nothing could make the handling of an emergency more perilous than oral orders. We all know the jokes about Chinese whispers; that would be the exact danger. I suspect that the utilities are afraid of misunderstanding and misdirection because of oral communication. We live in a world of very sophisticated written messaging, so I cannot see why these amendments should not be accepted.

Lord Lucas

I agree entirely with both noble Lords who have spoken. Beyond anything else, we have enacted legislation that extends the meaning of the word "written" to include any authenticated electronic communication. If the Minister has been properly equipped, he should be able to communicate by any practical modern means, including writing as it is now understood, with whoever is supposed to be in receipt of the order.

Anyway, we are dealing not with an emergency but with planning for an emergency. It is not a second's delay that matters; there must be the odd minute to put pen to paper. If we are making regulations, we must be asking someone to do either something illegal or not within their current powers or something that is against what they wish to do.

Under either of those circumstances, it is of the utmost importance that it is put in writing. That is the proper way to proceed. One might think about it under Part 2 where it may be necessary to pick up a telephone and say, "Close Oxford Street" rather than having to find somewhere to fax that instruction. Under Part 1, it seems entirely inappropriate and only likely to lead to disputes afterwards about what was actually said, which would be quite unnecessary and to no benefit.

Viscount Brookeborough

I support the amendment. It seems that the use of the word "orally" in this Bill is taken in isolation of the fact that we have entered the technological world. We are not dealing in pre-First World War semaphore or in only the spoken word. It is as simple as that.

I have a mobile telephone that is no more sophisticated than those of many noble Lords. However, it receives e-mails. What are all those Ministers' cars with aerials sticking out of them for?

I have lived in Northern Ireland for my whole life. During the past 30 years we have lived in a state of actual emergency, let alone urgency. There is no single action taken by the emergency services that is not written down: it is a written instruction. What is more, a reply is received to say that it is understood or, indeed, a question is received, asking, "Why are you talking such rubbish?".

In my mind, there is absolutely no question about it. We could not have got to where we have in Northern Ireland or, indeed, in Iraq without every single instruction being written down and verified. I simply think that there has been no communication with whoever made that up or with anyone who is technologically minded. It would create not a bureaucratic paper nightmare but a verbal shambles.

Lord Brooke of Sutton Mandeville

I speak as a member of the Delegated Powers and Regulatory Reform Committee. It so happens that the committee met yesterday. Its 30th report is among the papers laid before us for this debate. In the course of that meeting, I inquired whether the Minister had written again since 22 July or whether we could infer that the Minister regarded the matter as now having been settled. I am alluding to the matters in our report that were raised by my noble friend Lady Buscombe.

Because we had not heard, the committee inferred that the Minister regarded the matter as satisfactorily concluded. In the circumstances, I am looking forward to what the Minister has to say about paragraph 7 of his letter of 22 July, which begins, In the light of the Committee's report, I have asked officials to look at these points again and ensure that the power to issue an urgent written direction in these circumstances is warranted, particularly in relation to clauses 2 and 4. I expect that work to be completed in time for the Committee stage". I had not expected that I was going to be able to get the question which I asked yesterday in the Committee answered so rapidly on the Floor of the House.

Lord Dixon-Smith

I rise with some hesitation at this stage, particularly because my noble friend Lord Jopling mentioned the possibility of the breakdown of electronic communications. That can happen if there is an appropriate sort of nuclear blast.

But whether communications are available or not seems to be neither here nor there. If a Minister is going to issue an order of any sort, even if it would communicate with no one, it should be written down. Then there is no question about its content and where it is supposed to be directed. Even if, ultimately, it has to be delivered by hand by some slow means, at least it is clear and everyone will understand it. If it is oral, as the noble Lord, Lord McNally, has mentioned, we are into the problem of Chinese whispers, which would be very dangerous indeed. It must be written down.

Lord Bassam of Brighton

There has been much discussion about the Delegated Powers Committee, its suggestions and propositions. Of course, Members of the Committee are right to seek a clear and convincing case for oral directions. I have little doubt that that is the purpose behind these amendments. It would mean that all directions in all the circumstances we have discussed would have to be made in writing.

That is desirable, but I question whether it is ultimately sensible. Wherever possible, of course Ministers would seek to put directions in writing, which would offer greater clarity and minimise the scope for confusion as well as—although it is plainly obvious—adding to accountability. That is because what is written down in black and white in front of one is much more challengeable at a later stage.

However, there are two sets of circumstances in which oral directions may be required. First, in an emergency the normal arrangements for communications may become unavailable. One could envisage a situation in which the postal system might be disrupted and where electronic means of communication have been brought down or disrupted by a power cut. An oral communication may be the only practicable option.

5 p.m.

Lord Lucas

If there are no means of electronic communication, how is the oral direction to be given if you are out of earshot?

Lord Bassam of Brighton

It is plain that if one is giving an instruction orally, one would not necessarily be shouting. I think that the noble Lord understands the point I am trying to make.

Lord Elton

What we are asking for here is that there should be an accurate and reliable record of what is done for purposes not only of history but also of litigation. Therefore it would suffice in the circumstances that the noble Lord is describing if the order is written down first and then read out, but not that it is delivered orally and then recollected only some days later, to be jotted down inaccurately on a piece of paper.

Lord Bassam of Brighton

Of course it would be desirable to do that, but if one has to act quickly in an emergency, it may not be possible first to write the order down and then read it out. It may well be that the instruction has to be given orally. However, one would seek to ensure that any oral direction is confirmed in writing as soon as possible. That is desirable and sensible for all the reasons outlined by noble Lords.

There may be other situations in which time is of the essence and where there is merit in being able to issue directions as quickly as possible, subsequently to be confirmed in writing. In the face of a specific threat requiring an immediate response, a direction may need to be given in a matter of minutes, perhaps even seconds. Matters might be all the more pressing in the aftermath of a terrorist incident, in particular where there are fears of a multi-faceted attack. Those are the situations we are talking about.

The noble Baroness, Lady Buscombe, raised the issue of the utilities and their concerns. Directions can be given only in accordance with a responder's duties under the Bill. Utility companies such as BT are category 2 responders and as such are only subject to duties to share information and co-operate. Therefore it would not be possible, and indeed it would be inappropriate, for a direction to be given in the terms suggested by the noble Baroness; in other words, it can be given only in relation to the responsibilities of the utility.

I take up the further point raised by the noble Baroness, and spoken to by the noble Lord, Lord Brooke, relating to correspondence with the noble Lord, Lord Dahrendorf, about concerns raised in the Select Committee on Delegated Powers and Regulatory Reform about oral directions under Clauses 2 and 4. I think that I have fairly dealt with this issue in earlier amendments. The Government have thought further about oral directions in relation to these clauses, and for that reason we have brought forward the amendments just agreed by noble Lords to remove the power to issue any direction, either written or oral, under Clauses 2 or 4. That is all I have to add on the subject.

Lord Lucas

Can the Minister give an example of a situation under Clauses 2(3), 4(2) or 6(1) where the time taken to write something down rather than just speak it would make a difference? We are not dealing with an emergency itself, but with preparing for an emergency here. How can 30 seconds make a difference to anything which can be done under any of those powers? I await an example.

Lord Bassam of Brighton

As I said, we may well be dealing with an emergency and it may well be the case that a direction has to be given orally. It would be our expectation that that direction would be sent in writing at a later stage and as soon as practically reasonable in the circumstances.

The noble Lord would not thank any government Minister—either from my government or from a future government featuring the Conservative Party—if, for the sake of giving a quick oral direction, there was some further calamity or tragedy or the emergency was made worse in any way. It is important to realise and sense that we are talking about situations where people's lives are at risk and where it is important that someone literally gives an instruction at that moment so that something can be done

Of course it is right that it should be subsequently put in writing and confirmed in that way; and of course it is right that that is done as a matter of urgency. The example I gave earlier about the Tokyo underground and the sarin attacks is a perfectly reasonable and respectable one in the circumstances.

Lord McNally

Perhaps the Minister will go a little further on the point raised by the noble Lord, Lord Elton. Have the Government gone through scenarios with the utilities, most of which are now private companies and will be jealous of commercial confidentiality and other aspects? Will they really respond to oral requests as the Minister is saying? Have the Government talked this through with them? It is no use suddenly sending an oral request and getting the response, "Let me have that in writing".

I appreciate that we are talking about emergency situations, but I still get the impression that companies which may be subject to litigation against them for actions taken will be very cautious about this. The idea that it can all be done by word of mouth is rather optimistic.

Lord Lucas

If you are being asked to respond to an oral instruction, how do you know who it is from unless you have had something which is the equivalent to—or at least takes as much time as—receiving the request in writing?

Lord Bassam of Brighton

The noble Lord is right to ask the question. But it comes hack to having confidence and trust in the situation. The noble Lord, Lord McNally, raised a pertinent point about commercial confidentiality. That is why I made the point earlier that this would relate specifically to that particular utility's range of responsibilities and so on.

We have to assume that in extremis people will accept that it is not unreasonable for someone to rapidly give an oral instruction where that is sensible in the circumstances. We will have to rely on good sense to prevail in such cases. I do not think we could work it any other way.

I listened very carefully to the noble Baroness, Lady Buscombe, quoting the correspondence from BT. I shall undertake to ensure that we have more consultation with the commercial utilities, for want of a better description. My understanding is that, by and large, they are satisfied with the arrangements described in the legislation. However, there is no point in legislating to that effect and subsequently finding out that it will not work because they will not sign up to it. I am fairly confident that they will, but I shall check back on that precise point.

Lord Elton

Will the Minister also be in contact with the authorities referred to by the noble Viscount, Lord Brookeborough, and ask them how they manage?

Lord Bassam of Brighton

I hear what the noble Lord says. He has a wealth of experience in this matter and we shall reflect on the point he has made.

Lord Brooke of Sutton Mandeville

I hope that this is a relevant question. Clause 7(2) has been alluded to in the debate. Clause 16(1) states: A Minister of the Crown shall consult the National Assembly for Wales before … (d) giving a direction under section 7(2) which makes provision relating wholly or partly to Wales of a kind that could he made by regulations under section 2(3), 4(2) or 6(1)". If he is going to have time to consult the National Assembly for Wales, it would appear at first blush that there would be time for him to write it down.

Lord Bassam of Brighton

The noble Lord makes a good point. More particularly, we are talking about a different set of scenarios. The one that I have used as an example is probably the more likely circumstance.

I have listened very carefully to what has been said. Perhaps, between now and Report, I will try to provide those who have contributed to the discussion with some more hardened examples. We are all searching for ways to ensure that this works in practice.

Baroness Buscombe

I thank the Minister for his reply. I hope that he will more than think about other hardened examples, and think about a number of the questions raised and statements made by noble Lords which encourage me seriously to consider returning to this point at Report. I do not want to dwell on it now but I believe that we are talking about a very serious issue. I am not persuaded that oral direction is appropriate for the very reason that oral directions are so often open to interpretation.

As my noble friend Lord Lucas has also pointed out, we are talking about civil protection here—we have not reached Part 2 yet. So the incidences where an oral direction could ever be appropriate are hard to think of.

This does not make sense. When we are in government, after the next election, I believe that we would much rather be in a position in which we would have to write down everything that was done in relation to civil protection and emergency powers because otherwise the repercussions could be very great—too great.

Again, I refer to a point I made earlier which was also made by the noble Lord, Lord McNally. Look what happened with regard to the Butler report. We still have not got to the bottom of what happened and what was said. Not enough was written down. But for now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton moved Amendment No. 54:

Page 7, line 24, leave out from "of" to "and" in line 25 and insert "an order under section 5(1) or by way of regulations under section 6(1)),"

On Question, amendment agreed to.

[Amendment No. 55 not moved.]

Baroness Buscombe moved Amendment No. 56:

Page 7, line 27, after "given" insert "or when the Minister accepts that the emergency (as defined in section 1) has ended, whichever the sooner"

The noble Baroness said: In moving Amendment No. 56, I shall also speak to Amendment No. 70. They concern Clauses 7(4)(c) and 8(4)(c) respectively. The current drafting of the Bill states that where a Minister uses the powers given under Clauses 7 and 8, the direction shall cease to have effect at the end of the period of 21 days. Amendments No. 56 and 70 would add the words, or when the Minister accepts that the emergency (as defined in section 1) has ended, whichever the sooner". The amendments would give more flexibility to both clauses. The Bill as drafted will ensure that any directions would stay in place for 21 days. However, there may be situations in which regulations may only be relevant to a smaller time frame. I beg to move.

Lord Dixon-Smith

I have a question for the Minister. In Part 2 of the Bill, which contains what I would call parallel powers, the duration of the order can be 28 days for some reason. I cannot help but feel that for the sake of tidiness and consistency it would be better if Part 2 of the Bill were consistent with Part 1 in that regard. Will the Minister undertake to look at that at this stage, which might give him a chance to deal with it favourably when we reach Part 2?

5.15 p.m.

Lord Bassam of Brighton

That is a helpful question, given that it was asked in advance of that debate. I shall ask why we have a different time frame.

Amendments Nos. 56 and 70 would provide that any urgent directions given would cease to have effect when the Minister accepted that the emergency had ended. I can obviously accept the thrust of the amendment—I think that we would all agree with it. Given the nature of the powers, one would not wish urgent directions to remain in force when they are no longer needed.

However, the amendments are perhaps based on a misunderstanding of the purpose of Clause 7. Directions may be given when there is no emergency. The Minister has to be satisfied only that "there is an urgent need to make provision". Such a need could arise in advance of an event occurring; for example, where there is a threat of a terrorist attack which requires urgent preventive action. Equally, urgent directions may be required in the recovery phase, once an emergency has ended.

The amendments could give rise to serious practical difficulties, which could hinder the effective management of an emergency. First, there may be disagreements as to when the emergency has ended, leading to uncertainty whether a direction has ceased to have effect. Secondly, even where a direction is issued in the midst of an emergency, there may be a need to maintain the direction in force after the emergency has ended to ensure that the recovery phase proceeds in the right way and that a full recovery can be effectively managed.

I agree that a direction should be revoked as soon as it is no longer required. To this effect, Clause 7(4)(b) already provides that the Minister must revoke the direction as soon as is practicable. In practice, that will be because it has been possible to make legislation in the ordinary way or because the urgent direction is simply no longer required for the effective management of a challenging event or situation.

The core of the Government's argument is that the Bill already provides the protection that the amendments seek. In view of that explanation, I hope that the noble Baroness will feel able to withdraw her amendments.

Lord Dixon-Smith

Before the Minister sits down, can he give the House an example of an order that he might give in anticipation of a terrorist event? If I was a terrorist, I could have a lot of fun with Ministers on that basis and cause a great deal of administrative chaos to boot.

Lord Bassam of Brighton

A situation might arise where an order had to be made to close roads or send traffic in a different direction because one thought there might be an imminent terrorist attack. One might need to deal with those kinds of situations.

Lord Dixon-Smith

Given that we have special phone numbers on which to report terrorist intent, some jokers could have quite a deal of fun. We need to he extremely cautious about anticipatory orders.

Lord Lucas

Out of interest, which part of Sections 2(3), 4(2) or 6(1) could be used to close roads?

Lord Bassam of Brighton

The noble Lord has lost me there. I shall have to go away and look that one up.

Baroness Buscombe

I thank the Minister for his response. He may be pleased to learn that I accept what he said, which makes a change. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 57 to 60 not moved.]

Lord Bassam of Brighton moved Amendment No. 61:

Page 7, line 32, leave out from first "of" to end of line 33 and insert "an order under section 5(1) or of regulations under section 6(1)."

On Question, amendment agreed to.

Clause 7, as amended, agreed to.

Clause 8 [Urgency: Scotland]:

[Amendment No. 62 not moved.]

Lord Bassam of Brighton moved Amendment No. 63:

Page 7, line 37, leave out from first "by" to "but" in line 38 and insert "an order under section 5(2) or by regulations under section 6(2),"

On Question, amendment agreed to.

[Amendment No. 64 not moved.]

Lord Bassam of Brighton moved Amendments Nos. 65 and 66:

Page 7, line 39, leave out "regulations or order" and insert "order or regulations"

Page 7, line 41, leave out from first "by" to end of line 42 and insert "an order under section 5(2) or by regulations under section 6(2)."

On Question, amendments agreed to.

[Amendment No. 67 not moved.]

Lord Bassam of Brighton moved Amendment No. 68:

Page 8, line 6, leave out from second "of" to "and" in line 7 and insert "an order under section 5(2) or by way of regulations under section 6(2)),"

On Question, amendment agreed to.

[Amendments Nos. 69 to 74 not moved.]

Lord Bassam of Brighton moved Amendment No. 75:

Page 8, line 14, leave out from first "of" to end of line 15 and insert "an order under section 5(2) or of regulations under section 6(2)."

On Question, amendment agreed to.

Clause 8, as amended, agreed to.

Clause 9 [Monitoring by Government]:

On Question, Whether Clause 9 shall stand part of the Bill?

Lord Lucas

This was the clause to which the noble Lord, Lord Bassam, pointed as containing the powers that the Government would use to obtain the information they needed to play their proper part in provision for civil contingencies, but I have considerable difficulty in reading it that way. They can use Clause 1, to provide information about action taken by the person or body for the purpose of complying with a duty". So the Government can say, "Have you discovered what telecommunication facilities will be available to you in the event of various emergencies?", to which Brighton or wherever can say, "Yes". That is not much use for the Government in making their own plans, though they can ask a location to explain why they have not discovered that information, if they have not done so. That is the sort of level of information that can be obtained under this clause.

However, let us look at what sort of information the Government need. Let us suppose there is a major incident, something by way of a national emergency. Let us suppose that someone sets off a thermonuclear device in the middle of London. The noble Lord, Lord Bassam—fortunate enough to be in Brighton at the time, and the wind from the south—survives comfortably and is the Minister then in charge of the Government. What information does he need the Government to have at their fingertips?

The Government will need to understand the structure of the telecommunication and other communication services, the capacity of the road networks around London and how fuel supplies are routed round the country, presuming that the M25 is unavailable. All sorts of other information will be necessary to the proper operation of the country in the follow-up to such a disaster. But this Bill gives the Government no access to that information. Individual local authorities have access to that information, or to bits of it, but the Government have no access that I can see under this clause or anywhere else in the Bill.

That will apply similarly to other government departments. How will the Department of Health know what is available in ambulance capacity or the other resources it may need to respond to a large emergency if it does not have the powers under the Bill which will be enjoyed by individual local authorities?

Everything is fragmented under the Bill. The knowledge, understanding and response are there, and that seems to be entirely right in dealing with emergencies that are fundamentally local in character. But if we get something national and require a nationally co-ordinated response—which will come, as the Minister said, from the mechanism set up in government for the government departments—some ministry will be there as the responsible body. To respond effectively to a national emergency, that ministry will need a body of information, just as a local authority needs a body of information, to know where to start from. It is too late to find out what is going on when the emergency has actually happened. But under the Bill the Government cannot even ask the local authorities for the information that they already have, let alone the responders in Schedule 1—and, anyway, all that should have happened beforehand.

I do not see that the answer that the Minister gave earlier about how the Government get their information is contained in this clause, and I should like to pursue that question further.

Lord Bassam of Brighton

The noble Lord will have heard me explain that the clause is designed to enable the Government—and in Scotland, the Scottish Ministers—to obtain information from responders about the performance of their duties under Part 1. That serves two purposes. First, it will support the legislation-making powers conferred by the Bill and allows the Government to establish an evidence base for decisions about whether further regulations or guidance are required. Secondly, information could be gathered to facilitate enforcement.

The noble Lord asks whether that is the only power that the Government have in relation to civil contingencies. The answer is, of course not. The power to obtain information is primarily designed to support the Government's role in civil protection at the local level. The information that they need therefore is there to enable them to make regulations under the Bill. The Government have a range of other powers to obtain information under regulatory regimes applying to utilities, for example. Other information will be shared on what we hope will by then be a well established, well tried and well tested basis. The facility is designed to work as part of a broader scheme of things. The information powers are in part designed to ensure that they support the Government's overall role in providing for civil protection.

Lord Lucas

I see what the Government are saying in the first part of that response, which is that the clause does what they think it does—and I agree with that. It provides them with a mechanism for watching what is happening at the local level. However, I return to the question of how the Government get the information that they need to play their role. The Minister said that there was other legislation containing other powers that enable them to get that information. I do not expect the Minister to do so now, but I would be grateful if he could give me a list of the powers that substitute in that respect for the powers that are contained in Clause 6 and earlier clauses of this Bill as regards local authorities. In other words, how do the Government obtain the equivalent access?

The Minister also implied that the Government in some way have access to the information that local authorities have obtained. I do not see where the power is under the Bill to do that, unless it comes from the very looseness of the wording, which we discussed earlier. In other words, when local authorities have obtained the information, they can do what they like with it, and as long as they wanted it for the emergency situations there are no restrictions on them. Perhaps that looseness is being used by the Government to enable them to extract information from local authorities and build their database that way. That would be a sensible way of doing it, but I would rather see the power in the Bill than have it there as part of a general looseness, so that local authorities—and, presumably, the Government—can do whatever they like with the information. I would like to be clear how the Government are getting their information.

Lord Bassam of Brighton

What is the noble Lord's real concern here? As I understand the general drift of the debate, I believe that there is a general acceptance that in these situations we are all seeking as people of good faith to work together to ensure that the information flows are operable, so that we can counter any given emergency situation and further protect the public. I do not quite see the difficulty on which the noble Lord seems fixed. I assume that we are all working towards a generally desirable objective. In any event, much of the information will be in the public domain, and I have no doubt that much of it would already have transferred between central and local government. In terms of how local government is performing, it will have tried and tested its various plans, planning procedures and so on. I am not sure what evil the noble Lord sees here. Perhaps he does not; perhaps I misunderstand him.

5.30 p.m.

Lord Lucas

What I am after is information, certainly at this stage. I am pursuing two earlier sallies. On one, I tried to bring central government under the same regime and duties as local authorities. The noble Lord says that that does not need to be done, as everything is being done in a rather informal way centrally. That is fine, but show me the information that will be used to make the decisions, otherwise I will find it very hard to believe that the Government are taking their duties seriously. I am happy to receive a written response on that. I want to know the Government's information sources.

Lord Bassam of Brighton

I am happy to do that and, if it is required, to find a list of some of the other powers to which I alluded earlier.

Viscount Brookeborough

Before we move on, I want to ask a question that has intrigued me. It may have been asked before I came into the Chamber, in which case I apologise. In terms of Ministers acting, why does the Bill require a "Minister of the Crown" yet a group of "Scottish Ministers" in all cases? Incidentally, several Scottish Ministers would have to meet, so could write down anything that they did.

Lord Bassam of Brighton

It will depend on what the particular Minister or Ministers in Scotland are responsible for, and on which Minister of the Crown is appropriate in the circumstances. That is all that is meant. I am also advised that it is standard drafting practice; that is really reassuring, is it not?

Lord McNally

I want to inquire on another aspect of the gathering of information. As I said, the utilities are almost all in private hands. One point made to us is that the way in which they are asked to co-operate varies from local authority to local authority, and from region to region. They are concerned that they will be asked consistently to reinvent the wheel in answering questions or providing information. It was urged on us that there should be some common template of information in various regions and local authorities, which would make it easier for them to co-operate in providing information.

Lord Bassam of Brighton

I suspect that there will be a standard format, but that what might be asked of a utility in one area may have to be different from a request made of a utility in another, because of varying circumstances and the way in which an emergency impacts differently in a different locality. I am thinking of how a flood may vary in extent between two or three regions, depending on geography and the nature and persistence of the incident. The questions may be standard, but different points may have to be asked of one of the power providers or water utilities.

Viscount Brookeborough

I have one last point. In a situation that has been declared an urgency or emergency—that may be a threat to people's lives—why does one need statutory power to ask for details of anything that has an effect under the Bill? I do not understand why one needs the power to be statutory. Having declared the state of affairs, one should be able to ask anyone anything that has a bearing on the situation.

Lord Bassam of Brighton

Because that is how we are governed in this country. It is subject to law and statute, and is challengeable through the judicial process. But the noble Lord is right—if an emergency is declared, certain things will have to follow and will flow. In essence, the legislation acts as a guide and a framework for action and activity.

Lord Lucas

I should be grateful for the reply he promised to the first question. Would the Minister please extend the letter to my second question—do central Government envisage that they will be able to lay their hands on the information that local authorities are accumulating under Clause 6 and similar provisions in the Bill; and if so, under which power could that happen? Or is it because there is no restriction?

Lord Bassam of Brighton

I undertake to cover that point in my reply.

Clause 9 agreed to.

Clauses 10 to 14 agreed to.

Clause 15 [Scotland: cross-border collaboration]:

Lord Bassam of Brighton moved Amendment No. 76:

Page 11, line 1, leave out paragraphs (a) to (d).

On Question, amendment agreed to.

Clause 15 agreed to.

Clause 16 [National Assembly for Wales]:

Lord Bassam of Brighton moved Amendment No. 77:

Page 11, line 24, leave out "2(3), 4(2) or"

On Question, amendment agreed to.

Lord Bassam of Brighton moved Amendment No. 78:

Page 11, line 45, after "paragraph" insert "4,"

The noble Lord said: This group of amendments includes a number of government amendments. I shall speak to those first and then turn my attention to the others in the group.

The Government propose making two minor and technical changes to the list of responder bodies in Schedule 1. Each of these amendments has become necessary as a result of legislative changes made by recent Acts of Parliament. Our dear old friend the Fire and Rescue Services Act is one of them. It renames "fire authorities" as "fire and rescue authorities". A consequential amendment is needed to the entry in Schedule 1. In addition, functions in relation to fire and rescue authorities in Wales are conferred, for the first time, on the Assembly. In the light of that, a consequential amendment is needed to Clause 16, covering the involvement of the Assembly, to ensure that Assembly consent is needed before legislation is made under this Bill in relation to fire and rescue authorities in Wales. This reflects the approach taken under the Bill in relation to other responders which are subject to Assembly oversight.

The Health Protection Agency Act is another measure which has a bearing on the Bill. It creates a new body called the Health Protection Agency as a statutory body. The existing HPA, which is a Special Health Authority, will cease to exist. An amendment to Schedule 1, which refers to the HPA as an SHA, will be required.

I also note that the noble Lord, Lord Berkeley, has tabled a number of amendments intended to probe the rationale for including rail freight operators in the Bill. I look forward to hearing what he has to say on that issue and to having the opportunity to respond. Rather than deal with those amendments now, I shall do so after the noble Lord has spoken to them. I beg to move.

Lord Berkeley

I rise to speak to the three amendments in this group which stand in my name—that is, Amendments Nos. 84, 85 and 86. It is logical that we talk about all these responder bodies together, although I believe that there are a few omissions from the list and I know that other noble Lords want to add some others, but that is all part of the debate.

I remind the Committee that I am talking about the transport section in category 2 under Part 3 on page 25 of the Bill. Under that section, the various lists of organisations and bodies which must respond include all licensed train operators under Section 8 of the Railways Act 1993. In fact, the Bill does not quite refer to licensed train operators but to those who hold licences. It includes Network Rail, 25 or so passenger train operators, about eight contracting companies which have licences and carry out maintenance, such as Balfour Beatty, Jarvis and Carillion, and currently, I believe, six freight operating companies. I declare an interest as chairman of the Rail Freight Group.

The problem is that, as many of those companies—certainly all the maintenance and freight ones—are open-access operators across the network, which means that they can go anywhere, I am told that each would have to attend at least two meetings a year with each of the 43 police forces. These people are all in the private sector and, we hope, have profits to make, but the provision places an enormous obligation on them. Therefore, I question why rail freight operators and contractors are included in the list.

I can see why infrastructure managers across all modes are included; I think that that is reasonable. They include London Underground, Transport for London, airport operators, harbour authorities and highway authorities, and I think it is reasonable that they should all be included. But when talking about those who operate on these pieces of infrastructure, where are the road freight operators? Where are the bus companies and the shipping lines and airlines? They are in exactly the same position as the train operators.

I then ask: what is the purpose of all those people being included? If, in an emergency, the Government wanted to see freight moved around, I imagine that they would probably go to a logistics trucking company rather than a rail freight company because it would be so much more flexible.

Contractors are included in the list. If it is necessary to include contractors so that the Government can do what they want on the railways, does not the same apply to the roads, the highways and the motorways? Often, the same companies are contracting on the roads. The same applies to shipping and airlines. Therefore, why are the train companies and the freight companies, in particular, included as an operator above the ground?

I have received a great deal of briefing from many people on this issue. One representative of the Association of Chief Police Officers opined that the reason was that the Home Office thought that rail freight was still in the public sector and therefore it could be controlled. That situation is 10 years out of date and I am sure that the Home Office does not hold that view but, frankly, rail freight and road freight are both in the private sector. They both compete very hard and very effectively, and I strongly believe that, if one is in, both are in but preferably they are both out.

That is all that I want to say in relation to the first two amendments, other than that I am grateful to my noble friend Lady Scotland for the number of letters that she has exchanged with me on this subject over the past few months.

Since the previous day of the Committee stage, I know that some freight operators have met officials and I believe they have received an assurance that they do not need to attend 86 meetings a year because Network Rail can do it for them. I think that they are happy with that but, if that is the case, I suggest that my amendment should be accepted and that those operators should not appear on the face of the Bill; they should simply let Network Rail act on their behalf.

Finally, I read a very odd comment in a letter from my noble friend Lady Scotland. She said that rail freight was included, not because it might help in an emergency but because it was a threat. In other words, it might be blown up, so it needs controlling.

The same view has been expressed by very eminent people who have been putting together London's Olympic bid. I discovered that the bid to the Olympic Committee in Geneva said that all rail freight would be stopped from going through Stratford, which is a major hub for rail freight, during the six or seven weeks of the games because it was a threat.

Eventually I found out who put the bid together and I asked why they had said that. The response was, "We thought that the Olympic Committee in Geneva would like to hear that". I said, "That is not a very good reason. Did you not consult the Government's security people? They are called Transec". They are part of the Department of Transport, as many noble Lords will know. The answer from the Olympic bid people was, "No—who are they?" They had not consulted them, nor the Metropolitan Police, so I took it upon myself to offer them a meeting with both of those bodies. The meeting went very well and I now have letters from both of those bodies withdrawing their objections.

If it is standard government policy that freight trains blow up and lorries do not, we need to look at the detail. Certainly the Metropolitan Police and the Department for Transport security people say that that is not so. I urge my noble friend to look at this matter again. I shall certainly not press any of my amendments today. I am merely looking for an explanation. Perhaps we can move on to ask what is really necessary to suit the needs of this Bill, and not give people unlimited numbers of meetings around the country just because it says so on the face of the Bill.

5.45 p.m.

Lord Bassam of Brighton

I shall go over the points raised by the noble Lord, but first I shall give some background.

Parts 3 and 4 of Schedule 1 set out a list of category 2 responders. They are the "co-operating" responders, who are less likely to be involved in the heart of multi-agency planning work, but who will be heavily involved in incidents that affect their sectors.

The duties on category 2 bodies are much less demanding, and reflect their supporting role. Category 2 responder status will mean that organisations will be required to co-operate with other responders through local resilience forums and to supply information where requested to do so.

Category 2 responders are generally organisations that already have direct responsibilities to the public, either because they administer risk sources or deliver essential services. In most cases, category 2 responders, which as we have discussed before, include the utilities, transport companies and infrastructure providers, are already subject to a range of sector specific civil protection duties by virtue of their licensing or regulatory regimes. We have given those bodies a more limited set of obligations in order to avoid confusion or conflict with these sector-specific regimes. Those are intended primarily to ensure that category 2 responders are more closely engaged with wider multi-agency planning. That is the framework thinking behind it.

The noble Lord seeks more explanation by tabling his amendments as they are. Amendments Nos. 84 and 85 would remove rail freight operators from the list of category 2 responders. The Government have given careful consideration to the membership of category 2. In doing that, we have undertaken consultation with key stakeholders, and have subjected it to two public consultations. We feel that, on balance, we have it right. We have no plans to amend the Bill in the way the noble Lord suggests.

Rail freight operators administer a significant risk source, and like passenger train operators, it can only be right that they are brought more directly into local emergency planning arrangements. Indeed, I am sure that the noble Lord would accept that it would be anomalous to include passenger train operators and not to include rail freight operators who share the same fixed network as both can be involved in local emergencies. It can only be right that they are both more firmly embedded in local civil protection arrangements.

The first consultation on the draft Bill demonstrated support among category 1 responders for the inclusion of rail freight operators in category 2. There is a feeling that these companies have not been as involved in local emergency planning arrangements as they might be, and that the Bill is a way of remedying that fact.

I understand the noble Lord is concerned about the regulatory impact that category 2 status will impose on rail freight operators. The Government are aware of the industry's concerns about the burden the Bill could impose on them. We conducted a thorough assessment of the costs and benefits of the Bill with that very much in mind. The public consultation on the Bill was accompanied by a partial regulatory impact assessment. We specifically sought consultees' comments on our assumptions. The main conclusion of the RIA was that the regulatory impact of the Bill on the private sector is small and that the costs are significantly outweighed by the benefits.

Cabinet Office officials are working closely with the full range of category 2 responders to ensure that the regulatory burden on them is kept to a minimum. I give as an example the current draft regulations which provide that responders need only be "effectively represented" at local resilience forum meetings. I understand that at a recent meeting there was a consensus among officials that all parties were content for Network Rail to represent freight carriers where that was thought most appropriate.

Furthermore, the guidance will give a clear indication of what is reasonable in terms of information demands, and ensure that the burden of information demands is kept to a minimum, so that there will be a common format for information requests, or to use the term of the noble Lord, Lord McNally, a "template", and there will be a need to justify the need for particular information requests.

The Cabinet Office is keen to continue its dialogue with the rail freight industry about any remaining concerns. I understand that a meeting has now taken place to ensure that that is taken forward. I hope the noble Lord shares my confidence that we can operate on the basis of a consensus.

The road freight industry has probably inspired Amendment No. 86. In contrast to the rail freight operators, road freight operators have not been included. A number of consultees argued that road freight operators should also be included within civil protection arrangements. The Government take the view that it would not be appropriate to include road freight operators at this stage. In part that is because of the practical difficulties of involving the numerous and—I think it has to be said—disparate elements of the road haulage community, if one can describe it in those terms, in local civil protection arrangements. Whereas there are only four major freight train operating companies, the number of freight operators is, as is fairly obvious, far greater and could put a strain on local multi-agency arrangements.

The noble Lord has argued that the burden imposed on rail freight operators will be a source perhaps of competitive disadvantage in relation to road freight operators. But, as we argue, the regulatory burden on the rail freight companies will in the event be small, and we are working with that sector to try and find ways of keeping this to the absolute minimum.

So I certainly understand the noble Lord's concerns. I think that the list of responders set out in Schedule 1 is the right one. However, the Bill is a flexible beast and Clause 13 provides that responders can be added to, or removed from, the list. This gives the opportunity from time to time to review and amend the framework, acting very much in the light of experience.

I have a horrible feeling that, had we not included rail freight operators in the list, the noble Lord would probably have been moving an amendment asking why that was the case. But we have, for the moment, covered that eventuality. We hope that the arrangements that we are putting in place with the flexibility and all the caveats work well.

Lord Lucas

I hope the noble Lord is not too distressed if I say that I would like him to add a written element to his oral directions. I, for one, could certainly do with some more information on what it is about rail freight which is so peculiarly dangerous. What are they doing? I mean, have coal and steel trains suddenly turned explosive? What is going on in the pattern of rail freight that is so much more dangerous than the pattern of road freight? Rail is—what, 6 or 7 per cent of the market?

Lord Berkeley

It is 11 per cent.

Lord Lucas

Then it is doing better, but road freight is still nine times larger. I think that chlorine, for instance, which is an interesting target for anyone seeking to disrupt a neighbourhood is, by and large, road freight. Certainly, many other substances that can be dangerous over a wide area—gas tankers, for instance—tend to be road freight. That argues that if we are to take an interest in what dangers are travelling around, road freight becomes pretty important. If we are to accept the argument that the Minister advanced, that rail freight operators can be represented by Network Rail, that argument applies equally to road operators. If we include them in the Bill in the way that the noble Lord, Lord Berkeley, has suggested, they can make arrangements to be represented by the Road Haulage Association. What is sauce for the goose should be sauce for the gander, especially as the gander is nine times larger.

Lord Berkeley

I am truly grateful to the noble Lord, Lord Lucas, for his support and to my noble friend for his response. I, too, would like my noble friend to spell out why rail freight is a significant source of risk. If he cannot do it now, perhaps he could write to me. As the noble Lord, Lord Lucas, said, road freight comprises 89 per cent of the traffic and road freight operators might feel a little insulted to be called disparate. Some of the companies are world class road freight logistics people and they have a very good representative organisation.

They would have to be asked whether they are interested in participating or be made to participate, but I strongly believe that if one is in, both are in—not just for competition reasons, but for everything else. They have as much information to provide as can the rail freight industry and ditto for the contractors. Can my noble friend write to me or give me a list of organisations covered by Section 8 of the Railways Act 1993 in Clause 23? Why is a company such as Carillion included for its rail operations but not included when it is digging up a motorway? That seems crazy.

So, as I said, I shall study my noble friend's answer with great interest to see whether I shall come back to the matter later.

On Question, amendment agreed to.

Clause 16, as amended, agreed to.

Clause 17 agreed to.

Clause 18 [Interpretation, &c.]:

[Amendments Nos. 79 and 80 not moved.]

Clause 18 agreed to.

Schedule 1 [Category 1 and 2 Responders]:

Baroness Buscombe moved Amendment No. 80A:

Page 23, line 5, at end insert—

"Central Government

In relation to England and Wales—

1. (a) a Government department or ministry.
2. (b) an executive agency or non-department public body, and
3. (c) the National Assembly of Wales."

The noble Baroness said: I shall speak also to Amendment No. 83A. There is a gaping hole in the legislation that we believe is a serious misjudgment. It has the potential to undermine much of the intent of the Bill. Presently, there is no intention to impose category 1 duties on any central government department or the vast majority of central government agencies. That is despite such agencies playing an important and significant part in all of our lives.

The Committee may be interested to learn that there are 834 public bodies sponsored by UK government departments, spending more than £20 billion of public money each year. Of course, there are the small and relatively obscure, but I am thinking about such significant bodies as the Food Standards Agency, the Highways Agency and the Benefits Agency. Such an omission comes despite the fact that, by and large, the local response is in relatively good shape.

Where things fall down is when the scale or impact of the emergency require the involvement of central government resources, prime recent examples being the fuel crisis and the outbreak of foot and mouth disease. That failure is a direct result of the fact that central government emergency planning, training and exercising, if it takes place at all, is not integrated with that of local responders.

6 p.m.

We understand that the Government's stance is that, No reference to the role of central government is needed within the Bill for the government to engage in the full range of civil protection duties". It is, however, noteworthy that the revised communication and liaison methods proposed following the fuel crisis have never been tested by exercises. Only recently has Defra engaged with local government in the discussion of revised arrangements for handling a recurrence of foot and mouth disease.

In addition, it could be argued that the Government are setting their own precedent. Paragraph 12 of Schedule 1 gives category 1 duties to the Secretary of State, in so far as his functions include responding to maritime and coastal emergencies". A little further on, paragraph 28 of the schedule gives the Secretary of State category 2 duties, in so far as his functions relate to matters for which he is responsible by virtue of section 1 of the Highways Act 1980". If a Secretary of State and, by inference, his department can have duties imposed in those specific areas, why not in general? With the amendment, the Bill would encompass central government and its agencies north and south of the border as category 1 responders. I beg to move.

Lord Dixon-Smith

In this age of joined-up government—we hope that it is joined-up—and particularly in emergency planning, the smoothest possible co-ordination and integration between the work of government departments and local agencies throughout the country is called for. It is an omission not to include government departments as full responders in the schedule.

The Minister may try to argue that the Government are implicitly involved because, after all, they are the progenitors of the Bill. They have repealed all the Bills that gave the existing powers, and this Bill is to be the be-all and end-all of emergency planning Bills. I hope that it is, but it seems to leave the Government out. That is an extraordinary state of affairs, and my noble friend has made a serious point. I hope that the Minister will agree. Unless he can provide a convincing argument to show how the Government will otherwise be involved, we shall have to pursue the matter.

Lord Bassam of Brighton

In a way, it is the second time of asking for this debate. We went over some of the issues when the noble Lord, Lord Lucas, moved his amendment about the role of government. This amendment is probing further on that role and, in particular, the role and responsibilities of the devolved administrations and the non-departmental public bodies in responding to emergencies.

We had a full and useful debate on the amendment tabled by the noble Lord, Lord Lucas, and I shall certainly reflect on it. However, I must briefly highlight some of the ways in which there has been a change in government and a higher quality of recognition of the importance of contingency planning in central government, particularly since 2001.

I think that government has raised its game in several respects. Individual departments have taken responsibility for contingency planning in their area. There are clearer procedures for exercising the arrangements that have been put in place and for quality control. The Cabinet Office provides a strong centre—there has been criticism of that—for co-ordinating contingency planning throughout government. Ministers have demonstrated a clear commitment to the resilience agenda, which is championed at Cabinet level by the Home Secretary. It would not be right to say that the Government are sitting aside or shirking their responsibilities in this respect.

The devolved administrations have an important role in contingency planning. The Government believe that responsibilities in regard to emergencies should sit with organisations that have a general policy responsibility; therefore, responsibilities in the resilience area reflect the devolution settlements in place across the United Kingdom. That is reflected in the list of lead government departments and in exercising and quality control arrangements. The UK Government and the devolved administrations work very closely. The devolved administrations are represented on ministerial and official level committees involved in planning for, and responding to, emergencies. They are closely involved in capacity-building work, such as the key capabilities programme described earlier.

A lot of work and much thought have gone into dividing up those responsibilities between the UK Government and the devolved administrations. An account of how those relationships work in practice has been published by the Home Secretary and can be found on the Civil Contingencies Secretariat website at www.ukresilience.info. The noble Lord, Lord Lucas, will probably have already had a close look at the website; I know that it is the sort of thing that exercises him.

The noble Baroness said that the Government did not carry out exercises. We have in place a co-ordinated cross-governmental exercise programme that covers a comprehensive range of domestic disruptive challenges, including accidents, natural disasters and acts of terrorism. The programme is designed to test rigorously the range of lead government department responsibilities and the involvement of devolved administrations at regional and local responder level.

In addition, local authorities and the emergency services develop their own programme of exercises to test capabilities at local and regional level. That nationwide rolling programme of exercises is designed to ensure that we have the best possible contingency plans in place to respond to a whole range of civil emergency scenarios. Outside our national boundaries the UK observes and participates with international partners in exercises through multilateral fora such as G8, NATO and the EU on a bilateral basis. We are working hard to cover all the angles.

Lord Dixon-Smith

I do not doubt the Government's commitment to emergency planning, and I have little doubt that they have legal authority for what they are doing, although I would be grateful if the Minister would tell me about that in precise terms. I am concerned that the Bill repeals all the powers under which everything is done at present. The real question is: are we reinstating everything that the Bill repeals? I can see how we are reinstating everything in the regions and for everybody else, but I cannot see how we are reinstating the legislative power that gives the Government authority to continue to do what they are already doing. That is very important. If the Minister can assure me that nothing in Schedule 3—a long list of Acts to be repealed—affects the Government's existing authority to act, that is one thing; if he cannot give me that assurance, we are in some difficulty.

Lord Bassam of Brighton

I am looking at Schedule 3. My assumption, which is not unreasonable, is that it is exactly the case that we are repealing what could be described as old-fashioned and defunct Acts and replacing them with a more modern set of powers, responsibilities, duties, and so on. I have made the point a number of times that we have consulted very carefully on how that will work with the major responders.

To give the noble Lord an absolute assurance, there is nothing being repealed here that will do anything to undermine our ability and power to ensure that we have adequate resilience and that we can properly exercise and test in order to ensure that the measures we want or need to put in hand are robust and meet the challenge.

I think that the noble Lord and most Members of the Committee would accept that the legislation going back to 1948 and beyond is in need of modernising. I know that the noble Baroness does not like the legislation, but we think that that is the case and is what this Bill does. We think that by and large we have got it about right. We are listening to ensure that we get the detail right as well.

Lord Dixon-Smith

I hear what the Minister says. I am in absolute agreement that the legislation needs to be brought completely up to date. It concerns me that we are introducing a lot of powers which necessarily affect all sorts of bodies across the whole of the country. From what I have read about the Bill, I am not absolutely convinced that we have got the necessary legislative authority for the Government. That is really what lies behind my noble friend's concern in putting down her amendment, which makes very plain what the Minister admits he thinks is the situation. I am quite happy for the Minister to continue to explain this, but perhaps subsequently he would write and tell me specifically where the legislative authority for the Government to continue their emergency planning role lies after we have passed this Act.

Lord Elton

Will the Minister tell me whether I have got this right? These exchanges are about the legitimacy and completeness of government power to plan for emergencies. My noble friend brought forward an amendment suggesting that in this Bill there was no provision to involve elements of central government, which she listed in her amendment. As I understood it, the Minister said, "Well, you needn't bother about those because those are already happening anyway".

My noble friend Lord Dixon-Smith said that what is happening anyway is being wiped out in the schedule of repeals. It does not seem that the Minister can maintain his original argument if my noble friend is right in that assumption. He must find some other place for the Government to have their powers. I would like to hear where they are.

Lord Bassam of Brighton

I am in some difficulty here because it seems that two different sets of questions are being asked, which I think I have answered. I believe the noble Lord, Lord Dixon-Smith, was after an assurance that we were not repealing things that we need and that that was his general thrust.

Lord Dixon-Smith

It was not a general thrust; it was a specific thrust in relation to the Government's powers.

6.15 p.m.

Lord Bassam of Brighton

We are not repealing measures that would in any way detract from our ability to deal with emergencies. The Government do not have and do not need specific legislative authority to plan for an emergency. Their inherent powers are entirely and completely adequate. The Acts being repealed do not relate to the powers of central government. We have covered the point and nothing in the list of repeals undermines what we are seeking to achieve in this piece of legislation in terms of modernising the legislative framework for civil protection. I hope that that answers the noble Lord's point, because it should.

Lord Lucas

I chide my noble friends: we must trust the Government that they have done their homework on the abolition of these powers in exactly the same way as they did when they abolished the post of Lord Chancellor.

The noble Lord said that there is a long list of exercises taking place. May I have a copy of that list?

Lord Bassam of Brighton

I shall be more than happy to furnish the noble Lord with whatever information we can pull together regarding the exercise programme.

Lord Dixon-Smith

Would the Minister write to me detailing what are the Government's "inherent powers"? I find that a fascinating concept.

Lord Bassam of Brighton

I shall seek to clarify that point also.

Baroness Buscombe

At the beginning of our debates today, the noble Baroness, Lady Hamwee, used the word "opaque". That word is appropriate to much of what we have been trying to glean from the Government throughout our discussions. I believe that, with the help of my noble friend Lord Dixon-Smith, we have raised a very important point here.

Local authorities are being asked, pursuant to this measure, to take on enormous responsibilities in relation to civil protection. They do not deflect from that one iota, nor do we seek to criticise the Government in any way by asking where their authority is to come from when all these Acts have been repealed. What we are seeking to understand is how civil protection can be seriously effective if there is no clear and proper link between local government, government agencies and local responders, and that link made clear in the Bill.

With the best will in the world, we cannot rely on the Minister's assumptions. Much as we would like, we cannot take his word that all the powers that are required will remain because we do not know what they are. We are being asked simply to accept that central government and government agencies are doing their bit. In being asked to do that, it is a step too far.

The hour is late and we have had some time to discuss this matter. I appreciate that it is a subject that has been raised in a sense throughout today's debate. However, I urge the Minister to consider what we have had to say before we return to this crucially important point at the Report stage. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Bassam of Brighton moved Amendment No. 81:

Page 23, line 21, leave out paragraph 4 and insert—

"4 A fire and rescue authority within the meaning of section 1 of the Fire and Rescue Services Act 2004 (c. 21)."

On Question, amendment agreed to.

Lord Bassam of Brighton moved Amendment No. 83:

Page 24, line 10, leave out paragraph 9 and insert—

"9 (1) The Health Protection Agency established by section 1 of the Health Protection Agency Act 2004 (c. 17).

(2) Until its dissolution consequent upon the coming into force of section 1 of that Act, the Special Health Authority established under section 11 of the National Health Service Act 1977 and known as the Health Protection Agency."

On Question, amendment agreed to.

[Amendment No. 83A not moved.]

Baroness Buscombe moved Amendment No, 83B:

Page 25, line 20, at end insert—

"The petrol and diesel distribution and production industry

A person who distributes or produces petrol or diesel."

The noble Baroness said: In moving Amendment No, 83B I shall speak also to Amendments Nos. 83C, 86A and 86B. In so doing, I appreciate that I shall be repeating to an extent some of what was said in relation to the amendments of the noble Lord, Lord Berkeley. At that stage I was in two minds about whether to intervene, but I was concerned that I might confuse the Minister more by interjecting with different amendments that would have to be taken out of place. So I shall attempt to be brief and I apologise for any repetition.

In bringing forward this group of amendments we are again attempting to redress what we on these Benches perceive as serious omissions from the list of those bodies that should be included as category 2 respondents. There are a number of striking general omissions: broadcasters, bus and coach companies, the entire food distribution and sales industry, the petrol and diesel distribution industry are not included. National chemical and radiological hazard identification and response schemes such as NAIR, RADSAFE and CHEMSAFE are also missing.

The omission of such organisations is all the more puzzling given the important role that they would play in any large-scale emergency or incident. For example, bus and coach companies, presumably, would have been a vital component of most evacuation plans in assisting to transport large numbers of people away from the affected areas. On this issue, perhaps the Minister can explain why, if London Underground, train and airport operators are included on the list, bus and coach companies are not.

I additionally would have thought, given the events of the September 2000 fuel crisis and the near standstill that that incident brought to the country, the Government would have been keen to include in the Bill the producers and distributors of fuel. Again, I look forward with anticipation to the Minister's answer on this issue.

Furthermore, why is there no mention of broadcasters among category 2 responders? Surely it would be up to both national and local media outlets to publicise during the crisis what was going on and, indeed, to offer advice on what people should be doing—a point we made earlier in relation to informing the public. They could advise, for example, whether they should be staying in their homes or mustering at an evacuation point. Where else are we going to get our information in times of crisis?

In addition, in any specific locality there are likely also to be particular organisations whose co-operation may be vital to comprehensive planning, such as the operators of major shopping, leisure and sporting complexes. Again, these are not included.

I hope the Minister will be able to provide an assurance that the reason why these organisations are not included as category 2 respondents on the face of the Bill is that they are already adequately included in other legislation. If the Minister is not able to give me that assurance, I anticipate that he will be happy to accept this group of amendments today. I beg to move.

Lord Berkeley

The noble Baroness, Lady Buscombe, has added significantly to some of the remarks I made earlier. She has made some very good suggestions. She mentioned that food distribution was not included, but I cannot see which amendment that comes under. However, I agree that it should be.

Amendment No. 83B refers to a person who distributes or produces petrol or diesel. That is interesting. If my noble friend rejects the amendment, having rejected my amendments, he will find that those who distribute petrol and diesel by rail will he included but those who do so by road will be excluded.

As to the petrol-tanker drivers' strike of a few years ago, to which the noble Baroness referred, she may not know that the only railway company in the country which has facilities for fuelling by rail is EWS Railways. All the passenger train operators and the other freight operators refuel by road. Heathrow Airport refuels by rail and pipeline; I think the others do it by road.

So if the Bill is not amended, and if there is another petrol-tanker drivers' strike, we shall be in exactly the same position as we were on the previous occasion; there will be no change at all. I suggest that there need to be discussions between now and the next stage of the Bill to see whether we can agree a more sensible list.

I agree with the noble Baroness about buses and coaches. Frankly, if there is an emergency, I would much rather get on a bus than on a train. A bus could go a different way if there was a blockage somewhere, whereas a train could get stuck in a tunnel.

I remind the noble Baroness that, although airports are included, airlines are not included in the Bill.

Lord Brooke of Sutton Mandeville

I rise to speak in connection with Amendment No. 86B, which has been moved by my noble friend. There is not a breath of criticism implied in what I am about to ask, but I was once responsible for someone joining the board of Rolls-Royce as a non-executive director. At the end of his first meeting he wrote to the secretary of the company and said that there were 55 acronyms in the board papers and he was not prepared to come to another board meeting until he had been provided with a code. The Secretary sent him a list of 89 acronyms that were in use in the company and explained that he was meeting quite a number of them for the first time himself.

In the list in Amendment No. 86B, the names of two organisations are written out in full. The second on the list has a helpful parenthesis which indicates what it is. I can, by some stretch of my imagination, work out what the two last ones are, but I have no idea what CHEMET means. Unless this has already been discussed at an earlier stage in the Bill and I ought to know what it is, it would be helpful if we had slightly greater detail about what the acronyms are.

Lord Lucas

I think it is a frog, if I remember rightly.

If we suffer a disaster which restricts our ability to move around and which is on a large scale, it seems that food will cause us the largest problem, fastest. We have all got so used to having the supermarket at the end of the road. Not many of us keep enormous stocks of food, although I think that my noble friend Lady Thatcher does. I suppose that we should all have a year's supply of baked beans and a gas mask to deal with the consequences. It would be a brave Government who assumed that there was more than a day or two's supply of food in the average home. That is the thing which will cause us pain and difficulty fastest, after, perhaps, the supply of water. Water is dealt with in the Bill, but food is not.

We could survive, in a personal sense, without fuel for quite a long time. We would just throw on an extra blanket or two and sit around waiting for things to get better. But we cannot survive without water and we cannot survive without food. If we put the population in a state where it is doubtful about the supply of food, we will see riots quicker than anything. So I hope that the Government will look at making sure that local authorities have a handle on where the food is in their area and the ability to secure that supply in cases where they think that that might become important.

Lord Bassam of Brighton

This group of amendments would add a range of bodies to the category 2 responders list. Again, the Government cannot accept the amendments, but I hope that I will, in some part, reassure noble Lords who have taken part in the debate as I explain why we do not, at this stage, plan to include the various bodies referred to in the category 2 responders list.

Let me start with broadcasters. This is a difficult one, and I can see some of the attractions of including media organisations. However, we have taken the view that it would not be appropriate to include them in the category 2 list. To make their participation in local civil protection arrangements a statutory requirement might impact on their independence as news reporters and news gatherers and may make them feel somewhat inhibited in any investigation they might want to undertake in the context of emergencies.

There are already long-standing arrangements in the BBC charter and agreement and in broadcasting legislation concerning broadcasters' contribution to defence and emergency arrangements. In practice, media organisations have shown themselves to be very valuable partners in local multi-agency plans for informing the public during and after an emergency. This is expected to continue under new arrangements. The guidance accompanying the legislation will reflect that expectation.

We think that compelling broadcasters to become involved is unnecessary and may harm the close and constructive set of relationships that are being developed between broadcasters and the local emergency planning community around the country.

On petrol and diesel producers and distributors, the noble Baroness, along with others, has suggested that fuel suppliers—a key element of the critical national infrastructure—should be included as responders, presumably to give greater security to existing arrangements.

The Department of Trade and Industry, as the lead department for government, co-ordinates multi-agency contingency planning arrangements for the supply of fuel. That ensures that fuel suppliers are involved appropriately in the contingency planning process. The Bill is focused on local arrangements for responder bodies which have an operational role in emergencies. It is not directly concerned with national arrangements for critical national infrastructure, which is very much outside its local focus.

Bus and coach operators may become involved in emergencies either as a risk source or as key resource to be drawn on in a response.

Lord Berkeley

What is the risk source of a bus or coach?

Lord Bassam of Brighton

Clearly, it could in some circumstances become the subject of a terrorist attack or, given that any vehicle of that kind will contain a large amount petrol or diesel, it could become a risk in terms of being attacked in some way.

The list of responders in Schedule I broadly—

Baroness Buscombe

The greatest risk in the view of my peer group is probably the London Underground.

Lord Bassam of Brighton

The noble Baroness makes a fair point. The Underground is risky. One can imagine any number of scenarios where there may be a risk, but it is a risk source in certain circumstances.

The list of responders in Schedule 1 broadly reflects what exists at the moment and what works. As was mentioned when we were talking about road freight, there is a large number of bus and coach operators, many of which are very small. The new framework needs more time to settle in before it is overloaded with new responders. It might be helpful if I were to give some idea of the size of that sector. It comprises 8,300 licensed public service vehicle operators, which hold about 87,000 vehicle discs, with an average fleet size of about ten vehicles. They are very small operators and it would be extremely hard to integrate them into the arrangements in the way which is suggested in the amendment. While we do not want to overload the system with new responders, we have the flexibility to include operators of that nature if, at some later stage, it is appropriate to do so.

The amendment concerns also miscellaneous organisations that deal with chemical and nuclear hazards. It recommends including in category 2 a number of organisations involved in chemical and nuclear hazards: CHEMSAFE, RADSAFE and the National Radiological Protection Board. As noble Lords will be aware, well established regulatory regimes for civil contingency planning for major chemical and nuclear hazards already exist. The Control of Major Accident Hazards (COMAH) and the Radiation (Emergency Planning and Preparedness) Regulations (REPPR) set out clear multi-agency arrangements for managing the risks associated with particular sites and managing the consequences of incidents when they occur. The Bill does not trespass on those regimes. In order to avoid unnecessary duplication and confusion, COMAH and REPPR have been carved out of the Bill by way of regulations. It is not appropriate to consider those bodies for inclusion in category 2.

However, many category 1 responders are closely involved in the implementation of those schemes; for example, CHEMSAFE, RADSAFE and NAIR. Local resilience forums will therefore be well sited. The NRPB, for example, already works very closely with the Health Protection Agency, which is a category 1 responder, and will be incorporated within it.

We have worked very closely with practitioners over two public consultations, and I think that the list of responders set out in Schedule 1 is the right one. As I have said before, however, the Bill is a flexible framework, and Clause 13 provides that responders can be added to or removed from that list. That provides Government with the opportunity to review and amend the framework in the light of experience. No doubt we will listen very carefully to comments made by the organisations that feel they ought to be on the list and see whether we need to amend and incorporate.

The noble Lord, Lord Lucas, made a point about the resilience of the food chain. In accordance with the lead government department's arrangements, Defra has in place contingency plans in relation to the supply of food. Food supply is indeed part of the critical national infrastructure, and some have suggested that food suppliers should he responders under the Bill. We do not think that there is a need to replicate existing arrangements which work well and place them on the face of the Bill. We think the arrangements that we have in place work well and that Defra, because of its responsibility, is well positioned to ensure that the food supply chain is resilient and robust in the face of the range of emergencies that we might envisage.

Baroness Buscombe

I thank the Minister for his response, though I am not too happy with it. It almost feels as though this list has been plucked out of the air. I am extremely grateful for the contributions from the noble Lord, Lord Berkeley, and my noble friends, who have sought to assist me in demonstrating by example the need for this type of amendment.

We needed at least to probe the fact that it does not make sense to include some forms of petrol and diesel distribution, such as distribution by rail, but exclude others, such as distribution by road. Other forms are excluded because of a risk factor. As I pointed out, however, probably one of the places at greatest risk is our Underground, which has been included. The BBC charter states somewhere that it should respond and take part in informing the public through broadcasting in the event of emergencies.

The Bill lacks clarity and it is depressing debating these points. I do not feel that the Minister's responses make sense. It is clear that we will not be able to get an exhaustive list, but that is not really what we are asking for. We are trying to point out some of the key responders that we think should be included in the Bill. Perhaps the Government should give thought to ensuring that at least some form of guidance is published that explains to local authorities and to all involved that the list is not exhaustive.

We need to remember that this legislation will be picked up and referred to in an emergency. It is crucially important that all those who could be responders do not feel that they cannot be involved because they are not listed in the Bill, or that some Minister does not decide that because they are not listed as a category 2 responder it is not appropriate for them to he involved. That is what really concerns us. We keep hearing from the Minister the need to modernise and to be flexible. But what worries me is that we have any list at all. It is almost worse to have a half-hearted and half-baked list, which could cause more confusion than not.

I will not go on, as I know that we are seeking to reach a further point in our deliberations tonight, but I urge the Minister to think deeply about these issues before Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

[Amendments Nos. 83C to 86B not moved.]

Schedule 1, as amended, agreed to.

Clause 19 [Meaning of "emergency"]:

Baroness Scotland of Asthal moved Amendment No. 86C:

Page 12, line 36, leave out from "means" to end of line 40 and insert—

1. "(a) an event or situation which threatens serious damage to human welfare in the United Kingdom or in a Part or region,
505
2. (b) an event or situation which threatens serious damage to the environment of the United Kingdom or of a Part or region, or
3. (c) war, or terrorism, which seriously threatens the security of the United Kingdom."

The noble Baroness said: I come to this issue somewhat late in the fray. However, I rise to move the amendment standing in the name of my noble friend Lord Bassam.

This new clause relates to Part 2 of the Bill. The Government are very mindful and have a strong desire to ensure that emergency powers cannot be misused. We have looked again at the definition of security and intend to move an amendment to ensure that Clause 19(4) is exhaustive. That would ensure that the use of emergency powers for reasons of security would be possible only in relation to war, including armed conflict or terrorism. That should prevent any suggestion that the powers could be invoked or misused in the name of an unspecified risk of a security or in the face of non-violent civil disobedience. It is therefore unnecessary to include a definition of "security". Amendment No. 93A thus removes the provision.

Amendment No. 167B defines terrorism, with the meaning given in Section 1 of the Terrorism Act 2000, and war, as including armed conflict for the purposes of Clause 19(1)(c). That is not to say that any outbreak of war or any act of terrorism will constitute an emergency for the purposes of the Bill. But government Amendment No. 86C makes it clear that it is only if war or terrorism threatens serious damage to the security of the United Kingdom that they will constitute an emergency. I hope that that clarification meets the concerns behind Amendment No. 94.

Turning to Amendment No. 96, I know that it has been suggested that disruption to electronic communications, as described in Section 1(2)(e) of the Terrorism Act, should be excluded from the definition, and that any serious disruption to electronic communications may have disastrous results. It could potentially cripple the emergency services and key service providers, not to mention the banks. We believe that it is appropriate that emergency powers may be available to restore such services, if needed, and to mitigate the effects.

Such a disruption could be as a result of terrorism action within the meaning of Section 1(2)(e) of the Terrorism Act. As the noble Lord, Lord Lucas, pointed out during the first Committee day, we live in an electronic society, in which the destruction of key records held by government, the public sector and business could cause an enormous amount of inconvenience and difficulty for our citizens in their everyday lives. At that stage, the noble Lord also pointed out that a deliberately launched virus could result in such disruption. There was force in what he said on that occasion.

The definition of terrorism in the Terrorism Act is designed to cover all aspects of terrorism. It was approved by Parliament. To remove any part of that definition would be illogical at this stage, and certainly inconsistent with the wider counter-terrorism strategy. I hope that what I have said to support government Amendments Nos. 86C, 93A and 167B allows me to resist Amendments Nos. 94 and 96, and will obviate the need for Opposition Peers to press them.

6.45 p.m.

Lord McNally

I do not want to disappoint the Minister too much but, as this is the start of Part 2, it is worth explaining why we have tabled amendments throughout that part. I do not include the Minister in this attack, but the Liberal Democrats have got used to taking stands on various parts of the legislation that has come through over the past few years on crime and terrorism, and later when we get to the excitement of the hustings in by-elections or various speeches to conferences. The fact that we make Ministers clear high hurdles to get new powers is then termed as meaning that we are soft on crime or terrorism. That is part of the hurly-burly of politics. Like Kipling, I am used to seeing the truths that I have spoken: Twisted by knaves to make a trap for fools". We will continue to act in that way, including on this Bill.

As the Minister is aware, there is concern about the nature of the emergency powers asked for in the Bill. It is incumbent on us to make sure that the Bill is drafted as tightly as possible. The noble Baroness, Lady Buscombe, has been assiduous in that as well. Where there is a general definition, she has insisted on a precise definition. Where there are broad and sweeping powers or lengthy times, Ministers have been forced to explain and justify them. That is the responsibility of opposition, and also of Parliament with this legislation.

I hear what the Minister says in introducing the amendment. I will probably incur the wrath of the noble Lord, Lord Lucas, in saying it, but I am worried that we get too bedazzled by new technologies and bow down to them. The words that the Minister used—"disruption", "inconvenience" and "difficulty"—were interesting. Mere disruption, inconvenience or difficulty should not trigger powers as wide and all-encompassing as are given to the Government in the Bill. Therefore at each stage, as with the amendment, we will make Ministers explain why in each set of circumstances they need the powers.

Ministers have to go beyond mere disruption, inconvenience or difficulty. We support the pre-legislative Joint Committee that talked in terms of a threat to human welfare. Obviously, the threat to human welfare can be consequential to acts that are not initially directly a threat, but will bring threats to human welfare in their train. But we do not want the trip wire that triggers these powers to be too easily removed. I do not doubt the good will of Ministers, but one has only to read history: the massive powers that President Johnson took to escalate the Vietnam war were based on the "Tonkin incident"—an alleged attack on an American ship that never took place. But that government were then able to extend their powers in terms of the war.

It is extremely important that, as we debate Part 2, we ensure the trip wire is not too loose and that the hurdles the Government have to clear to justify them are not set too low. We are willing to take the risk of being misrepresented in that we will be probing Part 2 deeply—not just regarding these amendments. I heard the Minister's comments and will not press the amendments, but I hope that our reasoning and our approach is clear as we go through Part 2.

Lord Dixon-Smith

I am sorry to rise to speak at this time of the evening, but I was not satisfied with Clause 19 as originally drafted and I do not particularly like the Minister's reinterpretation. I am delighted to see her here to argue the cause. I hope that the noble Lord, Lord Bassam, is not too disappointed that he does not have to face us on this issue.

The Bill states that an, emergency' means an event or situation which threatens". The amendment refers to, an event or situation which threatens serious damage to human welfare in the United Kingdom … an event or situation which threatens serious damage to the environment of the United Kingdom". A situation such as that already exists. I refer to global warming. That is not an emergency, it is true, but, under the definition as drafted in the amendment, it is or could become, an emergency—or someone, if they wished to misinterpret it, could adduce that this was an emergency and that we should act under emergency powers.

Global warming threatens hugely increased flooding. Even flooding in London has been discussed as a long-term possibility. If one looks at the possible consequences of flood damage in places such as the Severn estuary, one may be putting not only human life, but the environment at serious risk in what the Europeans describe as an environmentally sensitive area that should be preserved at all cost. The long-term effect of global warming puts all such areas in danger. Such a matter could be termed an "emergency" within the context of this definition

I know that the Minister will give me an absolute assurance that that is not the Government's intention. But we are not dealing with the intentions of the Government—although once they are put on the record in this House they become effective. We are dealing with the words in front of us, which cause me concern.

My other concern is the introduction of "war" into the amendment, because that seems to bring in a whole new scale to these emergency powers. Actions which a government might take during a war are on a very different scale from those which might be acceptable to the population in peacetime, even as the consequence of an act of terrorism.

As drafted, if "war" were included here, it would imply that, for the duration of a war which affected the United Kingdom seriously, the Government could rule by regulation, thereby greatly diminishing the powers of Parliament. I do not suppose that that is the Government's intention but it seems to me that it is a possibility that must be considered.

I shall not go into the consequences of whether the Iraq situation was or was not a threat to the security of this country; that might be too embarrassing an argument to enter into at this hour of the evening. But, as I have illustrated, the wording as it stands, without interpretation, is too loose for the purposes for which, in my view, the Bill is intended. I do not invite the noble Baroness to do anything other than reject my sentiments—that is what I expect—but I ask her to think very seriously about the precision of the definitions in the amendment that the Government are now moving. In my view, this definition is too loose for the purposes for which the Bill is intended.

Lord Lucas

Like the noble Lord, Lord McNally, I wish us to take our time over this part of the Bill because the powers which it enables Ministers to take to themselves are immense. In fact, they reach to the outer limits of the constitution. There is no limit to what a Minister can do under the Bill because we live in a country where Parliament is sovereign and can do what it likes, and the Bill gives the Minister the power of Parliament.

There are plenty of restrictions here which are supposed to tap in under relatively ordinary circumstances. Having been through the pre-legislative scrutiny, I am reasonably happy that, under those kinds of relatively ordinary circumstances where the need is pressing to act quickly but we are still a reasonably entire country with a sensible government, we shall probably manage to hold together and produce a sensible conclusion. What concerns me are situations where, for one reason or another, we are pushed beyond that. I want to ensure that under this legislation our system of democracy and the rule of law remain intact, even if they are tested extremely severely.

Of course, the measure requires that the personality of the Minister who finds himself in charge is warped somewhat and, finding himself with absolute power, he wishes to retain it. But that is not an unknown human characteristic. One cannot trust everyone who finds himself with absolute power to act wisely with it, even though he may be a perfectly adequate Minister of the Crown. There are certainly people involved in politics whom one would not wish to end up with this power under any circumstances.

It seems to me that, if we are to transfer power in this way to someone, it should be, so far as possible, under the control of Parliament. However, as one can see from 1933 Germany, it is quite possible for Parliament, with its eyes wide open, to transfer absolute power to a madman. I would rather that it did not happen because of something that we had done 30 or 40 years previously that made it impossible for Parliament to exercise a control under those circumstances.

Therefore, my particular concern with this first clause under Part 2 is that it should be able to be understood by the man in the street. It should be obvious to anyone under what circumstances the Bill can be used. The difficulty that I have with the language, which is rather neatly illustrated by the noble Baroness's redraft, is that it has to be, an event or situation which threatens serious damage", but it is not clear that it has to pose a serious threat of serious damage. If I were to go into Parliament Square, dancing up and down and holding an orange and saying, "This is a thermo-nuclear device and I will detonate it and it will obliterate London", that is threatening serious damage but it is not a serious threat.

We need to be clear on the face of the Bill how serious a threat has to be before it can trigger these immense powers. Does it have to be real? Someone doing something nasty to a ship in the Gulf of Tonkin is a serious insult but it is not a serious threat or serious damage. A minor matter like that on the periphery, or something that is inherently unbelievable, should not be a trigger for the powers taken under this Bill.

It has been said by the Government that it is inherent in some way in the wording of "threatens serious damage" that there must be a serious threat. But the Government have chosen a different wording for paragraph (c), which seriously threatens the security of the United Kingdom". In that paragraph they have gone about it the other way and said that it has to be a serious threat.

I would like to see this matter expressed in English which anyone is able to understand. In a crisis, in a situation where this Bill is in danger of being abused, it will not be an obstruse constitutional lawyer who will be called upon to decide whether someone is acting within his or her powers; it will be an officer of the police, or whoever is in charge of the Army or other elements of the defence forces at the time, someone to whom this language is foreign and who requires matters to be expressed in English.

I would like to see the word "serious" or the words "poses a serious threat of" in the provision, so that it is clear that it has to be a serious threat of serious damage and not something that is inherent unlikely to occur. In that way we shall be expressing what we all agree—I believe we all agree—are the circumstances under which these powers should be used.

7 p.m.

Lord Elton

My noble friend's speech does not address mere semantics, but the entire interpretation of the Bill. Having heard that and having heard the noble Lord, Lord McNally, I wonder whether the Committee is in a condition at this hour of the night, when we are supposed to adjourn at any moment, to come to a conclusion on this issue. Under our conventions, we are not allowed at a later stage to reverse a decision that we take tonight. I believe it would be possible to amend it. I wonder whether the noble Baroness feels that there is sufficient agreement among the Members in the Chamber to justify proceeding to the Question of whether this amendment be agreed to.

Baroness Scotland of Asthal

I hope there is. I appreciate that noble Lords have made some very broad comments in relation to Part 2. I have taken on board what has been said by the noble Lords, Lord McNally and Lord Lucas, about the nature of the scrutiny that they will give to this part of the Bill. Had we not started at twenty minutes to seven, I had intended to make some more comprehensive introductory remarks about Part 2. I am very happy to do that in a few moments.

We now enter Part 2 and I anticipate that there will be the most careful scrutiny. If noble Lords come to the conclusion at the end of Committee stage that further or other amendments to government amendments are proper, I understand that there will be no impediment in the rules to them being raised again so that we can discuss this issue further.

Lord Lucas

I was hoping that the noble Baroness would give us her explanation. Having decided to start Part 2 at this time of night, we might as well do it properly.

Baroness Scotland of Asthal

I was going to. I was not clear what the noble Lord, Lord Elton, was doing: whether he was inviting me to respond to the comments that he made before he decided whether to make an intervention or whether he was going to sit down. If he does not wish to make an intervention, and no one else does, I am more than happy to reply to the noble Lord, Lord Lucas, and to the remarks made by the noble Lord, Lord McNally.

Lord Elton

My intervention was to leave a thought in the mind of the noble Baroness to which she might respond in her response to the debate on the amendment.

Baroness Scotland of Asthal

I say straightaway to the noble Lord, Lord McNally, that I understand the nature of the concerns that he has expressed. I should like to reassure the noble Lord that we are not, and will not be, bedazzled by the technology. We intend to bring the same level of acuity and care to the examination of Part 2 as he would wish because we concur with his view that these are very important provisions.

It is also our view that this part of the Bill has already benefited substantially from the pre-legislative scrutiny that we have been privileged to take advantage of. I acknowledge too that history has taught us many lessons. If we still had the great advantage of Lord Russell, I am sure he would have delighted us even more with a few of those issues.

So it is important for us to remind ourselves that Part 2 is very clear in terms of its proposal and intent. It is absolutely clear on the face of the Bill that the emergency powers can be used only if they are necessary and needed urgently. If used, they must be proportionate. Also, any use of the emergency powers must be in accordance with the Human Rights Act and a declaration of compatibility would be issued when making emergency regulations. I am dealing in part with the concerns of the noble Lord, Lord Lucas, as to the misuse and indeed the use which the noble Lord, Lord Dixon-Smith, fears in relation to global warming. Although global warming may be an emergency, it will not be an emergency that would fall within the expected definition.

The triple lock included in the Bill presents a significant barrier to possible misuse. Emergency powers can be used only if, first, an emergency threatening serious damage to human welfare, the environment or security has occurred, is occurring or is about to occur; secondly, if the new temporary powers are needed urgently and are necessary as existing powers are insufficient; and lastly, any new powers taken must be proportionate. That is the triple lock that has to be unlocked before these provisions could bite.

The Bill also contains explicit prohibitions on instigating military conscription, prohibiting strikes or other industrial action, amending criminal procedures, altering the right to trial and the creation of offences other than the breach of regulations themselves, for which a strict limit on the punishment available is set out. We shall deal with that later in our debates on the amendments. I would hope that those restrictions would reassure the noble Lord, Lord Lucas, that the issues he fears have been properly dealt with.

Lord Lucas

I would point out to the noble Baroness that they have not, because you still have power under the Bill to change the nature of Parliament, the courts and indeed anything else and get around the back of the Bill, albeit in two stages. I am not arguing that it is likely to happen, but I am arguing that if the wrong person gets in with those powers there is no restriction on that happening.

Baroness Scotland of Asthal

I do not agree. I shall have an opportunity when we come to the amendments which specifically deal with those issues to explain much more fully why I understand the fear the noble Lord has expressed but do not think that it is well founded. On the way we have crafted and drafted the Bill, it actually makes it virtually impossible for that to occur. However, the will of the people of this country could be that they wish to have such a government and then of course it would be their democratic right to choose one.

It is also suggested that only serious damage should be capable of being considered to be an emergency as opposed to threats of serious damage. The definition already provides that only those threats that threaten serious damage are sufficient to require inclusion within the definition, and the emphasis is on the consequences and not on the level of threat itself.

Any use of emergency powers will he based upon an assessment of both the likelihood of an event occurring and the consequences of it doing so. In some cases the threat may not be high, but the consequences are so grave as to justify the use of the powers. If, for example, we were to receive warnings that nuclear devices had been planted in major cities, we might wish to take powers to find and neutralise them and to evacuate areas, even if there were a degree of doubt about the credibility of the threat. The seriousness of the consequences is the key factor in determining whether action is necessary. The likelihood of the threatened action materialising may be debatable, but the consequences of inaction would be disastrous.

At this very late stage, I hope that I have said enough to reassure noble Lords that the amendment is a proper amendment. We will, of course, come back to all the issues as we scrutinise Part 2.

Lord Dixon-Smith

I am grateful to the noble Baroness for her reply, which has done a great deal to relieve some of my concerns. She has not dealt with the issue of the Government being able to rule by regulation for the duration of a war, if such a war threatened the security of the United Kingdom. I would have thought that that was an arrogation of the powers that Parliament ought properly to exercise during a war.

Baroness Scotland of Asthal

As we move through Part 2, we will consider the quite rigid restrictions on the duration of the powers and the conditions that must apply before they can be discharged. That does not relate to this amendment. As always in Committee, we scrutinise the Bill clause by clause. The concerns that the noble Lord has properly raised do not arise in this clause; they will arise as we move on.

Lord Elton

In the last part of her reply to my noble friend Lord Lucas, the noble Baroness said that what was critical to the decision of whether to declare an emergency was not so much the seriousness of the threat as the seriousness of the consequences, were it to materialise. That disposes of paragraphs (a) and (b), but, in paragraph (c), it is the seriousness of the threat that is the criterion, not the seriousness of its consequences. The noble Baroness cannot have it both ways in the three paragraphs.

Baroness Scotland of Asthal

We envisage three different circumstances that may generate the need to exercise emergency powers. They differ. The last deals with security incidents, which may be war or terrorism. The three categories are important. They may coincide on occasion, or they may be entirely different, but any of the three situations may justify the exercise of the emergency powers.

Lord Elton

I do not follow the reason why the three are treated differently. The nature—the quantum—of the threat is, according to the noble Baroness's argument, the trigger. In the third case, according to the Bill, that is not so.

Baroness Scotland of Asthal

It is clear that, under paragraphs (a) and (b), the seriousness of the consequences of the threat will he of critical importance. I hope that the noble Lord will agree that, if the consequence of the threat would be disastrous, it is absolutely important that the threat be dealt with and taken seriously. The consequences of failing to take it seriously would be unimaginable. In relation to the security of the realm, a similar criterion must apply.

7.15 p.m.

Lord Stoddart of Swindon

I wish to ask a question arising from a reply to the noble Lord, Lord Lucas, when he said that we may be putting in place powers that an unacceptable government—unacceptable to us, anyway—could then use. I was struck by the Minister's response that, if that government were democratically elected, so be it. That is exactly what I am worried about. If we put the legislation in place, we make it easier for an unacceptable government to say, "These are the regulations and laws that the previous democratic government left us and we are perfectly entitled to use them".

Baroness Scotland of Asthal

As we go through Part 2, I hope that Members of the Committee will see that the restrictions and impediments put in the way of any exercise of these powers are such as to retain sovereignty for Parliament so that it can scrutinise these measures. There are restrictions on how far the orders can be made and changed. The orders will be by affirmative resolution. Therefore Parliament will be able to decide whether it wishes to affirm or dismiss them.

I apologise for using shorthand, but I do so because of the lateness of the hour. If it were earlier, I assure Members of the Committee that they would be treated to a far longer, more detailed explanation of the arguments, which I am not entirely sure noble Lords would necessarily relish. Our clear view is that the restrictions are very tight. Many of the restrictions in the Bill are significantly firmer than the current legislation under the 1920 Act. That is what we will rely on. In due course, we will argue each clause properly.

Lord Elton

I wish to avail myself of the noble Baroness's invitation to respond. I remain regretful that it is necessary to decide the matter this evening, not merely because of my anxieties about what has been said, but because it is a pity that we have to make a decision before we know what the Government's response will be to Amendment No. 97A. That amendment, tabled in the name of the noble and learned Lord, Lord Archer, would remove subsection (5), which enables the Secretary of State to rub out everything that we have just said and put in place a new category. That seems deeply disturbing.

I do not suppose the noble Baroness is prepared to give us a preview of next week's performance; therefore, I would prefer to return to this matter at a later Committee sitting, which would mean recommitment. The noble Baroness shakes her head. In that case, we will be arguing about the same part of the Bill, not in this box-and-cox, chop-and-change, very efficient way that we have in Committee, but with each noble Lord restricted to saying one thing and hoping that they got it right in the debate. That is a great pity, given the importance of what we are now to decide.

Lord Lucas

It was not me who started this debate at a quarter to seven. It is open to the noble Baroness, if she is feeling tired, to adjourn the Committee in the middle of this discussion and resume the debate later in the same way as one would if a Division in the House occurred during a Grand Committee sitting in the Moses Room. As the noble Baroness has decided to start the debate now, I want to see it done properly, even though it may take until half-past eight. This is the first amendment in a new part of the Bill. I would not have made the decision to proceed with the debate if I had been on the Front Bench. I am sorry that the noble Baroness has taken that decision, but she must bear the consequences: we have started on something new and we want to debate it properly.

The noble Baroness has said that if the threat is serious enough, however likely or unlikely, it must be able to trigger this part of the Bill. She is saying that it can be something entirely imaginary or illusory. The Government have so many powers and sources of information that they are capable of creating the illusion of a serious threat to this country. Indeed, one does not have to look back many months to see them do exactly that. We have just been to war as a result of an illusion created by this Government.

It would take only the creation of a similar illusion to trigger this part of the Bill. By refusing to make this something that requires a serious threat, we are taking one step towards making it easier for someone to misappropriate this part of the Bill.

Yes, we will come in detail to the safeguards that the noble Baroness alleges are in later parts of the Bill. But just to pick up, for example, on one thing that she just said, she relies on the controls exercised by Parliament. But for one month in every four or five years there is no Parliament. It is a time when, for instance, Al'Qaeda has chosen to attack Spain. If it attacked us at a similar juncture, there would be no Parliament.

It would be very easy in the aftermath of a serious attack for someone who was so inclined to say, "It is inappropriate at this stage to proceed with elections. It is inappropriate at this stage that we should be troubled by the operation of the courts. We have to concentrate on ridding ourselves of this menace". It is open to such abuse. We have to be so careful about making sure that we can rescue our democracy from someone who intends to misuse this legislation.

We should not hurry over it. We should not be tempted by the noble Baroness's suggestion that we should get things over early merely because she has started something with a quarter of an hour to go, which would properly take a lot longer to debate. We need to consider this aspect properly. It is a very important step to follow her down the road and say that we do not require a real threat. As long as it is a threat of something sufficiently serious, imagination will do.

7.22 p.m.

On Question, Whether the said amendment (No. 86C) shall be agreed to?

Their Lordships divided: Contents, 33; Not-Contents, 21.

Division No. 1
CONTENTS
Acton, L.	Haworth, L.
Ahmed, L.	Janner of Braunstone, L.
Alli, L.	Laird, L.
Amos, B. (Lord President)	Lea of Crondall, L.
Andrews, B.	MacKenzie of Culkein, L.
Bassam of Brighton. L.[Teller]	Prosser, B.
Blackstone, B.	Ramsay of Cartvale, B.
Crawley, B.	Rendell of Babergh, B.
Davies of Oldham, L.	Rosser, L.
	Sainsbury of Turville, L.
Dean of Thornton-le-Fylde, B.	Scotland of Asthal, B.
Elder, L.	Smith of Gilmorehill, B.
Farrington of Ribbleton, B.	Stone of Blackheath, L.
Gale, B.	Triesman, L.
Gibson of Market Rasen, B.	Turner of Camden, B.
Grocott, L.[Teller]	Warner, L.
Hart of Chilton, L.	Wilkins, B.

NOT-CONTENTS
Barker, B.	Buscombe, B.
Brookeborough, V.	Byford, B.

Cope of Berkeley, L.	Marlesford, L.
Denham, L.	Roper, L.
Dixon-Smith, L.[Teller]
Elton, L.	St John of Blesto, L.
Geddes, L.	Seccombe, B.
Lucas, L.[Teller]	Skelmersdale, L.
McColl of Dulwich, L.	Stoddart of Swindon, L.
McNally, L.	Thomas of Gresford, L.
Mancroft, L.	Wallace of Saltaire, L.

Resolved in the affirmative, and amendment agreed to accordingly.

Lord Triesman

I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.

House resumed.