Civil Contingencies Bill

HL Deb 21 October 2004 vol 665 cc989-1044

3.6 p.m.

House again in Committee on Clause 22.

[Amendments Nos. 108 and 109 not moved.]

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 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 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 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—

1. (i) with imprisonment for a period exceeding three months, or
2. (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 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. 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 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 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 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 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 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.

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, 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 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 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 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.

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 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.

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 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 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 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, 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. 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 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 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.

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 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 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 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.

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 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 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, 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 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, 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 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.

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.

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 moved Amendment No. 151:

Page 17, line 20, at end insert ", and

1. (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—

1. (a) terms of appointment,
2. (b) conditions of service … and
3. (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 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 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 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 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 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 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 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, 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 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 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 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 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 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 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 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 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 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 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 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 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—

1. (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
2. (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—