Lords Sitting of 21 October 2004

Preamble
The House met at eleven of the clock (Prayers having been read earlier at the Judicial Sitting by the Lord Bishop of Derby): The CHAIRMAN OF COMMITTEES on the Woolsack.

Middle East Peace Process
Lord Wright of Richmond Lord Wright of Richmond asked Her Majesty's Government:
What are the prospects for the Palestinian road map and for a viable two-state solution to the Israeli-Palestinian dispute.
The Minister of State, Foreign and Commonwealth Office (Baroness Symons of Vernham Dean): My Lords, our concerns about the failure of both sides to implement phase 1 of the road map are compounded by the increased levels of violence in recent weeks, particularly relating to Gaza. Palestinian failure to deal with security and Israel's increased settlement activity must be addressed urgently. There is a need for both sides to demonstrate that they will honour the commitments that they made in signing up to the road map, which is currently the only credible route to the two-state solution supported by the international community.
Lord Wright of Richmond: My Lords, I thank the Minister for that reply, but is she aware of an interview, published in the Israeli newspaper Ha'aretz on 8 October, with a senior adviser to Prime Minister Sharon in which he claimed that any withdrawal from the West Bank would be a purely token one; that the larger settlements in the West Bank will remain part of Israel indefinitely; that while 10,000 settlers may be evacuated from Gaza, the hold of 200,000 settlers on the West Bank will be strengthened; and that the whole political process—that is, the road map—has now been frozen? The adviser concluded that the whole package—that is, a Palestinian state—has been removed from Israel's agenda indefinitely with the blessing of President Bush and the ratification (I am not sure what this refers to) of both Houses of Congress.
How does the Minister reconcile those apparently authoritative but unsurprising statements with the view expressed by both President Bush and the Prime Minister in April this year that the proposed Israeli withdrawal from Gaza represented an opportunity to inject new life into the peace process in accordance with the road map? Is it not time for Europe to play a more active and positive role in the quartet?
Baroness Symons of Vernham Dean: My Lords, I have, indeed, read Mr Weissglas's interview and I have also seen Mr Sharon's remarks distancing himself from the views expressed. Mr Sharon's plenipotentiary
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said that the disengagement plan was not intended to freeze the political process with the Palestinians but to preserve the road map as the only political process.
I am aware of the degree of scepticism that has been excited by this exchange of views. Perhaps I may say that if Mr Weissglas's aim was to subvert the road map, I am certainly not going to help him by giving that view any credibility from this Dispatch Box. I shall stick with the Sharon version of Israel's policy position.
Lord Archer of Sandwell: My Lords, does my noble friend agree that, although we do not all recognise Mr Sharon as a kindred spirit, he has shown great political courage in proposing and persisting with the disengagement plan, despite opposition in his own party, problems with the Knesset and a distinct lack of enthusiasm from Mr Arafat? Should we not strengthen his arm so far as we can and encourage him in well doing?
Baroness Symons of Vernham Dean: My Lords, it was because Her Majesty's Government took that view that the Prime Minister welcomed Mr Sharon's plan to withdraw all settlements from Gaza and the West Bank, and of course we hope that it will be a significant step towards the goals set out in the road map. But this move must be consistent with the two-state solution. It must involve not only security for Israel but a viable and contiguous state of Palestine, and it must not undermine the final status negotiations between the parties. Those are very important prerequisites in pursuing the disengagement plan.
Lord Wallace of Saltaire: My Lords, can the Minister tell us how active the quartet is now being? This was a major initiative in which the Europeans—our Government included—played a large part. We now read far less about quartet initiatives. Is the quartet still active or is that, too, beginning to go into the ground?
Baroness Symons of Vernham Dean: My Lords, the quartet met in New York on 22 September and reaffirmed the principles on which a two-state solution would be based, with the road map as the way of getting there. The quartet expressed disappointment in the failure of phase 1 of the road map. I had the opportunity to discuss the matter with Marc Otte, the EU representative, when I was in New York recently. But I am bound to say that it would be unrealistic to suggest that a tremendous amount of activity is taking place in the two weeks before the American election.
Baroness Ramsay of Cartvale: My Lords—
Lord Sterling of Plaistow: My Lords—
Baroness Ramsay of Cartvale: My Lords, will my noble friend confirm that the British Government's position is still that the disengagement plan is not only wholly consistent with the road map for peace but is in

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fact an excellent—and, at present, unique—opportunity to try to break the logjam in which the peace process finds itself?
Baroness Symons of Vernham Dean: My Lords, it is a good opportunity but it needs very careful handling. The withdrawal from Gaza is clearly a very difficult problem, given that there are real security issues. The United Kingdom Government, with our friends in the Palestinian Authority, have put in an enormous amount of effort on questions of security. The Egyptians have also been very closely involved in the discussions on this matter. But I stress to my noble friend that the points I made a moment or two ago in answering the noble Lord, Lord Wallace of Saltaire, about the final status negotiations are also important.
Lord Howell of Guildford: My Lords, of course, we all want to see the Gaza withdrawal as the beginning of an improvement and not the end, as some have suggested. But what does the Minister think of the new proposal now being aired about the West Bank as a separate state? As it is already virtually bisected by Israeli settlements, the future there must be a Palestinian state but with a substantial Israeli minority—a rather different concept from simply the two-state solution for which we have all been hoping and which is clearly becoming more and more unrealistic.
Baroness Symons of Vernham Dean: My Lords, the noble Lord makes a very important point. The Gaza withdrawal is important as a step in the road map process towards a two-state solution, but it must not be seen as an end in itself. That was the purport of the Weissglas piece to which the noble Lord, Lord Wright of Richmond, referred. However, I made two very strong points in answering the Liberal Democrat Benches: ultimately the state of Palestine must be viable and it must be contiguous. The point about contiguity is important. We wish to stick with that point and we want it to form part of the final status negotiations on the question of borders.
Lord Dykes: My Lords—
Lord Phillips of Sudbury: My Lords—
Lord Grocott: My Lords, we are into the ninth minute of just four Questions.

Milk Producer Co-operatives
11.8 a.m.
Lord Livsey of Talgarth Lord Livsey of Talgarth asked Her Majesty's Government:
Whether they will legislate to ensure that milk producer co-operatives can be created in the United Kingdom to compete effectively with their counterparts in the rest of the European Union and in the home marketplace.
The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Whitty): My Lords, the Government are not convinced that new legislation is necessary in order to enable the creation of competitive producer co-operatives in the dairy sector. However, we strongly support greater co-operation and collaboration in the sector and in agriculture generally, and we have commissioned a study on possible legislative and fiscal barriers to that.
Lord Livsey of Talgarth: My Lords, will the Minister acknowledge that, at 16p per litre of milk, producers are not able to make a profit from dairy farming and that 1,700 dairy farmers left the industry last year? Does he agree that the only way forward is to strengthen the role of milk producer co-operatives in the UK and to allow them to grow, enabling them to co-operate and negotiate with supermarkets in strength? At present, the UK milk co-operatives are placed at numbers 16, 19 and 20 in the EU's list of the top 20 producer co-operatives. Dutch, Danish and Swedish co-operatives supply up to 80 per cent of their domestic markets, whereas we supply only 50 per cent. Will the Minister urgently bring forward legislation to produce a milk marketing Bill to rescue dairy farmers from this corporate exploitation?
Lord Whitty: My Lords, the dairy sector is the sector of British agriculture where co-operatives have been most successful and prominent. The situation in the dairy sector is that although there has been a steady long-term decline in the total number of dairy farmers, milk production has not reduced. That must, of itself, have some bearing on the current price, as well as the relative bargaining strength with the supermarkets. Current legislation has not prevented major mergers between co-ops and other bodies, both horizontally and laterally, in recent years.
Baroness Byford: My Lords, I accept the Minister's response that legislation is not needed, and I agree with him. What assurance can he give to the milk industry and the co-operatives that they will not be referred to the Competition Commission because the Government see them as becoming too big and dominant in the UK market, bearing very much in mind that we now have to do business in a global market?
Lord Whitty: My Lords, under competition law there is a trigger when any organisation, whether it is a co-operative or a company, has more than 25 per cent of a given market. The OFT will then look at it and decide whether there is a potential or actual abuse of the market situation. It will therefore be referred. It will do that on a case-by-case basis in this sector, as with other sectors. There is also a trigger on size of total operation, which goes through the same process.
Lord Mackie of Benshie: My Lords, the noble Baroness put the point I was going to put, so perhaps the Minister would expand on why the Government backed, through the Competition Commission, the

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break-up of Milk Marque into four. If they are going to encourage co-operation, breaking it up is surely the wrong way to go about it.
Lord Whitty: My Lords, the competition authorities at that time recommended the break-up of Milk Marque. That is not on the grounds of its size of market share but on the abuse of that market share. That is always the case under British law, European law and the law in each of the member states. It is the abuse of a market position rather than the existence of a market position which is relevant.
Lord King of Bridgwater: My Lords, is not the important point that the marketing of milk products is becoming increasing global—the very important point made by my noble friend Lady Byford? The Minister will remember coming to the Royal Bath and West show. We had the dairy show last week with an important speaker from New Zealand, from Fronterra. It represents 90 per cent of New Zealand dairy farmers, and undoubtedly has been a hugely important force in the success of the New Zealand dairy industry.
Lord Whitty: My Lords, the New Zealand situation is of course different. Whereas the situation in European countries should be the same, the situation in New Zealand is very different. Fronterra, with its origins in the state sector, has statutory protection of what is close to being a private monopoly. I am not sure it is normally the Conservative Party's view that that should exist in this country. The point about it being a global market is undoubtedly important. We are doing all we can to improve collaboration in this sector so that our industry can compete.
Lord Hylton: My Lords, I declare an interest as a milk producer and a member of a co-operative. Is it not the case that prices received by British milk producers are lower than almost any others in the whole of the European Union? Are the Government not ashamed of this situation; and what are they going to do about it?
Lord Whitty: My Lords, it is true that milk prices are lower at the present time. There are a number of factors on that which do not relate to the ability to establish co-operatives. They relate to the bargaining position of the industry, the structure of the processes and, to some extent, the exchange rate. That has little to do with the form of organisation of dairy farmers, but we are—I repeat—strongly in favour of greater co-operation in this as in other agricultural sectors.
Lord Livsey of Talgarth: My Lords, does the Minister not realise that this 25 per cent rule is penalizing UK dairy farmers? The Danish/Swedish co-operative, Arla Foods, which has up to 80 per cent domestic penetration in its own market, is now marketing milk in the UK and competing unfairly with our own co-operatives.
Lord Whitty: My Lords, I think that the noble Lord will have to indicate what he means by "competing
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unfairly". Danish competition rules allow the Danish authorities to look at Arla Foods, as at any other co-operative, and consider whether it is abusing the market. I repeat, it is a question of abuse of the market position, not the size of it. If the noble Lord has been spending his time reading Danish newspapers recently, he will know that the Danish authorities are looking at alleged abuses by Arla Foods. But it is abuse not market position that is the trigger for action. The 25 per cent figure triggers a look into the possibility of market abuses, but the authorities will take action only if they find market abuses.

Bovine Tuberculosis
11.15 a.m.
The Countess of Mar The Countess of Mar asked Her Majesty's Government:
Whether the current measures to control the incidence of tuberculosis in cattle are effective; and, if not, whether they have any alternative proposals.
Lord Whitty: My Lords, bovine TB is on the increase. The current strategy of human health protection measures, cattle testing and controls, and a wide-ranging programme of research is under review.
Following consultation earlier this year, we have announced our intention to implement new measures this autumn and have set up a stakeholder group to help us to develop, in partnership with farmers, wildlife interests and others, a long-term strategy for TB by early 2005.
The Countess of Mar: My Lords, I thank the noble Lord for that reply. I declare an interest as the wife of a farmer. We have two cattle. We sold our herd because we are surrounded by herds with TB.
Does the Minister agree that there will always be a wildlife reservoir of TB? Research by Warwick University demonstrates that TB can remain viable for up to four months in the soil. Does he agree that farmers therefore have an awful uphill job in trying to restore their farms to a TB-free status? What exactly is Defra doing this autumn to contain TB until a viable vaccine is found?
Lord Whitty: My Lords, Defra has invested substantially in research on a vaccine, but it has to be recognised that neither vaccine of cattle nor vaccine of badgers is an instantly implementable solution, even once that research is successfully completed.
As far as concerns this autumn, following the consultation I referred to there will be a recalculation of testing intervals, livestock movement restrictions will be more instantaneous, there will be a more rigorous approach to identifying and dealing with potential new TB hot spots, and rigorous testing schedules for new and re-formed herds will be introduced. That will feed in to the consideration of a further strategy for implementation in 2005.
Lord Rotherwick: My Lords, is the noble Lord aware that by 1986 the incidence of TB in the national

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herd had been brought down from 40 per cent to 0.01 per cent? So what is it that this Government are unable to do that previous governments have successfully done to bring the incidence of the disease down to that low level?
Lord Whitty: My Lords, there was a successful near eradication of TB in this country. However, the hot spots in the south-west have developed an increase in TB over the past decade. The delay in some of the testing during the foot and mouth outbreak did not help the situation, but the fact that it has spread from those hot spots to other areas is also due to long-scale cattle movements, which probably did not exist to the same extent in the 1970s.
Baroness Masham of Ilton: My Lords, if badgers are found dead, are they tested for tuberculosis and how are they disposed of?
Lord Whitty: My Lords, as we have discussed before, if they are found by the roadside they are not routinely tested; they are disposed of. There are some parts of the country where we are conducting tests on dead badgers of all sorts, but not nationwide.
Lord Grantchester: My Lords, I declare an interest as a dairy farmer in Cheshire, an area where, thankfully, TB is in retreat. It is crucial to prevent further geographical spread to new areas. What are the Government doing on that point?
Lord Whitty: My Lords, more instantaneous imposition of movement restrictions when we have missed the testing date and when a farm herd is identified as having TB will help to restrict the movement of TB from one area to another. In a sense, that has been the new feature of the past few years. In addition, the Government's ability to carry out the testing system more rapidly, recovering from the foot and mouth period, when little or no testing was carried out, is helping to identify potential and actual disease.
Lord Geddes: My Lords, following on from the question of the noble Baroness, Lady Masham, can the Minister bring the House up to date on progress on the project to restrict the number of badgers in various parts of the country?
Lord Whitty: My Lords, an ongoing series of tests under the so-called Krebs trials will be completed in 2006. Until that point, we will not have the full picture of how the different methods of control or non-control of badgers impact on the spread of the disease. Those trials are ongoing.
Lord Plumb: My Lords, the Minister has told us on so many occasions that this whole question is under review. The Krebs trials go on and on. Does he not accept that this whole business is now completely out of hand? We were told by vets only yesterday that 30 per cent of badgers are believed to be carrying TB.
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That is spreading far and wide right through the country, especially the south-west. There are herds of 1,000 cattle, because people cannot move them. When bull cows are born, they are immediately shot because they cannot be moved. That is a disastrous situation and I appeal to the Minister through this House that action be taken and that we do not hear again that the Krebs trials are going on and on without being given any result or information about what is happening.
Lord Whitty: My Lords, the noble Lord is absolutely right: it is the most serious animal health problem that faces this country. For many dairy cattle farmers, it is a disastrous situation. But it is also true that fewer herds are under restriction now than last year; that the testing system has caught up and overtaken the backlog; and that therefore the situation is not out of control, as he puts it. It has already spread far too far, but we do like to make our policy on a scientific basis. The Krebs trials will show the scientific basis for any further action. As for badgers, badgers do not move from Somerset to Cumbria; it is cattle or personnel movements that have spread the disease long distances.

British Grand Prix
11.23 a.m.
Lord Astor of Hever: My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest as president of the Motorsport Industry Association.
The Question was as follows:
What action Her Majesty's Government intend to take to ensure that the British Grand Prix is secured for the future.
The Parliamentary Under-Secretary of State, Department for Culture, Media and Sport (Lord McIntosh of Haringey): My Lords, the Government support and desire a British Grand Prix at Silverstone. We understand that commercial negotiations are continuing between the British Racing Drivers' Club and Formula One Management to reach an agreement to secure the British Grand Prix on the 2005 Formula 1 calendar. Discussion on behalf of government about the future of the British Grand Prix at Silverstone continues to be facilitated, where appropriate, by Derek Mapp, chairman of the East Midlands Development Agency.
Lord Astor of Hever: My Lords, the ongoing negotiations that the Minister mentioned, taking place rather publicly, are damaging to the reputation of the British motorsport industry, which will be further damaged by the possible loss of 1,000 highly skilled jobs at Jaguar Racing and Cosworth. Is it not now time for Her Majesty's Government to take a more direct role to limit any further damage and demonstrate that this country is committed to and capable of hosting world-class sporting events, such as the British Grand Prix?
Lord McIntosh of Haringey: My Lords, I certainly agree that the negotiations have been taking place rather publicly. I have been reading the press coverage for some time and the situation is not very satisfactory. However, despite reports of their death yesterday, they are ongoing. This morning, Sir Jackie Stewart is reported as saying that the fat lady has not sung yet. As to whether the Government should take a more direct role, I hope that the noble Lord, Lord Astor, is not suggesting that we should be a party to commercial negotiations between Formula One Management and the British Racing Drivers' Club. That would not be appropriate or legitimate. We are helping to secure the interest, which he rightly points out, of the importance of motor racing to our economy.
Lord Barnett: My Lords, if the noble Lord is asking the Government to put money into the sport, I hope that my noble friend will resist and give an assurance that no such money will be forthcoming.
Lord McIntosh of Haringey: My Lords, motor racing is a comparatively rich sport and it would not be appropriate for Sport England to put money directly into motor racing at the expense of grass roots sport, for example.
Viscount Falkland: My Lords, although it is sad and rather puzzling that Mr Ecclestone and Mr Mosley have not concluded an agreement for the continuation of the Grand Prix with the BRDC, that, as the Minister said, is a commercial negotiation that he cannot enter into. However, are there not two other matters that must concern us? Those are, first, the amount of public money that has been given to the BRDC, which, I think noble Lords will agree, is being sensibly used to improve access to Silverstone; and the second, as the noble Lord, Lord Astor, said, is engineering excellence, which goes beyond Jaguar and which has developed in and around Silverstone over many years. That is internationally renowned and employs many expert people, but could be in jeopardy if the Grand Prix was removed from Silverstone, even to another part of the United Kingdom.
Lord McIntosh of Haringey: My Lords, I acknowledge that money—about £8 million—was given to accelerate the A43 bypass around Silverstone. That money was not given to the British Racing Drivers' Club, it was money for a bypass that is used by local people and for all the other motorsports events that take place at Silverstone. As for the point about the motorsport engineering industry, that is why the Department of Trade and Industry set up a motorsport competitiveness panel and development board and is, as I said, working to secure the continuation of that valuable industry.
Lord Laidlaw: My Lords, are the Government aware that Formula One Management has already been paid the enormous sum of 93 million dollars by IPG when it gave up its contract to run the British Grand Prix? In
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demanding an additional 13.5 million dollars per annum, escalating at a compound 10 per cent per annum, the promoter, Formula One Management, is effectively asking to be paid twice for the same event. Is there any way that the Government can pressure the promoter to be paid once only to run that event?
Lord McIntosh of Haringey: My Lords, I understand that the negotiations are very difficult. I do not think that they would he helped if the Government took a position on any of their commercial aspects.
Lord Moynihan: My Lords, it is not a good omen for the Government that the clock has stopped on the British Grand Prix. Does the Minister agree with today's Times leader that:
"It cannot be right that a major sport, on which so many jobs and so much investment depend, be reduced to one man's Circus Maximus"?
If so, what will he do about it?
Lord McIntosh of Haringey: My Lords, I can only answer as I did to the noble Lord, Lord Laidlaw: it would be neither desirable nor appropriate for this Government to comment on commercial aspects of negotiations to which they are not party.

Business
11.30 a.m.
Lord Grocott: My Lords, we will, with the leave of the House, have a Statement repeated later today. The Statement, on UK forces in Iraq, will be repeated by my noble friend Lord Bach. It is difficult to say precisely when it will come, but it will be repeated immediately after the Companies (Audit, Investigations and Community Enterprise) Bill, which we hope to take as close to 1.30 p.m. as possible.

Human Tissue Bill
Baroness Andrews: My Lords, on behalf of my noble friend Lord Warner, I beg to move the Motion standing in his name on the Order Paper.
Moved, That the amendments for the Report stage be marshalled and considered in the following order:
Clause 1,
Schedule 1,
Clauses 2 to 13,
Schedule 2,
Clauses 14 to 16,
Schedule 3,
Clauses 17 to 38,
Schedule 4,
Clauses 39 to 50,
Schedule 5,
Clauses 51 to 53,
Schedule 6,
Clauses 54 to 61,
Schedule 7,
Clause 62,
Schedule 8,
Clauses 63 to 66.—(Baroness Andrews.)
On Question, Motion agreed to.

Highways (Obstruction by Body Corporate) Bill
Lord Desai: My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. So, unless any noble Lord objects, I beg to move that the order of commitment be discharged.
Moved, That the order of commitment be discharged.—(Lord Desai.)
On Question, Motion agreed to.

Civil Contingencies Bill
11.32 a.m.
Lord Bassam of Brighton: My Lords, I beg to move that the House do now again resolve itself into Committee upon the Bill.
Moved, That the House do now again resolve itself into Committee.—(Lord Bassam of Brighton.)
On Question, Motion agreed to.
House in Committee accordingly.
[The CHAIRMAN OF COMMITTEES in the Chair.]
Clause 20 [Power to make emergency regulations]:
[Amendment No. 99 not moved.]
Lord Archer of Sandwell Lord Archer of Sandwell moved Amendment No. 100:
Page 14, line 15, at end insert "necessary"
The noble and learned Lord said: Following our more passionate debates earlier in the week, this promises to be rather a tranquil episode—at least by the time the Chamber has emptied.
These exploratory amendments are intended to provide my noble friend with an opportunity to explain to me that I am guilty of a misunderstanding. They relate to what appears to be a logical eccentricity in the Bill. At Second Reading, I invited my noble friend Lord Bassam to explain it. Wisely, he dealt with the situation by promising an explanation at a future time. Of course I do not complain at that; it is always wise, if the batsman is uncertain, to see whether he can get away without playing a stroke. But my puzzlement remains intact.
Clause 22 authorises the making of regulations for certain purposes. Clause 20(5) includes as a condition precedent that the person making the regulations should confirm that the regulations are restricted to the purposes specified. I have no problem with that, if that is what the drafting is intended to achieve, but it is not what the Bill says. Clause 22 says that the
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provision in the regulations must be for what the person making them "thinks" is the purpose. Clause 20 requires that the regulations must be for what he or she is "satisfied" is the purpose. So the criteria relate not to the purpose of making the regulations but to what the person making them "thinks" is the purpose or is "satisfied" is the purpose.
The purpose of a regulation must be the purpose in the mind of the person who makes it. You cannot have a purpose which is not a purpose in someone's mind. A purpose is a mental event; you cannot have a purpose in the abstract. It must be in the mind of the person who seeks to implement the purpose. But if the purpose is in the mind of the person who makes the regulations, that person must know what the purpose is. How can it make sense, then, to speak of what he or she "thinks" is the purpose? Can we imagine a Minister saying, "I am making this regulation; I think my purpose in doing it is so-and-so, but I am not sure"?
We encounter the same oddity in Clause 23(1), where regulations may make provision only if the person making them "thinks" that he is doing so for one of the specified purposes. I do not pretend that there is any great matter of principle at stake, but surely it is important that legislation should be intelligible. It is part of the function of your Lordships' House to protect the statute book from nonsense. I wonder what Lewis Carroll would have made of it; hence this amendment. I beg to move.
Lord Elton: I wonder what the purpose is of bringing the person making the regulations into it at all. It would surely satisfy the test that the Committee wants by simply saying, "provided that the regulations contain only provision which is necessary for the purpose". We should leave out this judgmental, dubious, unknown, anonymous person with great power in the future.
Baroness Buscombe: I concur with my noble friend but also support very much the words of the noble and learned Lord, Lord Archer.
Lord Garden: I also support the amendment tabled by the noble and learned Lord, Lord Archer. It seems very sensible and something that the Government ought to be able to give on.
The Minister of State, Home Office (Baroness Scotland of Asthal): Our view is that this amendment is not necessary, but, if I may respectfully say so, I have very much enjoyed the exposition on it by my noble and learned friend Lord Archer. I shall explain how the clauses work together. I hope that Members of the Committee will find that we have entered into more tranquil waters with these amendments.
Clause 20(5)(b)(ii) ensures that regulations can be made only for the purpose of preventing, controlling or mitigating an effect of that particular emergency. Clause 21(3) ensures that emergency powers can be made only where the person making them is satisfied,

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"that it is necessary to make provision for the purpose of preventing, controlling or mitigating an aspect … of the emergency".
Clause 20(5)(b)(iii) requires that,
"the effect of the regulations is in due proportion to that aspect or effect of the emergency".
The public law test of reasonableness applies to those making decisions on those requirements.
The effect of these is to ensure that any use of the emergency powers must be necessary and proportionate in the prevailing circumstances. The Government accept that a number of the preconditions to the making of emergency powers require the exercise of judgment. It is difficult to conceive of appropriate limits on the exercise of emergency powers that would operate in a more objectively verifiable way. The limits which related to, for example, the area affected or the number of people affected would be easier to verify but would make the exercise of emergency powers inflexible and mechanistic. That is why it has been expressed by the draftsman as requiring that they "think" that it is so. It is subject to the reasonableness test, too. The determination by the regulation-maker that the preconditions for use of the emergency powers are satisfied will be subject to review on the reasonableness grounds in the normal way. I hope that Members of the Committee will see therefore that that is why the drafting is expressed as being that the maker -thinks" that this is so.
The exercise of emergency powers would be challenged on several other grounds. In particular, regulations can be challenged on the ground that they are incompatible with convention rights. If convention rights are at issue, the court is likely to adopt a heightened standard of review.
Although I enjoyed the exposition by my noble and learned friend, I think that the way in which the Bill is drafted enables us to have the matter reviewed, if necessary, in a way that makes sense. I am happy to go back to the draftsman to see whether there is a more elegant way in which it can be expressed, but I do not think that it is inaccurately expressed now.
The Earl of Onslow: We do not wish for elegance: we wish for clarity. I may be fairly thick—I am perfectly prepared to concede that—but I found the arguments in all those subclauses incredibly complicated.
What my noble friend Lord Elton said was crystal clear and precise. That is the sort of thing that always ought to be in legislation—not convolution, however elegant or beautifully expressed. Legislation should be clear and precise.
Lord Archer of Sandwell: I am grateful for noble Lords' contributions. I appreciate that those who prepared my noble friend's brief had not had the opportunity of hearing what I said a few moments ago. Most unusually for my noble friend, she did not address the point that I was making.
I was not suggesting that the Government were trying to slip something past us to produce a great increment in their power; I was simply saying that, as
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the clause reads, it is nonsense. I am grateful for the offer that my noble friend made a few moments ago. Meanwhile, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 20 agreed to.
Lord Lucas Lord Lucas moved Amendment No. 100A:
After Clause 20, insert the following new clause—

PROVISION TO BE MADE IN EMERGENCY REGULATIONS
(1) Subject to subsection (3), emergency regulations shall make provision to ensure the maintenance or early restoration of the functions set out in subsection (2), to the extent that these functions have been compromised or damaged by an emergency or by regulations made under this Part.
(2) The functions referred to in subsection (1) are—

(a) the proper functioning of Parliament;

(b) representative democracy based on a universal suffrage;

(c) public access to justice;

(d) an independent judiciary; and

(e) the proper functioning of the courts.

(3) Emergency regulations need not make the provision described in subsection (1) above if—

(a) there is not time to formulate such provision, and less than 30 days have passed since the date of the emergency or regulations referred to in subsection (1); or

(b) provision has been made by other means."

The noble Lord said: In moving Amendment No. 100A, I shall speak also to Amendments Nos. 148 and 149. I am concerned that we should have a Bill that is robust and acts as we want, even under the most extreme circumstances. As the Minister has said on several occasions, we are looking at the very long term for the application of the Act, and, particularly in Part 2, we are considering circumstances that are likely to be extreme.
One scenario is a biological attack by Al'Qaeda a couple of weeks before an election, while there is no Parliament. The attack—to pick up the theme of a recent BBC programme—involves the deliberate spreading throughout the UK of a haemorrhagic virus with a decent incubation period of about three weeks. We suddenly find ourselves with what will clearly be a widespread epidemic of something that is passed by reasonably close contact between people. At that point, we are into a situation of emergency regulations, and we will wish severely to restrict the movement of people, as that is about the only the way of controlling the spread of such a disease. We will not have elections, and we will almost certainly suspend the action of the courts and other bodies that involve people gathering together. There will be no practical way of recreating Parliament in the short term, because Parliament will not exist at that point. We will have an extended period of government under the Bill, without any checks.
11.45 a.m.
I have no great doubts about the current Secretaries of State, but we could, over the next 50 years, get someone like Mr Kilroy-Silk occupying one of those positions. In those circumstances, we would want to be sure that the power that we gave the Secretaries of

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State under the Bill led inevitably back to something like the form of government that we would like to see. I should not be surprised, if we happened to have a Liberal Prime Minister, to find that PR was the form of election when we came back, rather than first-past-the-post. It would be hard for a government to resist the temptation to do things by emergency regulation that they had not had the chance to do before. They could, to some extent, reform the democracy that we would get back. I want to be fairly certain that what we would get back would be a parliamentary democracy governed by the rule of law and that people would have free access to the courts, free media and so on.
In Amendment No. 100A, I have set out a sketch of that scenario. I am no draftsman, and I do not know that this is the right way of tackling the constitution, which is, in any event, a pretty obscure set of rules and conventions. However, I want to see in the Bill something that is clear to the ordinary general in the street, as it will be the generals and chiefs of police who will call such a government to order. They will be the people keeping the country in a state of emergency. I do not want them to be in the position of the Wehrmacht under Hitler. He had assumed power legitimately under the constitution as it then was, and they felt that they had to go along with that. I want it to be clear that a prolonged and unnecessary period of government under the Bill is illegitimate and that we ought to get back to something with a parliamentary system and free access to the courts. We need something in the Bill for that.
I hope that I am talking about an extreme case and that it never happens, but we cannot rely on the intricacies of constitutional understanding by senior lawyers. They may have no access to the media, if the government were so inclined. There may be no way in which those who have the power to turn us back to the ways that we would like will have access to such advice or will have any confidence in their ability to judge between the advice of a senior lawyer and what they are told by the government. When we grant such enormous powers without prior parliamentary scrutiny—in Germany, it happened with prior parliamentary scrutiny, but there is nothing that we can do to prevent that under our constitution—it is important to make sure that we do not slip into such an abyss because of something that we wrote carelessly 30 or 40 years before.
Amendments Nos. 148 and 149 pick up a couple of bits of legislation. I suspect that they are not things that I want to pursue, but it seems to me that the Crown is an important character in all this. In the first instance, it is the Crown that is supposed to make the regulations. Any long-running illegitimate government would have to deal with that problem. I think that they would deal with it through the Regency Acts, which, if properly managed, essentially give the government the power to decide who the monarch is. It would be dangerous to change the existing provisions in a way that allowed the monarch to be replaced.
I can see circumstances in which we would want to be able to amend the Acts to make sure that there was a monarch. A well meaning government might want to
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amend the Acts. That is one of the difficulties that we have throughout the Bill: we can see reasons why the powers might have to be used. However, given the ultimate fall-back of the monarchy, which is important in the context of the Bill, I have considerable worries about giving the government the power under the Bill to decide who the monarch is. I beg to move.
Baroness Buscombe: My noble friend has touched on an incredibly important aspect of the Bill. I want to question the Minister on a matter to which I will return until I feel satisfied that the Minister can reassure me. That matter is judicial review.
I have a feeling that the Minister will respond by saying that my noble friend's amendments are not necessary because, at the end of the day, there is always judicial review. But what happens if a Secretary of State or the Prime Minister of the day has disapplied the legislation enabling those who believe that a Minister has taken or is taking unreasonable action under this legislation to seek judicial review? As far as I can see, judicial review is the only real safeguard in the Bill. I think that my noble friend is seeking to ensure that certain actions are taken quickly so that we do not lose the possibility of judicial review.
On 19 July—
Baroness Scotland of Asthal: Perhaps I may help in this matter. Although the noble Lord, Lord Lucas, has made it clear that his amendments are perhaps not drafted as accurately as he would want, he is raising the issue simply so that we can clarify it. We have looked at the issue very carefully, and, in a few moments, I will be saying that we will take it on board and try to make the drafting clearer. I do not know whether the noble Baroness would find it useful if I gave my response now so that we could see whether I can deal with these matters to her satisfaction. I could then come back and deal with any further matters on which, having heard my reply, she wanted further clarification. I am rising now simply to be helpful.
Baroness Buscombe: I am entirely happy with that; I thank the noble Baroness.
Baroness Scotland of Asthal: I understand the import of what the noble Lord said. Although we think that Clause 22(2) makes it clear that emergency regulations are intended to be used to protect or restore rather than hinder public functions such as the administration of justice, and to protect or restore the activities of Parliament, and although we think that that creates a very clear presumption that regulations should not be used in a way which is contrary to these aims, exactly as the noble Lord would wish, in order to make that clearer, the Government will consider an amendment that will put the maker of the regulations under a duty to consider what steps can be taken to protect or preserve the ability of Parliament to scrutinise the regulations and actions under them and the ability of the courts to entertain challenges to the regulations. We believe that that will give effect to the intention behind Amendment No. 100A.

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The courts will expect the maker of the regulations to act reasonably, and so—just to take up the noble Baroness's points—a failure reasonably to make emergency regulations to protect Parliament or access to the courts could be challenged on that basis. It may assist if I provide a couple of examples of how we see that operating.
If parliamentarians have been exposed, for example, to an infectious disease and it is necessary to quarantine them or to close the Palace of Westminster, that should still be possible. However, the maker of the regulations should consider what provisions can be made to allow Parliament to continue functioning; that is, for example, by quarantining MPs in a building that has video-conferencing facilities. If a cloud of toxic gas was heading towards London and it was necessary to evacuate London, the maker of the regulations should be able to do so. But he or she must consider what steps should be taken to protect Parliament and the operation of the courts. In those circumstances, the regulations may need, for example, to requisition property elsewhere for Parliament to use and to give High Court judges a priority place in the list of the evacuees.
The Government hope that the House will appreciate that this approach will ensure appropriate provision is included in the regulations to allow Parliament and the courts to scrutinise them and actions taken under them and will also ensure that where action needs to be taken that may affect Parliament or the courts which is necessary to respond to the emergency, then that action can still be taken. I think that the amendment which I hope to move on Report will meet the concerns behind Amendment No. 100A and answer some of the questions raised by the noble Baroness about how we will manage judicial review.
The noble Lord, Lord Lucas, raised a point about the Regency Act. If I may respectfully say so, it is difficult to conceive of a situation where in order to prevent, control or mitigate an aspect of an emergency it would be appropriate to amend the Parliament Acts or the Regency Act.
In theory, were the Queen to become incapacitated and the range of persons specified in the Regency Act who may appoint a regent—namely, any three of the spouse of the sovereign, the Lord Chancellor, the Speaker of the House of Commons, the Lord Chief Justice of England and the Master of the Rolls—were all also to be incapacitated, it might be appropriate to modify the Regency Act to provide that other appropriate persons could appoint a regent. However, examples of that kind show that the range of circumstances in which such an amendment would be appropriate or possible under the Bill is extremely narrow. I hope that that will be some comfort to the noble Lord.
Lord Elton: I am not sure whether that was meant to terminate the debate, but it has created a friendlier and less anxious atmosphere for the debate. I just hope that the noble Baroness has in mind how different this Chamber, the people in it and the feeling would be if
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it had been Margaret Thatcher who had been asking for these powers towards the end of her prime ministership. If there is a party in power which does not have the trust of the people, the people are very anxious; and it does not happen only to Conservative governments. It is also the case that the further along the political spectrum in either direction one goes, the greater is the danger of a totalitarian break-in. And this is the point at which it would take place.
Therefore, I hope that we deal with Part 2 with great care and possibly even strengthen the provision in Clause 22(3)(j):
"(other than a provision of this Part)".
As I read the Bill as presently drafted, those are the words that actually entrench these provisions against alteration by the Minister. That is their intention. I just wish that they could be carved in stone, written in bold and endorsed in some other way in the Bill.
Lord Stoddart of Swindon: I think that the Minister has been extremely helpful. There is only one point, which was raised by the noble Lord, Lord Lucas, that still concerns me; that is, if there is a very serious emergency after a dissolution. After a dissolution there are no Members of the House of Commons; they cease to exist. In those circumstances, what arrangements will there be for Parliament to continue to exist?
It is true that Peers of the realm receive a Writ of Summons immediately Parliament is dissolved. So in that sense Parliament still exists. But would it mean that the House of Lords would then exercise the powers of Parliament, in which case it would need the power to arrange finance for whatever was taking place during the emergency and what was needed? I think that that is a very important point. I do not think the Minister addressed it, but perhaps she could give it some consideration.
The Earl of Onslow: On that point there is historical precedent to which I alluded the last time we talked about this. When William III landed on 5 November 1688, the Commons was not sitting because James II had refused to issue Writs of Summons for the Commons. When James II fled, the Lords, acting in convocation, made sure that the Commons could sit and arranged as quickly as possible for an election which then confirmed King William in power. I would presume that that is one of the advantages of a Chamber which can exist outside the other one in these obviously extreme circumstances.
Noon
I could not agree more with my noble friend Lord Elton. Those powers are absolutely enormous. I am very frightened of them. I am not sure that any emergency justifies them. It is much more likely that we will want to do things—that is, clear up, do this, that and the third thing—rather than start making regulations and Acts of Parliament. That is what frightens me about this.
On this occasion, I trust Mr Blair. I may be in a minority of one, but I trust Mr Blair: I do not think that he would do that. I trust my right honourable

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friend Mr Howard. But who knows what will come afterwards? Societies can collapse entirely and get panicky. Nasty people can emerge. We must not allow power to go away from Parliament under any circumstances whatever. It is too important and too vital.
Lord Elton: Perhaps I may just add to that point. My noble friend reminds me that of course it would be, I believe, the Lord Chancellor who would convene the House of Lords in the absence of a sitting Parliament. That has a read-across to the Constitutional Reform Bill. I hope that the noble Baroness or her advisers will take note of that. It is very important that what we do here is consonant with what is done there, so that the Lord Chancellor or whoever will be in a position to convene this House in such circumstances after the enactment of what is now the Constitutional Reform Bill.
Baroness Falkner of Margravine: On this side, we would associate ourselves with and support Amendment No. 100A proposed by the noble Lord, Lord Lucas. I welcome the noble Baroness's openness to the principle behind the amendment. The noble Lord, Lord Lucas, invoked the possibility of even a Liberal Democrat government perhaps finding themselves making decisions. I will therefore quote a good liberal, perhaps with a small "1" rather than a large one, since we are talking about the constitution. Walter Bagehot described the English constitution to be of two parts:
"first, those which excite and preserve the reverence of the population—the dignified parts—and next, the efficient parts—those by which it, in fact, works and rules".
The sentiment behind this clause would cover both. It would cover not only the dignified part in the sense of publicly stating that that rule of law in a democracy is where we would wish to find ourselves at the end of the emergency, but also the efficient part. Earlier in the week, the noble Baroness referred in debate to trying to be as inclusive as possible. I am speaking for the first time on the Bill. Our concern is that the general tone is sometimes over-inclusive—that is, prescriptive—and at other times leaves out principles that it should cover. In that spirit, I should like to support and welcome the noble Baroness's comments.
Baroness Scotland of Asthal: I understand the concern that has been expressed by noble Lords on this matter. We are absolutely clear and of one mind that of course we want the powers to be used proportionately and properly. None of us would like them to be used or misused in the way that the noble Earl, Lord Onslow, and the noble Lord, Lord Lucas, have suggested. Therefore, I very much understand the sentiment expressed by the noble Baroness, Lady Falkner of Margravine.
We have tried to make Clause 22(3)(j), which the noble Lord, Lord Elton, mentioned, as strong as we can. I am more than happy to look at whether the draftsman can do even better. I know that the noble
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Lord is saying that it is jolly good and seems to do it, but if we could have some gold standard reinforcing that anyone can think of, we would all agree that it should be there. I shall certainly take that back to determine whether there is anything that we can do about it. It may be that this is the best guarantee that we have, but I shall look at it very clearly.
In relation to the point made by the noble Lord, Lord Stoddart, about what happens when Parliament has been dissolved, pending a new election, of course, it would always be possible for the Queen acting in Council to recall the old Parliament using emergency regulations. She also has the advantage of having available to her Privy Counsellors from across the piece. As noble Lords know, the Government continue in being, notwithstanding the dissolution of Parliament. So it would be possible for my right honourable friend the Prime Minister or someone standing as First Lord of the Treasury—
The Earl of Onslow: So the powers of the Sovereign to recall Parliament once it has been dissolved, exist? I thought that once Parliament was dissolved, it was dissolved. But can it be recalled or "undissolved", if that is the word I am looking for?
Baroness Scotland of Asthal: I think that it would be possible. I shall certainly go away to check that. There are two points: first, of course, the Government continue notwithstanding the fact that Parliament has been dissolved. So the Government are entitled and able to act, particularly in a position of emergency. Secondly, of course, the Queen in Council can still make regulations in relation to meeting the needs of the emergency.
In those circumstances, one would imagine that it would be perfectly proper for Parliament to be recalled very quickly under those provisions. It would probably be that the old Parliament would be recalled until such time as we could do something better. It appears that the rules would enable us to do that which we would need to do to get Parliament back as quickly as was needed in those emergency situations.
But I will take these issues away to ensure that what I have said to the Committee is accurate. I will come back with a fuller exposition. It may be that this is a matter about which I could write to all Members of the Committee so that we would have that information. Noble Lords could then decide whether they want to bring the matter back later.
The Earl of Onslow: I think that I would much rather that the noble Baroness spoke about the matter on the Floor of the House. It is too important just for individuals who have taken part to be written to. I would much rather—I hope the Committee agrees—that it should be written into the record.
Baroness Scotland of Asthal: I absolutely agree with the noble Earl, Lord Onslow. As a matter of courtesy, I was suggesting that if I were to write to Members of the Committee about the position that would enable them to consider their position. When we come back

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on Report, they would be able to raise any further or other issues on which they wish to have clarification. When I answer I will be able to give a full answer that will he on the record. The House could therefore feel more comfortable that it has been dealt with. That is what I had in mind, if that would meet the needs of Members of the Committee.
Lord Lucas: I am exceptionally grateful to the noble Baroness and, indeed, even more grateful to her officials for enabling this progress to be made. I look forward with great interest to the amendment, which will presumably be laid at Report. We will see how far it goes and whether there are any other little gaps we would want to put some putty in. But it has been progress in absolutely the right direction. I am extremely grateful for it.
Perhaps I may raise a couple of other points. We have had reference to Clause 22(3)(j), which is supposed to prevent Part 2 being amended by regulations. My concern is that those words are qualified in the opening words of subsection (3), which state, "in particular". On reading the two together, the words "in particular" seem to open the question again of whether paragraph (j) is just a particular example of what the regulations can do; that is, the regulations could amend Part 2 because of the opening words in Part 3 making the concept unlimited and the rest just examples. Under those conditions, would it not be better to have the prohibition in Clause 23, which clearly covers the limitations on emergency regulations? If it were put there, and thus outwith the qualification of the words "in particular", I would feel more comfortable.
Secondly, I want to pick up a point made by my noble friend Lord Onslow about the possible role of the House of Lords in extremis. If we really want a resilient House of Lords that would be available in all circumstances, perhaps we should think of making it hereditary. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 21 [Conditions for making emergency regulations]:
Lord Dixon-Smith Lord Dixon-Smith moved Amendment No. 101:
Page 14, line 28, leave out ", is occurring or is about to occur"
The noble Lord said: We move on from the major issue of the constitutional relationship between this Bill and all existing law and constitutional practice to the rather more insignificant but nonetheless important matter of how it is to work in practice. To that end, I would suggest that the words in subsection (2) are unnecessary.
The subsection states:
"The first condition [for making emergency regulations] is that an emergency has occurred, is occurring or is about to occur".
I shall put those words in conjunction with a comment made during consideration of the Bill by the Minister at col. 512 on 14 October:
"If, for example, we were to receive warnings that a nuclear device 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".—[Official Report, 14/10/04; col. 512.]
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It seems to me that this presents the possibility of a new form of terrorism; that is, the creation of the illusion of a terrorist act.
One can conceive of a scenario. Let us consider a carefully leaked dribble of intelligence from somewhere in the Middle East or perhaps from one of the more rebellious parts of Pakistan which suggests that a group had succeeded in devising a dirty nuclear bomb or bombs. The intelligence would continue to leak over a period of some months, hinting that teams are being put together to deliver those bombs. That intelligence continues to build until it finishes up with the delivery of the mythical weapon. At that point we would create the actuality of the effect of terrorism by ordering, say, the evacuation of a large part of London or another city. That would seem to be all of the joys with none of the responsibilities.
While that may sound absolutely fictional, I am afraid that the record over recent years on the use of intelligence seems to permit the possibility. It would worry me a great deal if we were to leave in the Bill the words that I suggest should be removed.
12.15 p.m.
In any event, the reality is that these words are not essential. When one considers the various forms which terrorist action or emergencies of other kinds might take, to think of taking action in anticipation is extremely dangerous. The example of the dirty nuclear weapon that I have just mentioned is all very well, but what if we were to work on intelligence which suggested that it was to be planted in the City of London, and at that point the guy delivering the bomb decides that London is rather difficult and takes it to Sheffield or Manchester? Are we then to take action in London and cope with the disaster in the other city? That is the reality of the problem. I accept the high level of risk involved here, but we need to think carefully of what we are about.
Let us consider other forms of disaster that might give rise to the use of these powers, in particular natural disasters. The obvious circumstance that would require the use of the powers is when a major tidal surge is expected, possibly as the result of a sub-oceanic earthquake. In the case of a tidal wave, the event would have occurred and we would know that it was coming towards us. While the actuality of a wave surging over the Thames Barrier may be somewhat in doubt, if a major wave were to overwhelm London's flood defences, we would be given hours of warning. Reports of the approach of the tidal surge would begin in the north of Scotland and be followed all the way down the east coast, giving us five or six hours of solid information. The event would already have commenced. So, again, the words in this subsection are not necessary.
At an earlier stage of the Committee proceedings the possibility of an asteroid arriving from outer space was mentioned. Once more, the event would have occurred. By predicting its course, we would know that the asteroid was travelling towards us. Given that, I have grave doubts about including the words,
"is occurring or is about to occur",

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in the Bill. They give rise to the possibility of the inappropriate use of these powers. My noble friend mentioned the circumstance where Parliament is dissolved before an election. This subsection opens up the possibility of a complete abuse of the constitutional process.
Of course this is all highly unlikely, but taking out these words would make it virtually impossible, which is the sentiment behind the amendment. It is exploratory in nature and is designed to bring forward a further explanation of exactly how this detail will work. I beg to move.
The Deputy Chairman of Committees (Baroness Turner of Camden): If Amendment No. 101 is agreed to, I shall not be able to call Amendment No. 102 by reason of pre-emption.
Lord Lucas: I rise to speak to Amendment No. 102. I have found myself looking in the opposite direction from my noble friend, which I think arises out of the length of the semantic chain we have to follow in order to reach this point. We start with Clause 19(1),
"'emergency' means an event or situation".
I suspect that an event is something which has a period of time attached to it, while a situation can be pretty much spread over time and suggests that the state of affairs may be indefinite. A further blurring takes place in Clause 20(2) which qualifies the condition of emergency by stating that a Minister of the Crown has to be "satisfied" about its existence, which again offers considerable scope for judgment. We come then to Clause 21(2), the subject of these amendments, which states that,
"an emergency has occurred, is occurring or is about to occur".
The noble Baroness made it fairly clear in her opening remarks that we may quite possibly have to deal with fictitious emergencies or ones that are not actual. We have just been through one of those. What else is the 45-minutes claim but a fictitious emergency? It is very easy to see how those things can arise in all honesty. We have to make judgments on the basis of the best information that we have, and that information may be pretty poor.
The false emergency has been used as a weapon of tyranny before. It was one of the main planks in Nineteen Eighty-Four if I remember rightly. Indeed, it was part of Hitler's armoury in getting into power, with the burning of the Reichstag, which was an imaginary emergency, along with various other things that he did to stir up public fear. Such tactics are used in this country only by the Animal Liberation Front, and we can see how hard such tactics are to counter in a democracy. I suppose that we might find a political party using them some time.
If we are to go down this route, we must allow the Government to act on their best beliefs. Having listened to my noble friend, I am not sure whether the blurring in Clauses 19 and 20 is sufficient to allow us to do without the words that he wants to excise. One
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can cover any situation when one wants to take action just by calling it a situation rather than an event, and allowing ministerial judgment.
My first thoughts were that the problem was in the other direction, and that the uncertainties around an event might be considerable, to the point that it was very hard for a Minister to be satisfied that an event was about to occur, but when the risks of it occurring were so great, such as a nuclear bomb in London, that we absolutely had to do something. That was my worry, and I look forward to being enlightened by the noble Baroness.
The Earl of Onslow: One of the things that the Bill has brought out is that when talking about it we have to invent more and more horrendous forms of emergency. They range from blue tits being swamped by olive oil—I have been laughing and giggling happily to myself for the past few days about that—to hidden nuclear bombs, to this, to that and a third thing. In some ways we are in danger of over-hyping what could happen. We are enacting legislation on a tiny risk of a major hazard. We have to go on inventing wilder and wilder scenarios to frighten ourselves into giving Ministers those powers.
My two noble friends, having come at the problem from different ends, and in asking for completely different answers, shows best why I am beginning to wonder whether the Bill is necessary in the first place. It is a question not of making regulations but of getting people to do things. It is so out of the imagination that it is almost too hard to know what to do about it.
Lord Garden: I have no doubt that the Bill is necessary. It is also urgent, but we need to get it right. I have been deeply impressed by the care with which Members of the Committee have considered its detail.
I cannot support the amendment. The Emergency Powers Act 1920 uses the words "occurred" and "about to occur", so we are hardly changing the world. It is difficult to understand why we would not want to use emergency powers if we could prevent the loss of life in anticipation of an emergency that we were pretty sure was coming.
I fully understand what was said about hoaxes—we know all about them from the IRA. However, we have to assess the degree of risk and the best countermeasures. I therefore cannot support the amendment.
Baroness Scotland of Asthal: The noble Lord, Lord Garden, has been succinct in saying why we need such measures. He is right that the phraseology is similar to that used in the 1920 Act, with which we have been comfortable for a considerable time. We know what it means. Prevention is always far better than the cure. We would want to take action as speedily as possible to obviate the need to take more drastic action later.
An example that is not so far fetched would be if there were a realistic anticipation of an infectious disease. We would want to take preventive action as a matter of emergency to ensure that the population was safe. We

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would have to section off an area, set up quarantine, get additional vaccinations, and requisition buildings, all of which would be essential to ensure that the population was kept safe. That is a good and sensible thing to be able to do.
The noble Lord, Lord Lucas, is on the right side of the argument. He talked about the blurring, and we need it to be clear that we can do something about prevention. We do not want people to be worrying about whether they have to wait before something arrives before they are legally entitled to take preventive steps. We want people to be clear that if there is evidence that prevention is necessary, the provisions will enable measures to be taken.
It is for those reasons that we cannot accept either of the amendments. Amendment No. 102 would alter the drafting of Clause 21(2) to allow regulations to be made if a Minister is satisfied that an emergency "appears to be" occurring rather than that one "is about to occur".
I hope that we have reassured the noble Lord, Lord Dixon-Smith, that the provision has been well and accurately expressed.
Lord Stoddart of Swindon: The noble Baroness said that such decisions would be taken on the basis of evidence. I very much agree with that, but it seems to me that the Bill provides that such action can be taken if the Minister thinks it should. Is she coming round to our way of thinking that perhaps the Bill ought to be tightened up, and that any action that is taken should be on the basis of evidence, not because the Minister thinks it should?
Baroness Scotland of Asthal: It is implicit that Ministers have to act reasonably, and must do so on the information provided. All the discussions that we have had about reasonableness bite when considering those issues. Ministers are not entitled to go on a frolic of their own and make decisions for which there is no basis, or make decisions that no reasonable person who was properly directing himself as to the facts could possibly make. That would be outside the bounds and ambit of reasonableness. We work on the basis that Ministers behave like reasonable human beings. I know that that may be a challenging concept, but I assure your Lordships that it is one with which I struggle daily.
Lord Dixon-Smith: I am grateful to the noble Baroness for her reasonable explanation. I heard what my noble friend Lord Lucas said, without particular surprise, but I thought that we should discuss the issue as the implications are serious. Such problems have unquestionably existed in the past with the IRA, which has been mentioned.
With regard to the remarks of my noble friend Lord Onslow, I believe that thinking about what can go wrong is always interesting and instructive. I remember that some of the most productive times in my local government experience were spent on just such matters. I am not talking about problems on a national scale, but one can imagine scenarios if, for
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example, someone wanted to defraud the system. Thinking of ways in which to defraud an organisation is intriguing, and Members of the Committee would be surprised at the number of ways in which to do that. There are just as many ways in which to create disaster or the illusion of disaster. I have to defer to the reminder of the noble Lord, Lord Garden, that the phraseology is already in the 1920 Act. I must admit that I did not look to see whether it was.
This has been a useful discussion. I am somewhat reassured. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 102 not moved.]
Clause 21 agreed to.
Clause 22 [Scope of emergency regulations]:
12.30 p.m.
Lord Elton Lord Elton moved Amendment No. 102A:
Page 15, line 6, leave out from "provision" to "for" in line 7.
The noble Lord said: In moving Amendment No. 102A, I shall speak also to Amendment No. 104A. I apologise for the late tabling of the amendment—although, as everyone's attention has already been directed to these few lines in the Bill, I hope that I have not created extra work. I also apologise for pre-empting a number of other amendments. However, at this stage, I do not propose to treat this as more than a probing amendment.
My question to the Minister is short and simple. We have been considering the regulation maker, who is, at the moment, faceless and anonymous. I sometimes think that, in the light of the potential damage that this Bill could do, we might give him a pseudonym such as "Adolf', "Benito" or "Joseph", for instance. I do not consider that he is necessary in the Bill at this stage. What would be changed in the events, once the machinery had been put in motion, if those words were omitted from Clause 22(1) and it read simply,
"Emergency regulations may make any provision for the purpose of preventing, controlling or mitigating",
and so on? If subsection (2), in particular, read,
"emergency regulations may make any provisions for the purpose of",
(a), (b), (c) and (d), it would leave Adolf, or whoever, out of the equation, it would shorten the Bill, which is always a good thing, and it would make no difference whatever to the consequences if judicial review was called upon. I beg to move.
The Deputy Chairman of Committees: I must inform the Committee that if this amendment is carried, I cannot call Amendments Nos. 103 and 104.
Baroness Buscombe: I am very happy for my noble friend to pre-empt my Amendments Nos. 103, 105, 140 and 142, to which I will now speak.
I should say straightaway that I almost prefer my noble friend's amendments to mine. However, I wish to speak to my amendments. The Committee may notice that they are similar to amendments which we

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tabled in Committee in relation to Part 1 of the Bill. I have used this opportunity to table these amendments because I was not satisfied with the answers that we were given in relation to Part 1. Perhaps my noble friend has provided us with a solution.
Indeed, I made it clear during the debate on Part 1 that I slightly preferred the suggestion put by the noble Lord, Lord Stoddart, that perhaps we should be discussing "based on the evidence"—not least because this Government are very fond of talking about acting in response to evidence, consultation and so on.
My amendments are simple but go to the heart of the concerns that we on these Benches have in regard to the Bill. Clause 22 details the scope of emergency regulations. All the way through the clause, the current drafting allows emergency regulations to be made when the person making the decision—we assume the Minister—"thinks" he should be making such a decision. Our amendments seek to change the reference from "thinks" to a more appropriate one of "reasonable belief".
To put these amendments into context, emergency regulations will be made only in the gravest of situations. They will be made in the heat of the moment and possibly when events are still occurring. We believe that it is essential that the Prime Minister, or whoever is making these regulations, has a clear head and can take a reasoned view on the best course of action. The term "thinks" does not seem to be a strict enough test to invoke these powers.
Reasonable belief that the regulations are for the purpose of controlling the emergency or protecting human life would seem to be a more appropriate threshold for these substantial powers. "Reasonable belief" would ensure that the person making the decision is acting on information that they have been given and facts that they know to be correct or the best information available at the time. The term "think" is much looser. It seems not to imply that there has to be any evidence before these powers can be used.
Another particularly important point—one that we made in similar amendments to Part 1—is that we prefer the term "reasonable belief" as it would allow any retrospective scrutiny to look at decisions made during a time of crisis and for them to be judged by this well used legal test.
I have looked at this issue with care since our earlier debates in Committee. I have found that the term "thinks" is used in delegated legislation. But here we are talking about crucial primary legislation. There are examples in primary legislation. Indeed, I know that my noble friends debated this point hard during the passage of the Planning and Compulsory Purchase Bill because they believed then that the word "thinks" was not a good enough safeguard and that there should be a clear, unequivocal test of reasonableness on the face of the Bill.
I heard what the Minister said in relation to Amendment No. 101—that it is implicit that Ministers have to act reasonably—but given our concerns, of which the Minister is aware, in relation to judicial review,
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and given our concern in relation to what will happen in practice, however many safeguards we may feel are in the Bill or are pressing to place on the face of the legislation, we believe—this is probably pertinent to much of what noble Lords have said during the debate—that we should put in place as many safeguards as possible.
The Bill is all about unprecedented acts; it is about taking care with regard to what might happen out there at any time, perhaps something which at this present moment may seem inconceivable to noble Lords. It is a tough job for all of us—a real challenge—and that is why this is so important. Although technically it may not be necessary to say "reasonable", I believe that in practice it would make a great deal of sense.
Lord Archer of Sandwell: Not for the first time—if I may say this within the rules of order—I congratulate the noble Lord, Lord Elton. He has achieved with a degree of elegance what we have all been searching for.
I say that for two reasons. First, normally brevity is the soul of good draftmanship and the fewer words the better; secondly, it solves the problem that I attempted to raise under Amendment No. 100. The noble Lord has applied Occam's Razor and eliminated the intermediate metaphysical entity, the Minister's mind. It seems to me that he has achieved exactly what we are trying to do and, subject to anything my noble friend may say, I cannot see why the result should not be judicially reviewable.
The Earl of Onslow: I support the noble and learned Lord, Lord Archer, in abolishing the Minister's metaphysical, mythical entity. That must be removed at all possible costs.
I completely support the view of my noble friend Lord Elton. It is clear, it is precise and you know exactly what you are doing. There is no subordinate clause, no qualification; it is clear. The noble Baroness has given some indication that she will look at this issue a little differently following the amendment of the noble and learned Lord, Lord Archer, but I urge upon her the clarity, brevity and complete comprehension that my noble friend Lord Elton seeks.
Lord Stoddart of Swindon: I, too, congratulate the noble Lord, Lord Elton, on his elegant language and on trying to get rid of tautology in legislation. Perhaps we ought to make him a consultant to the drafting committees on these various Bills; in that way, we might get some better Bills.
We keep coming back to whether a Minister "thinks". Everyone who has spoken is clearly concerned about the use of this word rather than a much tidier and better understood word. I hope that the noble Baroness will give more consideration to this than has been given so far. Will she please recognise the depth of feeling throughout the House on this particular word—one single word—and not reject it out of hand at this stage? Will she at least give the House the assurance—the promise—that she will think very seriously about this and, it is to be hoped, come back with her own amendments on Report?
Baroness Falkner of Margravine: We, too, support the amendment. It would be a good thing to, ipso facto, instil a basis for reviewing the situation and the action taken on the basis of fact rather than judgment, irrespective of how sound Ministers' judgment may occasionally be.
Viscount Goschen: The strength of the argument put by my noble friend Lord Elton is witnessed by its universal support and by the fact that it has taken us only 11 minutes so far to come to a conclusion, compared with about an hour on Tuesday. I hope that the noble Baroness will simply stand up and agree. Surely it must be right to remove, as far as possible, all references to the Minister "thinking". It is such a dubious concept that it should not be in the Bill, whereas my noble friend has offered a solution that is simple, concise and to the point.
Baroness Scotland of Asthal: I hate to disappoint, but on this occasion I just might. I should, however, like to give some clear comfort. I do not detract from anything I said earlier in terms of Ministers having to behave reasonably. It is very important not to see the Bill in isolation, because it does not operate in a vacuum.
The powers conferred by Part 2 will be subject to the additional limitations by virtue of the generally applicable legal principle. The key here is the public law. This requires any public authority, which includes Ministers and Her Majesty, to exercise their powers in a reasonable way. One of the aspects of the duty to act reasonably is that all relevant considerations and evidence must be taken into account. It will not be open to the maker of the regulations to ignore vital evidence or to decide, capriciously, to make emergency regulations. This kind of conduct will be unlawful and any regulations made on this basis can be challenged in the courts.
One of the very first things that Ministers will need in an emergency is information. What is happening? When is it happening? What do we need to do to prevent or to mitigate the emergency? It is inconceivable that Ministers would not seek out all available information before exercising emergency powers. It is even more inconceivable that Ministers would ignore information before them when taking that decision. If they were to do so, they would be acting improperly—we would say ultra vires: outwith their authority. Any such act would be capable of challenge.
No damage to human welfare has yet occurred, nor has the event or situation which threatens damage to human welfare. The fact that there are very limited issues when this may happen does not detract from that importance. We should look at the Bill within that context. That is what the law says now and that is what would be implicit in these provisions.
Of course I understand the nature of the amendment of the noble Lord, Lord Elton, but the reason I restate those principles with what I hope is sufficient clarity is that it goes to all the amendments raised by the noble Baroness. One could write a number of learned articles
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about the point of law, and we could talk about semantics, but that is the position we have at the moment, and it is clear.
12.45 p.m.
The Earl of Onslow: The noble Baroness is actually arguing for the amendment of my noble friend Lord Elton. She is saying that they are doing all these things anyway; that is part of the public law and no Minister may act in any other way. Therefore, my noble friend's amendment must fall into place. The noble Baroness is saying that Ministers think—that is part of their duty and part of their legal duty. So she has just given a super argument for accepting my noble friend's amendment—at least, I thought so.
Lord Lucas: Will the noble Baroness clarify the difference between the words in Clause 20 and those in this clause? In Clause 20, Ministers are "satisfied". Ministers are often satisfied—that seems an entirely reasonable word. But to have a Minister "think"—is that not what civil servants are for? What is the difference between the application of the two words?
Lord Elton: I suggest that we hear the rest of the noble Baroness's argument before we tear it to shreds.
Baroness Scotland of Asthal: I regret to tell Members of the Committee that Ministers do think. They think all the time because they have the burden of exercising a discretion, devising policy and making decisions. So it is absolutely critical that the Minister thinks and does not allow all the thinking to be done by civil servants, no matter how skilled.
The fact that the Minister has to be satisfied goes to the nature of the information and evidence that is put before the Minister so that the Minister can feel confident that in the exercise of the Minister's discretion there is sufficient information to be satisfied that this is an appropriate thing to do.
As far as using the word "thinks" is concerned, it identifies that this is a discretion which has to be exercised by the Minister as opposed to anybody else. That gives the lead-in for the way to review. The Minister is allowed to "think" only if the Minister "thinks" reasonably. We are able to review what the Minister thinks by trying to see whether there are things which any reasonable person, properly applying themselves to that issue, would have taken into account and what they would not have taken into account had they behaved reasonably. That is where the reasonableness test comes.
This jurisprudence has been developed over a very long time, right back to Ridge v Baldwin in 1968, in which Lord Reid made his great pronouncement, and to 1980 in Inland Revenue Commissioners v Rossminster with Lord Diplock. I am sure that this is first year administrative law; the noble Baroness, Lady Buscombe,

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probably remembers only too well the famous words of Lord Denning. He could always be relied on to get it right. Right back in 1976, in the case of Congreve v Home Office, he said:
"It would be a misuse of the power conferred on him by Parliament: and these courts have the authority—and I would add, the duty—to correct a misuse of power by a Minister or his department, no matter how much he may resent it or warn us of the consequences if we do … When a Minister is given a discretion—and exercises it for reasons which are bad in law—the courts can interfere so as to get him back on to the right road".
The courts have been putting us back on to the right road ever since.
Those principles have been developed well in our jurisprudence. They are protected in our law and are there better to support the way in which the exercise should be carried out. I would be very worried indeed if we eradicated thinking from ministerial office. It would make my life a lot easier, but the country would not be in safer hands as a result. Abrogation of thought is certainly not what I would advocate.
These provisions are structured to enable judicial review to take place and matters to be reviewed, and they preserve the sanctity of the law and the jurisprudence that we have now. I can see the attraction of the simplicity suggested by the noble Lord, Lord Elton, but we do not think that it is necessary. I caution noble Lords: if we start putting it clearly that Ministers have to behave reasonably in situation X, lawyers may come along and say, "Does that mean that on another occasion where it does not specifically say that the Minister has to act reasonably that the Minister can act unreasonably and go off on a frolic of his own?". I would rather that my ministerial colleagues did not do that. These rules should bite on every single decision that a Minister makes whether in this Bill or elsewhere.
Lord Avebury: The excursion that the Minister has just entertained us with by explaining how Ministers exercise their responsibilities and describing the contribution made by Lord Denning to the solidification of the courts' oversight of the ministerial exercise of discretions was useful. However, I am left with the feeling that the Minister would not be absolved from the duty of thinking if the words were not actually present in the clause.
When I listened to the Minister it occurred to me how this would actually work in practice. If a Minister, as she said, in exercise of the responsibilities conferred on him or her by this Act ignores material evidence, fails to consider evidence that should have been considered, or falsely reaches a conclusion from the evidence that is available, that could be challenged by the courts. As the Minister assured us, that could take place during the period of operation of the emergency regulations. However, I am anxious about how the courts would be able to deal with this in the time-scale available to them of the three months during which the emergency regulations last. Knowing how long it takes to mount a case of judicial review, the mischief that was caused by the misapplication of the Minister's discretion will have continued all the way through the
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period of the emergency regulations. By the time it reaches the courts it will be too late to provide remedies for the aggrieved persons.
One thing could be considered, although this is off the top of my head and might be dealt with in the next stage of the Bill. Suppose that such circumstances did arise, the case came before the courts, the court decided that the issue should be looked at and a hearing was arranged. At the end of the three months, if the courts had not yet examined that exercise of ministerial discretion, would it not be right to provide that there was no power to renew the regulations? When we come to that part of the Bill, we will see that regulations may be renewed at the end of the period an indefinite number of times. Therefore, the mischief that we are considering and trying to make provision against would then continue until the courts, some time later, had reached their decision.
Will the Minister think about that suggestion? She has given us some useful and valuable assurances about the rights of the courts to protect the individual during the period of emergency regulations. To make that protection really effective, the courts would have to have the ability to look at the complaint during the operation of the regulations and, if necessary, suspend the regulations themselves.
Lord Stoddart of Swindon: I am very disappointed that the Minister will not make some concession about the word "thinks". Of course we want Ministers to think, but I often think things. I might say, "I think that", but then I look at the evidence and see that my thinking is defective. I would like to draw the Minister's attention to a programme that is unfortunately no longer with us—"Yes, Minister". So very often the Minister thought something, but Sir Humphrey came along and put a different point of view. He saw the implications of what the Minister was thinking and often said, "How on earth can we persuade the Minister that his thoughts are not good?".
Thinking is simply not good enough. Every experience that we have teaches us that when we act, especially in an emergency, we have to act on evidence and not on what we are thinking at that moment. I appeal to the Minister once again to take this matter away and have a think about it. She may then come round to our way of thinking. That is all I ask.
Lord Lucas: That is the crucial difference between "thinks" and "is satisfied". To think, one has to make use of what is in one's head but one does not have to turn one's mind outward. To be satisfied one has to make reasonable inquiry. "I think we're going to win the next election" and "I am satisfied we're going to win the next election" are clearly different statements. We are saying that the Minister does not have to consult anyone, but merely has to act on the basis of what is already in his head—he decides that these are the right things to do. If we let the Bill go through as drafted, that is what we are saying we agree with.
Having had experience of this sort of thing, I wonder whether the noble Lord, Lord Garden, has an opinion about whether he would wish Ministers to be able to

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do things off the top of their heads. Or would the noble Lord prefer them to sit down for five minutes with their civil servants and talk about what the real world was actually like? Should we have a Bill that allows them not to seek evidence and not to be satisfied or one that requires them to have made inquiry and be satisfied before they make these regulations?
Lord Garden: I have been asked a question, but I am not sure of the procedures of the House. I have great confidence in Ministers having worked with many from different sides of the House. "Thinks" has a technical meaning in all of this. It involves the taking of advice from experts. The things that we are talking about are so serious that it is inconceivable to me that Ministers would take decisions in an enclosed room without taking advice. I am not as worried as others in the House about this matter.
1 p.m.
Baroness Buscombe: When I finished speaking about my proposed amendment I should have made it clear that I prefer the amendment of my noble friend Lord Elton. All that the Minister has said adds weight to the sensibility of my noble friend's amendment. As regards the word "thinks" being implicit, my noble friend's amendment would remove any equivocal reaction on the Minister's part in responding to this legislation.
The noble Lord, Lord Avebury, discussed rather more eloquently than I what would actually happen in practice. The difficulty we have as regards this entire matter is the timescale for judicial review given that the mischief may have occurred before we gain access to judicial review. Certainly for my part that remains a matter of deep concern. I believe that my noble friend's amendment would help enormously to remove some of our concerns with regard to this part of the Bill.
Viscount Goschen: Before the noble Baroness replies, I refer to the one aspect of her argument that I did not understand. I can understand the arguments against including such words as "reasonable" and "satisfied"—the noble Baroness has made those arguments on previous amendments—namely, that if they are not included in every single clause there is a difficulty with saying that a Minister is acting unreasonably and so on. However, if we envisage the noble Baroness as one of the people who might take these decisions—although we rehearsed on Tuesday the fact that she is not a Lord Commissioner—and she was sitting in her department when a tidal wave headed up the Thames, the question of what powers were available would arise. Under my noble friend's Amendment No. 102A, the power would be:
"Emergency regulations may make any provision for the purpose of preventing, controlling or mitigating an aspect",
and so forth. What is missing there? What limitations are there on how the Minister could act? I cannot see any. If the Minister wants to act to ensure that people are removed from their homes, the gas is turned off, or whatever, she could do that under the terms of my noble friend's amendment. We would not need the words
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"reasonably" or "satisfied"; she could take that action. I do not see that any lawyer or civil servant could tell the Minister that she could not take that action because the clause would state so clearly that she could.
Baroness Scotland of Asthal: I return to the word "thinks". We are talking about a decision being made and the fact that, on the basis of the information which the Minister has, he or she believes that the regulations are now needed. That is what becomes reviewable. The Minister is in effect saying,? I have decided that on this basis I will do as follows".
We must take account of the point made by the noble Lord, Lord Avebury. I hope noble Lords understand that judicial review does not have to be a lengthy process; it can be a very speedy process indeed. A 24-hour duty High Court judge is available 365 days of the year. If the need arises, it is possible to make an application for decisions to be made, particularly if they concern a great emergency, within a matter of hours. That is what one has to understand. I respectfully suggest that for the duration of these regulations there will be time for expedited applications to be made if that is necessary.
I remind your Lordships what the process is. These regulations would have to be laid as soon as reasonably practicable. There would then be a lapse of seven days, but if the matter was not affirmed by both Houses within seven days, the regulations would lapse in their entirety. If it is affirmed by both Houses, it can then last for only 30 days before the whole process has to be gone through again.
I remind your Lordships that we have a very peculiar procedure with the affirmative resolution procedure adopted in relation to this Bill; that is, contrary to other procedures we can amend the order for regulations because of the emergency nature of the matter. Therefore, it is not the case, as we so often find in other affirmative regulation procedures, of the measure being accepted in toto—the good and the bad rather like a curate's egg—and you cannot identify parts that you can amend. In this case we can amend. The whole process is fast, efficient, effective but also capable of being reviewed judicially.
Much care has been taken over the way in which these provisions have been drafted. I understand the comments made by the noble Lord, Lord Stoddart, but I hope that what I have just said about being able to amend the regulation satisfies him that it is possible to do that on an emergency basis, and that it can be done reasonably.
I accept entirely that the noble Baroness, Lady Buscombe, prefers the drafting of her noble friend Lord Elton. However, we do not believe that the amendment of the noble Lord, Lord Elton, would deal with the matters as effectively as the current drafting of the Bill.
Lord Elton: This has been an interesting debate. I reply to it as a former Home Office Minister who on frequent occasions debated with Lord Denning and who learnt from him that one of the basic principles is

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never to put in an enactment words that are not necessary. The noble Baroness said that my amendment was not necessary. However, it is not up to me to prove that; it is up to her to prove that her words are necessary. I continue to think that they are probably not.
The noble Baroness started out some time ago by setting out in detail the context in which we have held this debate. I accepted the five points she made with one exception. She said it was inconceivable that a Minister would not seek out all information before seeking powers. We had a debate earlier this afternoon—my noble friend Lord Onslow and I and others took part—in which we recognised that it was perfectly conceivable that an emergency might be declared for improper reasons and that Ministers might behave improperly. Therefore, I do not think that that matter is inconceivable. At that point the noble Baroness was interrupted but returned to the fray to say that Ministers do think and must be satisfied, which I entirely accept.
However, the question really is the one that my noble friend Lord Goschen put—and it is almost the only one that needs to be asked—namely, what would happen in fact in the case of judicial review if my amendment were accepted and the noble Baroness's words were left out? The noble Baroness said that the Bill would not be as effective. She said that what triggered the right to judicial review was the requirement on the Minister to think and have good reason.
As I say, I have sat in the noble Baroness's place before and I hope I do no one a disservice if I take some blame for the position she is in because I put my amendment down yesterday afternoon. I suspect that that occurred long after the noble Baroness's speech had been written. Her speech was mostly concerned with defending the word "thinks" as being necessary in the context of the rest of the words in the paragraph. However, I have taken out other words and I honestly think that judicial review would be as feasible in the words I have because the Minister would simply be rehearsed on why he thought the conditions of the Bill had been met. He does not need to be mentioned. The words are not necessary and therefore I hope that the noble Baroness will persuade me otherwise at the next stage, and will do so also in regard to similar words in the following clause.
In the mean time, with graceful thanks for the quite undeserved compliments that have been showered on me from all other quarters of the Committee but not from the noble Baroness, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 103 to 106 not moved.]
Baroness Buscombe Baroness Buscombe moved Amendment No. 107:
Page 15, line 14, leave out "money,?
The noble Baroness said: I shall speak only to Amendment No. 125 in the group. The Committee may recognise a number of the amendments from a
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similar group on our first day. After carefully reading the Minister's answers in cols. 1221–22 of Hansard on money and financial institutions, I am satisfied about why such matters have been included in the Bill and do not wish to take up further time on the point.
However, I wish to probe the Government on Amendment No. 125, which concerns Clause 22(3)(h). Subsection (3) deals with what emergency regulations may cover; the list is extensive. Paragraph (h) allows the Government to,
"prohibit, or enable the prohibition of, other specified activities".
The subsection details wide-ranging powers. Why do the Government think that they need such a vague piece of drafting in it? What sort of activities do they have in mind with regard to the paragraph? Will the Minister please give some examples of what could come under that provision? I beg to move.
Lord Archer of Sandwell: I hope that my Amendment No. 110 still belongs to the group. Had the situation been otherwise, I am not sure that it would have belonged to the group at all, as perhaps it should not logically be grouped with the noble Baroness's amendment. I hope that I will not introduce an irrelevant note in speaking to Amendment No. 110.
My point is that we do not really need to discuss the limits on where the power should be drawn, because—if my amendment is not accepted—there are no limits on the powers. Subsection (3) begins:
"Emergency regulations may make provision of any kind that could be made by Act of Parliament".
Nothing limits those words. The list in subsection (3) begins with the words, "in particular", so the items there seem simply to be examples for the purpose of clarification. They do not limit the breadth of the opening words. As the noble Lord, Lord Lucas, pointed out, those words seem to open the power up to infinity.
Of course, there are conditions precedent to the power to make regulations. As we are all now very much aware—we have been dreaming about them for the past two days—they are set out in Clauses 20 and 21. But if they are satisfied, the floodgates are open. Because an Act of Parliament may change the law in any way in which Parliament thinks fit, the regulations may do anything. If the answer is that the safeguards are set out in the conditions precedent—presumably, for example, in Clause 21(3), on it being necessary to make provision for dealing with the emergency—that imposes no requirement that the regulations be effective or appropriate for that purpose.
If it is said that the safeguard lies in the need for affirmative resolution, to which we devoted a certain amount of the Committee's time two days ago, what is the point of setting out at length in Clause 22 the limitations on the scope of the regulations? Why not simply say that the regulations may contain anything that can be got past the two Houses in a debate on the affirmative resolution? What is the point of anything in Clause 22 if it can all be disposed of in that one sentence? It is like taking a Minister through the rule

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book and then saying. "But, of course, you may do whatever you like". My noble friend is very persuasive, but I cannot wait to hear what she says in reply.
1.15 p.m.
The Earl of Onslow: This is about the most worrying thing that one has heard on the whole Bill. If I understand the provision right, it basically says that the Minister can do anything he likes—period. He can alter the constitution, change the law—he can do literally anything he likes. No emergency allows the concept of unfettered autocracy like this. No ruler of England has ever, in the history of this country since the heptarchy, had those powers. We should not give them to anyone. They are terrifying. No emergency is worth giving that amount of power from the people to Ministers.
Lord Lucas: That is quite clearly the truth of what we are doing. We are giving the entire power of Parliament into the hands of the executive, subject only to saying, "Can we have it back in five or seven days? Can we be involved later?". It is extraordinary. It is a tribute to the power of fear that we have been brought to the point, following 9/11 and all that has come after it, at which we are prepared to contemplate reserving nothing for ourselves as legislators, and giving away discretion over absolutely everything, as my noble friend said. That is the substance of the Bill; that is to what the Commons has given its assent; that is what we are asking to be dealt with.
I want to pick up my earlier point about paragraph (j), on whether the words "in particular" at the beginning of subsection (3) make the protection in the latter half of the paragraph ineffective.
Baroness Buscombe: My noble friend may notice that I have tabled Amendment No. 132 to address that point.
Lord Stoddart of Swindon: I support previous speakers in their view that, unamended, the provisions give the Government absolute power. It is true that Amendment No. 110 seeks to limit what the Government can do, but paragraph (h) removes that protection, as it says that the Government can do anything they like anyway. There is no doubt that the provisions are very dangerous. Although one accepts that any existing form of government we care to contemplate might not act in a dictatorial way, there are circumstances in which other groups may do otherwise. In a Bill of this sort, it cannot be right that a government be given absolute powers—whoever that government are, whatever political view they take, whatever political colour they may be—because they are powers that ought not to be in the gift of people without proper parliamentary control and agreement. I sincerely hope that the Minister can reassure us that our fears are unfounded, but I very much doubt that he can.
Lord Elton: We are almost having the clause stand part debate, so I merely endorse the very grave
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considerations raised by the provisions, and repeat the request for a great deal more iron cladding of the reservations modestly expressed in the previous clause.
In addition, the words "subject to" should appear pretty regularly referring to those parts of the Bill which contain sunset provisions in relation to this. It may be superficial. It may be that the courts would rule without those words. I am now slightly on the other side of the argument I was on a moment ago. Although in those terms such words may not be necessary, in terms of a stark reminder to the Minister of the obligation he is under and the threat he is under if he misconducts himself, that should be on a piece of paper which is put on his desk when he is asked to do something.
Lord Bassam of Brighton: Certainly, I understand the concerns expressed by the noble Earl, Lord Onslow, which rather overshadow the way in which the Committee considers the whole of the Bill. No one likes the situation that might emerge whereby any government have to take emergency powers and enact draconian measures by regulation.
However, Clause 22 tries to be more specific. I am grateful to the noble Baroness, Lady Buscombe, for making the concession that she can now understand why perhaps it is no longer necessary to amend the parts of the Bill which she originally thought would need amending. Clause 22 sets out what may be included in emergency regulations if the situation which is anticipated meets the definition of "emergency" in Clause 19 and it is necessary and—another important word here, particularly in view of our earlier debates—"proportionate" for action to be taken in order to prevent, control or mitigate a particular aspect of an emergency.
I shall deal, first, with Amendment No. 110 tabled in the name of my noble and learned friend Lord Archer. We cannot accept the amendment. However, I think that everyone would accept that by their very nature, emergencies are unpredictable. Some of what needs to be done in order to mount the most effective response may not be clear in advance. To attempt to construct an exhaustive list of actions that would cover every possible scenario in which emergency powers may be needed now and in the future would be not only unfeasible but, it may be reasonably argued, could put us at risk.
Lord Archer of Sandwell: I am grateful to my noble friend for giving way. If these emergencies are so unpredictable that we cannot make a list of what is required to be done, why make half a list in Clause 22?
Lord Bassam of Brighton: Not unreasonably, because we can anticipate some of those situations. That is exactly why we have the clause. However, it is important to leave ourselves with the space to say that there are situations that we cannot predict or imagine, perhaps because of technological or other changes.

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The noble Baroness asked me a reasonable question; that is, what other specific activities might we need to account for. There may be things such as rationing, which is not contained in the list. But there may well be other measures that at this point we cannot anticipate and predict. Any government would be—
Lord Elton: Does that mean that the power would not be in the Bill to deal with such unforeseen instances? Surely, we are providing legislation to deal with what cannot be foreseen. Merely to list what we happen to foresee now seems to weaken the Bill under the law of—the noble Baroness will correct my pronounciation—expressio unius est exclusio alterius: if one thing is included in the Bill, by inference the other does not need to be included.
Lord Bassam of Brighton: I am trying to imagine what the debate would have been like if we had not attempted to anticipate some of the things that might happen and some of the actions that might be necessary. The items listed give a very clear indication but I am sure that the noble Lord can see that we cannot anticipate every event. It is just not possible to do that. That is why the legislation is framed in the way that it is.
Lord Avebury: If the noble Lord can foresee that there may be an emergency which would require the Government to impose rationing, why was that not included in one of the paragraphs (a) to (q)?
Lord Lucas: Exactly, as the noble and learned Lord, Lord Archer said. But, surely one of the things that we must anticipate is that the Government will decide that in order to limit an emergency it is necessary to kill a substantial quantity of citizens. If, say, a nasty virus is confined to Winchester, they might wish to destroy the population of Winchester to prevent the rest of us dying. That would be an entirely reasonable thing to do. It would not be a comfortable provision to find in legislation. By listing in this way, they are somehow making the Bill seem less objectionable. If they just included the bare, absolute power, we might more generally realise what it is we are being asked to do.
Lord Bassam of Brighton: It is interesting that the debate is turning in this way. I feel more secure with an identity or vision of what it is that we may have to do. It is for that reason, because we are taking a reasonable and common sense approach, that we framed the legislation in the way we have. I draw attention to the Emergency Powers Act 1920. This is in contrast to the way in which that piece of legislation is framed. That Act gave no indication as to what kind of provision was made. As I made clear, the list is designed to assist parliamentarians in scrutinising the Bill.
The Earl of Onslow: What the noble Lord is doing is rather like "The Charge of the Light Brigade": half a list, half a list, half a list onwards. But the list is then
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completed, as was said by the noble Baroness, Lady Buscombe, by the inclusion of paragraph (h) which immediately makes the list otiose because it says that he can do anything. If I can do this, this, this and this and anything else I want to do, why have any list at all?
Lord Bassam of Brighton: The range of possible emergencies makes it impossible to predict, let alone list, all the activities that may have an effect. No doubt new activities will emerge over time. Having a power to prohibit or enable the prohibition of other activities is therefore necessary, and I think is sensible. It "future-proofs" and ensures the comprehensiveness necessary to facilitate effective responses in all possible scenarios. All regulations made, including prohibiting activities, must be necessary—they have to go through a necessity test—and proportionate in the circumstances. More importantly, they are subject to scrutiny by Parliament and must be compatible with the ECHR. Those important hedging, fencing, conditioning and qualifying measures have to be in place. That is why the legislation is framed and phrased in this way.
I find it rather surprising that noble Lords think, in the circumstances, that we should either list everything we can possibly imagine or not have any list and just state a power which is absolute and widespread. I suppose, in the nightmare scenario envisaged by the noble Earl, Lord Onslow, that is more of a nightmare than is currently the situation. I find that very surprising.
Baroness Buscombe: That is the whole point behind my amendment. Perhaps I have been a little too subtle. This part of the list says that he or she can do anything they want to do and it need not be specified.
Lord Bassam of Brighton: I am sure that the noble Baroness is very subtle in the structure of her argument. Certainly, her amendments are very subtle, but I made the important point that all of the regulations that would fall to be considered have to be necessary and proportionate. They are subject to parliamentary scrutiny and have to be compatible in terms of the ECHR. That all provides an effective check on the way in which the legislation is framed and designed to work.
The Earl of Onslow: The noble Lord said that the regulations would be compatible with the ECHR. Later in the Bill is a provision for the Government to repeal any Act they like, and so that would "uncompatibilise" them. While I am on my feet, I also note paragraph (q), which states:
"make different provision for different circumstances or purposes",
and that is also pretty wide. The noble Lord cannot see what we are getting at.
Lord Bassam of Brighton: Of course we can see where the noble Earl is coming from, and we are explicit in terms of the European Convention on Human Rights. I can well understand the general feeling that lies behind the concerns expressed on the Benches opposite and behind some of the concerns raised on our side of the Chamber. But the important point is that there is effective scrutiny and checking here. We are trying to be as helpful as we can in listing as many situations as we consider reasonable, although clearly there will be others. However, ultimately we have to rely on the strength of our system and the process of scrutiny because those are extremely important.
The list in Clause 22(3) gives an indication of other provisions that may be required, and it is very valuable in that respect. We can debate the issue raised in particular by the noble Earl, Lord Onslow, when we reach Amendment No. 136.
We cannot accept the amendments. I am grateful that the noble Baroness has, in part, accepted our argument and I hope that she will reflect further on the important points that have been made in response to Amendment No. 125. I also trust that my noble and learned friend Lord Archer will think further about his Amendment No. 110.
Baroness Buscombe: I am grateful to the Minister for his response to my amendment. I am also grateful to the noble and learned Lord, Lord Archer, for his amendment, which I believe entirely complements and further articulates or amplifies the point that I have been trying to make. We have had a good debate. At this stage, it is sensible to say that we should agree to disagree. I shall think about what the Minister said. I am not satisfied but, for now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bassam of Brighton: I beg to move that the House do now resume. After we have dealt with the Companies (Audit, Investigations and Community Enterprise) Bill, we will take the Statement and return to the Civil Contingencies Bill after that. For that reason, I am unable to suggest a time at which the Committee stage should resume.
Moved accordingly, and, on Question, Motion agreed to.
House resumed.

Companies (Audit, Investigations and Community Enterprise) Bill [H.L.]
1.33 p.m.
The Parliamentary Under-Secretary of State, Department of Trade and Industry (Lord Sainsbury of Turville): My Lords, I beg to move that the Commons amendments be now considered.
Moved accordingly, and, on Question, Motion agreed to.

COMMONS AMENDMENTS
[The page and line refer to HL Bill 142 as first printed for the Commons.]
COMMONS AMENDMENTS
1 After Clause 18, insert the following new clause—
Relaxation of prohibition on provisions protecting directors etc. from liability
(1) After section 309 of the Companies Act 1985 (c. 6) insert—

309A Provisions protecting directors from liability
(1) This section applies in relation to any liability attaching to a director of a company in connection with any negligence, default, breach of duty or breach of trust by him in relation to the company.
(2) Any provision which purports to exempt (to any extent) a director of a company from any liability within subsection (1) is void.
(3) Any provision by which a company directly or indirectly provides (to any extent) an indemnity for a director of—

(a) the company, or

(b) an associated company,

against any liability within subsection (1) is void
This is subject to subsections (4) and (5).
(4) Subsection (3) does not apply to a qualifying third party indemnity provision (see section 309B(1)).
(5) Subsection (3) does not prevent a company from purchasing and maintaining for a director of—

(a) the company, or

(b) an associated company,

insurance against any liability within subsection (1).
(6) In this section—
"associated company", in relation to a company ("C"), means a company which is C's subsidiary, or C's holding company or a subsidiary of C's holding company;
"provision" means a provision of any nature, whether or not it is contained in a company's articles or in any contract with a company.

309B Qualifying third party indemnity provisions
(1) For the purposes of section 309A(4) a provision is a qualifying third party indemnity provision if it is a provision such as is mentioned in section 309A(3) in relation to which conditions A to C below are satisfied.
(2) Condition A is that the provision does not provide any indemnity against any liability incurred by the director—

(a) to the company, or

(b) to any associated company.

(3) Condition B is that the provision does not provide any indemnity against any liability incurred by the director to pay—

(a) a fine imposed in criminal proceedings, or

(b) a sum payable to a regulatory authority by way of a penalty in respect of non-compliance with any requirement of a regulatory nature (however arising).

(4) Condition C is that the provision does not provide any indemnity against any liability incurred by the director—

(a) in defending any criminal proceedings in which he is convicted, or

(b) in defending any civil proceedings brought by the company, or an associated company, in which judgment is given against him, or

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(c) in connection with any application under any of the following provisions in which the court refuses to grant him relief, namely—

(i) section 144(3) or (4) (acquisition of shares by innocent nominee), or

(ii) section 727 (general power to grant relief in case of honest and reasonable conduct).

(5) In paragraph (a), (b) or (c) of subsection (4)the reference to any such conviction, judgment or refusal of relief is a reference to one that has become final.
(6) For the purposes of subsection (5) a conviction, judgment or refusal of relief becomes final—

(a) if not appealed against, at the end of the period for bringing an appeal, or

(b) if appealed against, at the time when the appeal (or any further appeal) is disposed of.

(7) An appeal is disposed of—

(a) if it is determined and the period for bringing any further appeal has ended, or

(b) if it is abandoned or otherwise ceases to have effect.

(8) In this section "associated company" and "provision" have the same meaning as in section 309A.

309C Disclosure of qualifying third party indemnity provisions
(1) Subsections (2) and (3) impose disclosure requirements in relation to a directors' report under section 234 in respect of a financial year.
(2) If—

(a) at the time when the report is approved under section 234A, any qualifying third party indemnity provision (whether made by the company or otherwise) is in force for the benefit of one or more directors of the company, or

(b) at any time during the financial year, any such provision was in force for the benefit of one or more persons who were then directors of the company,

the report must state that any such provision is or (as the case may be) was so in force.
(3) If the company has made a qualifying third party indemnity provision and—

(a) at the time when the report is approved under section 234A, any qualifying third party indemnity provision made by the company is in force for the benefit of one or more directors of an associated company, or

(b) at any time during the financial year, any such provision was in force for the benefit of one or more persons who were then directors of an associated company,

the report must state that any such provision is or (as the case may be) was so in force.
(4) Subsection (5) applies where a company has made a qualifying third party indemnity provision for the benefit of a director of the company or of an associated company.
(5) Section 318 shall apply to—

(a) the company, and

(b) if the director is a director of an associated company, the associated company,

as if a copy of the provision, or (if it is not in writing) a memorandum setting out its terms, were included in the list of documents in section 318(1).
(6) In this section—
"associated company" and "provision" have the same meaning as in section 309A; and
"qualifying third party indemnity provision" has the meaning given by section 309B(1)."
(2) In section 310 of that Act (provisions exempting officers and auditors from liability), the following provisions cease to have effect—

(a) in subsection (1), the words "any officer of the company or", and

(b) in subsection (3)—

(i) the words "officer or" (in both places), and

(ii) the words from "section 144(3)" to "nominee) or";

and in the side note, for "exempting officers and" substitute "protecting"."
2 Insert the following new Clause—

Funding of director's expenditure on defending proceedings
After section 337 of the Companies Act 1985 (c. 6) insert—

337A Funding of director's expenditure on defending proceedings
(1) A company is not prohibited by section 330 from doing anything to provide a director with funds to meet expenditure incurred or to be incurred by him—

(a) in defending any criminal or civil proceedings, or

(b) in connection with any application under any of the provisions mentioned in subsection (2).

(2) The provisions are—
section 144(3) and (4) (acquisition of shares by innocent nominee), and
section 727 (general power to grant relief in case of honest and reasonable conduct).
(3) Nor does section 330 prohibit a company from doing anything to enable a director to avoid incurring such expenditure.
(4) Subsections (1) and (3) only apply to a loan or other thing done as mentioned in those subsections if the terms on which it is made or done will result in the loan falling to be repaid, or any liability of the company under any transaction connected with the thing in question falling to be discharged, not later than—

(a) in the event of the director being convicted in the proceedings, the date when the conviction becomes final,

(b) in the event of judgment being given against him in the proceedings, the date when the judgment becomes final, or

(c) in the event of the court refusing to grant him relief on the application, the date when the refusal of relief becomes final.

(5) For the purposes of subsection (4) a conviction, judgment or refusal of relief becomes final—

(a) if not appealed against, at the end of the period for bringing an appeal, or

(b) if appealed against, at the time when the appeal (or any further appeal) is disposed of.

(6) An appeal is disposed of—

(a) if it is determined and the period for bringing any further appeal has ended, or

(b) if it is abandoned or otherwise ceases to have effect.""

Lord Sainsbury of Turville: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 1 and 2. I shall also refer to Amendment No. 6, which is grouped with them.
The two new clauses proposed in Amendments Nos. 1 and 2 address the important issue of directors' liability. The Government consulted in December last year on a range of options for the reform of the law in this area, and the Secretary of State for Trade and Industry made a Written Statement on 7 September setting out the Government's response. I know that a

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number of noble Lords have a keen interest in the Government's proposals in this area. Perhaps I may, first, by way of introduction, set out the two main conclusions from the consultation.
Respondents were clear that reform to the law on directors' liability needs to strike a careful balance: on the one hand, we need a diverse pool of high-quality individuals willing to assume the role of company director and a willingness by directors to take informed and rational risks; on the other, the law must be firm and robust in order to deal fairly with cases where something has gone wrong as a result of either negligence or dishonesty. The Government very much agree.
Secondly, the consultation provided strong anecdotal evidence that concerns about liability are affecting the recruitment and behaviour of directors, particularly in struggling companies and in sectors such as financial services. There appear to be two main concerns: exposure to third party liabilities, particularly in the US; and the cost of lengthy court proceedings. The two new clauses address those concerns as part of a balanced and carefully targeted package of reforms which also clarifies a technically difficult area of law. I shall look briefly at each in turn.
The first new clause amends the existing provisions in the Companies Act 1985 relating to directors' liability. It does two things. First, it inserts into the Companies Act 1985 three new sections—309A, 309B and 309C—which replace the existing provisions on directors' liability, but not auditors' liability, in Section 310 of that Act. Secondly, it disapplies existing Section 310 from directors and other officers.
New Section 309A begins by restating the core prohibition on companies exempting directors from, or indemnifying them against, liability. Many of the key elements are retained from Section 310 of the 1985 Act. In particular, a company is prohibited from exempting a director from, or indemnifying him against, a liability to the company, and a company is also permitted to purchase and maintain insurance against any such liability.
There are, however, three important changes from the existing Section 310 of the Companies Act 1985. First, in line with the recommendation of the Company Law Review, the new section does not extend to liabilities of officers other than directors.
Secondly, new Section 309A clarifies the law relating to indemnification by a third party and, in so doing, closes an important loophole. In some groups of companies, it is current practice for one group company to indemnify a director of another company in the same group. We do not believe that that should be permitted. If the company itself is not permitted to provide indemnification, it cannot be right for another group company to circumvent the prohibition by doing so.
Thirdly, the new section addresses directors' concerns about their exposure to third party liabilities by clarifying the law in respect of the ability of companies to indemnify directors against liabilities to third parties. There is no reason why companies
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should not be permitted to indemnify directors in respect of third party claims in most circumstances. After all, such claims could—and, many would argue, should—be brought against the company. Moreover, this is a major area of concern, particularly in the case of companies with an overseas listing.
Permitting indemnification by the company would be of particular benefit to companies with a US exposure as it would enable them to indemnify directors against liabilities arising from class actions by groups of shareholders. New Section 309A(4) therefore states that the prohibition against indemnification by a director's company or "associated company" does not apply to a,
"qualifying third party indemnity provision".
The meaning of a "qualifying third party indemnity provision" is explained in new Section 309B, which sets out three conditions which must be satisfied for an indemnity to qualify. Condition A is that a qualifying provision may not provide any indemnity against any liability incurred by the director to the company itself or to an associated company.
Condition B is that a qualifying provision may not provide any indemnity against any liability incurred by the director to pay a civil penalty to a regulatory body, such as the Financial Services Authority, or a fine in a criminal case.
Condition C is that a qualifying provision may not provide an indemnity against any liability incurred by the director in defending civil or criminal proceedings in which he is convicted or judgment is given against him—in other words, the costs of an unsuccessful defence—except for civil proceedings brought by third parties.
That condition is largely the mirror image of the current Section 310(3), under which a company is permitted to indemnify a director against any liability incurred by him in defending any proceedings, whether civil or criminal, in which judgment is given in his favour or in which he is acquitted.
Subject to these conditions, companies will be permitted to indemnify directors in respect of proceedings brought by third parties. Indemnification in such cases could cover both legal costs and the financial cost of adverse judgment, except criminal penalties, penalties imposed by regulatory bodies and the legal costs of unsuccessful criminal defences or applications for relief.
New Section 309C concerns disclosure. It is clearly important that companies and directors act openly and transparently. We therefore intend to require a statement in the directors' report that a director has been indemnified by the company or by an associated company. Shareholders will also have the right to inspect qualifying third party indemnity provisions made by the company or associated company. That is achieved by applying Section 318 of the Companies Act 1985, under which directors' service contracts must be open to inspection by shareholders. Companies which choose not to indemnify directors will not have to make any disclosure.

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The current Section 310 covers both director and auditor liability. Although the issues are clearly linked, it is not inevitable that this should be so. Indeed, the Companies Act 1928, which first introduced the statutory prohibition, had separate sections relating to director and auditor liability. Under the Government's proposals, the current section would be amended by subsection (2) of the first new clause so that it deals only with auditors' liability, with new Sections 309A, 309B and 309C addressing directors' liability.
I come now to the second new clause. As I have said, many respondents to the consultation were particularly concerned at the cost of legal proceedings. That is understandable, as at the moment a director may have to fund his own defence, even if the action is malicious or unlikely to succeed. The company can indemnify a director against his legal costs, but only if he is successful in the proceedings. In the mean time, the director may face years of financial hardship, or even financial ruin. The Government therefore intend to allow, but not require, companies to pay directors' defence costs as they are incurred, even if the action is brought by the company itself or is a derivative action.
Section 330 of the Companies Act 1985 currently restricts a company's power to make loans or quasi-loans to directors, or to enter into certain types of credit transactions with directors. The second new clause therefore inserts a new section—Section 337A—into the Companies Act 1985 which would permit companies to pay directors' defence costs, either in civil or criminal cases, as they are incurred. The director would, however, be required to repay the loan if he were convicted in criminal proceedings or judgment was given against him, except where, by means of a qualifying third party indemnity provision under new Sections 309A and 309B, the company chooses to forgive the loan in the case of civil proceedings brought by a third party. We accept that in some cases the director might be unable to repay the amount of the loan in full, but we share the view of most respondents to our consultation that this possibility will not in practice affect directors' behaviour, not least because of the reputational damage which the director will suffer.
Amendment No. 6, which amends Schedule 8 which lists repeals and revocations, is consequential upon the new clauses.
The Government's reforms address the two issues—exposure to third party liabilities and the cost of lengthy court proceedings—which appear at the moment to cause directors most concern. I think the reforms have been generally welcomed, but we are aware that some would like to go further by permitting a company to limit a directors' liability to the company itself. We understand the force of the arguments for such change, particularly in relation to the need to widen the pool of non-executives and to encourage directors to take informed and rational risks, but such a step would need to be considered very carefully.
It would in the first place raise difficult issues of principle. Directors' general duties are owed to the company. It is therefore important that companies can
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hold directors to account if they act in breach of these duties. If they cannot, shareholders will suffer and the general duties of directors will be diminished. It is therefore necessary to proceed cautiously.
Secondly, there are difficult practical issues which need to be properly addressed. The Companies Act could, for example, be amended so that companies could exempt directors from liability with prior shareholder consent. But we would need to reflect carefully about whether that would provide sufficient protection for minority shareholders. Alternatively, the Act could impose a statutory threshold, but it would in practice be very difficult to agree a threshold which both satisfactorily addressed the concerns of many first-time non-executive directors and retained the moral hazard for the very wealthiest executive directors.
1.45 p.m.
We also need to act very carefully so that we do not inadvertently permit companies to exempt directors from liability in cases of deliberate wrongdoing. As noble Lords will be aware, the Government are committed to implementation of the recommendations of the Company Law Review, including the key recommendation proposals that there should be a statutory statement of directors' general duties to the company. This important reform will enable us to adopt a more targeted approach in future reform of the law on directors' liability. We would, for example, be able to permit companies to cap directors' liability for negligence without permitting them to cap liability where directors put their personal interests before their duty to the company.
In view of these factors, we do not intend to take precipitate action by legislating to permit a company to limit a director's liability to the company in this Bill. We will, however, continue to monitor the impact that the current prohibition is having on director recruitment and behaviour, and reflect on this further in the context of our major reform of company law.
Moved, That the House do agree with the Commons in their Amendments Nos. 1 and 2.—(Lord Sainsbury of Turville).
Lord Hodgson of Astley Abbotts: My Lords, nine months have passed since the Bill's Second Reading on 8 January 2004, and I begin as I began then. Company law as a whole urgently needs an overhaul, as the Minister has been telling us, and the remit of this Bill is insufficient to achieve that. In these nine months the Bill has been subject to scrutiny in both Houses, as a result of which it has been polished and refined. I pay tribute to my colleague in the other place, Andrew Mitchell, for his efforts in this regard.
However, this Bill still deals only with a series of narrow issues that would surely have been better discussed as part of the full reform of both company law and, indeed, charity law. Despite constant consultation between the DTI and the Treasury, this promised major reform has yet to emerge. Therefore, this much awaited "major company law reform", which the Minister anticipated in his remarks, still throws a long shadow over this pretty slim Bill.

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The preface to the paper Modernising Company Law perhaps best sums up the urgent need for reform. It states that company law has,
"failed to adapt to meet the changing role of small enterprises, IT and international markets.
"So the law needs to change. It needs to modernise and reform. It needs to be fit for the twenty-first century and beyond".
As we have remarked before, these words were written by Patricia Hewitt in July 2002 and, despite, as we see it, the now inadequately entitled Companies (Audit, Investigations and Community Enterprise) Bill we are still waiting for company law to be fully modernised.
Instead of beginning a comprehensive overhaul of company law the Bill is being used by the Government as a Christmas tree upon which they can hang bits and pieces of reform—a bauble here and a bit of tinsel there; whatever catches the Government's eye and might provide a good headline or sound bite. The reality is that company law reform is about not headlines or sound bites but hard graft—potentially with a lot of criticism and not much thanks. But it needs to be done and if the Government really understood the needs of business and commerce they would get on with it.
The addition of the Government's two new clauses in the other place further confirms this Christmas-tree approach to company law reform. I have previously mentioned that this Bill represents a clear case of carts before horses; this is another cart before the horse.
The cumbersome manner in which company law is being reformed is already contributing to delays and dissatisfaction. The introduction of the operating and financial review, which we discussed at length in Committee, was expected on 1 January 2005 but as a result of pressure is now to be introduced later in the year.
New subsection (4A) of Clause 13, entitled "Power to specify bodies who may issue reporting standards", was intended as a paving device. However, the implementation of this new review has been delayed. I suppose that there must be more pressing matters at hand. The Minister may have read the letter in the Financial Times of Friday 15 October entitled,
"A better way to reform company law".
The letter is signed by Mr Eric Anstee, chief executive of the Institute of Chartered Accountants in England and Wales, Mr Alan Blewitt, chief executive of the Association of Chartered Certified Accountants, Mr Pat Costello, chief executive of the Institute of Chartered Accountants in Ireland, Mr Steve Freer, chief executive of the Chartered Institute of Public Finance and Accountancy, Mr Ian Marrian, chief executive of the Institute of Chartered Accountants in Scotland, and Mr Charles Tilley, chief executive of the Chartered Institute of Management Accountants. The letter reads:
"A revised timetable for the introduction of the Operating Financial Review is to be welcomed. It should afford the Government the opportunity to deal with director and auditor liability reform to allow the OFR to be the bold and meaningful document that we are all seeking. Company law reform must take place in the round"—
"in the round" are the words used—
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"if we are to improve the quality of financial and non-financial information available to investors and ensure UK capital markets remain fit for purpose".
When the Minister introduced the Bill on Second Reading, nearly a year ago, he said:
"The company is more popular than ever, and this Government are committed to reforming current companies legislation. We are taking forward the work of the independent Company Law Review in order to remove unnecessary regulation in the current law, to simplify the law, particularly as it affects smaller firms, and to make the law as a whole more flexible for the needs of the 21st century.".—[Official Report, 8/01/04; col. 258.]
Is it not extraordinary that, nine months later, the senior representatives of the chartered accountancy profession seem to think that the Government's policy is taking us backwards? Introducing a new mandatory review for listed companies to display strategic plans and environmental concerns may seem progressive, but without director and auditor liability reform, it is just another cart before the horse—which, of course, is exactly why the OFR has been delayed.
Turning specifically to the amendments from the other place, I am, as ever, grateful to the Minister for his careful introduction and explanation. As I understand it, new Clause 19, entitled,
"Relaxation of prohibition on provisions protecting directors etc. from liability",
permits companies to indemnify directors in respect of proceedings brought by third parties, covering both the legal and financial costs of any adverse judgment, except criminal penalties or those imposed by regulatory authorities. Those companies that choose to indemnify directors will—rightly—be required to disclose that in the directors' report and shareholders will be permitted to inspect any indemnification agreement.
The second amendment, new Clause 20, entitled,
"Funding of director's expenditure on defending proceedings",
entitles companies to pay directors' costs as they are incurred, even if the action is brought by the company itself. As the Minister pointed out, that prevents the possibility of a director becoming personally bankrupt before a case reaches a conclusion, as legal expenses will have to be paid for by the director only when and if a judgment is made against him.
We welcome the principle behind those clauses. As the Minister said, we all agree that the cause of Great Britain plc will be better served if men and women of quality and experience are encouraged to serve on the boards of companies. However, as I have said during the course of our debates on the Bill, my concern is that the Government are more preoccupied with form than effect. The consequence has been to pile box-ticking exercises on to boards of directors. For those who are non-executive, that requires them either to assume a considerable bureaucratic burden or to place a high degree of reliance on their executive co-directors.
The present statutory requirement that a director must fund the cost of any legal claim made against him is another disincentive to serve on a company, as the Minister made clear, and a rising disincentive in this increasingly litigious age. The change proposed in new Clause 20 to some extent redresses that imbalance. For

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justice to be fair, there needs to be some equality of arms. The present drafting of Section 310 of the Companies Act 1985 makes that almost impossible to achieve. On the one side stands a large company, or more likely a large insurance company; on the other a single director. One party has deep pockets and endless time; the other has personal resources only and a not unnatural desire to get on with his or her life. The ability of the company to help a director's personal cash flow, at least until the case is determined, is likely to give some reassurance to directors, especially non-executives.
However, I have a couple of specific points on which I would welcome the Minister's clarification. Further, there is one broad area of principle on which I want to probe the Government's thinking. The first point is an issue of clarification of the new clause contained in Amendment No. 1. The proposed subsection (6) contains a detailed definition of "associated company". I see no definition of subsidiary in the definition; maybe it is contained elsewhere in the archaeological layers of the Companies Acts. It would be helpful if it was made clear whether the definition of associated company relating to the new provision is a 51 per cent, 75 per cent or 100 per cent-owned subsidiary.
What about companies that are effectively subsidiaries in the sense that effective voting control resides with one company? For example, company A may own 49 per cent of company B, with the balance of 51 per cent of the shares owned among a multiplicity of smaller shareholders. Further, what about the implications of management control? To give another example, company A may own only 25 per cent of the shares of company B, but appoint a majority of its directors. When he comes to reply, perhaps the Minister could enlighten us as to how all that fits in to his scheme of things.
Secondly, I see no distinction in the definition between companies incorporated in the UK and overseas. The Minister will recall our debates in Committee on Clause 8, concerning auditors' rights to information. During those debates, although accepting his concern about extra-territoriality, we sought to persuade him of the need for a level playing field if directors and employees were not be confused about their legal duties and responsibilities. The Minister would not accept our arguments, although we repeated them on Report. The Minister said of Clause 8:
"I need first to distinguish between domestic subsidiaries and foreign subsidiaries. In respect of the former, we do not believe that the clause needs to make any special provision. We are trying to keep the powers of the FRRP as straightforward as possible … The case of overseas subsidiaries is somewhat different".—[Official Report, 17/03/04; col. GC87.]
If we cannot have a level playing field for Clause 8 because of extra-territoriality, why can we do so for subsection (6) of the first new clause? Surely, the principles that operate for those companies are exactly the same.
My second detailed point is briefer. New Clause 309B, also contained in the first amendment, is entitled,
"Qualifying third party indemnity provisions".
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I draw the Minister's attention to subsection (4). I am clear about the implications of subsections (4)(a) and (b), but the implications of subsection (4)(c), especially paragraph (ii) and its reference to,
"honest and reasonable conduct",
is not so clear. When the Minister comes to reply, could he explain that clause, especially the implication of those words, in more detail? His answer may have a bearing on the more general point that I want to raise about the second new clause.
Turning to that more general point, as I understand it, the funding provided by a company to a director to conduct his or her defence is temporary. In a case where the court finds against the director, the funding will have to be repaid. As I read it, there is no test of reasonableness attached to the provisions. Win, and the director does not have to repay any funding from the company; lose, and he does. It is black or white; there is no third way, which I would have thought might appeal to the Government.
Is that fair? Let us consider an example. Company A and its directors are sued. Successive layers of the court system find in favour of company A and its directors, but the aggrieved party continues to appeal, taking the case to ever higher courts until it finally reaches your Lordships' House, acting in its judicial capacity, where judgment is given in favour of the plaintiff, overturning all the judgments of the lower courts. In such a case, the directors will presumably be asked to repay any money advanced by the company. However, given the sequence of events in my example—with successive court findings in their favour—the directors' belief in the correctness of their action was hardly unreasonable. Yet, as I read it, each of them will remain personally liable for their defence, even if we implement the new clauses in the form proposed by the Government.
Let me make it clear that I yield to no one in wanting to see the punishment of company directors who are found to have acted recklessly or without due care and attention. Such punishment should clearly include liability for personal defence costs. But where a director has acted reasonably or in good faith, the requirement to repay defence costs seems harsh. In effect, it impacts on the equality of arms issue that I raised earlier. I should be grateful if the noble Lord could outline whether the Government have thought about that and what conclusions they have reached.
We accept the strategic argument behind the introduction of the clauses but, before accepting them, we should like to hear the Minister's answer to the points that I have raised.
2 p.m.
Lord Sharman: My Lords, during our debates on the issues surrounding this Bill, noble Lords on this side of the House have spent considerable time underscoring the desperate need for a general overhaul of company law. The noble Lord, Lord Hodgson, has spoken about that very eloquently and at length; I wish to associate myself with his remarks. An overhaul is long overdue and desperately needed. Corporate Britain

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can only benefit from a comprehensive review of the law that governs it to bring it into the 21st century. Having said that, I thank the Minister and congratulate him on fulfilling the commitment that he made to us in Committee, at which time the consultation process to which he referred was under way. At that time he said that he would come back with amendments if there was a consensus view.
The difficulty with dealing with director liability and auditor liability is that a simple solution is very tempting but enormously difficult to achieve. Those of us who sit on boards of directors would be very attracted to the possibility of saying, "We will have a limit on liability, let us put a cap on everything", yet I understand the difficulties involved. The amendments strike the right balance at this stage between the liability of a director acting on behalf of the company, which is what he should be doing most of the time, and the personal liability that he attracts if he does wrong. They reflect very well the results of consultation.
This is step one in the wholesale process of reforming the law of liability as it relates to boards of directors, officers and auditors. Although it is not before us today, the process that the Government have indicated they would like to see happen to resolve the very thorny issue of auditor liability—pursuing a track towards the notion of proportional liability—could also be very helpful in dealing with director liability. Nobody can argue with a premise that says that you are liable proportionately for the damage you do. A solution along those lines might be where we end up. Until we get there, I welcome these amendments; they have my full support.
Lord MacGregor of Pulham Market: My Lords, while I welcome this very small step forward, I agree very much with the remarks of my noble friend Lord Hodgson about the rate of progress that we are now making on company law reform. Given the rate of progress so far, it will be for a government after the next election to tackle these issues.
I seek a response from the Minister on one point in the immediate future: his point about the disincentives now to take on the liabilities of becoming a non-executive director. I have been involved as a director in trying to recruit quite a number of non-executives over the past two years. Based on my admittedly small sample and the anecdotal evidence of head-hunters, it seems a serious disincentive. This step will help, but the Minister will be aware that there have been other recommendations, including those from the Institute of Directors, about capping some of the liabilities in relation to earnings, salaries or whatever of non-executive directors—not in cases of breach of trust and so on, where I entirely accept the present position.
The Minister seemed to give some carrot in that he said that the Government would continue to review whether, even with these modest improvements, the present situation was inadequate in dealing with the disincentive point. I am not clear whether this is a smokescreen for in effect doing nothing, or whether there are clear practical steps that the Government would undertake to carry out such a review. If there
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are practical steps, I should be grateful if the Minister would indicate what they will be, so that we can be clear how the review is carried out.
Lord Sainsbury of Turville: My Lords, the noble Lord, Lord Hodgson, referred to the Bill as "a Christmas tree with halls". I must say that that shows a striking lack of understanding of what is happening out there in the real world. These two amendments address two issues which directors understand to be very real and, as consultation showed, which create problems in recruiting directors. The two issues are: exposure to third-party liabilities, particularly in the United States, and the cost of lengthy court proceedings. It seems entirely right in this case to deal with them now rather than to delay any further. It is not a reason for rushing through the company law Bill, which we will produce in draft form for consultation next year. It is much more sensible and practical to deal with the two issues separately now and then come to the main Bill later.
The noble Lord, Lord Hodgson, asked a number of fairly technical points. I shall deal first with the question of the definition of "associated company". The definition of "subsidiary" is contained in Section 736 of the Companies Act 1985 and is the same for all other purposes of that Act, except company accounts. There is nothing special about these new clauses in that respect. The definition of "subsidiary" in Section 736 includes overseas subsidiaries because in that section the word "company" includes any body corporate, including foreign ones. The reference to "honest and reasonable conduct" in new Clause 309B(4)(c)(ii) relates to the expression in Section 727 of the Companies Act 1985, which the courts have interpreted in a few cases. Essentially, it excludes dishonest or reckless conduct but includes honest mistakes.
The noble Lord, Lord MacGregor, asked about capping and the issue of further limits to directors' liabilities to the company. There are several reasons why we must proceed cautiously in this area. In the first place, any limit on the director's liability to the company raises difficult issues of principle. A director's general duties are owed to the company and it is therefore important that companies can hold directors to account if they act in breach of their duties.
Secondly, as I explained, difficult practical issues need to be addressed properly. The Companies Act could, for example, be amended to permit companies to exempt directors from liability with prior shareholders' consent, but would this provide sufficient protection for the minority shareholders? If not, the Act would need to impose a statutory threshold. In practice, however, it would be very difficult to agree a threshold which both satisfactorily addressed the concern of many first-time non-executive directors and retained the moral hazard for the very few wealthiest executive directors.
We must also ensure that we do not permit companies to exempt directors from liability in cases of deliberate wrongdoing. Some noble Lords might, for example, be willing to permit companies to cap directors' liability for negligence, but few, if any, would want to permit companies to cap liability where directors put their

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personal interests before their duty to the company. That is why we will consider the issue further in the context of our major reform of company law, which will implement the recommendation of the independent Company Law Review that there should be a statutory statement of directors' general duties to the company.
Finally, I turn to the point raised by the noble Lord, Lord Sharman, about the auditor's liability. As I am sure he knows, we have put in place a process to review that whole issue. I think that the noble Lord would agree that there are some very complex, technical issues about proportionality by contract; the main one being how in a situation which is, in a sense, cumulative negligence, proportionality is assessed. We have put in a process to try to get agreement to that. If we can, we will bring that forward with the company Bill.
On Question, Motion agreed to.

COMMONS AMENDMENT
3 Clause 65, page 50, line 18, leave out subsection (2)
Lord Sainsbury of Turville: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 3. This is the privilege amendment.
Moved, That the House do agree with the Commons in their Amendment No. 3.—(Lord Sainsbury of Turville.)
On Question, Motion agreed to.

COMMONS AMENDMENTS
4 Schedule 2, page 56, line 16, at end insert—
"(9A) For the purposes of this section, information obtained by an investigator in consequence of the exercise of his powers under section 453A includes information obtained by a person accompanying the investigator in pursuance of subsection (4) of that section in consequence of that person's accompanying the investigator."
5 Page 56, line 32, leave out paragraph 20 and insert—
"20 (1) Section 451A (disclosure of certain information) is amended as follows.
(2) For subsection (1) substitute—
"(1) This section applies to information obtained—

(a) under sections 434 to 446;

(b) by an inspector in consequence of the exercise of his powers under section 453A."

(3) After subsection (5) insert—
"(6) For the purposes of this section, information obtained by an inspector in consequence of the exercise of his powers under section 453A includes information obtained by a person accompanying the inspector in pursuance of subsection (4) of that section in consequence of that person's accompanying the inspector.
(7) The reference to an inspector in subsection (2)(b) above includes a reference to a person accompanying an inspector in pursuance of section 453A(4)."
Lord Sainsbury of Turville: My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 4 and 5. The Government introduced those two amendments on Report in the other place to address a small but significant shortcoming identified by the Opposition spokesman
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in Committee. They deal with information obtained by an individual accompanying an inspector or investigator on to premises.
The background is that an inspector or investigator, using the new power to enter and remain on premises contained in Clause 21, may be accompanied by one or more other people. For example, an investigator might be accompanied by a technical expert who can assist with the copying of information from a computer or in some cases an investigator might need an interpreter. It is possible that such an accompanying person might independently acquire information while on the premises.
However, as the Opposition pointed out in the other place, unless these amendments are agreed to, any information which such a person acquires, and the inspector or investigator does not, will not be statutorily protected in the same way as information obtained by an inspector or investigator. That was an oversight. The policy is that all information should be protected, no matter who might acquire it.
So new Clause 449 applies express protection for information obtained by an investigator with onward disclosure restricted to certain statutory gateways that allow disclosure in specified circumstances or to specified individuals. Amendment No. 4 amends new Clause 449 to extend that protection and the gateways to information obtained by an individual accompanying an investigator.
Information obtained by inspectors on a visit to premises is dealt with differently: the Secretary of State is expressly permitted to disclose such information to a specified person or for a specified purpose. She can authorise or require an inspector to do the same. The specified people and purposes are the same as for disclosure under Clause 449. Amendment No. 5 would ensure that information obtained by an individual accompanying an inspector is treated in the same way.
I trust that noble Lords accept these amendments, particularly given that they respond directly to an omission identified by the Opposition.
Moved, that the House do agree with the Commons in their Amendments Nos. 4 and 5.—(Lord Sainsbury of Turville.)
Lord Hodgson of Astley Abbotts: My Lords, the Minister will not be surprised that we support these amendments given their prominence by my colleague Andrew Mitchell in another place. We are grateful to the Government for having brought them forward.
Before we wave this area goodbye, perhaps I may take just one minute to emphasise a single point that still concerns us very much. The amendment relates to information gained under the provisions of Clauses 19, 20 and 21, as numbered in Bill No. 142. There are very important changes brought about by those clauses which, in our view, have considerable implications for civil liberties. We remain very concerned about the Government's proposal—line 24, page 25, Clause 21—to use the word "thinks" as opposed to the phrase "reasonably believes". It is the phrase "reasonably believes" that appears in the earlier Companies Acts.

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We have discussed that at length, but all the legal advice that we have had before, during and after our debates emphasises the legal view that there is a clear legal difference between "thinks" and "reasonably believes". In summary, the first is a subjective test; the second is an objective one. Therefore, in our view, the Government here are stealthily—maybe they are not aware of it—taking more powers to themselves.
2.15 p.m.
I shall not weary the House with the legal discourse, but merely say that we have been advised that the consequences of the judgment reached in Liversidge v Anderson in 1942 and the subsequent judgments that reflect that case confirm that there is a clear legal distinction between "thinks" and "reasonably believes".
I accept that our proposal has been rejected by the Government here and in another place. But as the Bill leaves this House, I want to put on the record our grave misgivings on this issue and our disappointment that the Government could not bring themselves to make that one-word change.
The noble Lord, Lord Sharman, was kind enough to support me in my remarks on company law reform. I hope that he will now forgive me if I say that it was very disappointing that the Liberal Democrats too were so cavalier about our civil liberties when we voted on this issue.
On Question, Motion agreed to.

COMMONS AMENDMENT
6 Schedule 8, page 72, line 21, column 2, at end insert—
"In section 310, in subsection (1) the words "any officer of the company or", and in subsection (3) the words "officer or" (in both places) and the words from "section 144(3)" to "nominee) or"
Lord Sainsbury of Turville: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 6 to which I have spoken with Amendment No. 1.
Moved, That the House do agree with the Commons in their Amendment No. 6.—(Lord Sainsbury of Turville.)
On Question, Motion agreed to.

COMMONS AMENDMENT
7 In the Title, line 1, leave out second "and" and insert ", to the provision that may be made in respect of certain liabilities incurred by a company's officers, and to"
Lord Sainsbury: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 7. This is the amendment to the Bill's Long Title, to reflect the inclusion in the Bill of the two new clauses on indemnification of directors, which we have already discussed. The Long Title had to be amended because the insertion of these new clauses in another place extended the scope of the Bill beyond the existing Title.
Moved, That the House do agree with the Commons in their Amendment No. 7.—(Lord Sainsbury of Turville.)
Lord Hodgson of Astley Abbotts: My Lords, I thank the Minister for his explanation. I have one quick question regarding the amendment. The Minister said in the other place that,
"in line with the … company law review, the new section does not extend to liabilities of officers other than directors".—[Official Report, Commons Standing Committee A, 14/9/04; col. 9.]
The Minister repeated that when he introduced new Clauses 1 and 2 a few minutes ago.
If, as the Minister said, the only officers to which this clause applies are directors, why does the Title of the Bill refer to,
"liabilities incurred by a company's officers",
and not liabilities incurred by a company's directors? I am sure that the noble Lord will have a quick and simple answer to that.
I notice that while the Long Title of the Bill has been amended to incorporate the Government's extra clauses concerning directors' liability, the Bill's Short Title of course has been left unamended. No doubt, it has been left unchanged to hide the embarrassment at the Christmas tree that has been created. Properly, of course, the Bill should now be renamed, the "Companies (Audit, Officers' Liability, Investigations and Community Enterprise) Bill". Of course, that Title would serve only to underline the inchoate nature of the provisions of the Bill as a hole.
Lord Sainsbury: My Lords, I think that the question raised by the noble Lord, Lord Hodgson, concerns the directors and whether it is therefore right to say that provision,
"may be made in respect of certain liabilities incurred by a company's officers".
The reason for that is that Clause 310 has been amended to remove other officers apart from directors and auditors. So it is a rather technical point, hut that is the explanation.
Lord Hodgson of Astley Abbotts: My Lords, before we leave this point, I thought that the Minister and his colleague in the other place said that this made no difference to any company's officers other than directors. The only people who are affected by the proposed new clauses are directors. The officers remain in the position that they were previously. So why do we have the word "officers" in the Long Title when we actually mean "directors"? As I understand it, those are the only people to whom the new provisions apply. The officers, other than directors, are quite unchanged. Therefore, why are we saying "officers" when we do not mean officers? What we actually mean is directors.
Lord Sainsbury of Turville: My Lords, whether you say "directors" to remove officers or "officers" to remove directors is a somewhat technical distinction.

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It is quite clear and is set out in the Title. Given that, I do not think that there will be any problem in understanding what this means.
Lord Hodgson of Astley Abbots: My Lords, I am sorry to come back on this again. As the Minister says, this is a small point. However, clarity is important. If we use the word "officers", someone looking at the Long Title will believe that it is concerned with officers. However, it is not concerned with officers in relation to this point; it is concerned only with directors. Therefore in the interests of clarity, and while this may be only a small change, for those consulting the Act in years to come it would be clearer if it referred to liabilities incurred by a company's directors because it does not affect the position of liabilities incurred by a company's officers. The Minister has told us that.
Lord Sainsbury of Turville: My Lords, given the noble Lord's insistence on obscurity rather than clarity, let me clarify the reason. Officers other than directors are now wholly removed from the scope of Section 310. That is why that is referred to in the Long Title.
On Question, Motion agreed to.

Iraq: Deployment of UK Forces
2.21 p.m.
The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Bach): My Lords, with the leave of the House, I shall now repeat a Statement made earlier today in another place by my right honourable friend the Secretary of State for Defence. The Statement is as follows:
"I would like to make a further Statement about the deployment of UK forces in Iraq.
"On Monday I explained to the House that the UK military had received, and was evaluating, a request from the US military command in Iraq for assistance that would involve UK land forces operating outside the MND (South East) area in support of a combined Iraqi/US force.
"A reconnaissance team from MND (South East) deployed to the area in question earlier this week has now reported back to the Chiefs of Staff. The team provided information on a number of issues including logistics, the length of the potential operation, the likely tasks, activity levels in the area, the force levels required and the command and control arrangements. After careful evaluation, the Chiefs of Staff have advised me that UK forces are able to undertake the proposed operation, that there is a compelling military operational justification for doing so, and that it entails a militarily acceptable level of risk for UK forces. Based on this military advice, the Government have decided that we should accept the US request for assistance.
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"I emphasise again that this was a military request, and has been considered and accepted on operational grounds after a thorough military evaluation by the Chiefs of Staff. As I said on Monday and as the Prime Minister said yesterday to the House, this deployment is a vital part of the process of creating the right conditions for the Iraqi elections to take place in January.
"We share with the Iraqi Interim Government and with our coalition partners a common goal of creating a secure and stable Iraq where men, women and children in towns like Fallujah can feel safe from foreign terrorists, from the kidnappers who murdered Ken Bigley and from other criminals. Crucially, Iraqi Prime Minister Allawi and the Interim Iraqi Government want to establish sufficient security for elections to take place in January.
"Recent successful operations by Iraqi security forces and coalition forces in Tal Afar, Samarra and the outskirts of Fallujah have been undertaken to restore areas under the control of militants and terrorists to the authority of the Iraqi Interim Government. As a direct result, the political process there is now moving ahead.
"We cannot consider the current UK area of responsibility in isolation. What goes on in the rest of Iraq affects southern Iraq and affects UK troops wherever they are based. We must therefore consider our contribution in the context of the overall security situation right across Iraq.
"This means that a UK armoured battlegroup consisting of the 1st Battalion the Black Watch and supporting units will deploy to an area within MNF (West) to relieve a US unit for other tasks. They will be deploying to a particular area with the necessary combat support services such as medics, signallers and engineers resulting in a total deployment of around 850 personnel. This deployment will be for a limited and specified period of time, lasting weeks rather than months.
"I cannot give the House further details about the location, duration or specifics of the mission. Honourable Members on all sides will understand that to do so would risk the operational security of the mission and potentially the safety of our forces. The speculation from many quarters so far has not been helpful. I should also emphasise that there are no plans to send a further 1,300 troops to Iraq as suggested this morning.
"There have been concerns about UK forces coming under US command and about their rules of engagement. The arrangements for this deployment are that the force will remain under the operational command of General Rollo, the UK General Officer Commanding MND (South East).
"On a day-to-day basis, the Black Watch will of course have to co-ordinate its activity with the US chain of command in the locality, but any changes in the mission or the tasking would have to be referred back to General Rollo. As with all UK operations, our forces will operate at all times under UK rules

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of engagement. These will provide proper protection for our forces, as they have throughout our operations in MND (South East).
"It is not unusual for UK and US forces to work alongside each other—they have successfully done so not only in Iraq with US forces often providing logistical support for our own forces and therefore reducing the number of troops and assets we need in theatre, but also in operations all over the world. Indeed, in Bosnia, about 22,000 US troops operated under UK command. As I said in my Statement on Monday, UK forces in Iraq work alongside forces from Italy, Denmark, Poland, the Netherlands, Japan and other countries on a daily basis. This is an effective and practical way of ensuring coherence both in our own area and with those that surround it. This is a practice with which UK forces are both content and comfortable.
"There has also been speculation as to why there is a need for this UK force to backfill for a US unit where there are around 130,000 US troops in Iraq. The armoured battlegroup that will deploy brings important qualities of extensive training, experience and hard-edge combat capability to replace a US armoured battlegroup of equivalent capability. It is not the case, as is often implied, that there are 130,000 US troops that could take on this task. In fact, under a third of US forces in Iraq have the requisite combat capability, and of those even fewer have the armoured capability that is needed. These specialised armoured forces are already highly committed across Iraq, a country about four-fifths the size of France. The Chiefs of Staff have further concluded therefore that the provision of a UK battlegroup to this new mission would be a significant contribution to and would materially increase the effect of the continuing operations to maintain pressure on the terrorists before the January elections.
"On Monday, honourable Members raised the question of whether this deployment would leave sufficient forces to deal with contingencies in our own area of responsibility in the south. The roulement of British forces currently under way includes an armoured infantry battlegroup of the 1st Battalion Scots Guards with their own Warrior armoured vehicles who will fulfil the divisional reserve role currently undertaken by the Black Watch. This will result in General Rollo temporarily having an extra armoured battlegroup under his command which will provide a very robust force capable of dealing with contingencies. It is also worth remembering that other UK forces in MND (South East) will continue to carry out their tasks in the professional and effective manner which has become so apparent to the people of Basra and the surrounding area, restoring power, water and basic facilities, and supporting the Iraqi authorities in ensuring a robust level of security.
"This deployment is limited in scope, time and space. It does not represent a permanent additional commitment of forces. The overall trend in the numbers of our deployment in Iraq remains down,
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from the peak of 46,000 during the war-fighting phase to around 8,500 today. That overall downward trend is expected to continue as we continue to train Iraqi security forces to take over from UK forces—as has happened, for example, in Al Amarah in Maysan Province.
"The Government remain totally committed in their support of the interim Iraqi Government and the need to hold free elections in January. We also remain committed to protecting innocent Iraqis, to dealing with terrorists, kidnappers and criminals, and to training and equipping Iraqi forces so that they can take our place in providing security and see that a democratic Government in Iraq take their rightful place in the international community—a Government who deliver prosperity and a secure future for the Iraqi people.
"That is something that should unite all sides of the House. It is right that the United Kingdom should contribute to those objectives. The deployment of the Black Watch will emphasise to the Iraqi people that the UK will continue to contribute to the coalition to see the task through".
My Lords, that concludes the Statement.
2.31 p.m.
Lord Astor of Hever: My Lords, I thank the Minister for repeating the Statement. We are relieved that the Government have ended the confusion of recent days and responded to many of the concerns and questions that were asked on all sides of the House on Monday. As I and my honourable friend the shadow Secretary of State for Defence made plain in our responses to that Statement, we support the coalition as it seeks to bring democracy, stability and freedom to Iraq, and to preserve her territorial integrity.
The Statement makes it clear that this deployment has the support of the Chiefs of Staff, following the reconnaissance reports that they will have received. Having heard that, and that the proposed mission is both feasible and fully within the capabilities of the Black Watch battle group, we support this deployment as being a necessary military contribution to the coalition's efforts to bring peace and stability to Iraq ahead of its elections. We are content to see that the Black Watch will be deployed with the necessary combat support services.
Will that battle group include a squadron of an armoured regiment with Challenger 2 tanks, possibly the Queen's Royal Lancers?
The Statement mentioned that the Scots Guards will be replacing the Black Watch. I understand that the Scots Guards have only just started moving from Germany. When is it envisaged that the battalion will be fully in place and ready to relieve the Black Watch? Have the Scots Guards been put on warning that they may be required in time to relieve the Black Watch in support of the combined Iraqi-US forces?
On Monday I asked questions about rules of engagement, and the Minister assured me that they are robust enough. But we remain very concerned. Will the Minister assure the House that troops who are about to

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face the enemy will not have their essential confidence undermined by the possibility of a commanding officer's legal judgments being subsequently overruled, as has recently been the case?
Bearing in mind the fact that, as the Prime Minister said yesterday, we are about to enter a period of increased activity in Iraq, will the Minister confirm that there is likely to be a surge requirement for extra troops to Iraq ahead of the Iraqi elections in January? Will he say whether any troops at present serving in Iraq will have to have their tour extended?
The whole House and the nation can be supremely confident that the Black Watch will carry out its task with all the fortitude, discipline and courage that we would expect from one of the finest regiments in the British Army. We wish them and the entire battle group the best of good fortune.
The Prime Minister created a good deal of confusion and uncertainty yesterday about the future of the Black Watch. Will the Minister confirm that wiser counsel might be prevailing and the Government may now be reconsidering their decision to cut four infantry battalions? Certainly, the Prime Minister appeared to offer the Black Watch a glimmer of hope.
2.35 p.m.
Lord Wallace of Saltaire: My Lords, I thank the Minister for repeating the Statement. I wonder whether he can clear up some confusion. We are told in the Statement that there is no truth in reports this morning that there is to be a substantial increase in the number of British troops in Iraq—up to 1,300. I assume that if the Scots Guards are deployed, we are talking about 700 to 800, or possibly 900, extra before the Black Watch comes back. That is a significant increase in the number of troops deployed. Perhaps the Minister can explain what appears to be a discrepancy between different paragraphs of the Statement.
We on these Benches are unhappy about the deployment of British troops outside the British sector and about putting them under the overall command of the United States, even if not under American immediate operational command.
Our reasons for that are our unhappiness at American tactics, such as the apparent disregard for the scale of civilian casualties and the lack of training in their relations with an occupied civilian population. Britain is being dragged behind the United States in its mistaken approach to a "war" on terror, and the confusion between the very necessary and delicate business of attempting to reconstruct a more stable Iraq and the global war on terror, which we hear set out every day in President Bush's re-election campaign. We know that there is unhappiness about that in Washington, even within the American armed forces.
We are not worried about whether the rules of engagement of British troops are robust enough; we are concerned that those rules of engagement should encourage a degree of restraint that, in itself, promotes a sense of confidence with the occupied population. We understand that the reasons for this deployment
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are that the Americans are mounting a major attack on Fallujah, and we are anxious about the extent of the destruction that may be meted out on Fallujah, and whether that is not counterproductive in terms of rebuilding a democratic Iraq.
Will the Minister say when the Secretary of State for Defence last discussed allied strategy in Iraq with his counterpart in the United States? Can we be reassured again that the United Kingdom has some influence over American strategy?
I strongly agree with my Conservative opposite number that the matter raises questions about the numbers of infantry that the United Kingdom will need, and the Government's proposals to reduce those numbers. The Black Watch may find that this tour of duty is all over by Christmas, but clearly we are talking about an extended commitment in Iraq, and there is a parallel extended commitment in Afghanistan.
We also ask about the impact of this deployment on the very necessary training of Iraqi security forces, in which the Black Watch was engaged. The provision of fully trained Iraqi security forces is, after all, one of the prerequisites for a future stable Iraq from which British forces can justifiably withdraw.
Will the Government recognise the scale of public and parliamentary unease about the direction of American strategy towards Iraq and the willingness of Her Majesty's Government to follow that American lead? There is an apparent absence of British influence over American policy or strategy, suggesting that a significant change of policy and strategy on Iraq that involves British forces should be subject to parliamentary debate, not just reported to Parliament as a fait accompli.
2.39 p.m.
Lord Bach: My Lords, I am grateful to both noble Lords for their remarks. In particular, as I think I can distinguish on this occasion, I thank the noble Lord, Lord Astor, and his party, for the support that they give to the military disposition. It is what I would expect of the Conservative Party. I would once have expected it of the Liberal Democrats, but no longer. I thank the noble Lord, Lord Astor, very much for what he had to say.
The noble Lord will forgive me, I know, when I disagree with his comment that there has been confusion about this over the past few weeks and days. It is not true. A request was made, a reconnaissance took place and a decision has been taken. That is a proper and sensible way to continue. As to his point about what the Prime Minister said yesterday about the Black Watch, it does not seem to me to be confused in any sense at all
He knows that I will not go into details. He will understand why I cannot answer his question about when the Scots Guards will arrive, or his other detailed questions. However, I can reassure him on his very important point about the rules of engagement, which remain absolutely robust. They have been adequate for UK forces for some time now. I also remind the noble Lord that British troops serving abroad are at all

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times subject to United Kingdom law. I believe that deals with the matters raised by the noble Lord, Lord Astor of Hever.
I wish I could be as generous to the noble Lord, Lord Wallace, and the party that he represents. They have to make up their minds: are they in favour of moving Iraq forward to the elections in January? If they are not, I can understand their refusal to endorse this move despite the overwhelming military support for it. But if they are in favour of the elections in January—and they say adamantly that they are—how in all conscience can they oppose this proposal? Its clear purpose is to ensure that we can hold elections in Iraq in January, which is what the Iraqi Interim Authority wants. To oppose it seems to be saying that they do not want that to succeed.
They suggested in another place—although I noticed that the noble Lord did not refer to this today—that every military disposal of this kind should be subject to a vote in the House of Commons. That is an absolutely amazing concept. It shows just how far they are removed from serious thought about these issues. The fact is that the Liberal Democrats have been found out on Iraq.
Earlier this week my noble friend Lady Symons showed quite clearly the double standards on legality that there have been over the past number of years. Added to that is a complete refusal to accept what is screamingly obvious and absolutely clear—that if their advice had been taken by Her Majesty's Government last year Saddam Hussein would still be in power with the inviting prospect of his sons succeeding him. As the Foreign Secretary said the other day, the Liberal Democrats' attitude towards that issue is a truth that dare not speak its name.
It is no use mouthing a few words of support for our troops and then opposing a disposition of this kind; that leaves our troops with a very unhappy feeling. Let me refer the noble Lord to a letter in yesterday's Guardian, which states:
"I am startled by much of the reaction to the proposed redeployment of some UK troops. Are they involved in a separate war from the other members of the alliance, or are they there to assist the Iraqis in ejecting insurgent forces so that they can proceed peacefully towards establishing a democratic government? If it is the latter, there is no question that they should be deployed wherever they are most needed. The support and encouragement our soldiers need to help them to complete the task is pitifully lacking here at home".
I am afraid it is pitifully lacking on the Liberal Democrat Benches.
2.44 p.m.
Lord King of Bridgwater: My Lords, I apologise for not being here at the beginning of the Minister's Statement. However, I did have the opportunity of hearing his right honourable friend deliver it in another place.
In the Statement he has sensibly clarified the references to 130,000 American troops, which was always extremely misleading. As the Statement makes clear, less than one-third are available for the kind of work that the Black Watch are being asked to
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undertake, and with even less armoured capability. That reinforces the statement made some time ago by the Chiefs of Staff in the United States when they asked Secretary Rumsfeld for greater forces, a request that was unfortunately declined.
The Scots Guards battle group is going to deploy. If they are required to go to this new deployment 350 miles north of the present area, presumably that means that we will still be without a reserve, which we have previously had. Can the Minister clarify what the position will then be? There is a great deal of easy, facile talk around at the moment that we have a temporary problem over Ramadan, a temporary problem ensuring that the elections run smoothly, and a ready assumption that everything will be quieter thereafter. In fact, the evidence is that insurgency is growing and is extremely serious.
In supporting what is obviously a necessary request at this time, my biggest criticism of the Government is that their duty here at home is to ensure that our forces undertaking this dangerous work have public support for what they are doing. It is a very important part of morale.
Let me describe two matters that will encourage public support. First, the public need to feel that real attention is being paid to the British point of view in the decision making that is taking place in Baghdad; that we are not merely the pillion passenger to an American policy dictated by Secretary Rumsfeld and the US military. Secondly—I have repeated this many times in the House—last night, for the first time on television, there was a good news item about the excellent work being done by TA officers on the electricity and water supplies in Basra. If good work is being done—and Ministers stand up and plead that they are doing it—the public are woefully ignorant of it. If our forces out there are doing good work, it is the Government's duty to make sure that everyone in this country is aware of it—not merely through Statements in this House from the Dispatch Box, which no one listens to, but through an effective public communications exercise to do our forces justice for what they are doing in Iraq.
Lord Bach: My Lords, the noble Lord uses his great experience in asking his questions. As to his first question about the condition on the ground in the south- east if—and it is a very big if—the Scots Guards are needed elsewhere, I asked this question before coming to the House today and I am advised that the commanding officers are satisfied that if that happened our troops in the south-east would not be exposed.
I am surprised that the noble Lord does not answer the second question himself. He held very high office in the department in which I serve at the present time, and he will know from his days, as we know from ours, how difficult it is to get the great British media to publish, either in written form or on radio or television, the good news that comes from a place like Iraq. It is very easy for them to publish any had news there may be; it is very difficult to get them to publish

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any good news. We will continue to do our best to ensure that the good news comes across. Some obviously did last night.
Lord Garden: My Lords, I was deeply disappointed to hear the Minister make party political points in terms of how we address the problem that we are all agreed about—that is, achieving both a peaceful and democratic Iraq and a peaceful and democratic Middle East.
I take the Minister's Statement at face value, in which case I am alarmed that the United States forces are so parlous that a small UK detachment is needed some 350 miles north and out of area. If this is the case—and given the convoluted command and control arrangements to which he referred—can the Minister tell us, if the Black Watch were to get into difficulties, would they get help from the United States forces or the United Kingdom forces?
Lord Bach: My Lords, they would get help from coalition forces. I remind the noble Lord that we are in a coalition in the whole of Iraq.
The noble Lord accuses me of attacking his party on this issue. In return, I should like to ask the noble Lord whether or not he, himself, is in favour of this disposition.
Lord Truscott: My Lords, will my noble friend the Minister express his views on the comments of General McColl, the senior UK commander in Iraq, that it would not be "militarily responsible" to reject the request from the United States for troop redeployment?
Lord Bach: My Lords, I did notice those important remarks. It is obviously important that politicians do not seek to hide behind the military in putting forward disposals of this kind. But in this particular case, the military, who have looked at this from a military point of view only, are absolutely unanimous in suggesting that on all counts this is a sensible thing to do. That is precisely why I asked the noble Lord, Lord Garden, with his great and distinguished experience in the Ministry of Defence some years ago, whether he supports this disposition.
Lord Inge: My Lords, I, too, thank the Minister for his Statement. My first reaction is that we are talking about a tactical operation in a country, and it has taken four days to make a decision about a tactical deployment. My conclusion—and I would like the Minister to confirm that I am wrong—is that the Government are deeply worried about this deployment, otherwise the decision should have been made much more quickly. That is point one.
My second point concerns the very convoluted command and control arrangements. If you are to get military forces to react on the ground, in time, you have to have a simple, responsive chain of command. I would have hated the chain of command that the Minister described if I had been the operational commander on the ground.
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The third lesson I would draw from that is the point made by the noble Lord, Lord Garden—I do not often agree with the Royal Air Force. It is quite clear that we do not have adequate forces on the ground in Iraq to control the situation.
Lord Bach: My Lords, I am grateful to the noble and gallant Lord. Of course there is a worry about any deployment of this kind. The reason for any delay was not because of deep worry or concern about this particular deployment—we want to make sure that we get it right. We had a request from the Americans; as I told the House, a recce took place and a decision has been reached on military grounds.
I am sorry that the noble and gallant Lord is not happy about the way in which the chain of command that I described in the Statement will work. We are content, and I understand that the military are content, that that chain of command will work and has worked in the past.
We have no intention of adding a large number of troops to our contingent in Iraq at present. Obviously, if and when any decision of that kind is made, the Secretary of State will inform the House of Commons of that fact.
Lord Glenarthur: My Lords, I hope that the noble Lord will accept that I am very happy to support the comments he made in his Statement and the military imperative it describes. I declare an interest as chairman of the National Employer Advisory Board for the reserves of Britain's Armed Forces. How many members of those involved both in the Black Watch and the supporting arms are to be reserves? Are the necessary steps in hand to ensure that the employers of those reserves in the Black Watch and supporting arms are aware of any delays that might arise from the deployment of those people as to their return to the United Kingdom? That would be very helpful and encouraging to those who spare their people to play a part in such activities.
Lord Bach: My Lords, I am grateful to the noble Lord. I cannot help him on the number of reserves there will be. He knows better than I do what a fantastic part the reserves have played in Iraq. Indeed, sitting next to him is one such reserve.
The reserves have done a fantastic job. The noble Lord was right to imply that there were difficulties at an early stage in terms of making sure that reserves can get back to their employment once they have finished their tour of duty. There were problems there; the Ministry has worked extremely hard to sort them out, with the help of the noble Lord and others.
Lord Clinton-Davis: My Lords, does my noble friend agree that under the late Harold Wilson, a request was made for British forces to be used in Vietnam and that that was turned down without any lasting damage to American-British relations? Does my noble friend

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also agree that the move which is envisaged is designed to, and will, advance the re-election campaign of President Bush? In my view, that is wholly undesirable.
Lord Bach: My Lords, I am grateful to my noble friend. Let me reassure him that there was no political gesture linked to the US elections. This was a military request for assistance from the US military commander in theatre, and was considered in the context of the overall military effort in Iraq and our own capabilities. The advice of the chiefs of staff was that there was clear operational justification for accepting the request, and that it was within our capabilities. That was the basis on which the decision was made.
My noble friend talks about lasting damage to the relationship between the US and the UK. If we did not agree to this and act as good coalition partners, lasting damage would be done to the future of Iraq.
Lord Biffen: My Lords, the Minister has made a very serious Statement and, very properly, seeks the general agreement of the House. I am sure we all hope that this venture will be successful. But it would be a very sad day if that obliterated anxieties and misgivings that are widely felt outside this House if not in this Chamber.
I should like to press the Minister on one point, although I understand that he does not want to go into detail. Do the 850 members of the Black Watch represent between 2 and 3 per cent of the American forces of equivalent calibre? If that is so, do we really believe that the assault on Fallujah will turn on such a narrow calculation? Although no one in this Chamber would wish to say anything which would be distressing or harmful to the military operation, at least we are entitled to take account of the quite compelling radio broadcast by the noble Lord, Lord Healey, in the past 24 hours. He cast very serious doubts on the whole capability of this enterprise, not least because of the character of the American operation.
Lord Bach: My Lords, of course the noble Lord is right in saying that there are anxieties about this step; there have been anxieties about other steps concerning Iraq and there will no doubt be anxieties in the future. The fact is, the Black Watch is exactly the sort of armoured battle group that the US request for the area in which it has asked its members to serve. The US battle group that is there now, of equivalent armour—equivalent effect—will move elsewhere in relation to the attempt to make sure that there can be free and fair elections, as much as is possible, in Iraq in January. I do not want to underplay the anxieties. I am not in a position to agree or disagree with the percentages given by the noble Lord, but we should not underrate the reputation which the Black Watch and other infantry battalions of that kind have, not just in this country but in the United States.
Lord Morris of Aberavon: My Lords, if the Black Watch is to be home by Christmas, are any plans being formulated in the Ministry of Defence for a follow-up
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unit to take its place, or is the request from the Americans to have a British unit to fill the gap between now and Christmas?
Lord Bach: My Lords, I am afraid that I am not prepared to go into the timing of this particular disposal and how long it might last. I can say that the Scots Guards are due, in any event, to go to Iraq in the comparatively near future. As I think I said in answer to an earlier question, if this particular mission was not completed by the time the Black Watch was due to come home, the Scots Guards would be in a position to take its place.
Lord Elton: My Lords, that is an extraordinary statement to make given that we heard in the Statement, that:
"This deployment will be for a limited and specified period of time, lasting weeks rather than months".
My heart sank when I heard that because when governments say, "They will be home by Christmas" we all know what to expect. However, what is meant by a specified time if we cannot be told what is?
Lord Bach: My Lords, specified time means that it is a specified time. A date is known, but it is not one, I am afraid, that I am prepared to share with the House. Anyone who has had anything to do with the Armed Forces will know it would be absurd to specify the dates.
Lord Stoddart of Swindon: My Lords, I remind the House that this war in Iraq was declared officially over by President Bush more than a year ago, but it is certainly going on and it appears to be escalating. In the Statement, reference is made to "militarily acceptable" risk to United Kingdom forces. What is that risk? Will the Minister give me some idea of how high that risk is? Will British forces be supporting an American attack on Fallujah which, if President Allawi is to be believed, will amount to collective punishment on the people of Fallujah because they refuse to hand over—they cannot apparently do it—so-called insurgents?
Lord Bach: My Lords, the noble Lord asks what an acceptable level of risk is. Obviously, any operation involves a degree of risk. When planning an operation such as this, a commander will always look at the balance between the likely risks and benefits, going ahead only if the balance is right. In this case, the General Officer Commanding in MND (South East) judged that the military benefits of the operation strongly outweighed the risks. That is the message that the Statement is intended to give to the House.
As far as Fallujah is concerned, if Iraq is to move forward it is absolutely crucial that fair elections are held in that country shortly, in January. If there are to be fair elections in that country it is important that some of the towns where the murderous thugs live, practice and control must be taken over. I presume that the noble Lord is in favour of the elections.
Lord Marlesford: My Lords, does the Minister agree that the one bit of good news in this announcement is

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that it is a clear tribute to the unequalled, hard-edged combat calibre and capability of the British Army? Secondly, will the Black Watch battle group be equipped—as they must essentially be if they are to work with the Americans—with the Bowman communications system? Is he satisfied that it is fully functional? Finally, is the British contribution to the coalition force to be entirely paid for by the British taxpayer, or will countries such as France and Germany, which have equal interest in the future of Iraq, contribute towards the large contribution that we are making militarily?
Lord Bach: My Lords, the noble Lord knows the answer to the last question without me stating it. I cannot guarantee that Bowman will be used in its final form on this mission. The noble Lord knows, because we talked about this on Monday, that the ISD or in-service date for Bowman has passed, but a lot of work must be done before Bowman can be finally fitted for the Armed Forces. I can say that, as the noble Lord said the other day, communications for a mission of this kind are absolutely crucial and we will do our very best to ensure that communications both between us and the Americans and between British troops and headquarters back in Basra will be as good as they possibly can be.

Civil Contingencies Bill
3.6 p.m.
House again in Committee on Clause 22.
[Amendments Nos. 108 and 109 not moved.]
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 109A:
Page 15, line 22, leave out paragraph (j).
On Question, amendment agreed to.
[Amendments Nos. 110 to 127 not moved.]
Baroness Buscombe Baroness Buscombe moved Amendment No. 128:
Page 16, line 4, at beginning insert "knowingly"
The noble Baroness said: Has Amendment No. 123 been debated? I apologise for being late, but I was stuck in the lift.
In moving Amendment No. 128, I shall also speak to Amendments Nos. 130 and 131. These are simple but important amendments. The Bill as currently drafted allows regulations to create an offence of,
"failing to comply with a provision of the regulations … failing to comply with a direction or order given or made under the regulations:"
or,
"obstructing a person in the performance of a function under or by virtue of the regulations".
We on these Benches can see the necessity of this paragraph. However, we have in the back of our minds that, in an emergency the scale of which would have to be serious in order for the Bill to come into effect, the
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regulations being made will be done quickly and amidst confusion. Some people may not be aware of the regulations or not aware of part of them.
As we do not yet know what the content of some of them will be, it is hard for the Government to prepare people for what might happen. It is therefore not sensible to create an offence of non-compliance. There should be a let-out clause to ensure that this crime will be committed only if the person actually knows that it is an offence. It is entirely possible that they may not know what they are doing is wrong and, therefore, it is foolish to punish them. I beg to move.
Viscount Goschen: Given that this Bill could change every single law of the land at the stroke of a pen, my noble friend made an interesting point. What procedures or plans do the Government have to make people aware of the emergency regulations that will be made so that they do not accidentally contravene them?
Lord Elton: I congratulate my noble friend on so quickly recovering her aplomb after being stuck in a lift. That would have kept me out of action for some hours after the event.
As to the point which she raises, I add only that in the scenarios that we discussed it would be very difficult indeed for the average citizen to know what the law was. Whereas now ignorance of the law is no defence because one has adequate time and machinery to discover it, when there is almost no time and probably no machinery either, ignorance of the law seems to me to be a good defence. My noble friend's amendment would mean that if what would otherwise be an offence was committed in ignorance, it would not under those circumstances be an offence. That seems to me a reasonable point to discuss.
Lord Avebury: Bearing in mind what the noble Baroness said on the previous amendment about a Minister acting reasonably, surely no regulation should create an offence such that a person was unable to anticipate that conduct which had been perfectly lawful before the regulation was made suddenly, without any notice, had become unlawful, and that he might put himself in jeopardy of committing some violation of it. I give an example. The driver of an emergency vehicle may find that its access is blocked by a parked car and there is a regulation which makes it an offence for any person to block the access of emergency vehicles to a given area. However, the driver who has left the car in that position did so as it was perfectly legitimate for him to do so under the previous regime. I assume that it would be a place where vehicles were normally parked. Let us assume that because of the emergency it has been made unlawful for anyone, say in the whole of the London Borough of Westminster, to park a vehicle even though parking was permitted in that particular place under the normal rules. If this regulation comes into force in the case of an emergency vehicle attempting to gain access and finding that its passage is blocked by someone whose car had been parked there, the driver or owner of the parked vehicle would suddenly be

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liable to have committed an offence when he could not possibly have known in advance that that regulation was coming into force.
As I say, bearing in mind what the noble Baroness said about Ministers not making unreasonable regulations and having to consider all the possibilities that those regulations would entail, does she not think that it is reasonable for a person to be exonerated from having committed the offence if it was not done knowingly?
The Earl of Onslow: It may be that I just cannot find it but, so far as I can gather, if there is an offence, there is a penalty. It is either hanging, drawing and quartering or a parking fine—it seems to vary between those two extremes. Will the noble Baroness help us as regards what penalties can be imposed on people for not knowing that the regulation was in place? That is important as I am certain that we should scrutinise those with considerable care before this Government, who are so renowned for their liberal treatment of people, should be allowed to get away with imposing extra penalties.
3.15 p.m.
Baroness Scotland of Asthal: Perhaps I can quieten the noble Lord's beating heart if I set out how the provision will work. The Bill sets a maximum possible punishment for this breach at three months' imprisonment and/or a fine at level 5 on the standard scale. All offences must be tried before the appropriate courts of summary jurisdiction.
Lord Elton: Where is that scheduled in the Bill?
Baroness Scotland of Asthal: If the noble Lord will give me a moment, I shall find it. I had it scribbled in my notes and I cannot immediately allude to it. However, I can explain how publication comes about. The noble Lord raised a very important point when he asked how people would know about the matter and how the provisions would be effected. I believe that the Committee will find the measure in Clause 23(4)(c), which states,
"create an offence which is punishable—

(i) with imprisonment for a period exceeding three months, or

(ii) with a fine exceeding level 5".

The content and implications of the regulations will be promulgated through the news, media, paid advertising in the press and departmental websites. The news media will cover the issue of the emergency powers as a story. It is likely that some media will cover this in more detail than others. Obviously, every effort will be made to let people know precisely what is happening and what needs to be done. The media, however, will be able to receive full background briefing on the powers and how they will be enforced so that their reports can be entirely accurate. News reports will be monitored to ensure that their coverage is accurate. Full details of the powers, which may be lengthy and complicated, will be published in the
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newspapers and on relevant websites. We will make every effort to ensure that people know what is happening.
Particular arrangements will need to be made to communicate with those whose first language is not English or who are deaf, blind or have learning difficulties, so conversion of the information into alternative formats and languages will inevitably take more time than the conventional methods but assistance will be sought from expert organisations, ethnic broadcasters and community leaders to expedite this. Tailored information may need to be targeted at specific groups.
I believe that the noble Lord, Lord Avebury, asked about the timing if something happened very quickly. Safeguards are in place in regard to that matter to prevent people being convicted of offences of which they could have no forewarning. The Statutory Instruments Act provides that in any proceedings against any person for an offence consisting of a contravention of regulations it is a defence to prove that the instrument had not been issued by HMSO at the date of the alleged contravention and that no reasonable step had been taken for the purpose of bringing the purport of the instrument to the notice of the public or of the persons likely to be affected by it. That is the inherent defence as regards that matter.
However, the Committee will appreciate that if an emergency is taking place and every step has been taken to publicise it—I refer to the situation where someone is told that there is an emergency and that an area has to be cleared but refuses wrongfully or improperly to move—it must be right that that matter can be dealt with appropriately.
Lord Elton: Does the noble Baroness want to deal with this point before she goes on to others, or shall I wait until she has concluded?
Baroness Scotland of Asthal: I beg your Lordship's pardon—deal with which point?
Lord Elton: The point about the communication of information. I want to refer this back to our previous debate. The noble Baroness rested the very important defence of the unknowing defender on the Statutory Instruments Act. That Act is susceptible to amendment by this Act unless it is protected, as other parts are, in the provisions of this part of the Act, which we shall come on to. However, until it is protected, that defence is uncertain.
Baroness Scotland of Asthal: I understand the noble Lord's concern but I do not agree with him, only because in order to amend an Act which is currently in being we would specifically have to say that this Act in some way overrides, amends or detracts from it. There is nothing in this Bill that purports to interfere with the statutory nature of that Act that I have just described.

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Obviously I shall be happy to look at it but, so far as I am aware, those principles will still prevail and apply to the Bill.
Lord Elton: I remind the Committee that we are providing for not only benevolent but malevolent users of the power. I seek to remove from them the power of disarming the private citizen against this effect.
Baroness Scotland of Asthal: I understand that. I remind Members of the Committee that we still place reliance on the triple lock, about which we have spoken. It would have to bite. I understand why the noble Lord expresses that concern, but we are very confident that it is covered by the way in which we have constructed the provisions.
I hope that Members of the Committee will accept that, in the most serious emergencies, any action taken that may exacerbate the situation or interfere with the response efforts may have disastrous results. It is appropriate that people be dissuaded from such actions, by making it clear that they may be committing offences. The Government will do all that we could reasonably be expected to do to ensure that the public are fully informed of any offences created through emergency regulations.
The Committee will know the powerful part that the media played in the tragic events of September 11. Almost all of us, all over the world, were glued to our television sets and radios. We all remember the shockwaves that went through us. If we were dealing with a huge emergency like that, every effort would be made to make sure that everyone knew precisely what was happening and that information was available quickly.
The Earl of Onslow: Now that the noble Baroness has brought up September 11, did the Americans have any regulatory or legal deficiency in dealing with that ghastly affair? Again, I am going back to the core of the Bill. Is there such a terrible need for legislation and to remove Acts of Parliament? The Americans dealt with the problem as efficiently as was possible under the circumstances, with no need for extra regulation.
Baroness Scotland of Asthal: I hear what the noble Earl says. Inquiries went into how the matter was dealt with; I do not make any comment on the way in which our American colleagues dealt with that emergency. However, it makes it imperative for us to scrutinise our system and make sure that we are ready. If and when such a tragic event occurs on our shores, we must have made proper preparation for each and every eventuality, to make sure that our response is as robust and as good as we would like, in order to protect those whom we love. That is what we are doing in the Bill. The provisions are acts preparatory to make sure that, when and if such a tragic event takes place, we are skilled and ready to respond appropriately. That is a proper and necessary step to take. I hope that the
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Committee will see that the level of punishment is of a scale commensurate with the transgressions likely to occur.
Lord Avebury: Although the three months may be an appropriate punishment for someone who deliberately and knowingly contravenes one of the emergency regulations, we are talking about someone who does it completely inadvertently. Although I hear what the noble Baroness says about the use of the media to publicise the emergency regulations, she has insisted that they would be lengthy and complicated, and require to be translated into a variety of different languages and formats to make them suitable for consumption by people who were deaf, blind or otherwise disabled.
With the best will in the world, I cannot imagine that every inhabitant of the United Kingdom will be fully aware of those lengthy and complicated regulations, and that they will therefore not be in danger of committing some offence of the kind that I described. I noticed that the noble Baroness did not bother to allude to the example that I gave of someone who had left a vehicle in a place prohibited by the regulations and had perfectly inadvertently obstructed emergency vehicles, so was liable to be prosecuted under the regulations. Even if he knew, he might not be in a position to remove the vehicle instantaneously. He might be on holiday abroad, or ill in hospital.
I mentioned the London Borough of Westminster in my example. There are plenty of places there where a person can legitimately park a car, but imagine that it suddenly becomes unlawful for him to do so because the whole borough is barred to public vehicles, for reasons of access to an emergency that has taken place somewhere in the area. Not everyone can instantaneously respond to a demand made by the emergency regulations to remove their vehicles, so they are liable to commit an offence and be in prison for three months.
Baroness Scotland of Asthal: I shall deal first with the imprisonment for three months. Members of the Committee will know that, when one gives the nature of the sentence, one gives the outer limit, so it is not more than three months' imprisonment. The Sentencing Guidelines Council and the way in which we have structured the provision make it clear that only the most severe form of breach of the regulations would ever merit the most serious application of the three months.
Lord Archer of Sandwell: My noble friend has been extremely patient, and I am most grateful to her for giving way. Let us take the example given by the noble Lord, Lord Avebury. Does she agree that it really is not acceptable that the ignorance of the offender goes to the mitigation of sentence? It clearly ought to be a defence, so that they do not commit an offence at all.
Baroness Scotland of Asthal: The noble and learned Lord knows far better than me that ignorance of the law has never been a defence in our country. I shall deal exactly with the example given by the noble Lord. The regulation made for it would likely be that the

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emergency services would be entitled to remove the vehicle from the site, not that the person who had left it there would have committed an offence. The most important thing in the emergency is to make sure that the emergency services can respond.
A difficulty that may occur is that, if someone were there and the emergency services told them that they had to clear the area—that there was a cordon, that they could not trespass and must not drive their vehicle in—the person might try to breach the cordon. In those circumstances, when they had been notified that that was unsafe, it would be perfectly proper for them to be arrested and prevented from exacerbating the situation or putting themselves or anyone else in danger. There must be regulations for the emergency services to do what is proper to make the position safe. The sort of situation that the noble Lord envisages is highly unlikely to happen.
Where the HMSO publication comes in is if the regulations have not been published. If there has been no reasonable or proper step made to publicise the consequence of those regulations, that is a defence under the Bill. We are really dealing with a situation where the public know that such matters are prohibited, following communication to them. The issues have been published and there is then a transgression or breach. At that stage, it will be possible and proper for it to be dealt with.
It is also very important to recall that this is an enabling Bill. There are circumstances in which strict liability offences would be appropriate. That is why the Bill enables such offences to be created. But that does not mean that all offences created under the regulations would be offences of strict liability. Certainly, under the 1920 Act most offences did require some mental element. So, the regulations enable us where appropriate for the purposes of the emergency to make offences which would have a strict liability. It is important to bear in mind that what we are doing is enabling these issues to be dealt with more speedily, more easily and more effectively.
3.30 p.m.
Lord Lucas: The noble Lord, Lord Avebury, should know that he is at risk under existing legislation in the circumstances that he described. The licensed highwaymen employed by Westminster council have on at least one occasion given me a ticket because they changed the parking regulations at five o'clock one evening and were waiting at my car at 8.30 the next morning, when I happened not to rise particularly early, to stick a ticket on it. So, that is common practice. One hopes that in the case of an emergency they would behave more reasonably, although precedent goes against that.
The noble Baroness said on several occasions that due warning will be given and every effort will be made to spread information and so forth. Is she prepared to see that on the face of the Bill as something which the
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authorities have to do; that is, if they create an offence they have to take all reasonable measures to ensure that the public are aware of it?
The Earl of Onslow: Is it not stated somewhere in the Bill—I cannot find—it that regulations can be made verbally and then published later? I may be wrong but I thought that I had seen that. If that is the case, it adds considerably to the strength and purpose behind this.
Lord Archer of Sandwell: I may be hindering rather than assisting my noble friend but she may remember that the Joint Committee recommended that regulations should be published and in their response the Government said that there might be situations where it was not wise to do that. It is not wholly clear whether they are talking about draft regulations or regulations but that is the subject of a later amendment.
Baroness Scotland of Asthal: Certainly, there is no provision that I can remember seeing which allows for the making of oral regulations. There is nothing that I can see in the Bill on that. I shall look with a greater degree of care, but I am relatively certain about that. Under contingency planning in Clause 2, the Bill deals with the duty to assess, plan and advise. That clause provides for the assessment from time to time of the risk of an emergency occurring. If it is necessary for a person or body to perform any of those functions, they have to maintain plans. So, the preparation for these emergencies is clear.
Also, comprehensive guidance is given in the Cabinet Office document dealing with disaster. The section on communications starts on page 28 and deals with the importance of good telecommunications, traffic overload management and matters of that kind. So, it is quite clear in the guidance and in the plans that communication of these issues will be very much part and parcel of the preparation. I do not think that it is necessary to put any further or other matters that are now outwith the Bill on to the face of the Bill. There is adequate provision in here for communications.
As to the point raised by my noble and learned friend Lord Archer, the recommendations of the committee related to the draft regulations that the Government are to keep on the shelf, so to speak, just in case. That is what was dealt with in the committee's report.
The Earl of Onslow: I think I have found what I was looking for. Dealing with urgency, Clause 7(3) states:
"A direction under subsection (2) may be written or oral".
That is what I was getting in a muddle about. I do not know whether that is of any help.
Lord Lucas: It is interesting to note that oral directions are permitted where the matter is not particularly urgent and not permitted where matters are likely to be much more urgent. I hope that the noble Baroness will reflect on that before Report and see that the word "oral" should not appear anywhere.
Baroness Buscombe: I thank the Minister for her reply and all noble Lords who have taken part in this

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debate. It is sensible for me to consider what the Minister said in response to this debate. I am not entirely convinced by the points she made. However, for the moment I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Buscombe Baroness Buscombe moved Amendment No. 129:
Page 16, line 4, at end insert "save for the Parliamentary activities of Members of both Houses of Parliament, which shall continue, and be protected"
The noble Baroness said: Amendment No. 129 is one of several amendments which have one purpose and are very simple but which we on these Benches think rather important. They are drafted to ensure that no matter what the emergency, Parliament and its Members—both Members of Parliament and Members of your Lordships' House—cannot be affected by regulations concerning rights of movement, assembly, travel, specified activities and in general all regulations. They would amend Clause 22(3) and would protect the rights of Parliament to ensure that no one person could command too much power during a crisis and suspend Parliament or prevent its Members from travelling to the Chamber.
This is an important safeguard and one that should be on the face of the Bill. In leaving out a statement of this kind in their drafting, the Government have made an error. A point made by my noble friend Lord Elton in relation to the previous amendment was the need to consider, albeit, one hopes, a distant possibility, a "malvoleant" as opposed to a benevolent user of this power. I believe that these amendments are necessary. I beg to move.
Lord Elton: The need for this seems to be so obvious as not really to be necessary to discuss. I shall say no more than that.
Baroness Scotland of Asthal: Noble Lords will not be surprised to hear that the Government are committed to maintaining the proper functioning of Parliament even in the most serious of emergencies. It is very much in their interests so to do, given their desire to deliver their legislative agenda. It will be important, not just in terms of scrutinising the Government's handling of the emergency, but in providing reassurance to the public that it is, so far as is possible, business as usual. That is why the Bill expressly provides in Clause 22(2)(1) that emergency regulations may be made for the purpose of protecting and restoring the activities of Parliament.
The Government are also mindful of the concerns of some Members that emergency regulations could in some way be used to undermine the proper functioning of Parliament. I should like to make it clear that emergency regulations can be made only for the purposes of preventing, controlling or mitigating an aspect or effect of the emergency and must be proportionate. I find it very difficult to think of sensible examples where that could be said to include actions taken to limit the role of Parliament.
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However, the Government recognise the fact that there may be circumstances when prohibitions on certain activities need to apply equally to all members of the public, including Members of Parliament. If I may respectfully say so, I would be no happier if any noble Lord were to walk around with a virulent infectious disease than I would be if anyone else were to do so. I have been given to understand that membership of this House or the other place does not inure us to the normal consequences of being a member of the human race.
As discussed when debating Amendment No. 101A, tabled by the noble Lord, Lord Lucas, the Government intend to amend the Bill to ensure that the person making regulations has regard to the importance of protecting the ability of Parliament and the courts to scrutinise emergency regulations. In achieving the former, it may be necessary to make regulations affecting Members of both Houses. Indeed, one can think of scenarios where it might be necessary to prevent them engaging in activities in which they might risk infection or contamination precisely because that would prevent them taking part in scrutinising the regulations. I hope that the Committee will be much comforted.
Lord Elton: If the noble Baroness had said "this Government" rather than "the government", her defence of the present position would perhaps be more credible. But we are not legislating for this Government; we are legislating for all governments in the future. The noble Baroness must realise that regulations which were binding on Members of Parliament and which prevented them carrying out their duties could be framed quite easily and could have a disastrous effect.
My noble friend Lord Onslow will come up with the exact chapter and verse, but that kind of ploy was used in the Civil War in order to ensure that only certain Members of Parliament were available to pass legislation. Certainly that ploy has been used on the Continent. Therefore, the noble Baroness must at least understand our fear. Whether my noble friend's amendment achieves the defence that is needed remains to be discussed, but that a defence is needed is beyond question.
The Earl of Onslow: It was called "Pride's purge". Very luckily, Sir Richard Onslow, MP, was purged by Pride at that time and so kept his properties after the Restoration. That was not the reason that I rose to speak in this instance, but there is a danger in having people kept out and we must be very careful.
Incidentally, when the powder was thrown in the House of Commons recently, according to the regulations the House of Commons was supposed to lock the door with everyone inside. I have never seen so many startled rabbits in my life. The MPs bolted like anything, and so they disobeyed their own regulations almost instantly.
Lord Stoddart of Swindon: There is a difference between what the noble Baroness told us were safeguards in Clause 22(2)(1) on page 15 of the Bill, which refers to,

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"protecting or restoring activities of Parliament, of the Scottish Parliament, of the Northern Ireland Assembly or of the National Assembly for Wales",
and the amendment, which states,
"at end insert 'save for the Parliamentary activities of Members of both Houses of Parliament, which shall continue, and be protected"'.
Members of Parliament do not simply come to Parliament as part of their activities. One of the most important activities of a Member of Parliament is to protect the interests, freedoms and rights of his constituents. In certain circumstances, he may very well want to have access to his constituents in the case of an emergency. I think that that is what the amendment is really about. It is not simply the case that an MP will have to be able to get to the Palace of Westminster, or wherever Parliament may be sitting, because of the emergency; he may need to go to his constituency to consult his constituents, or certain of his constituents, in order to assist them during the emergency on a personal basis through his own local knowledge and intelligence. Therefore, there is a difference, and I think that it needs to be given some attention. That is why I intend to support the amendment.
3.45 p.m.
Lord Lucas: I think it is worth pushing further for the idea that one of the guardians for our constitution and our rights is to ensure that Members of Parliament have a continuing role, a continuing power and a right to be involved which the Government cannot abrogate. However, as I said previously, I would put those rights one clause further on in order to get them away from the beginning of subsection (3).
The powers are immense. They extend to complete control over the standing orders of both Houses of Parliament. They can be used to change the quorum, the rules for debate and the way in which Bills go through the House—in the ultimate, for good reason. If Guy Fawkes were to visit us again, only 20 Members of the House of Commons might be left. They might have good reason to change the quorum. Members might not want to spend so long debating Bills; they might want to be able to progress through the business more quickly.
The regulations are all-powerful and, in order for there to be something on which the common citizen can rely in standing against that, I am all in favour of considering the position of MPs. They have a very reduced role these days, and I think that giving them back some of their status and power and saying that, in the case of an emergency, they have a real role to play which the Government must respect, that they must be granted access and that they must be allowed to continue their work may be a very useful antidote to the extraordinarily unlimited nature of the powers in the Bill.
As the noble Baroness said, the powers are limited by the triple lock, but that means merely that the Government must imagine something really serious before they can push for strong powers. But, as these
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powers can be demanded on the basis of imagination and undisclosed intelligence, in some cases the triple lock does not provide an effective check.
Viscount Goschen: In her remarks, the noble Baroness appeared to recognise the importance that all noble Lords who have spoken today place on ensuring that Members of Parliament and Members of your Lordships' House are able to conduct their parliamentary activities. Against that, as an example, she said, "Well, what if one was the equivalent of Typhoid Mary and wandered around infecting people?". Clearly that situation has to be covered, but I do not think that that example is sufficient to wave aside the concerns raised by all Members of the Committee who have spoken this afternoon.
Clearly Parliament must be protected and clearly Members must be able to contribute. I suggest that if the Government are asking for the executive to be lent the powers of Parliament for at least seven days, as my noble friend Lord Lucas put it, then it is up to the Government to come forward with sufficient reassurance—possibly via their own amendment to the Bill—and a suggestion as to how to safeguard the right of MPs and Members of your Lordships' House to gain access to the decision making of Parliament.
The Government might have to think of a more imaginative solution if there really were an outbreak of smallpox, plague or whatever, and we might have to look to other measures—perhaps electronic means, conference calls or regional gatherings. But I do not think that it is sufficient for the Government to say, "We can't have the role of MPs and Peers safeguarded because they might be carrying a disease", and leave it at that. Given that the Government have asked for a substantial blank cheque, it is up to them to say how the rights of MPs and Peers will be safeguarded.
Lord McNally: This debate has gone in a very interesting direction. The Minister has continually emphasised the good intentions and good will of the Government, and I think that that is accepted. But she will be aware that Members of this House and the other place have received correspondence from constituents and others who see the Bill in far more lurid terms than the prudently prepared case presented by the noble Baroness.
It seems to me that, on listening to Members on all side of the Committee, the Minister would at least be well advised to say that she was going to consider the idea—even if it then became a quadruple lock—that Parliament should be specifically mentioned in this way; if not in this part of the Bill then in some other part of the Bill. That certainly would be a welcome reassurance.
Baroness Scotland of Asthal: I reassure all noble Lords that the Government are aware that they may not be in power for ever. Indeed, this Government had the experience of another administration for some 18 years. The Government are just as eager as members of Her Majesty's Loyal Opposition to ensure that Parliament continues to be able to discharge its

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responsibilities, given that they could be on the other side of the House at some stage in the future. I would of course say, "In the very, very distant future", but be that as it may.
So we look at the matter from that point of view. What powers should we properly give to any government who will discharge this duty? That is why I have prayed in aid Clause 22(2)(1). It explicitly provides for regulations to be made for the purpose of,
"protecting or restoring activities of Parliament, of the Scottish Parliament, of the Northern Ireland Assembly or of the National Assembly for Wales".
as referred to by the noble Lord, Lord Stoddart.
In addition, I hope I made it clear in responding to the earlier amendment of the noble Lord, Lord Lucas, that we also intend to amend the Bill to ensure that persons making regulations have regard to the importance of protecting the ability of Parliament and the courts to scrutinise emergency regulations. We hope that those two things together will meet the properly expressed concerns regarding preserving the importance of Parliament and proper governance in situations of emergency.
Baroness Buscombe: I thank the Minister for her reply. I thank also noble Lords who have taken part in the debate. In a sense, I could sit down now and return to my feet to talk about the next amendment—Amendment No. 132—which really impinges on what many noble Lords have said already in relation to these amendments.
The main point is that we are trying to find a solution to the possibility of a malevolent user of this power creating a situation whereby nobody is out there to protect the interests of the people of this country. At the end of the day, surely we should be doing what we can to ensure that at least parliamentarians are able to carry on to the best of their ability, whatever the unprecedented act that has taken place has done in terms of impinging on or compromising their ability to move freely among their constituents, to come to Parliament and to protect our interests.
I cannot understand why it is not possible to have some limited protection to that extent on the face of the Bill. One thing that has concerned me throughout our debates is that it seems that if parliamentarians are not protected, and it all goes wrong and we lose our parliamentarians, it is all right because we can then defer to the Crown. Surely, we had the Glorious Revolution and the Bill of Rights to curtail the powers of the Crown. In this Bill we should be ensuring that, as far as absolutely possible, we protect the rights of Parliament beyond any other act.
I believe that this group of amendments would have done that, or at least have made a difference. I shall return to this point in the next group of amendments. I thank all noble Lords who have taken part in this debate. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 130 and 131 not moved.]
The Deputy Chairman of Committees (Lord Carter): In calling Amendment No. 132, I should inform the Committee that if it is agreed to, I cannot call Amendment No. 133 on the grounds of pre-emption.
Baroness Buscombe Baroness Buscombe moved Amendment No. 132:
Page 16, line 9, leave out paragraph (j).
The noble Baroness said: Amendment No. 132 would leave out subsection (3)(j). This paragraph would allow the Government to,
"disapply or modify an enactment…or a provision made under or by virtue of an enactment".
This is a most extraordinary power for the Government to give themselves. There is no exception to this rule and the Government may disapply any Act. If we just take a minute to think about what this could mean constitutionally, it really is quite staggering. Personally, I am not convinced that the Government have made their case on the point of actually having this power. I look forward to what the Minister has to say regarding this particular part of the Bill.
We were comforted to some extent by what the Minister said this morning in relation to judicial review. However, once again, at the risk of serious repetition, we are talking about a situation in extremis, something that we have yet to comprehend and that we all desperately hope will never happen; that is, somebody who is not a reasonable person, who happens to be a Minister—one of the seven Lord Commissioners—and who is able to act in a way that could destroy our constitution and our ability as parliamentarians to protect the rights and interests of the people of this country.
What will be the procedure after the emergency has subsided? We need to look at whether this power should be used or there at all. We have been told that the power must be proportionate. There is the triple lock. But again I urge the Minister to consider this matter in the light of repeated concerns expressed by Ministers regarding the reasonableness of the Minister acting in response to the legislation.
This is an enormous power. Our concern is that it should not be used lightly with no fear of consequence if the wrong person has the power at any time in the future. I beg to move.
The Earl of Onslow: It is extremely interesting that in the Bill we keep coming back to the 17th century. I seem to remember from my childhood that there was a great row in 1686 about King James II using the dispensing powers. I went to my Macaulay and looked it up. There, lo and behold, was the row about the dispensing powers. King James claimed that he could set aside any law. Macaulay said that even the high Tory judges who had supported Judge Jeffreys rebelled against the King's idea of the giving unto himself these powers. At this point I must say that I really miss the late Lord Russell because he would be more accurate on this than I am.

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We have talked also about what should happen with an interregnum when there is no House of Commons. Again we go back to 1688. It is all coming back and it all shows what a genius those people were in recognising the dangers of these tyrannies.
I cannot conceive of any need for a government to give themselves powers to repeal any Act, which is what paragraph (j) does. No emergency deserves that power; it is too big—otherwise all our liberties could be at stake. I concede that the Minister is not "malvoleant"—that wonderful word that my noble friend Lady Buscombe used and which I had not heard before. I shall use it again.
Baroness Buscombe: I meant "malevolent".
The Earl of Onslow: We knew exactly what she meant. I totally concede that this Government are not "malvoleant".
Baroness Buscombe: Do not make fun of me!
The Earl of Onslow: I promise that I am not; it is such a good new word.
I reiterate the serious point that was made by my noble friend on the Front Bench: we are talking not about this Government but future ones. We see how Mr Mugabe uses Smith's Emergency Powers Act. We know how some Indian and Pakistani governments have also dug out emergency powers legislation from the 1880s when there was a riot somewhere in a hill-station God knows where. It is this about which we must be frightened and take terrible care, and not allow governments to have the power to repeal individual Acts of Parliament.
4 p.m.
Lord McNally: Our Amendments Nos. 133 and 150, which are included in this group, refer specifically to the Human Rights Act. If Lord Russell were still with us and the noble Lord, Lord Lester, were present, we could have looked forward to a late-night sitting. It may be of interest that the noble Lord, Lord Avebury, has just told me that one of his ancestors was executed during a period of emergency powers in the mid-17th century. They played their politics tougher in those days.
There is almost a catch-22 situation: the Minister keeps telling us on her behalf and that of parliamentary counsel that these powers would never be used in the way that the amendments seek to address, therefore one must ask why the amendments are unacceptable. Together with the oral assurances from the Dispatch Box, they would certainly give belt-and-braces provision. If they are never to be contemplated, why leave them in the Bill?
Lord Stoddart of Swindon: I compliment the Minister on her modesty about future governance by the Labour Party. She envisages a position where the Labour Party no longer governs, but the Prime Minister demands a carte blanche on how long he should govern and envisages a Labour Party existing
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in government for the next 1000 years. Only recently, one of his colleagues—a lady whose name I forget—said that the Labour Party would be in power for the next 100 years. She has been more modest in her aspirations and can conceive of a different form of government perhaps within the lifetime of most of us in this Chamber.
Sitting at the lunch table a number of noble Lords and I remarked on how disinterested the media had been in this Bill. Under the clause that the amendment seeks to remove, the government could abolish the press. The press do not seem to have seen the danger. There is no reason why a government should not say, "The press could make a lot of problems in this emergency, so we ought not to allow them to print". I suppose that the press has not read the Bill. It is a long time since the press took any notice of what is said in the House of Lords, and very little of note was said in the House of Commons, so I suppose that it has not understood what could happen here. But it really ought to understand that there are powers in this Bill which could preclude the whole media from publishing. Indeed, as I see it, the powers extend to taking over broadcasters if it is felt necessary under any emergency.
I hope that before the Bill completes its passage, someone in the Times, the Telegraph or even the Sun might recognise the danger. We might gel the Sun interested if we could tie the Bill up with the European Union. As noble Lords would expect, I have been looking through the Bill to see if I could tie it up. I have not been able to yet, but cleverer people than me run the Sun. If we could get them to do that, they might take an interest.
Lord Avebury: We missed the opportunity when we were talking about olive oil. We could have brought in the European Union there.
Lord Stoddart of Swindon: The noble Lord makes a very good point. I hope that the press will start to take an interest in what could be an undermining of press freedom in this country.
Lord Elton: There is nothing chimerical in the possibility of a government intervening to control the media because that is exactly what the government did in the Second World War—and quite right, too. It is not a question of taking the power; it is what they do with it and how you control it.
Earlier I gave a great encomium for the paragraph that my noble friend's amendment is designed to remove, but that was not because of the content of the paragraph as a whole but rather the parenthesised words that appear in it. It provides absolute protection against disapplication or modification of any provision of this part of the Bill. Therefore, this part of the Bill is the place in which to put all the things about which we are most anxious, including the possibility of improper censorship of the media and improper use of various other powers.

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I am as fearful as my noble friend is of the generality of what is in the provision. I agree that it needs to be controlled. However, by removing it and replacing it with something else, we should not get rid of the invaluable protection in the whole of Part 2. It is an entrenchment of Part 2 against reform by subordinate legislation under the Bill. That must stay.
Lord Avebury: From time to time, we have had reference to the Emergency Powers Act 1920—rightly. On occasion, what we are considering now is presented as the modernisation and updating of the emergency provisions in that Act. However, the scope of the emergency regulations that were allowed under those provisions was limited to preserving the peace; securing and regulating the supply and distribution of food, water, fuel, light and other necessities; maintaining means of transit or locomotion; and for any purposes essential to public safety and the life of the community.
Have those powers been proved to be grossly inadequate in the past 84 years? Can the noble Baroness quote any occasions on which governments have felt that the lack of a power to amend or modify existing legislation has seriously hindered them in the measures that they have taken to cope with emergencies? If not, are we simply anticipating potential dangers that are beyond anything that can be imagined and do not need to be the subject of current legislation, unless someone can envisage circumstances in which it would be necessary to modify or amend existing legislation?
Lord Lucas: I had better say something about Amendment No. 147, which is in the group. As I have said, I do not see that the second part of paragraph (j) is effective where it is, because of the words, in particular, in line 30. I would like to see that protection put where all the other protections are—in Clause 23.
Viscount Goschen: The Minister may despair that she is hearing what could be construed to be Second Reading speeches, but the reason is that paragraph (j) is so wide-ranging. The core of the matter, which has caused considerable concern to every Member of the Committee who has spoken during our four days of consideration, is whether the Government are going to award themselves the ability to modify any Act of Parliament of their choosing.
I am with my noble friend Lord Onslow: the power is much too wide. I suggest that there are two ways of approaching it. One is for the Government to think more carefully about the type of statute that they want the ability to address—in other words, produce an inclusive or, at least, descriptive list. Secondly, we should have a list of things that the Government cannot do. At the moment, we have neither of those. I can anticipate the flavour of the Minister's response. We have had similar discussions on other amendments.
I have also put my name to Amendment No. 147. It suggests a better place for a restriction on the Government's ability to amend the Act via an order under the Act. That is a good place to start a list of things
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that the Government cannot do. I join those who say that it is no good the Government saying that they have no intention of using the Bill for purpose x, y or z. I hope that the Minister will not do that any more. When I sat in a place not unadjacent to where the noble Baroness is now, I was frequently reminded of my inability to bind successor governments. We are discussing what happens under extreme circumstances, possibly some time considerably in the future.
I doubt that the noble Baroness will give us a satisfactory response to the wide and deep concerns that have been expressed in this short debate. She can rest assured that, between now and Report, there will be a lot of activity involving several Members of the Committee who want to see how such an absurdly wide-ranging power has been phrased and could be constrained.
Baroness Scotland of Asthal: In response to the comments made by the noble Viscount, Lord Goschen, I must make it plain that we think that the legislation has been drafted so as to disable a government as—opposed to this Government—from using it in an ill advised and improper way. I shall deal with the amendments in turn. Noble Lords have made some telling points about some of the drafting, and there are parts that merit reconsideration.
The Earl of Onslow: Can the noble Baroness conceive of any Act of Parliament that any government would want to alter, modify or repeal?
4.15 p.m.
Baroness Scotland of Asthal: Certainly. What we do daily in this Chamber and in the other place is to modify, alter and change law. What we are doing on this occasion is to craft provision that could be used by a government in the future to deal with an emergency. We are also seeking to ensure that, when faced with that difficulty, that government have only those powers that are proportionate and necessary to deal with that emergency, consistent with the democratic heritage which is ours and within the meaning and spirit of the ECHR and the Human Rights Act. That is what we are seeking to achieve.
So when I say that the Bill does not permit a government to act in a way that would be contrary to that which I have just described, that is the nature of the scrutiny we have given it. We are using that as a template. If this Bill comes into being, will it give a government in the future only such power as they should reasonably have to deal with situations of emergency? That is what I am talking about.
I should say straightaway, to put the noble Lord, Lord Avebury, at his ease, that nothing in the Bill could possibly lead him to suffer the fate of his now

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deceased ancestor. I am particularly grateful, therefore, that capital punishment has been removed from all our legislation and, indeed, EU legislation.
Lord Avebury: Does that mean that capital punishment could not be restored by regulation?
Baroness Scotland of Asthal: No, because we have given a commitment on that. I will also come on to deal with the Human Rights Act.
I shall deal first with Amendment No. 132. Emergency powers exist to make temporary changes to the law needed for effective responses to the most serious of emergencies. This is not an opportunity for wholesale reforms. While the most effective way of doing this may in some cases be to draft new freestanding provisions, it will generally be more appropriate temporarily to amend or suspend existing legislation so long as that is necessary and proportionate.
For example, let us suppose that a piece of legislation says that notice has to be given and the notice period is seven days. It may be appropriate in view of the emergency to say that the notice period should be 24 hours, 48 hours or some other truncated period, because that is what the emergency demands. This provision would enable us to amend the portion of that legislation that would meet the needs of the emergency.
So the ability temporarily to suspend certain statutory obligations that might restrict the effective response to an emergency is a fundamental rationale for the existence of the emergency powers legislation. The Bill ensures that any temporary changes to the law must be necessary, proportionate and compatible with the Human Rights Act and that they will be scrutinised by Parliament.
It is simply not correct to suggest that the press could be abolished. Your Lordships will know that the press is not established by statute. The ECHR protects the right to free speech. It is also hard to see how banning the press would meet the triple lock. Although I understand why those concerns have been expressed, I respectfully suggest that they do not have substance.
The possibility of amending legislation of constitutional importance was examined in detail both by the Joint Committee that undertook the pre-legislative scrutiny of the Bill and in debates in another place. The Government remain convinced that the absence of an express power to amend such legislation, coupled with the clear expression of the purposes of the regulation and the safeguards set out in the Bill, ensures that substantive amendment of such legislation is not possible.
I turn to Amendments Nos. 133 and 150. In the light of the concerns expressed by civil liberties groups and in Parliament, the Government have looked again at the position of the Human Rights Act. We have also listened to what has been said by a number of noble Lords, including the noble Lords, Lord Lucas, Lord Elton, Lord Avebury and Lord McNally, and the noble Viscount, Lord Goschen, to mention only a few. We remain convinced that nothing in the Bill
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would allow the Government to disapply or amend it. However, we believe that an express provision to the effect that emergency regulations cannot disapply or modify any provision of the Human Rights Act would offer the certainty and reassurance that some in this House and in another place may seek. We are absolutely in agreement that the Human Rights Act cannot and should not be disapplied. It has always been the Government's desire that emergency regulations should be entirely compatible with the Human Rights Act and should not be used to modify or to suspend it. The Government are therefore content to agree in principle to such an amendment. We will bring forward an amendment at Report.
Just to reassure Members of the Committee that that was, and always has been, our intent, perhaps noble Lords would cast their eyes to Clause 20(5)(b)(iv). Clause 20(5) refers to the,
"statement by the person making the regulations".
Paragraph (b)(iv) states that that person,
"is satisfied that the regulations are compatible with Convention rights (within the meaning of section 1 of the Human Rights Act 1998…)".
That sub-paragraph deals with the declaration in a way similar to that which we see on every Bill that comes before this House where it states that the Minister is satisfied that the Bill is H RA compliant. But we have taken that matter seriously. We will come back with an appropriate amendment at Report that will then put it totally beyond question.
I turn now to Amendment No. 146. Any obligation in emergency regulations to act in breach of the ECHR is incompatible with the convention. Those acting under emergency regulations, just as any other legislation, are obliged to interpret them in a way that is compatible with the ECHR so far as that is possible. Clause 20(5)(b)(iv) would ensure that any regulations made must be compatible with the convention rights, as I have just stated. Given those two obligations, it will not be possible to force someone acting under emergency regulations to act in breach of the ECHR.
As regards Amendment No. 147, perhaps I may reassure Members of the Committee that Clause 22(3)(j) already expressly prevents emergency regulations from amending Part 2 of the Bill. I have listened really carefully to everything that has been said by noble Lords. I understand the force of feeling. I assure the noble Lords, Lord Elton and Lord Lucas, that we will think about the drafting in relation to this matter. If necessary, we will seek to bring the appropriate amendments back at Report. We will look at that very carefully. I do not think that there is anything between us. If we can make it clearer, it seems to me that that may be well worth doing.
The noble Lord, Lord Avebury, asked specifically about the things that we cannot do and cannot use the 1920 Act for. Perhaps I may give Members of the Committee some examples. The 1920 Act does not deal with massive environmental damage; neither does it deal with terrorist action nor disruption to health services. If one looks just at those three issues, we know, because of the changes in our society since 1920,

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that those three things are now risks which are real and present for many of us in 2004. They are issues with which we will have to deal.
The Earl of Onslow: The 1920s was peculiarly terrorist-ridden because it was at the height of the Irish uprising, which did not come to an end until 1922. I just throw that in for information and historical balance.
Baroness Scotland of Asthal: The noble Earl is right, but a terrible development in terrorism is that its nature has changed significantly since 1920 as a result of the ability to travel, the movement of people, and technological engagement. Things can be done today which were absolutely unimaginable in 1920. We are dealing with a totally different scenario and we have to be able to respond to the reality in which we now find ourselves and to look ahead and think about what we as a society are likely to have to face.
Lord Avebury: I am nervous about crossing swords with the noble Baroness on a matter of interpretation of a statute. However, Section 1 of the 1920 Act states:
"If it appears to His Majesty that there have occurred or are about to occur events of such a nature as to be calculated…to deprive the community, or any substantial portion of the community, of the essentials of life…regulations can be made".
Does not that cover a terrorist situation?
Baroness Scotland of Asthal: There has been much debate over whether it does so. Indeed, the 1920 Act has been debated regarding whether one could interpret in the broadest sense provisions of that kind in order to squeeze the new provisions within them. However, that is a very uncomfortable fit and there are some clear indications that the 1920 Act is no longer fit for purpose. Given all the considerations we have had to take into account—on that there has been agreement—we need to move on and find something better fit for purpose than is the case at the moment. With the changes that we have now drawn together, we believe that future governments will be in a better position to make a response.
I am checking to see that I have answered all the points put to me by noble Lords. The only one that perhaps I have not yet dealt with appropriately, although I have addressed the points put to me by the noble Lord, Lord Stoddart, regarding the ECHR and the HRA, is the European Union. I commend the noble Lord on his ingenuity in putting across his views on European integration even during this part of the debate.
Lord Elton: Does the noble Lord, Lord Stoddart, want to intervene? He has indicated that he does not.
Perhaps I may enter a caveat against what the noble Baroness has said about the Human Rights Act. I hope that I have never expressed my concern that every paragraph should be sacrosanct because I am not sufficiently familiar with it. What I am familiar with is that in an emergency it may be necessary to curtail quite severely the human rights of certain individuals.
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I am not trying to protect individuals from that curtailment, but the right of Parliament to see that it is just and necessary. Therefore what the noble Baroness has said in that respect brings me no comfort at all.
Lord Stoddart of Swindon: I want to raise only one point, although perhaps it is not important to the noble Baroness. I put to her a question about the position of the press under the emergency regulations, but I do not think that she referred to it.
Baroness Scotland of Asthal: I believe that I responded quite fully to that point. I said that the press could not be curtailed. Freedom of the press is guaranteed under the ECHR and the Human Rights Act and those provisions would be maintained. I had hoped that the noble Lord was listening with his usual care and would have derived some comfort from those words.
Lord Stoddart of Swindon: Obviously I was not listening with my usual care. Perhaps I may put one or two further questions to the noble Baroness to make sure that we have got it right. Under any circumstances, could the Government close down newspapers, requisition printing presses, or take control of visual and sound broadcasting corporations or companies?
Baroness Scotland of Asthal: The answer is yes, but that would not be an infringement of the freedom of the press. It may be that in order to make sure that proper broadcasts could be made so that people knew what was happening, the Government would have to requisition certain elements of the equipment. However, that would not mean that there would be in any way an infringement or inhibition of the freedom of the press to report, comment, criticise and raise any concerns it deemed proper. All we are talking about is taking the proper steps that we need to take to ensure that people are safe.
Going back to our earlier debate, it is critical that people know what they can and cannot do and what the regulations are, as that will be the fastest way of getting the information to all the people who need to hear it.
4.30 p.m.
Baroness Buscombe: I reassure the Minister that I do not believe that there is anything between us, in the sense that no Member of the Committee would insist on an amendment to the legislation that would hinder the ability of Ministers to act in the event of an emergency that was perceived, threatened or actual.
The Government may be convinced that an amendment to substantive legislation that governs our constitution is not possible, but I am not convinced. What if the power were in the wrong hands? I am not convinced, and believe that we are right to urge the Minister to think again about our amendment.
I am grateful to all Members of the Committee who have taken part in the debate. As my noble friend Lord Onslow said, we are talking about an extraordinarily wide group of powers conferred on a small number of

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people. In other parts of the Bill there are lists to which we have referred as being half-baked or half-cooked. The suggestion of my noble friend Lord Goschen to have either a list of exceptions to subsection (3) or an inclusive list could be a possible solution.
I cannot see why it would not be sensible at least to include in the Bill a list that would exclude, for example, the Bill of Rights, the Act of Settlement, and the most fundamental Acts that govern the composition of the two Houses of Parliament, including the House of Commons Disqualification Act 1975. I am almost sure that, as the Bill is currently drafted, all those Acts could be modified by someone on the basis of a perceived threat.
That danger could be excluded if the Government accepted some kind of list. The danger may appear to be entirely fanciful, but it has been done before in other countries. I cannot conceive why it would not make sense to have some limitation on subsection (3).
I am grateful to all who have spoken in support of the amendment, and hope that the Government will consider with care the concerns that have been expressed. Notwithstanding again what the Minister said about amendments that will be tabled on Report regarding judicial review, however strong those safeguards may be, I do not believe that they would be strong enough in the wrong hands. For now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord McNally Lord McNally had given notice of his intention to move Amendment No. 133:
Page 16, line 9, after "Part" insert "or provision of the Human Rights Act 1998 (c. 42)"
The noble Lord said: In the light of the Minister's assurance that the Government will table amendments on Report, I shall not move the amendment. We on these Benches take greater comfort from that assurance than the noble Lord, Lord, Elton, seemed to do.
[Amendment No. 133 not moved.]
[Amendment No. 134 had been withdrawn from the Marshalled List.]
[Amendments Nos. 135 to 139 not moved.]
On Question, Whether Clause 22, as amended, shall stand part of the Bill?
Lord Lucas: It seems to me that this is one of the absolutely crucial clauses of the Bill. We have run through it, looking at it and picking over it in detail, and I do not think that it will do any harm to stand back briefly and to look again at the immensity of what we are doing.
We are saying that there are circumstances under which the Government may, of their own accord, claim absolute power in this country, albeit, with luck, only for a limited time. Like some maiden stuck in a high tower, we are setting out a prize for which an ambitious man may try. The path, though difficult, is not hard to chart.
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You would start with proportional representation. We have a substantial party which already backs that and which may one day be in a position to enforce it. That could be followed by, for instance, a Conservative Party, long out of power, which is prepared to do a deal with UKIP or the BNP or some other undesirable outfit. This has happened in other European countries; it is not beyond belief. Austria is a case in point where this kind of thing can happen. Absence of participation in power can lead to desperate measures, as the Benches opposite will know if they remember only a few years back.
From there—and presuming that we have someone as a Secretary of State who would wish to misuse this Bill—it is a matter of kind hearts and coronets. We should really look seriously at the operation of the Bill. It is opening ourselves to attack, albeit it would have to be delivered cleverly and over time. But once we have made that opening, there will always be a temptation for someone to try to come through it.
I look forward with interest to the amendments the noble Baroness has promised. Until I have had time to digest them, I do not know how far they will go. We shall again come to matters of protection, I suspect, under the next clause.
I hope that my noble friend Lady Buscombe will think further on the idea she was promoting of giving some role to individual Members of Parliament. If we are dealing with a period when there is absolute rule by the Government under this Bill, to have Members of Parliament in a position where they could actively protect, promote, investigate and understand the conditions to which their constituents were being subjected and to make sure that they were informed and individually powerful, is a good, practical safeguard against Parliament, when it comes to consider these matters and is overwhelmed by misinformation.
A situation where the Government come before Parliament—with no individual parliamentarian having been allowed into or out of the affected area—and ask it to approve emergency regulations relying entirely upon government information would be difficult. To put individual Members of Parliament back into a position where they had real power and responsibility would be a constructive way to go. We shall come back to that at a later stage, but we should not for a moment think that we are doing something which falls short of giving the executive absolute power.
Lord Elton: Earlier today, the noble Baroness explained the context in which a group of amendments was being moved. At this point, it is worth looking at the context in which the Bill is being debated. The House of Commons has left it to the Members of this House to protect their rights and privileges in the case of an emergency. That circumstance has arisen because the press, far from needing censorship, have been entirely silent on this issue.
I do not think that sufficient people in this country understand the delicacy or importance of what we are doing. Their pattern of thought is the same as that of the noble Baroness, who talked earlier about "this Government". Nobody thinks that this Government

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will do the awful things that we are trying to protect against, but they would have thought so, as I was saying earlier today, had these powers been asked for by the government of my noble friend Lady Thatcher in their last months. The whole country would have been in uproar; these Benches would have been full of people who had become red in the face. I, having then vacated the Front Bench, would not have had to support my noble friends sitting on it in what I would have thought was an entirely improper process.
The public are not alert to this, in large part because the press in particular and the media in general have stopped taking an interest in the proceedings in Parliament. That, again, is due in large part to Ministers having for a long time made all their announcements of importance outside Parliament, so the reporters are not in the public galleries when the reaction to these announcements can be seen from not only the Opposition but the Back Benches of the government of the day. Such events are not reported and the country is becoming out of touch with the parliamentary process.
In my view, we are faced with two crises—one is the lack of democratic understanding and activity in this country and the other is the threat of its termination altogether. That is a purple passage but it is not entirely over the top. I am afraid that it is pretty close to where we are now.
The Earl of Onslow: One is in terrible danger, as my noble friend Lord Elton implied, of going on about the same point time and time again and being boring and dull. These points are too important not to do so.
We all know Lord Acton's aphorism that power tends to corrupt and absolute power corrupts absolutely. We all know the important quote about the price of liberty being eternal vigilance. The Bill is immensely helped in its progress by the good-natured affability and charm of the noble Baroness, Lady Scotland. As Disraeli said of Queen Victoria, with the faerie queen you lay on the charm and everybody laps it up. But we must not let her get away with it.
I cannot emphasise enough that is not the noble Baroness or even the great Mr Blair that I am worried about. It is, as my noble friend Lord Elton, said, somebody else. It is somebody "malvoleant", as my noble friend Lady Buscombe said. So one has to go on and on about this. I still think that paragraph (j) should not, under any circumstances, be in the Bill. I do not trust people, however nice they are, however charming. No government should have these powers—it seems to me as simple as that. After all, we have lived with 20 years of American paid-for terrorism in this country without getting in a complete panic.
We really must be very careful before we let the Bill go any further. I am still worried, and I am afraid that I will go on saying it time after time after time after time.
Clause 22, as amended, agreed to.
4.45 p.m.
Clause 23 [Limitations of emergency regulations.]:
[Amendments Nos. 140 to 143 not moved.]
Baroness Buscombe Baroness Buscombe moved Amendment No. 144:
Page 16, line 43, leave out from "service" to end of line 45.
The noble Baroness said: This is an important amendment and one about which we feel extremely strongly. It touches on an issue that I raised, among others, at Second Reading. The noble Lord, Lord Bassam, wrote to me, for which I am grateful, concerning this point in a letter dated 19 July. Unfortunately, the contents of the letter did not satisfy me; hence this amendment.
The amendment concerns Clause 23, which deals with the limitation of emergency regulations. Other than not being able to require a person to take part in military service, the only other thing that the Government are not allowed to do is interfere with strike action. We find that a most peculiar exception. Why are those on strike afforded such protection from these provisions when no one else has such immunity afforded to them? In his letter of 19 July, the Minister said:
"Existing criminal law and employment relations law already contain appropriate provisions so as to ensure that industrial action does not endanger human life. Under the Trade Union and Labour Relations (Consolidation) Act 1992, a person who wilfully and maliciously breaks a contract of service, knowing or having reasonable cause to believe that the probable consequences of his doing so, will be to endanger human life or cause serious bodily injury, or to expose valuable property to destruction or serious injury, commits an offence. The Government considers that these provisions hold good in emergency and non-emergency situations and that there is no need for emergency powers to be used for these purposes. The 1920 Act prohibits such use and the Bill continues this prohibition".
I am sorry, but that is not good enough for us. We cannot conceive why the Government, unless for political reasons, have chosen to except those who wish to take part in strike action from the clauses of this enormously powerful Bill.
I will refer again to the point I made at Second Reading. I recalled that a short while before Second Reading there had been a Tube strike in London which had caused absolute chaos on the roads and in terms of people being able to go about their business. I am not sure of the extent to which it hampered emergency services, but one can only imagine, given the daily jams that we endure in London, notwithstanding the congestion charge which makes not a jot of difference.
If in addition to that Tube strike an unprecedented act had taken place in Westminster, for example, how on earth does this legislation make sense? This is the legislation to which all Ministers would turn in the event of an emergency. How would it help to say that those undergoing strike action are excepted? Are Ministers then supposed to search out all other legislation that exists on the statute book to decide, "Actually, we had better stop those guys on strike", or decide, "No, it's fine"? That just does not make sense. I can only deduce that this is a sop to the trade unions. What else could it be? It is such a peculiar exception to this enormous power in the Bill.
Since the letter of 19 July and having seen our amendment on this point, I hope that the Government have had pause for further thought and will accept my amendment. I beg to move.
Lord Stoddart of Swindon: I would like to speak to this amendment. I say at the beginning that I have been a trade unionist for the past 62 years. I first joined a trade union when I was a youth in training on Post Office telephones. I have also been a member of NALGO, the ETU and, indeed, a retired member of Amiens. I was a member of the National Joint Industrial Council and have been a kind of shop steward—unpaid always—in various parts of our industrial complexes. I thought that I had better say that before I go on to say to the Government that although I understand the reason for this exception, I simply do not think that it will do.
Let us read the measure. It states:
"Emergency regulations may not…prohibit or enable the prohibition of participation in, or any activity in connection with, a strike or other industrial action".
The noble Baroness, Lady Buscombe, has just pointed out that if you have a state of emergency and you need various things to be done, if the people who have to do them go on strike, you are in some difficulty. I am sure that the noble Baroness will say to me, and I would agree, that trade union leaders are responsible people—I believe that to be true—and that they would not allow such a thing to happen. However, the measure does not refer to official strikes. There is no limit so any trade unionists may take action on any industrial matter, even if their leaders at local, national and regional level disapproved of it and ordered them back to work. If they decided that they would not go back to work, as they did in 1979, then what? I believe that on that ground alone it is completely and utterly pernicious that there is no responsibility anywhere at all which can be exercised and that the legitimate right to strike is maintained under virtually all circumstances. That gives carte blanche to exercise widespread irresponsibility and self-interest.
I shall speak no further but I draw that to the Minister's attention because what is being written into this Bill constitutes a huge coach and horses which I am sure she would not like to see.
The Earl of Onslow: I find it amusing that no provisions to entrench the privileges and the rights of Parliament are put in, but those to entrench the privileges and rights of trades unionists are. There seems to me a certain modicum of misjudgment on that issue.
Viscount Goschen: My noble friend's amendment is important for two reasons: first, as regards the terms of the amendment in relation to the concept of not allowing strike action to be banned; and, secondly, because it exposes an extraordinary inconsistency within this legislation. The Government are prepared to countenance the life of Parliament being extended; Members of Parliament being banned from coming to Parliament; and virtually any statute on the statute book being altered by order without reference to
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Parliament within seven days, but they will not ban strike action. As the noble Lord, Lord Stoddart of Swindon, said, strike action could be extraordinarily important. What about ambulance drivers and firemen? We have seen a fire strike recently. The noble Lord made an important point. Just as the Bill cannot be expected to rely on the future good will of governments and good behaviour of Ministers—a point that we have been over a number of times—equally it cannot rely on the future good will of trade union leaders.
The noble Baroness talks about circumstances about which most of us scratch our heads, having not possibly imagined that she could even begin to define a list of the statutes that the Government might want to amend. However, anyone can see that, with reference to ambulance workers, firemen, air traffic controllers, workers in electricity generation, nurses or whoever, there may well be circumstances in which strike action would be inappropriate and could severely weaken the country in a state of absolute emergency. As she feels that such a large gap should be made in the law, I very much look forward to her response.
Lord Monson: I endorse everything that has been said so far, and point out that Clause 23(3)(b) could very well conflict with Clause 22(3). For example, under Clause 22(3)(e), emergency regulations could require the movement of people to a specified place—from their homes to, say, an assembly or evacuation point. What happens if all the buses, Tube lines and trains are on strike, and the family in question have no car, motorcycle or even bicycle? There may be small children to cope with in addition.
Conversely, let us suppose that, under Clause 22(3)(g), emergency regulations prohibit travel from people's homes, perhaps in some epidemic. What if it is the middle of a cold winter and there is a power workers' strike? The family have no gas or electric heating in their home. They may wish to move to a friend's house where there are coal fires or to a public building where there is a generator, but would not be permitted to do so. There is a considerable paradox.
Lord McNally: I sometimes think that there is a kind of Pavlovian reaction from those on the Conservative Benches when they see the words, "trade union". It hardly seems 30 years since they had to find someone called the Official Solicitor to get some dockers out of gaol because the whole country was likely to come to a halt unless they did.
If people go on strike, clauses in Bills do not get them back to work. The Government may have to take action to replace labour that has been withdrawn, as was shown with the fire service and the military. We have spent a lot of time making sure that the Bill does not take away freedoms; I fully endorse the points made by the noble Lord, Lord Stoddart, about the freedom of the press. However, here is a provision to say that the right to strike will be retained—a right that we managed to fight a world war and retain—and suddenly we get all this concern.

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It would be interesting to hear from the Minister how the Government would act if, for example, a strike was called on the Underground—I must go on, before I see the noble Lord, Lord Tunnicliffe, looking with some nostalgia to those happy days for him—and an emergency, in the form of a terrorist attack or whatever, then arose. Would the Government have any powers to suggest that the strike should not go ahead, or would they purely rely on the good will of the trade union not to pursue the matter? I do not know.
The problem leaps out. We have been trying to write in other protections, but we would leave this protection in and suggest that the Government write in a lot more, rather than take up the suggestion from the Conservative Benches. That suggestion seemed to be that the Government take action against the right to strike, which we think, along with a lot of other freedoms, constitutes a functioning democracy.
5 p.m.
Lord Lucas: I have a couple of questions on this. Now that the Human Rights Act comes fully into play with this Bill, I cannot comprehend what limitations there will be on the Government ordering people to do things. Are we in a position where the Government cannot tell a person to perform a particular function? They can tell people to go here, go there or not do this or that, but can they say, "You have to carry coal for the next week", or whatever, or, "You have to help dig ditches"? Is there a general power in the Bill to compel people to do things, to which striking is the only exception, or is it the general position that the Government will not be able to compel people to do things?
Secondly, if I can fillet Clause 22(3)(b), it seems to read that emergency regulations may not enable any activity in connection with a strike. Does that mean that they would not allow for the provision of substitute drivers for trains where train drivers were on strike?
Lord Bassam of Brighton: In this argument I am rather with the noble Lord, Lord McNally. There is and has been perhaps a Pavlovian reaction from the Benches opposite.
Baroness Buscombe: Does the Minister agree that there should be a whole list of exceptions, not just this one peculiar exception?
Lord Bassam of Brighton: I do not think that it is a peculiar exception. It is one which has existed throughout the history of emergency powers legislation. I remind myself that the 1920 Act provided that it was still a right that individuals could exercise to withdraw their labour. We have not changed anything from that piece of legislation. We are merely modernising and continuing it. Given—sadly, from my party's point of view—that the noble Baroness is a member of a party that has had much time since 1920 to have effected that sort of change, the mystery to me is why her political
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party has taken the opportunity to make the change which she now urges the Government to make in the circumstances set out in the Bill.
We take the view that allowing the use of emergency powers to prohibit strikes would run the risk of straying into the realm of political interference rather than emergency response. While the Government may need to act to mitigate the effects of a particularly disruptive strike, we do not think that it is right to do so by using the power of the state to take away what I had assumed was seen across the political divide as being a fundamental right to withdraw quite lawfully, and in lawful circumstances, one's labour. We see that as being a fundamental right which should be protected even during emergencies. I had thought that that fact would have been respected by noble Lords opposite.
Viscount Goschen: The Minister is prepared to do away with swathes, almost an infinite number, of rights. For example, the right to vote—universal suffrage—could be abolished by order. He happens to be talking about one important right, the right to strike, but it is one among thousands of other rights that we possess, all the rest of which could be abolished or removed at the jot of a Minister's pen, but not this one. That is why we are slightly perplexed about the Minister's position.
Lord Bassam of Brighton: We would "infringe" the current rights and freedoms that people have only where it was right and reasonable and proportionate to do so and within the framework of the law. By that, I mean within the conventions of the Human Rights Act and taking into account the European Convention on Human Rights, which are very important qualifying pieces of legislation.
The Earl of Onslow: One accepts all those points. But why does one piece of human activity have to be excluded or given a gold-plated privilege when those of us on this side of the Chamber think that many other examples are more important even than the right to strike? Of course, I concede that the right to strike is as it should be; no one is arguing against that. My question, to which the Minister is not responding, is: why should this one be gold-plated?
Lord Bassam of Brighton: It is not a question of gold-plating it; it is a matter of acting proportionately in the circumstances. It is a matter of recognising people's fundamental human rights and of not straying into what, in a sense, is political interference. I have always thought, perhaps unwisely, that noble Lords opposite would see the sense of protecting that. They have certainly seen the sense of it in the past.
The Government have made it clear that emergency powers in this country are to be used as a mechanism for dealing only with the most serious threats to human welfare, the environment and security, and only in a responsible and proportionate manner. For that reason, we reject the use of such powers for the kind of political interference in which we are being

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invited to take part and with which we have been associated in some parts of the world in the past. That is why we have crafted the Bill as we have.
The noble Lord, Lord Stoddart, made the not unreasonable point that unofficial action should not be protected. Non-union-backed or unofficial action which is contrary to the contract of employment is not protected and would lead to the dismissal of the individual employee. Therefore, existing legislation can be used to deal with that action.
Lord Elton: The noble Lord is now relying on an individual employer to do what the Bill provides for the state to do. I should have thought that the state would do it a great deal more swiftly than an employer, who might stand to lose a great deal by doing it.
Lord Bassam of Brighton: I am saying that the full force of the law is there to deal with unofficial action. The noble Baroness is talking about prohibiting what, in normal circumstances, would be entirely lawful industrial action.
The noble Lord, Lord Lucas, asked whether regulations can require people to perform functions. The answer is "yes". Clause 22(3) provides for that. However, any requirement on a person to do something will obviously be subject to convention rights, including Article 4, which offers a prohibition on forced labour.
The noble Lord also created the example of substitute drivers not being permitted. The answer to that is "no". The restriction prevents the enforcement of work on individuals who take industrial action, but it does not prevent an employer taking other action to ensure that those duties are met. In circumstances involving the drivers of trains, buses or whatever, employers would be free and able to employ other, substitute labour. Therefore, that situation is covered as well.
We consider this to be an important right which should be protected. I can see that noble Lords opposite take a contrary view. I should have thought that in the delicate situation of an emergency, it would be right to try to take people along with us. I suggest to noble Lords opposite that, in those circumstances, it would probably be unwise to take a stand prohibiting a long-established and much valued freedom to withdraw one's labour.
The legislation goes back to 1920. It seems to have been accepted—certainly by the Liberals; it was their government that passed the provision, a long time ago—as a principle of emergency legislation that that right should continue to be protected. That is simply what we are doing in this Bill.
Viscount Goschen: In the recent firefighters' strike, it was widely reported in the press that the Government had been considering removing the right to strike from firemen. Is that the case?
Lord Bassam of Brighton: I am not prepared to comment on that. There was much speculation at the time about actions the Government were considering. That is not something I am aware of.
Lord Stoddart of Swindon: I just comment further on the trade union position. The noble Lord,
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Lord McNally, is absolutely correct; there tends to be a knee-jerk reaction on the part of the Conservatives. I think that is wrong. It may very well be that their attitude is modernising. It could also very well be that we could build on this particular clause to get more protections for a wider range of people.
I get back to the question of official and unofficial strikes. The trade union movement and the trade union leadership are there to prevent chaos. Indeed, trade unions bring order where there may be chaos because they exist and are recognised. They are in touch with their members and can often defuse situations and, in any event, control situations.
I have very bad memories of the 1969 unofficial strikes—"the winter of discontent" as it was called. Even as a trade unionist, I was appalled to learn from a government Minister that a group of unofficial shop stewards were able to say whether and when supplies of food and medicine went to hospitals. That is the sort of thing I am talking about. That is unacceptable under any circumstances. Whereas protection for responsible trade unionism and trade union activity under proper leadership is legitimate, I believe that mob rule of the unofficial strike in certain circumstances is unacceptable and dangerous.
Lord Lucas: In his answer to my question on subsection (3)(b), the noble Lord said that employers could take action to produce a substitute work force. Suppose there was a regulatory problem with that. Suppose we had a strike of HGV drivers. It was necessary to substitute for them but there were not enough people around with HGV licences. Would not the wording of subsection (3), as it is now, prohibit the Government from making a change to regulations to allow people without HGV licences to drive the lorries, because that would be a change made in connection with a strike?
Baroness Buscombe: I remind the Minister of an example I used at Second Reading. On 21 June of this year the London Fire Brigades Union chose to hold industrial action on the grounds of health and safety—very good grounds as it happens. It was deeply frustrated because it felt that it had not been given enough chance to practice, prepare and train for an emergency. The resultant consequence was that only two out of the 10 immediate response units remained active. In other words, the response units that should have been available if there had that night been an unprecedented act, the kind of which we are trying to envisage in this legislation. Is that something that we have to accept?
Lord McNally: There are a group of questions to be answered, but the Minister slightly ducked the question about whether the Government were contemplating making strikes by firemen illegal. Perhaps a more positive spin on it is that, instead of, as the Official Opposition seemed to be trying to do, writing that into emergency powers, would it not be better for the Government to pursue a wider use of non-strike agreements in public services, such as the

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fire service, the ambulance service and, indeed, the Underground as a protection rather than deal with the matter through emergency powers?
5.15 p.m.
The General Strike took place under the 1920 Act. As far as I can recall, the country, in opposition to that strike, did many things such as driving buses.
Lord Bassam of Brighton: The noble Lord, Lord McNally, talks a lot of sense on this issue. I can only dig a hole for myself after that, I know. He is right in his general approach. I agree with the noble Lord, Lord Stoddart. What he describes I, too, find reprehensible. He repeated his earlier question: when should one be able to ban official strikes? Regulations could of course be made to address the effects of an unofficial strike, but we do not think that emergency regulations are the appropriate vehicle with which to deal with that. Obviously, we have discussed the provisions with responsible trade unionists in the form of the Trades Union Council. Unsurprisingly, it is happy with the package in the Bill. I am sure that that is no great shock to your Lordships' House.
I think that the noble Lord, Lord Lucas, asked whether the wording prohibits regulations to break strikes such as one of HGV drivers. I think that the answer to that is no, but that is an example of where it might be appropriate to modify legislation in an emergency. To pick up the point made by the noble Baroness, Lady Buscombe, in the circumstances that I think that she is envisaging, it would clearly be right to find some form of substitute labour to carry out that important work.
Baroness Buscombe: I thank the Minister for allowing me to intervene. One of the real problems here is entirely practical. The reason why there was industrial action that night was that those who were supposed to be using the emergency response units were deeply frustrated because they lacked training. They do not know how to use them. They are desperate to have the proper training, so that they can put them into good use in the event of an emergency. In that case, what is the point of having those emergency response units? If you or I, if I may say so, were asked to take their place if they were out on strike, we would not be able to use them either. We would be useless in that event because they require training. That is why those who are supposed to be manning them went out on strike.
We must be practical here. This is not some deep-seated Conservative anti-trade union thing. My noble friends have made clear that we are not against industrial action. We are saying that we have this peculiar exception. The noble Lord, Lord Stoddart, talked about trade unions being in touch with their members, which can help enormously in the event of an emergency. But the noble Lord said earlier that that also applies to Members of Parliament, who want to be in touch with their constituents. Under the Bill,
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it is entirely possible that they will be denied that opportunity. Why does one class of person have that exception?
Turning to the noble Lord, Lord McNally, this is not just some anti-trade union Conservative point; this is an extraordinary inconsistency in the Bill.
Lord Bassam of Brighton: It is not so extraordinary. It has not been as extraordinary as an inconsistency that has been on the statute book for the past 85 years. Perhaps I am wrong, but I have a horrible feeling that, had the Government decided to remove this provision, noble Lords opposite would simply have added it to the charge-list of freedoms that we have impinged upon. I cannot accept the noble Baroness's explanation.
Firefighters and their training is obviously a delicate issue on which I accept that there were strong feelings. The modernisation programme for fire and rescue services has had some bumps along the way in its progress, but most parliamentarians, certainly the Government, have firmly embarked upon it. The noble Baroness is absolutely right that we must ensure that such training is adequate, thorough and completed so that cover can be provided in an emergency.
I do not accept the charge made opposite. I do not see it as a peculiar exception. For that reason, I cannot accept the noble Baroness's arguments.
Baroness Buscombe: I have probably said all that I can at this stage. I thank Members of the Committee for their contribution to the debate. I remain entirely unconvinced that this clause should remain in the Bill, unless—
Lord Archer of Sandwell: I am most grateful to the noble Baroness for giving way. She has made a point more than once about what appears to be an inconsistency between two sets of rights. During the course of the day she has stoutly asserted a number of rights which she says should be protected in the Bill. If protection were introduced for them, would she be content that protection for this right, too, should remain in the Bill?
Baroness Buscombe: Yes, exactly. The noble and learned Lord, Lord Archer, is one step ahead of my thoughts. I was about to say that, if the Minister could come forward with suggested amendments or table amendments on Report that would give balance and consistency to the clause with respect to limitations on emergency regulations which would then make sense, it would move our views on the inclusion of this clause in the Bill. There is no question about that. I accept entirely the noble and learned Lord's point. For now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 145 and 146 had been withdrawn from the Marshalled List.]
[Amendments Nos. 147 to 150 not moved.]
On Question, Whether Clause 23 shall stand part of the Bill?
Lord Lucas: I have two questions to ask and one observation to make. The first question is: please may I have a written answer to my HGV drivers' strike illustration? I should like to understand how the Government can get away with making regulations in those circumstances under the Bill. It does not seem possible, and I should like to understand why the wording allows it.
Secondly, paragraphs (b) and (c) of subsection (4) prohibit the creation of offences, with which I agree entirely. Can the Government use emergency regulations to change penalties for existing offences? The noble Baroness said that the Bill could not be used to reintroduce the death penalty. Where do I find that in the Bill? Presuming that it was necessary, or thought to be so, to deal with an emergency, perhaps to deter looters, why could it not be used? What in this Bill says that you cannot alter the sentence for an existing offence?
Lastly, I hope to encourage my noble friend on the Front Bench to pursue her question of protecting the constitution. The Government have made reasonable arguments why most modern Acts should be subject to the Bill. We can envisage circumstances in which we might want to adjust or amend them to deal with an emergency. I cannot understand how that applies to Magna Carta, the Bill of Rights and maybe one or two other Acts. I hope that we can consider including them in the protections under the Bill.
Lord Monson: I want to raise a question about subsection (3)(a). The noble Lord, Lord Lucas, touched on it briefly when speaking to Amendment No. 144.
Subsection (3)(a) states:
"Emergency regulations may not require a person…to provide military service".
That is clear and unequivocal. There is no doubt about that. It says nothing about non-military service. Could, for example, those who have been sentenced to a couple of hundred hours for some criminal offence or other be told that, instead of the relatively agreeable job of painting elderly people's kitchens, they must clear up the rubble resulting from a massive terrorist bomb explosion or series of explosions? I do not think that that would necessarily come under the heading of forced labour, to which the noble Lord, Lord Bassam of Brighton, referred, but, for the avoidance of doubt, would it not be better to insert at Third Reading the words "or other" after the word "military" in line 42?
Lord Avebury: I am grateful to the noble Lord, Lord Lucas, for pointing out that we did not get an explanation from the Government of where it was stated in the Bill that emergency regulations could not restore capital punishment. I shall go further and ask the noble Baroness whether there is anything in the Bill that prevents the Government amending any statute that contains penalties, so as to increase those penalties. We have not heard it argued as part of the
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Government's case that there should be powers in the emergency regulations to increase penalties for existing offences, and, unless there is a very good reason for it, governments should not be able to do it.
Lord Elton: Given that war is one of the circumstances that can be taken to constitute an emergency, I would like an explanation of the reasons why subsection (3)(a) excludes the possibility of bringing in military service. I would have thought that that would be one of the first necessities.
Lord Bassam of Brighton: The answer to the last question is that that could not be done by regulation. It would have to be done by statute.
The noble Lord, Lord Lucas, asked, I think, whether regulations could amend legislation to increase criminal sanctions. It is difficult to see why such a provision would meet the conditions in the triple lock and why it would be appropriate for the purpose of preventing, controlling or mitigating aspects of the emergency.
Lord Lucas: I shall provide an illustration. If there were widespread rioting that was not controlled by existing penalties, it might be reasonable to take action to increase the penalties.
Lord Bassam of Brighton: It would be wisest if we clarified the position in writing. I do not want to get into a Dispatch Box muddle with the noble Lord. I cannot see how it would be possible to do that. Perhaps we should set it out for the noble Lord; that would probably be clearer. Obviously, we will copy that correspondence to other noble Lords.
There was also a question about the death penalty—
Lord Avebury: If it is not possible to reintroduce it under the Bill, why should not we make that plain in the Bill by making an amendment at the next stage saying that no existing penalties may be varied or increased?
Lord Bassam of Brighton: The noble Lord, Lord Elton, asked why we should bar military service, which might be needed in a war. In a war, the Government would bring forward primary legislation. I think that history and practice have shown that the need for conscription does not arise urgently, although it will obviously be a consideration to be thought through in the preparation for war. A scheme such as that in the Second World War would be put in place and properly regulated.
5.30 p.m.
Lord Archer of Sandwell: Does my noble friend agree that, normally, legislation that is likely to prove highly controversial ought not to be used to deal with an emergency?
Lord Bassam of Brighton: I completely agree with the noble and learned Lord on that point.

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There was a point on the death penalty. As far as I can understand it, there is no proscription in legislation on the issue of the death penalty, but there does not need to be. It is a human rights and ECHR issue. Those operate a prohibition. I think that I have answered the various supplementary points raised in the discussion.
Lord Monson: The Minister has not answered the point I raised. Can he say whether the Government have any objection to the insertion of the words "or other" after the word "military" in line 42, for the avoidance of doubt?
Lord Bassam of Brighton: We probably would have an objection to that as it would be too broad in the circumstances. We will certainly reflect on the point. I am not sure that it helps us much in the circumstances.
Lord Avebury: The noble Lord did not answer the point about the increase of penalties. He said that he did not think that it would be possible under the regulations to increase the criminal penalties for an existing offence. I then asked him whether, in that case, the Government would be prepared to write that into the Bill with an amendment saying that they were not to increase the penalties for any given offence. He went on to discuss the intervention of the noble Lord, Lord Elton, and ignored my question that immediately preceded that part of his speech.
Lord Bassam of Brighton: The noble Baroness, Lady Scotland, has been trying to explain a point to me while the noble Lord was asking his question. The only criminal offence that can be created—
Lord Avebury: I am not talking about the creation of new criminal offences. I am talking about the increase of penalties for existing criminal offences under regulations.
Lord Bassam of Brighton: I think that it is best that we write with the explanation.
The Earl of Onslow: The noble Baroness, Lady Scotland, obviously understands the answer; the noble Lord, Lord Bassam, obviously does not. Could we have an answer from the noble Baroness, please, who will explain it to us?
Baroness Scotland of Asthal: The amendments that can be made are limited to those in the limitations on emergency regulations in Clause 23. Any further or other amendment would be outwith this Bill. Thus, we would say that noble Lords' anxiety that we will create further and other offences or be able to amend other legislation in a way that it could do so is not well founded.
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I am more than happy to write a very detailed, comprehensive explanation to noble Lords. Although I hesitate to say so, I am relatively confident that after the noble Lord has had an opportunity to see that, he will be satisfied. I am more than happy to do that.
Lord Lucas: Having received a satisfactory answer on the death penalty, I should like none the less to confirm that regulations could authorise the use of fatal force against, say, people trying to cross a line. If you were trying to isolate a particular area and people were determined to break out of it, under these regulations you could authorise the security forces to kill people who were doing that. That would be permitted within the Bill, would it not?
Lord Bassam of Brighton: No, no, no; I do not think they can.
Lord Lucas: The noble Lord will doubtless write to me to tell me why not. I do not see it in his regulations. If people are trying to break out of an area and are carrying a fatal disease, what other means will the noble Lord use to stop them doing it?
Lord Monson: Is the noble Lord not aware that in the United States, when a state of emergency is declared, the national guard is given power to shoot looters?
Lord Bassam of Brighton: Precisely: but not here. I shall read a scenario that we envisaged might come up in this discussion. It is headed, "Authorise the use of lethal force". Emergency regulations must be compatible with convention rights. The convention protects the right to life. It is not possible to derogate from the right to life. Thus, the regulations could not authorise a shoot-to-kill policy or anything similar. Of course, the usual rules of engagement would apply to armed police or troops performing functions in an emergency. These allow the use of reasonable force. I hope that that clarifies the issue finally for the noble Lord.
Lord Dixon-Smith: Can the noble Lord tell the Committee how a quarantine area will be enforced if there is some appalling, lethal disease that is fatal anyway and people are determined to break out of the so-called quarantine area, which the Government will by then have established by regulation?
Lord Bassam of Brighton: I think that the noble Lord is getting carried away here. We have very effective and efficient policing techniques that have experience in public-order situations and even in situations of extremis. We have to trust that those skills will apply. I am answering the precise question about the use of lethal force, to which I have given a very clear answer.
Clause 23 agreed to.
Clause 24 [Regional and Emergency Coordinators]:
Baroness Buscombe Baroness Buscombe moved Amendment No. 151:
Page 17, line 20, at end insert ", and

(d) competence and demonstration of said competence"

The noble Baroness said: This amendment relates to Clause 24, which deals with regional and emergency co-ordinators. As currently drafted, the Bill ensures that emergency regulations must require a senior Minister of the Crown to appoint an emergency co-ordinator for each part of the United Kingdom. The clause goes on to state that,
"Provisions made…may…include provision about the co-ordinator's—

(a) terms of appointment,

(b) conditions of service … and

(c) functions".

Our amendment would add,
"competence and demonstration of said competence".
Those people will be in a position of some considerable power. We on these Benches feel that it is important that provision should be made about their competence or it should at least be something that the Minister has in mind regarding the appointment. I beg to move.
Lord Lucas: I echo what my noble friend has said.
Lord Bassam of Brighton: We do not see the need for these amendments. The role of the regional nominated co-ordinators will obviously be critical to the handling of an emergency. There is no question that they would be appointed on any basis other than their competence to do the job. That level of competence will be very high indeed.
We apparently had this discussion in another place where I think we made it clear that there are three broad areas of expertise that regional and emergency co-ordinators will have; namely, subject matter—specialisation in public health matters—crisis management expertise and knowledge of the geographical area in which they operate. They are very important. All co-ordinators will be trained crisis managers with considerable leadership skills and personal authority.
Establishing the right mix of skills and knowledge is a task for the planning phase during which pre-nomination will take place. That will include training and involvement in appropriate exercises. Those are operational imperatives and functional necessities. It is unnecessary to state those requirements in the Bill. The balance between skills, training and knowledge will vary according to the particular emergency.
Prerequisites for a particular regional nominated co-ordinator can form part of the terms and conditions of appointment and will allow for a flexible approach to be taken in each circumstance, according to the type of emergency. In the unlikely event that a co-ordinator does not discharge the functions given to him or her to the high standard demanded, obviously the Bill enables that such a person could be replaced. I hope that that satisfies the point made by the noble Baroness.
Baroness Buscombe: It may seem a small point, but I find it extraordinary that, while we are told constantly
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that we cannot include certain crucial safeguards in the Bill, here we are talking about the "terms of appointment" and,
"conditions of service (including remuneration)"
for regional and emergency co-ordinators. That simply does not make sense. I accept what the Minister has said and I agree that the person must have a particular level of expertise. We hope that that will be borne in mind.
This is a probing amendment and I do not intend to press it. I am glad that the Minister made clear the need for a certain expertise so that this job can be done properly by the right people with the appropriate skills, aptitude and training, along with experience. But my amendment illustrates the extraordinary inconsistency in the Bill in terms of what the Government believe to be a priority, what does or does not matter, and what should or should not be in the Bill.
Lord Elton: I do not think that this provision belongs in the Bill at all and I am astonished to find it here. Surely the proper thing to do would be to have regional and emergency co-ordinators designate in place now rather than to wait for the emergency before making regulations to say who shall do what. Indeed, I had thought that such people already existed. I thought that they were chief constables and others with sufficient expertise in these affairs to be able to manage them. It is horrifying that we are not even thinking of appointing them, let alone considering their qualifications and terms and conditions of service, until the asteroid is on its way, the tidal wave is moving up the Thames or anthrax has broken out. I find it amazing.
Lord Bassam of Brighton: I am sure that the noble Lord followed what I said. The important point I sought to make is that the nominated regional co-ordinators will need to have skills relevant to the type of emergency that is unfolding. If we were to pre-appoint in the way suggested by the noble Lord, we would in a sense be anticipating the nature of the emergency and perhaps closing off an area of particular expertise that is required to deal with it. We do not think that that is wise and it is why we want a degree of flexibility.
However, that is not to say that in the preparation for emergencies, the Government do not already have in mind who should be appointed to the regional posts when it becomes necessary. That is not quite the same issue. We need a degree of preparation, but we do not intend to specify a named person. It is right and necessary to have a degree of flexibility in order to deal with the circumstances of a particular emergency.
Lord Elton: I am not entirely sure that even now I agree with the Minister. Here we are looking for expertise in handling emergencies, which is a generic status. Decisions about the advisers to that co-ordinator who need to be appointed—those who can tell him how to

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deal with bacteria, gas, subsidence or whatever it may be—would need to be taken at the moment of the emergency, when you know what it is.
I am certain that in the days of the coal board, when I had something to do with defence, elaborate plans were already in place for appointing people who were doing other jobs at the time, but who would have become regional controllers had the need arisen. I hope that the Minister will give a little thought to this point and that he will forgive me if I table further probing amendments on Report. I say that because it is clear that we will get no further tonight.
Lord Bassam of Brighton: Obviously the noble Lord is entitled to do exactly that. As I said, regional co-ordinators would be identified in advance of emergencies, but when thinking back to some of the emergencies we have faced, it is clear that what is required is specialist knowledge to deal with a particular situation, skills in crisis management, and knowledge of and expertise in the geographical area. That could be extremely important. An incident of flooding that inundated a large area of the countryside or another outbreak of foot and mouth disease would require very different regional co-ordinators to deal with and manage those situations. You would not necessarily want to put a state vet in charge of a flooding incident in Uckfield. Different skills would be required for different circumstances.
5.45 p.m.
Lord Elton: I do not even agree with that. I would not put a vet in charge of a veterinary outbreak. I would put a policeman or a soldier with the vet and tell them what they needed to do. The policeman or the soldier would know how to do it and would have the communication systems with which they were familiar to do it, whereas the veterinary officer would not.
Lord Bassam of Brighton: I made it plain that we would expect a mix of skills. It is important to have specialisation and skills in crisis management. It is also important to have knowledge and understanding of the area and locality. What we need—as the Government have recognized—is an identified pool of talent on which to draw, and to ensure that those skills are in place.
The noble Lord is right that the back-up team, advisers, and those with the further, better and particular knowledge are important to ensure that the regional co-ordinator pulls together a team to deal with the particular crisis.
Baroness Buscombe: I am grateful to my noble friend Lord Elton, who points out that the Bill becomes ever more remarkable. I am already thinking of the time that it will take to go through all the normal channels in terms of equal opportunities, regulations, employment legislation, and so on. Let us imagine that we are in the middle of some horrendous emergency and we have a panel interviewing people and thinking about all those different aspects of legislation, while considering the
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terms of appointment and conditions of service, including remuneration, which depends on whether the legislation affects only one region or a number of regions.
Clause 24(3) states:
"The principal purpose of the appointment shall be to facilitate coordination of activities".
My noble friend is right that we are looking not so much for a specialist in veterinary skills or bacteria, but someone who is skilled and experienced, with a good understanding of the locality, in terms of co-ordinating key activities in the event of an emergency.
My noble friend has given me ideas about possible amendments to table on Report. It is crazy to leave it until the advent of a real emergency to put such an important and crucial person in place. We should at least get as far as employing someone, perhaps on a wait-and-see basis, so that that person is ready there and then in the event of a serious threat or actual emergency. For now, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendment No. 152 not moved.]
Clause 24 agreed to.
Clause 25 agreed to.
Clause 26 [Duration]:
Lord Avebury Lord Avebury moved Amendment No. 153:
Page 18, line 23, at end insert ", or
(c) when a senior Minister of the Crown determines that the conditions in section 21 are no longer satisfied"
The noble Lord said: I shall also speak to Amendments Nos. 159 and 160.
Amendment No. 153 relates to the duration of the regulations. From the day they are made, regulations have 30 days, or earlier if specified in the regulations, until they lapse. It could arise that the regulations are no longer needed before the end of 30 days, or before a shorter specified time. To satisfy proportionality requirements, the clause should allow for the Secretary of State to give notice that the regulations have lapsed at any time when their existence is no longer justified under the conditions for the state of emergency specified in Clause 21.
As regards Amendment No. 159, Clause 27(4) covers the situation where regulations have lapsed, and Clause 27(4)(a) allows for the making of further regulations. We believe that this power should be deleted because the power to make further regulations is implicit in the Bill. Our concern is that one interpretation of Clause 27(4)(a) might be that once the regulations have been passed the clause would allow for their renewal without the need to seek the parliamentary approval that gives the regulations their legitimacy.
We also consider that this deletion is necessary in order to ensure that renewal in perpetuity is not possible; that the regulations cannot continue to be renewed without limit on the number of times that that can occur.
The amendment to Clause 27(4)(b) draws a distinction between the actions of a servant of the Crown who follows the regulations allowing, for example, the destruction of property but where this action is not later legitimised by Parliament, and, on the other hand, the rights of those who have property destroyed to seek compensation.
The nature of the emergency usually means that the effect is required to be immediate—that is to say, that the regulations come into effect before approval by Parliament has taken place. It would not be appropriate for the destruction of property to be made unlawful through a later rebuttal by Parliament. However, as Clause 27(4)(b) stands, it could be interpreted adversely in relation to a person whose property was destroyed bringing a civil action for damages. The amendment is designed to protect a Crown servant who is acting in accordance with his duties while not prejudicing a claim for damages or compensation by the person whose property is destroyed. I beg to move.
Baroness Buscombe: I shall speak to Amendments Nos. 154, 158, 159 and 160. These amendments all refer to Clause 26 of the Bill, which details the duration of emergency regulations.
As currently drafted, emergency regulations end after a period of 30 days and new regulations may then be made. Amendment No. 154 would add a new subsection which would ensure that there is an end to the remaking of regulations after a period of 90 days. We feel that it is a sensible amendment to ensure that regulations are not made indefinitely. Ninety days seems a reasonable amount of time for the worst of a crisis to be over and there seems little need to go beyond that point.
Amendments Nos. 158 and 159 are consequential amendments to Amendment No. 154 and would ensure that the drafting of the clause would make sense.
Amendment No. 160 would change the wording of subsection (4)(b). Currently, the drafting states that nothing in this clause of the Bill shall,
"affect anything done by virtue of regulations before they lapse, cease to have effect or are amended under this section".
Our amendment would replace the word "affect" with the term "render unlawful". It is partly a probing amendment to ask the Government exactly what the Bill means by "affect". It seems to be rather imprecise drafting. Our suggestion of "render unlawful" is a more sensible phrase and would have virtually the same meaning—unless, of course, we have misunderstood what the Government are trying to achieve with this paragraph.
I look forward to clarification on the points I have made in connection with this group of amendments.
Lord Dixon-Smith: When we were considering Clause 7 in Committee, I raised with the noble Lord, Lord Bassam, the fact that a direction under that part of the Bill was required to end after 21 days. I inquired about the inconsistency in the treatment of these
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emergency directions or regulations between the two parts of the Bill. The noble Lord undertook at that stage to consider the issue. I do not suppose there has been time for that review to be concluded. I simply raise the point again so that it is not completely neglected. At some point the question will have to he answered.
Baroness Scotland of Asthal: In replying to Amendments Nos. 153, 154, 158, 159 and 160, I shall take them in order.
On Amendment No. 153, the Government agree that regulations should not be in force any longer than needed. When the regulations are made, an assessment will be carried out as to how long it is likely to be necessary to keep the regulations in force. Where it is clear at the outset that it would be proportionate to maintain the regulations in force for only a matter of days or weeks, the regulations will provide for this.
The Bill expressly recognises this. Clause 26(1)(b) provides that regulations may themselves specify a date on which they cease to have effect. So there is provision for the shortest possible time to be provided for the regulations if the circumstances merit that. In other cases, the regulations will lapse automatically 30 days after the day on which they are made. But the Government will not be idle in the period between the making of regulations and their automatic lapse. I do not think that anyone would expect that to be the case.
Whoever the government are, they will need to keep the situation under review. If it becomes apparent that there is no need to maintain the regulation in force and that it would be reasonable to revoke it, the Government would be expected to do so. To do otherwise would be to risk breaching the tests of necessity and proportionality.
I respectfully suggest to the noble Lord, Lord Avebury, that it is therefore unnecessary to provide for this in the Bill. The Government will review the continued operation of the emergency powers as a matter of course and will be accountable to Parliament for so doing. The test of proportionality ensures that as soon as it is no longer proportional to have regulations in place, they will seek to meet the tests in the Bill.
The Earl of Onslow: If it is necessary to make a regulation for quarantine for 90 days when the regulations last for only 30 days, how does that work?
Baroness Scotland of Asthal: The regulation would have to be renewed every 30 days.
The Earl of Onslow: Let us say it is necessary to put me into quarantine for 90 days. Regulation A says it has to be 90 days but I am let out after 30 days unless the regulation is renewed. Is that right?
Baroness Scotland of Asthal: I can help the noble Earl by giving a practical example. Let us say that there is a pandemic; as soon as it is reasonably practicable, the regulation would be laid. That would

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then have to come before both Houses within seven days or it would lapse automatically. At the time the regulation came before Parliament, an assessment would have to have been made on the evidence that we then had on how long the emergency was likely to last and what were the parameters.
In the peculiar circumstances of this Bill, we would be able to amend an order. We cannot usually do that, but in these circumstances we could. In any event, because of the extreme nature of the powers that we would be taking, those regulations would be allowed to stay in place for only 30 days. If, before the expiration of those 30 days, it became clear that those regulations should properly be extended for another 30 days, then the Government would be in a position to bring back similar regulations for Parliament's approval. If, to take the noble Earl's example, it was clear that quarantine arrangements would have to be continued, I would imagine that both Houses would assent to the order being continued in a relatively short compass.
6 p.m.
However, the whole point of allowing for these regulations to be in being for only 30 days is that the emergency situation may change, and that which Parliament deemed appropriate for the first 30 days may not any longer be true—there may be more information that was not known. It is important for Parliament to have the opportunity to scrutinise whether it wishes to extend these powers for a longer period. If from the evidence it looks as if the difficulty will be for a longer and more sustained period so that repeated renewals will not meet the needs of the case, Parliament may decide that it is more appropriate, because it is a longer-standing issue, to bring forward legislation, albeit emergency legislation, that would last for a period commensurate with the nature of the emergency.
The important point is that this 30 days enables Parliament to keep control of what may be a rapidly changing circumstance. That is why we would not like it, even if it were said at the beginning, "Look, this may last for 90 days, but you never know". This measure is better because if it does last longer, Parliament can assent quickly, but if it does not, it gives those who may be a little anxious about it an opportunity to say, "Okay, but not for as long". As the noble Lord will know, we could make the period 10 days, five days or anything that would be appropriate to meet the needs of the circumstances. I hope that some of those comments deal with Amendment No. 154.
We therefore believe that this is the best approach because, if at the end of the period of 30 days it is clear that the provision is still needed to deal with a situation, the Government will have a number of options. As I said, where it is apparent that the emergency will continue for a substantial period of time, the Government will bring forward appropriate primary legislation. That may not, however, always be the best approach because the nature of the emergency
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can change very rapidly. Let us suppose that we took a three-month period. What if the emergency powers were needed for three months and four days?
I would also remind your Lordships that a Standing Committee raised the self-same issue. It suggested that three months was an appropriate amount of time. However, that does not allow for a situation that goes a few days over that time or Parliament determining a better way of doing things. In addition, there may be emergencies which initially appear short term but turn out to be longer lasting. The foot and mouth outbreak was one example. In such circumstances, the Government may find themselves with insufficient time to bring forward primary legislation in order to deal with a situation, but be forced to allow emergency regulations to lapse.
Sets of regulations may also be less easy to identify. What if the regulations are made to deal with a second emergency which occurs after a first set of regulations has been made, and the new regulations contain similar provisions to the old ones? There is then the question of when the 90-day period starts from. There are adequate safeguards in the provision. Experience under the 1920 Act shows that regulations were revoked when they were no longer needed. For example, regulations enacted to deal with the electricity strike in 1970 were in place for only five days, so it is quite possible to do that which suits the circumstances.
On Amendments Nos. 158 and 159, I know that concern has been expressed about whether a subsequent set of emergency regulations would be subject to parliamentary approval. Noble Lords will know that under the 1920 Act, emergency regulations could be maintained in place by way of a monthly Royal proclamation without further parliamentary approval. However, the Government agree with those who say that that is not the right approach. Any new set of emergency regulations should be subject to further parliamentary debate, for reasons that I have already given. The Bill provides in Clause 26 (1) that emergency regulations lapse 30 days after they have been made and Clause 26(2) makes it clear that the new set of regulations may be made thereafter, but any such regulations will still be subject to the provisions for parliamentary scrutiny in Clause 27. I hope that noble Lords will be satisfied that the Bill is clear on that point. Therefore, there is no need expressly to state that a second set of regulations is subject to parliamentary scrutiny. Clause 26(2) casts no doubt on that point; it is clear.
I accept that Amendment No. 160 is probing. I hope that I can give the noble Baroness a full enough answer on that. The lapsing of the regulations should neither render unlawful action which has been properly taken in reliance on the regulations nor adversely affect the rights of those who have been affected by such action. Concern has been raised in the other place that Clause 26 might somehow cast doubt on a claim for compensation in relation to action taken under the regulations. That is not the case. If a public authority exceeds its powers under the regulations or if the regulations themselves are defective in some way—for example, they do not provide for compensation in circumstances where compensation is, or should be,

1035
required under the Human Rights Act—an individual who is adversely affected can seek redress in the courts. The lapsing of the regulations will not affect that. The right to seek redress derives not from the regulations but from public law generally.
However, it is appropriate to make express provision to ensure that things which are lawfully done under the regulations are not affected by the regulations having lapsed. That is the purpose of Clause 26(2)(a) and Clause 27(4)(b). These provisions will apply to actions taken by public authorities under the regulations but they will also relate to things done by or in relation to other persons. Thus, if an individual has received compensation under the regulations, or exercised a right of appeal conferred by the regulations, the lapsing of them will not affect that payment or that appeal. If a person has been convicted of a criminal offence under the regulations, the lapsing of the regulations will not affect that conviction. I hope that I have clearly explained how the clauses interact with each other.
Lord Avebury: I have listened very carefully to the noble Baroness but I did not hear her cover the situation where a public servant takes action—for example, the destruction of property—after the regulations have been tabled but before they have been approved by Parliament. If Parliament declines to approve the regulations, what is the situation of that public servant in relation to an action for damages by the individual whose property is destroyed?
Baroness Scotland of Asthal: All of these provisions are predicated on public servants behaving in a way that is lawful. The regulations would have to come into force before they could be acted upon. Nothing in the regulations would change the ordinary rights of people to challenge actions taken by servants or agents acting for or on behalf of others who act in excess of their powers or their duties.
Lord Lucas: If it is necessary for regulations to change the structure of Parliament in some way to accommodate damage that has been done to it, does legislation passed by that altered Parliament none the less stand after the regulations have gone?
Baroness Scotland of Asthal: Is the noble Lord talking about the building? When one talks about Parliament one tends to talk about MPs, Peers and others who make up Parliament as opposed to the building. Is the noble Lord talking about damage to the building? I am not clear about that.
Lord Lucas: If Parliament were unable to meet, I suppose that alternative arrangements would have to be made. If substantial numbers of Members of Parliament were unable to attend or were dead, we might have to change the rules on quorums, voting and other matters to make proper parliamentary scrutiny possible. That Parliament might go on to pass primary
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legislation. My understanding is that that primary legislation would stand, albeit that the rules that had made that Parliament possible had come to an end.
Baroness Scotland of Asthal: Anything validly done during the duration and operation of the regulations would remain valid and would not be affected by the fact that the regulations subsequently lapsed. It is on that basis that, for instance, if a claim arose as a result of the regulations when they were in force, the fact that someone's appeal had not been concluded would not adversely affect him and prevent him pursuing that appeal. Anything done while the regulations were in place could still be challenged in a way consistent with their validity. I hope that that is clear.
Lord Avebury: I am very happy about the explanations given by the noble Baroness, particularly the idea that, in addition to the lapsing of regulations at the end of 30 days or such earlier time as may be specified, the Secretary of State or whoever it may be can come along at any time to Parliament and say, "The circumstances that gave rise to these regulations no longer continue, so the test of proportionality is not fulfilled and we annul them". She is saying that that has always been the practice under previous legislation, as in the illustration she gave of the 1970 case, where the regulations lasted only five days before being withdrawn by the then government. Although it does not appear in the Bill, we have the Minister's statement and we have previous practice, so we can be certain that no regulations will remain in force longer than strictly necessary on the test of proportionality.
I have only one remaining anxiety, which is in relation to the renewal of the regulations. As the noble Baroness has explained, the Government would have to come forward with a fresh Motion to Parliament, but I am envisaging an emergency that prevents Parliament meeting. We talked earlier about a biological attack that causes people to suffer from an infectious disease, which means that they cannot be brought together in one place. Let us suppose that a biological attack meant that the Members of Parliament were advised not to come together.
That circumstance was envisaged when, on an earlier amendment, we talked about the right of Members of Parliament to continue with their duties uninterrupted in an emergency, so we have to take it into consideration. At the end of the 30 days, when a government wish to renew the regulations for such reasons, it may be impossible to bring the other place or your Lordships together. I take it that such a situation is envisaged in Clause 22(2)(1), where the regulations allow for the protection or restoration of the activities of Parliament. What would be the requirement under the Bill if, at the end of 30 days, for reasons of the nature of the emergency, it was impossible for Parliament to reconvene?
Baroness Scotland of Asthal: The noble Lord is right to say that Clause 22(2)(1) makes provision for regulations to be made to protect and restore activities of Parliament. Let us suppose that the Palace of

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Westminster were no longer available. It would be possible for appropriate regulations to be made for Parliament to take place, if necessary, in a field in Gloucestershire. Anywhere could be designated an appropriate site at which Parliament and people could be gathered together. The whole point is to make sure that alternative provision can be made by way of emergency regulations, so that Parliament could function. In these days of technology, I suppose that we could almost function by way of video conferencing from all parts of the country. There are ways in which we could function and ensure that this takes place. The regulations would be enabled to allow us to do that in extremis.
6.15 p.m.
Lord Lucas: To return to my earlier question, do I understand that if the regulations are ultra vires by reason of not being proportionate or necessary, in other words they fail the triple lock but are none the less made, anything done under them can be dismantled?
Baroness Scotland of Asthal: I am just trying to track through what the noble Lord said. The regulations remain lawful unless and until they lapse. There is nothing that would be done under them which would thereafter be made unlawful. I think I have that right.
Lord Lucas: Even if the regulations were invalid because the triple lock had been broken? That rather weakens the concept of the triple lock. If you have several months run under the regulations—which go way beyond what they should have done—until they are challenged, everything you have done up to that date, which may well be to consolidate your position in power, remains valid even though you have misused the regulations in the first place. That weakens the protections considerably.
Baroness Scotland of Asthal: I do not think that it does. It is late and I hope that I am being clear, although I am not confident that I am. Under Clause 26(2)(b), certainly only actions which are valid under regulations should be protected. Therefore, it is probably unnecessary to provide expressly for that. If a person exceeds his powers under the regulations, the action will not be seen as done by virtue of the regulations, so they will not be protected by this provision. I hope that that is clear.
Lord Lucas: I entirely agree with that but I was looking at the earlier stage which states that the Secretary of State who put together the regulations has exceeded his powers under the Bill in so doing. In other words, the regulations go far further than is justified by the emergency and give the Secretary of State much greater powers than is justified. If subsequently those regulations were challenged under the terms of the Bill as being beyond what should have been allowed and were proved in the courts to be invalid on that basis, would acts that were done under those regulations be
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valid? In other words, if those regulations had been used to change our constitution, would those changes stand?
Baroness Scotland of Asthal: If the regulations had been found to be ultra vires they would and could be struck down. If they were struck down, any consequence which flowed from that unlawful act would be capable of being dealt with by the courts in terms of remedy or otherwise. That is the whole purpose of judicial review.
I return to the comments we had earlier in the day about the strictures given by Lord Denning and Lord Reid and many others in the case law. All that I said on that remains the same. The noble Lord also asked whether action under unlawful regulation which breached the triple lock would be lawful. We say "yes—if a person does not have a lawful basis for his actions, his actions will be unlawful.
Lord Avebury: I take the point made by the noble Baroness that the protection or restoration of the activities of Parliament under Clause 22(2)(1) would encompass the possibility that for some physical reason your Lordships or another place were unable to meet in the Palace of Westminster and would move to a marquee in Gloucestershire, as she pointed out.
However, I was envisaging something rather different in pursuance of the discussion that we had earlier on Amendment No. 129. The noble Baroness, Lady Buscombe, was trying to insert a saving provision for the parliamentary activities of Members of both Houses of Parliament. That was rejected by the Government.
The scenario then discussed was one in which a widespread epidemic caused, for example, by a biological attack would make it inexpedient for Members of either House to enter a place where a large number of people would be found. Ipso facto, if they were infected with a nasty disease, one would not want them to come together as a House to consider the renewal of the regulations. If such a situation existed, making it inexpedient for your Lordships to meet, what, I asked the noble Baroness, would be the procedure for the renewal of the regulations?
The noble Baroness talked about teleconferencing. I can see that that might be a possibility, but I doubt that the technology would be put in place within the 30-day period for the renewal to take place at the end of it. In addition, bearing in mind that such an event would affect not only the Palace of Westminster but would be likely to catch a substantial number of people in the general population, it is doubtful whether the resources would exist to cope with such an emergency.
Lord Elton: Perhaps I may put into the noble Lord's mind the notion that there is also the question of whether standing orders would need to be amended by both Houses in order to make a teleconference a valid meeting of the House.
Lord Avebury: That could be an unfortunate chicken and egg situation. We would not be able to amend the

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standing orders and therefore we would not be able to meet in the tent in Gloucestershire. Perhaps these are farfetched scenarios, but as we are considering situations that may be almost inconceivable—in fact, they are, otherwise they would be on the face of the Bill—we have to take into account such extreme possibilities, even if they are of a science-fiction nature.
Baroness Scotland of Asthal: We could make the regulations and they would stay in being for seven days before they could be affirmed. To take the extreme example given, we could make the regulations, which would last for seven days and would provide that we could act via videoconferencing and/or in the field in Gloucestershire. That is what we would do within those seven days. Parliament would then affirm the regulations, giving itself the ability to meet in the field and to make further regulations. We would then enter the 30-day period. Of course, the order would lapse after seven days.
However, I suppose that, in extremis, if one had grave difficulty in garnering people, there could be another seven-day period before the regulations lapsed, and that seven-day period could be repeated until sufficient people were capable of being brought together to endorse and affirm the order. But the whole point of this measure is to give us and any of our succeeding parliamentary brethren an opportunity to do our or their duty.
The Earl of Onslow: I think that I may be able to help the noble Baroness, and I believe that I am right in saying this. I think that the Sovereign can summon Parliament wherever she deems fit. Therefore, we can get round the problem of the unavailability of this building if the Sovereign picks a field in Gloucestershire, and the noble Baroness and I can then go and sit in the pouring rain passing regulations.
Baroness Scotland of Asthal: The noble Earl is right. We have Her Majesty sitting in Council. As I believe we have mentioned many times in other debates, a number of Privy Counsellors, of which I am honoured to be one, can be called together to assist Her Majesty in Her and the nation's hour of need.
Lord Avebury: We are very grateful to the noble Baroness for the careful explanation that she has given in reply to these amendments, and I beg leave to withdraw Amendment No. 153.
Amendment, by leave, withdrawn.
[Amendment No. 154 not moved.]
Clause 26 agreed to.
Clause 27 [Parliamentary scrutiny]:
[Amendments Nos. 155 to 160 not moved.]
On Question, Whether Clause 27 shall stand part of the Bill?
Lord Lucas: I do not need a lot of discussion now. I put down a marker for Report stage that, depending on the way the government amendments go, it might be useful to provide for some body other than
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Parliament to scrutinise these things, or to be available for advice if Parliament itself is not available. I do not have more to say on that now; I just wanted to warn the noble Baroness that my thoughts have been moving in that way as she has been speaking.
Clause 27 agreed to.
[Amendment No. 161 not moved.]
Clause 28 [Parliamentary scrutiny: prorogation and adjournment]:
Lord Lucas Lord Lucas moved Amendment No. 162:
Page 19, line 13, leave out from "prorogued" to "Her" in line 14.
The noble Lord said: These amendments are quite simple. They say that it is unreasonable to hang around for five days if it is possible to meet earlier. Rather than say that five days is acceptable, the Amendment No. 163 seeks to insert "as soon as possible". I cannot see why there is any problem with that. I beg to move.
Baroness Scotland of Asthal: Any government who use these powers will be keen to receive the endorsement of Parliament as soon as possible. The Bill stipulates that Parliament must be recalled when it is adjourned or prorogued for more than five days. We expect that it would be recalled as soon as possible, but that may be difficult if the emergency occurs during the summer holiday or if it affects the Palace of Westminster.
Allowing for a maximum of five days allows a little leeway for the practicalities to take place while ensuring there is no unacceptable delay in scrutiny.
In relation to the noble Lord's last comment about allowing a body other than Parliament to become involved, I am a little surprised the noble Lord said that, particularly because of the anxiety he has rightly expressed on the less liberal element coming to the fore. I would hate to see us construct something which would enable democracy to be further put in jeopardy or in any way undermined.
Lord Lucas: In the absence of a wish to extend this conversation around the Chamber, I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 163 to 167 not moved.]
On Question, Whether Clause 28 shall stand part of the Bill?
Lord Elton: I am sorry not to have given notice, but something has just caught my eye. In Clause 28(4) the persons referred to in subsections (2) and (3) are the Lord Chancellor or the Speaker or the persons authorised to operate in their stead. I have not taken advice on this as it has only just caught my eye.
It occurs to me—and I declare an interest—that those noble Lords who sit as Deputy Speaker do not sit as deputy Lord Chancellor. The Lord Chancellor is one person and Deputy Speaker is another. They happen to be united. I suspect there may be a constitutional point that it should be the Speaker of either House and not the Lord Chancellor and the

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Speaker of the House of Commons. If the noble Baroness will have a look at that—and I am sure she will—I shall be satisfied.
The Earl of Onslow: The clause says that Parliament shall be summoned even if it is prorogued. The noble Baroness was talking—either this morning or the day before yesterday—about Parliament being dissolved and recalled. I do not know whether that has been checked up on and whether Parliament, if it is in a state of dissolution, can be resolved. That comes up under the Meeting of Parliament Act referred to in Clause 28(1). Perhaps the noble Baroness can check up on that.
Baroness Scotland of Asthal: I am certainly happy to write regarding both issues, I just make some quick comments. Clause 28(4) would have to remain as drawn at the moment because the current Speaker of this House is the Lord Chancellor. He is Speaker, Lord Chancellor, head of the judiciary and member of the Cabinet.
I take the point of the noble Lord, Lord Elton, that if and when the constitutional rearrangements are confirmed we would have to scrutinise this provision and make sure that it is compatible with the new constitutional rearrangements which by then we will have in place.
6.30 p.m.
In response to the point made by the noble Earl, Lord Onslow, if Parliament has been dissolved, as would occur just before an election, there is no Parliament before which regulations could be laid nor is there a Parliament to call. The regulations would be laid as soon as a Parliament met. As regulations could not be laid before Parliament, they would not lapse seven days after lying but they would lapse 30 days after the day on which they were made.
Steps could be taken under emergency regulations to facilitate elections in cases where the emergency led to difficulties. It is very difficult to envisage circumstances in which it would be in due proportion to suspend pending elections—that is certainly how we see it. Nor would such a step meet the purpose test in Clause 23, because such a provision would not be for the purpose of preventing, controlling or mitigating an aspect of the emergency.
I hope that my response suffices. If, on reflection, I can make any further comments, I will certainly write to the noble Lord.
Clause 28 agreed to.
Clause 29 agreed to.
Clause 30 [Procedure]:
[Amendment No. 167A not moved.]
Clause 30 agreed to.
Clause 31 [Interpretation]:
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 167B:
Page 20, line 37, at end insert—
""terrorism" has the meaning given by section 1 of the Terrorism Act 2000, and
"war" includes armed conflict."
On Question, amendment agreed to.
On Question, Whether Clause 31, as amended, shall stand part of the Bill?
Lord Elton: I wish to make a tiny point. Surely the last two words in Clause 31(2)(a)(iii) should be "Scotland, or" rather than "Scotland, and". I do not need an answer now.
Clause 31, as amended, agreed to.
Schedule 2 [Minor and Consequential Amendments and Repeals]:
Baroness Buscombe Baroness Buscombe moved Amendment No. 168:
Page 28, line 23, leave out paragraphs 11 to 13.
The noble Baroness said: This amendment deals with repeals of Acts consequential on Part 2. It would leave out the clause that repeals the Emergency Powers Act 1920 and the related legislation for Northern Ireland.
We have tabled the amendment, as we would like the Minister to explain further why it is necessary to repeal these Acts and why it was not possible simply to amend them. Will the Minister explain how many times the provisions in these Acts were used, and for what purpose? It is my understanding that in recent times such measures have been used only for industrial unrest, making it even stranger that the Government seek to exclude strikes from these latest emergency provisions.
The Emergency Powers Act has seen Britain through many difficult times. I look forward to hearing the Minister's explanation of why it is necessary to repeal these Acts and replace them with such a very different Bill. I beg to move.
Baroness Scotland of Asthal: I am very happy to give the noble Baroness the explanation she seeks. The Emergency Powers Act 1920 is generally now accepted as being out of date and no longer able to perform its function—that is, to provide a legislative safety net in the full range of serious emergencies. That view was confirmed by the overwhelming majority of respondents during the public consultation and has been very widely accepted during the parliamentary debates on the Bill.
The Government believe that the public have a right to expect legislation, designed for dealing with the worst of emergencies, which will be usable and effective. Their review of emergency planning legislation, following the major flooding in 2000, led them to conclude that the current legislation was simply out of date and cannot guarantee that we will be able to respond appropriately and effectively to the range of threats that we now face some 84 years later.
As I said earlier, the definition of emergency that it contains reflects the needs of society in 1920. It does not include some of the key risks and threats that we face in the 21st century—threats to security such as terrorism

1043
and threats to the environment and to the complex networks and services on which we depend in this technologically dependent world.
Existing legislation does not provide a fall-back option if the Queen is unavailable. It contains a single point of failure that would render it unusable in certain circumstances. It does not contain the sort of safeguards that we now rightly demand and seek to put in place against possible misuse. There is nothing in the current legislation that requires government to act proportionately and only if necessary or to prevent government using emergency powers where existing legislation would be sufficient. I pray in aid the rules on scrutiny, which would say that the powers could be continued without matters coming back to Parliament. I have already explained why we think parliamentary scrutiny in a very short time is critical.
The current legislation does not incorporate the devolution settlement. It is simply out of date and needs replacement.
The noble Baroness, Lady Buscombe, asked how often the legislation had been used. It has been used 12 times. In each case, it was used to deal with the effect of industrial action. I mentioned the flooding in 2000, when it was clear that it would have been advantageous to have an opportunity to take action in a way that would better protect the citizens of our country.
It would have been possible to amend the 1920 Act, but the amendments would have been extremely extensive. It was simply more appropriate to craft a comprehensive new Act than to legislate by a thousand cuts. That would have been too difficult. That is why, having gone through extensive consultation and having got the Joint Committees to examine the Bill, we have been able to benefit from it.
The noble Lord, Lord Elton, said that the press was not interested in the Bill. In fact, the press was extremely interested. There were a number of occasions when it reviewed exhaustively all the things that we had done. I intended to share with the noble Lord a delightful list that I had of comments in the Guardian, the Times, the Telegraph and many others. They said that, as a result of reviews and modifications, they were pleased to see that the Government had listened, that the Bill was not the Bill that many had feared it to be and that it was a good and proportionate measure. That may be why the press coverage does not stay in anyone's mind. The review was comprehensive and proper and was very supportive.
Baroness Buscombe: I thank the Minister for her response. I am always nervous when I hear about an extensive public consultation process. It may sound like an aside, but it has a serious undertone. I am looking to taking part in a debate next Monday. The proposition is "Consultation overload is the new red tape". I think I shall win that debate, as I am proposing the motion.
I hear what the Minister said. We have heard much about the need to modernise—another frightening expression. The Minister referred to the need to put in new safeguards against possible misuse. That goes to the heart of most of the concerns raised by noble Lords in
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what I believe were really good debates in Committee. I am grateful to all noble Lords who have taken part. Thus far, the Bill has required serious, careful scrutiny, and I believe that, so far, we have done our job on that.
I accept that there is, perhaps, a need to reconsider some aspects of the emergency powers legislation and that we must ensure that we have as much flexibility as possible in order to respond adequately and as effectively as possible to any kind of emergency, possibly of a kind that none of us can as yet conceive of.
I remain unconvinced that this Bill, which seeks to replace these powers, is the right one. It lacks steadfast and sufficient safeguards against its use by those who may wish to undermine our constitution. I hope that the Minister will take that point very much on board. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Lord Bassam of Brighton Lord Bassam of Brighton moved Amendment No. 169:
Page 29, line 5, at end insert—
"Highways Act 1980 (c. 66)
15 (1) At the end of section 90H(2) of the Highways Act 1980 (traffic calming works regulations) add—
"(d) provide that, in such cases or circumstances as the regulations may specify, works may be constructed or removed only with the consent of a police officer of such class as the regulations may specify."
(2) In section 329(1) of that Act (interpretation) for the definition of "traffic calming works" substitute—
""traffic calming works", in relation to a highway, means works affecting the movement of vehicular or other traffic for the purpose of—

(a) promoting safety (including avoiding or reducing, or reducing the likelihood of, danger connected with terrorism within the meaning of section 1 of the Terrorism Act 2000 (c. 1 1)), or

(b) preserving or improving the environment through which the highway runs;".

Road Traffic Regulation Act 1984 (c. 27)
16 (1) The Road Traffic Regulation Act 1984 shall be amended as follows.
(2) In Part 2 (traffic regulation: special cases) after section 22B insert—

22C TERRORISM
(1) An order may be made under section 1(1)(a) for the purpose of avoiding or reducing, or reducing the likelihood of, danger connected with terrorism (for which purpose the reference to persons or other traffic using the road shall be treated as including a reference to persons or property on or near the road).
(2) An order may be made under section 1(1)(6) for the purpose of preventing or reducing damage connected with terrorism.
(3) An order under section 6 made for a purpose mentioned in section 1(1)(a) or (b) may be made for that purpose as qualified by subsection (1) or (2) above.
(4) An order may be made under section 14(1)(b) for a purpose relating to danger or damage connected with terrorism.
(5) A notice may be issued under section 14(2)(b) for a purpose relating to danger or damage connected with terrorism.
(6) In this section "terrorism" has the meaning given by section 1 of the Terrorism Act 2000 (c. 11).
(7) In Scotland an order made, or notice issued, by virtue of this section is to be made or issued not by the traffic authority, if the traffic authority is the Scottish Ministers, but by the Secretary of State.
(8) In Wales an order made, or notice issued, by virtue of this section may be made or issued only with the consent of the Secretary of State if the traffic authority is the National Assembly for Wales.

22D SECTION 22C: SUPPLEMENTAL
(1) An order may be made by virtue of section 22C only on the recommendation of the chief officer of police for the area to which the order relates.
(2) The following shall not apply in relation to an order made by virtue of section 22C—

(a) section 3,

(b) section 6(5),

(c) the words in section 14(4) from "but" to the end,

(d) section 121B, and

(e) paragraph 13(1)(a) of Schedule 9.

(3) Sections 92 and 94 shall apply in relation to an order under section 14 made by virtue of section 22C as they apply in relation to an order under section 1 or 6.
(4) An order made by virtue of section 22C, or an authorisation or requirement by virtue of subsection (3) above, may authorise the undertaking of works for the purpose of, or for a purpose ancillary to, another provision of the order, authorisation or requirement.
(5) An order made by virtue of section 22C may—

(a) enable a constable to direct that a provision of the order shall (to such extent as the constable may specify) be commenced, suspended or revived;

(b) confer a discretion on a constable;

(c) make provision conferring a power on a constable in relation to the placing of structures or signs (which may, in particular, apply a provision of this Act with or without modifications);

(d) enable a constable to authorise an employee of the traffic authority to do anything that the constable could do by virtue of this subsection."

(3) In section 67 (traffic signs: emergencies &c.) after subsection (1) insert—
"(1A) In subsection (1)—

(a) "extraordinary circumstances" includes terrorism or the prospect of terrorism within the meaning of section 1 of the Terrorism Act 2000 (c. 11), and

(b) the reference to 7 days shall, in the application of the subsection in connection with terrorism or the prospect of terrorism, be taken as a reference to 28 days;

but this subsection does not apply to a power under subsection (1) in so far as exercisable by a traffic officer by virtue of section 7 of the Traffic Management Act 2004 (c. 18)."
(4) In Schedule 9 (reserve powers of Secretary of State, Scottish Ministers and National Assembly for Wales)—

(a) in paragraph 1, after "sections 1, 6, 9," insert "14 (in so far as the power under that section is exercisable by virtue of section 22C),", and—

(b) after paragraph 12 insert—

"12A Article 2 of the Scotland Act 1998 (Transfer of Functions to the Scottish Ministers etc.) Order 1999 (SI 1999/1750) shall not apply to a provision of this Schedule in so far as it relates to the exercise of a power under this Act by virtue of section 22C.
12B A power conferred upon the Secretary of State by this Schedule shall, in so far as it relates to the exercise of a power under this Act by virtue of section 22C, be exercisable in relation to Wales by the National Assembly for Wales with the consent of the Secretary of State.".
Roads (Scotland) Act 1984 (c. 66)
17 (1) After section 39B of the Roads (Scotland) Act 1984 (traffic calming works regulations) insert—

39BA PRESCRIBING OF WORKS FOR ANTI-TERRORISM PURPOSES
(1) Where—

(a) the construction of any traffic calming works is for the purpose of avoiding or reducing, or reducing the likelihood of, danger connected with terrorism within the meaning of section 1 of the Terrorism Act 2000 (c. 11), and

(b) the function of constructing those works would, but for this section, be exercisable by the Scottish Ministers,

that function shall instead be exercisable by the Secretary of State.
(2) The power to make regulations under section 39B of this Act—

(a) for the purpose of, or in connection with, avoiding or reducing, or reducing the likelihood of, danger connected with terrorism within the meaning of section 1 of the Terrorism Act 2000, and

(b) which would, but for this section, be exercisable by the Scottish Ministers,

shall instead be exercisable by the Secretary of State.
(3) Regulations under section 39B of this Act may, if they are made by virtue of subsection (2) above, provide that, in such circumstances as the regulations may specify, works may be constructed or removed only with the consent of a police officer of such class as the regulations may specify."
(2) In section 40 of that Act (interpretation of sections 36 to 39C) for the definition of "traffic calming works" substitute—
??traffic calming works", in relation to a road, means works affecting the movement of vehicular or other traffic for the purpose of—

(a) promoting safety (including avoiding or reducing, or reducing the likelihood of, danger connected with terrorism within the meaning of section 1 of the Terrorism Act 2000 (c. 11)), or

(b) preserving or improving the environment through which the road runs.""

The noble Lord said: I apologise that this government amendment is being moved late in the Committee's consideration of the Bill, but we feel that it is important to the legislation and that it is right to bring it forward now.
The traffic authorities routinely regulate the use of roads by traffic, which is done by the making of traffic regulation orders under powers conferred by the Road Traffic Regulation Act 1984. The purpose of Amendment No. 169 is simply to make it explicitly clear that traffic regulation orders may be made for the purpose of preventing acts of terrorism. We concluded that it is appropriate to use the Bill to do so because it deals with emergencies generally, including terrorism. There are no guarantees that there will be other suitable Bills in the short term to amend the 1984 Act.
The control of entry of vehicles to sensitive areas has an important role to play in preventing terrorist attacks. This amendment makes a number of changes to the Road Traffic Regulation Act 1984. It provides for antiterrorist traffic regulation orders—ATTROs, in the jargon—to be made by traffic authorities on the recommendation of the police. The amendment also makes some technical changes to the Highways Act 1980 and the Roads (Scotland) Act 1984.
The overall intention of these changes is to provide a clearer legal basis for regulating traffic to prevent or reduce the impact of vehicle-borne terrorist attacks, in particular no-warning vehicle suicide bombings. It is envisaged that such measures might be used, for example, to protect diplomatic premises, iconic buildings, critical national infrastructure sites and places hosting events such as intergovernmental conferences and summits. We unfortunately saw what a devastating impact a vehicle suicide bomb could have in the case of our Istanbul consulate last November.
Traffic controls that put distance between a bomb detonation and the target obviously reduce the impact of an attack. Likewise, reducing the speed at which vehicles loaded with explosive can approach a target serve to enhance defensive measures and can significantly lessen the impact of such an attack. Over the past three years a great deal of technical development work has been carried out to counter the threat of vehicle-borne suicide bombs. We wish to ensure that there is a clear legal framework in place to control traffic and deploy these measures.
The new Section 22C inserted into the 1984 Act provides that a permanent ATTRO may be made under Sections 1 and 6 of the Act for avoiding or reducing the likelihood of danger connected with terrorism and for preventing or reducing damage connected with terrorism. It also provides that temporary notices under Section 14 of the Act may be made or issued for a purpose relating to danger or damage connected with terrorism. In this connection, "terrorism" is given the meaning in Section 1 of the Terrorism Act 2000.
New Section 22D is supplemental to Section 22C. In particular, it provides that an anti-terrorist traffic regulation order may be made only on the recommendation of the chief police officer in the area in question. In making that recommendation, the chief of police will in practice be advised by specialist counter-terrorist officers with the assistance of Security Service officers as required.
Section 22D also disapplies some provisions in the 1984 Act that impose certain restrictions on the effects of normal traffic regulation orders. Section 22D enables the placing in a road of obstacles and obstructions such as vehicle blockers to give effect to a temporary anti-terrorist traffic regulation order. It also provides that an ATTRO may authorise works such as the installation of vehicle blockers and ancillary control equipment or the installation of anchor points to which vehicle blocking devices may be fixed.
The section also enables commencement, suspension or reviving of restrictions. What we have in mind here is that, depending on the level of threat of an attack, the level of traffic restriction near a particular site could be varied. The first level might be no vehicle restrictions; the second level might be a ban on heavy vehicles; and the third level might be a ban on all but specially authorised vehicles.
I want to assure the Committee that we are not about to embark on the imposition of wholesale traffic restrictions for security purposes causing widespread
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traffic disruption. We expect the powers conferred by Sections 22C and 22D to be used in a highly selective manner.
The involvement of traffic authorities in making those orders will ensure that the wider impacts of any restrictions on road networks and transport services will be considered at the outset. Through proper planning of restrictions, we expect any traffic disruption to be minimised.
Section 67 of the Road Traffic Regulation Act 1984 enables the police to place traffic signs to control ordinary traffic in emergencies. The amendment expands the definition of "extraordinary circumstances" in Section 67 to include,
"terrorism or the prospect of terrorism".
Thus, the police would be able to exercise their powers under Section 67 in an anticipatory way when intelligence sources identify a potential vehicle-borne terrorist threat to a particular site.
In the case of terrorism or the prospect of terrorism, the Section 67 power will be available to the police for a period of 28 days. That is designed to give them time to assess the threat. If they are satisfied that a real threat to a site exists, the next step would be to bring vehicle access controls under the authority of a temporary order.
Paragraph 1 of Schedule 9 to the Road Traffic Regulation Act 1984 already enables the Secretary of State, the National Assembly for Wales and Scottish Ministers to direct a local traffic authority to make or not make a permanent traffic regulation under Section 1 or 6 of that Act.
Where an order is required for anti-terrorist purposes, it is considered that that power of direction should apply to temporary as well as permanent orders. Therefore, the amendment alters paragraph 1 of Schedule 9 so that the power of direction applies to a temporary order made under Section 14 of the 1984 Act in so far as the power under that section is exercisable by virtue of Section 22C.
National security, which embraces terrorist threats, is a matter reserved to the Home Secretary. Therefore, the power of direction in the case of an order will be exercised by Scottish Ministers or the National Assembly for Wales with the consent of the Home Secretary. The amendment explicitly provides for that in the case of the National Assembly for Wales. The power of direction, subject to the consent of the Home Secretary in the case of Scottish Ministers, will be put in place by means of a Section 63 order to be made under the Scotland Act 1998 after the Bill is passed.
The amendment makes changes to those sections of the Highways Act 1980 and the Roads (Scotland) Act 1984 concerned with traffic calming works, such as pinch points and chicanes. By altering the definition of traffic calming works, the amendment makes it clear that such works, which are normally used to reduce vehicle speeds for road safety purposes, may also be used for avoiding or reducing the likelihood of danger connected with terrorism. They provide that traffic calming regulations made under the respective Acts may specify that some traffic calming works may be

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constructed or removed only with the consent of a police officer and in such circumstances as the regulations may specify.
In the case of traffic calming works on roads for which Scottish Ministers are responsible, the power to construct works is reserved to the Secretary of State. Similarly, the power to make regulations in relation to the construction of works for anti-terrorist purposes is also reserved to the Secretary of State. However, as with the power of direction in the case of the orders, the intention is that after passing the Bill an order will be made under Section 63 of the Scotland Act transferring those powers to Scottish Ministers.
In Wales, any traffic calming regulations will be made by the Assembly under Section 90H of the Highways Act 1980, which will be subject to Assembly procedures.
The Delegated Powers and Regulatory Reform Committee in its 30th report on the amendment have drawn to the attention of the House that proposed Section 22D(5)(d) would allow an order to provide that a constable may authorise an employee of a traffic authority to do anything that the constable could do by virtue of this subsection. This provision was seen as affording a degree of flexibility in the partnership between the police and local traffic authorities in dealing with terrorist threats. However, in the light of the committee's concerns, the Government have undertaken to review the need for section 22D(5)(d) and to bring forward a suitable amendment on Report if that is necessary.
We expect the cost of security measures authorised by these orders to be borne by those who benefit from them. Nevertheless, following recent discussions with local authority representatives, we recognise that this is an area where they have some concerns. Therefore, subject to the amendment being agreed, it is proposed to discuss funding and operational aspects of antiterrorist traffic regulation orders with local authority representatives in early December.
I have given a very full explanation of the amendment, which is somewhat technical in nature. However, it has been provided with the objective of ensuring that there is a clear understanding of the legal powers for local traffic authorities and for the police to restrict traffic where necessary in order to prevent or mitigate the impact of vehicle-borne terrorist attacks. We take the view that this is an area where legal clarity is required. The Government believe that it is important to place the explicit powers provided for in Amendment No. 169 on the statute book. I beg to move.
The Earl of Onslow: This is a rather long and complicated amendment which could almost be a Bill in itself, and I am not sure that this is the correct way to introduce it. We cannot go through the amendment line by line, which may or may not need to be done, and it makes cross-references to many other pieces of legislation.
I am sure that what the noble Lord is trying to do is perfectly reasonable, but are we absolutely certain that this is the right way to go about it? It would be perfectly
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easy, at the beginning of the next Session, to bring forward these provisions in the form of a short Bill. That legislation would not take up much time and, in its own right, it would amend the road traffic Acts.
I say that because this is an emergency powers Bill which is to be used for the implementation of temporary powers to be triggered only under certain conditions. We have been told that time and again. To tag this on as an amendment is not right.
I do not know about other noble Lords, but I am absolutely knackered after our long day. Both the noble Baroness opposite and my noble friend on the Front Bench are beginning to look a little green because they have been working so hard. They have all my congratulations. However, all I should like to say is that this is not the right way to introduce the measure.
Lord Lucas: I wonder how the Government were able to get this amendment past the Clerks, who are usually very vigilant about attempts to stretch the Title of a Bill. However, given that this Bill has aspects of protecting the environment about it, why does not the noble Lord, Lord Stoddart, bring forward an amendment on Report to abolish the common agricultural policy? That would fit very well, given the latitude here.
Lord Stoddart of Swindon: Perhaps I will do that.
Baroness Hamwee: The noble Earl referred to the hard work of noble Lords today. I am slightly embarrassed that I arrived in the Chamber only just before the noble Lord introduced the amendment. Last week I said to his Chief Whip that I thought that what the noble Lord is being required to do really does amount to cruel and unusual punishment. He is steering two Bills through in parallel.
I draw on my experience yesterday when we considered the Housing Bill. A new provision was introduced by the noble Lord which received a similar reception. That caused him and his noble friend Lord Rooker to decide rather swiftly that the delicate way of dealing with it, so that no one loses face, would be not to move the amendment. The provisions remain with noble Lords and there will be an opportunity to consider them at the next stage.
The noble Lord has said that legal clarity is required, and I am sure that that is right. There are aspects to this that are more than all of us together have been able to think of in the past 13 minutes.
The noble Lord referred to local authority concerns about funding, but I should have thought that the concerns went rather wider than that. He mentioned meeting the Local Government Association, and perhaps other representatives of local government in early December. I am not clear whether that will be before or after this Bill has completed its passage, as I do not know whether it will be carried over. My noble friend Lord McNally says from a sedentary position that it will not. Therefore, the meeting will be after the Bill is enacted.

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I do not understand from the careful introduction that the noble Lord gave how the arrangements will be temporary, and what assurances there are that they will be removed after a threat has passed. I say that, particularly, as traffic calming seems to be a matter of fashion among highways engineers and what they think they can achieve by their different designs. The Minister referred to it as "calming", but the definition in paragraph 15(2) refers to
"works affecting the movement of … traffic",
which could mean traffic blocking, not just traffic flowing or reducing movement. The noble Baroness nods her head.
Those are substantial matters. I do not see them here, but there may be provisions elsewhere for consultation with local authorities about the effect of such orders.
I have probably said enough as someone who is such a latecomer to this part of the Bill.
Lord Elton: While sympathising very much with everything that has been said, I have a question relating to page 11 of the Marshalled List. Is transport a reserved matter in Scotland? I rather think not, and that it is the responsibility of the Scottish Parliament. What is the opinion of Scottish Ministers in consultations about paragraph 17?
Lord McNally: I want to emphasise that the real concern in the Committee is that almost everything the Minister said in moving the amendment was not suitable to add to legislation. As the noble Earl, Lord Onslow, said, this is a mini-Bill.
The Earl of Onslow: A billet—a billet doux.
Lord McNally: I should prefer it if we knew not in December, but now, or before we pass the Bill, what the Local Government Association and traffic bodies think of it.
I have some experience in that I was an adviser to the Corporation of London when it brought in its measures, which have remained and are permanent. I know that when introducing those, there was concern in the surrounding boroughs about the knock-on effect of measures that made perfect sense for the security of the City of London, but not necessarily such good sense for the surrounding boroughs.
I suspect that local authorities will want to advise on some of the powers being taken and on the scrutiny of the Bill. It is too big an amendment to ask us to swallow whole at seven o'clock on a Thursday evening.
Lord Avebury: Will the noble Lord address a matter that has been discussed in your Lordships' House and at the other end of the Corridor? Have the Government discussed plans for closing any roads around the Palace of Westminster? If so, how far have those discussions gone?
7 p.m.
Lord Bassam of Brighton: When I realised that I had to introduce the amendment, I rather thought that I had drawn the short straw. I also calculated the time at which I would be moving it. Nevertheless, I shall plough on because we have a reasonable case to make. I entirely take on the chin the comments and observations that have been made, which are not unreasonable in the circumstances, and I shall try to answer as many of the points as I can.
The noble Earl, Lord Onslow, said that this is an emergency power. That is not quite right; it is a Civil Contingencies Bill. Part 1 relates to emergency planning, so it is not only about emergency powers. I stress the distinction.
That raises the question of whether this is within the Bill's scope, and we believe that it is. There have been consultations on that issue. The subject matter of the amendment was considered by the parliamentary authorities not to be within the scope of the subject matter of the Traffic Management Bill—a Bill which, in the normal course of events, one would have seen as an appropriate vehicle, if you will forgive the pun, for this. However, it is certainly within the scope of the subject matter of the Civil Contingencies Bill, and we have given that point careful consideration.
I have seen Bills that are certainly smaller in scope, length and description than this one, but the problem is that there is no guarantee that there will be an opportunity for a Bill of this nature or of an expanded nature on the subject in the next Session. As I said when I was going through the background to the amendment, it is important that we clarify the law to ensure that we have appropriate powers in place. I do not think anyone wants a situation where there is uncertainty. It is important that we get things right. I am sure that all noble Lords want us to do that.
It was not unreasonable to pose the question—in fact, the noble Baroness, Lady Buscombe, told the Committee that she will be involved in a debate on consultative overload next week—but we have consulted on these measures, although, I must confess, on a shorter timescale. But they have been discussed and debated with practitioners.
I take the point made by either the noble Baroness, Lady Hamwee, or the noble Lord, Lord McNally, about the importance of discussing matters with the Local Government Association. It is of course important that we continue discussions with it, and I can say from the Dispatch Box today that such discussions will continue. The noble Lord's point about the potential knock-on effects that an action taken in one area can have on an adjoining borough was well made. He has obviously had more experience of that than I have, although I certainly had some experience when I was the leader of my local authority.
The noble Baroness, Lady Hamwee, made a point and then asked a question about traffic calming being driven by fashion. That is true, certainly in my experience. We put in traffic calming measures one year at the behest of the county council, and when we came along as the unitary authority we thought they

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were wrong and took them away. But this is not about fashion; it is about putting measures in place. Yes, they may be barriers, if that is the right thing to do, but they are perhaps more likely to be the creation of pinch points and measures that slow down vehicles.
As to how the decision may be made as to where traffic restrictions should be introduced, clearly that has to be done on the basis of good advice, the recommendations of the police, and through working closely with the traffic authority for the area and the community surrounding the road in question. Traffic authorities will not be able to make traffic regulation orders for anti-terrorist purposes of their own volition. There will be careful consultation on the way in which these matters are worked through.
The noble Lord, Lord Avebury, asked about road closures around Parliament. The amendment is about taking a generic power which can be used in a variety of circumstances. It would be wrong to see it as serving only our needs and protecting only our Parliament, important though that is. We have to see this more generally as being a power of benefit to the wider community in terms of public protection. It is for that reason that we believe it is necessary to bring forward these powers in order that the public may be properly protected. I do not see it as a self-serving measure.
The noble Baroness, Lady Hamwee, asked how long the orders will last. Temporary orders last for 18 months; permanent orders last for as long as is necessary. But they may be revoked at any time. There are consultation processes and scope is there for public inquiries to be undertaken in respect of permanent orders.
I was also asked about the opinion of Scottish Ministers. Scottish Ministers and the National Assembly for Wales have agreed to the proposals in the amendment. They think that they are entirely appropriate and are quite happy with the way in which it is intended that they will operate.
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This is a big amendment in terms of its length and technicality. We offered consultation if anyone wanted to discuss the technicalities, but nobody took this up. I understand that, and I understand the concern about raising the amendment at a late stage in our Committee consideration. Members of the Committee will have the opportunity for further interrogation on Report. I make the offer again of further consultation on the specific set of amendments between stages. We believe this to be important; we see it as a vehicle, if I may use that word, in which we could and should introduce something that may well have important matters and elements of public protection to it.
I give the assurance that we are doing this on very careful advice. The necessity for it has been based on very careful advice indeed. I am more than happy to ensure that we have further consultation with interested parliamentary parties. I will certainly double check on the issue as it relates to local authorities. However, I am satisfied, as I was in moving the amendment, that some consultation had taken place and that local government and those who advise local government had given this extensive consideration, along with the National Assembly for Wales and the Scottish executive, as their views are obviously extremely important.
On Question, amendment agreed to.
Schedule 2, as amended, agreed to.
Schedule 3 agreed to.
Clauses 33 to 36 agreed to.
House resumed: Bill reported with amendments.

Armed Forces (Pensions and Compensation) Bill
Bill returned from the Commons with certain of the amendments disagreed to with reasons for such disagreement and with the remaining amendments agreed to; the reasons were ordered to be printed.
House adjourned at eight minutes past seven o'clock.