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6.21 pm

Mr. Richard Allan (Sheffield, Hallam) (LD): As has already been said, the Bill is a great improvement on the draft version that was published last year. The value of pre-legislative scrutiny is demonstrated when, as in this case, the Government are prepared to change their proposals. The Government certainly deserve credit for their comprehensive and largely positive response to the recommendations of the Joint Committee, on which I was happy to serve under the enjoyable chairmanship of

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the hon. Member for Kirkcaldy (Dr. Moonie).Those less generous than me might ask why some of the horrors proposed in the draft Bill were there in the first place.

The Bill contains distinct provisions in its two parts. The first part is concerned with planning for emergencies, and the second contains extraordinary powers that may be available to Government when an emergency has happened or is about to happen. Our concerns about each part of the Bill are quite different, reflecting the distinction between its two parts. In broad terms, they can be characterised as a worry that the first part will not be used enough and a fear that the second part will be used too much.

Before setting out the details of our concerns, it is worth referring to the structure of the Bill, as that is relevant to the way in which it is read. I apologise to the parliamentary draftsmen for saying that this is not a pretty Bill, but even they might agree that their handiwork would win no awards from the Plain English Campaign. There are a number of reasons why it is confusing. First, the importance of the parts is reversed, and we saw that reversal of order in the Minister's speech, when we ran out of time on the most significant part of the Bill. I fear that we may run into the same problem in Committee, where the second part—the constitutionally more significant part—is the one that ends up being least debated.

The scary part of the Bill—the emergency regulation-making powers—comes second. The repeated definition of an emergency is also confusing in both the first and second parts. Separate direction and regulation-making powers are given to Ministers in each part for different purposes that may be mixed up by the reader.

The three components of the triple lock to which the Minister referred—an essential part of the safeguards around the emergency powers—are not set out as a coherent whole; instead, the components have to be read together through different clauses. Having read the provisions a number of times, I think I have the structure right in my head, but perhaps that reflects my having gone native after seven years in this place. I do not think that the Bill is nearly as intelligible to those outside the House.

Mr. Hogg: There have been many references to a triple lock. Surely we should keep it in mind that this is no more than a statement of what the Minister needs to be satisfied about. There is no mechanism for making sure that there are sufficient grounds for his satisfaction.

Mr. Allan: The right hon. and learned Gentleman is entirely correct. The triple lock sounds very good—it sounds robust—but in reality it would be tested only if people went through incredibly convoluted court proceedings to challenge the fact that a Minister had made regulations using these powers. We must place enormous faith in Ministers observing the powers set out in the Bill, but it is extremely unlikely that the public would be able to challenge a decision made under the Bill.

The Bill is obscure, and I am sure that there are good reasons why it should be. Having gone through the private Members' Bill process last year, and having dealt with parliamentary draftsmen from the other side, as it

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were, I understand some of the contortions that they are forced to go through. However, clarity is important, and many of the recommendations of the Joint Committee rightly focused on clarity so that the public can understand what we are doing in their name.

The main worries that remain relate to the resources necessary to do the work that part 1 will mandate. Local authorities will be the lead agencies in implementing this part of the Bill. Local government finance is properly moving up the political agenda as the issue of local taxation once again becomes contentious. Like the house prices cycle, the local taxation system becomes deeply unpopular every decade or so, to the extent that a fix is proposed that works for a while before it becomes unsustainable.

I am pleased that local government retains the lead role in emergency planning, as it is the appropriate level for such work to take place. It would, however, be foolish not to consider the impact of regular crises in local government funding as we discuss the Bill. Many Members, myself included, have served in local government. The stark reality is that this is a vulnerable area of expenditure when it comes to annual budget decisions. When local councillors are faced with budget cuts, many will consider it more acceptable to take resources from departments planning for possible problems rather than from those dealing with problems that are happening at the time.

The Joint Committee highlighted this area of vulnerability. The Government's response referred to it but offered a remedy only in the vaguest terms. It states:

I hope that the Minister will be able to give more detail on the Government's proposals to move away from the civil defence grant as the Bill proceeds. I thought that he was delightfully vague in response to questions asked by my hon. Friend the Member for Southwark, North and Bermondsey (Simon Hughes) about the extent to which the sums that are needed have been calculated.

The Bill affects a wide range of companies and organisations as well as having an impact on local government. There are still questions about the role of the voluntary sector, especially where, as is increasingly the case, it is the deliverer of mainstream public services. It has already been said that the British Red Cross has been active in bringing this matter to our attention.

It is not often that people come to us asking for the imposition of a statutory duty that affects them. That perhaps reflects the maturity of the voluntary sector and its engagement in dealing with emergencies. I hope that we will be able to respond positively to the suggestion that the sector should have a statutory right to be consulted.

There are serious implications for private sector companies. That is especially true given the Bill's broadening of the definition of emergencies to situations where telecommunications or financial networks break down or are threatened. The position of companies such as BT is complex. They are essential partners in emergencies, they contribute to contingency planning, and they are commercial entities with their own statutory and financial responsibilities. It is extremely difficult to decide how they can satisfy all the

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requirements that are placed on them by legislation. The potential for conflicting legislation is real, particularly in areas such as health and safety. We should be conscious of the fact that when we are asking businesses to engage in information sharing—for instance, telecommunication providers—on infrastructure, we are asking businesses that are frequently competitors with one another to go head to head to give information that is extremely sensitive.

For us, the more significant part of the Bill is part 2, beginning at clause 18, which creates a framework for Government to use emergency powers. We hope that part 2 will never need to be used. The Minister was right to talk about the Emergency Powers Act 1920 not having been used for 30 years. We would deem that a success. I hope that we will be able to have some confirmation that the trend since the 1970s to build emergency planning in sector-specific legislation is one that the Government intend to maintain. I suggest that it is far better that emergency planning is done through the normal primary legislation process than that we ever have to bring into play emergency powers outwith the normal system.

A difficulty is created for anyone who believes in democracy as the Bill deals with powers adopted by Government outside the normal democratic framework. The questions that must be answered before accepting such legislation are as follows: first, can we imagine a situation ever occurring in which the Government would have to act outwith the normal democratic regime? The answer to that is a cautious yes. It is cautious because we must be clear that these are situations where the Government genuinely cannot follow normal procedure, and not those where it is just difficult for them to do so. If we accept that, however improbable, such a situation may occur, we must ask whether it is better that any action that has to be taken is within a statutory framework such as that proposed in part 2, or taken without any clear statutory basis, or founded in historic legislation or Royal Prerogative. The answer must be that it is better to have a statutory framework, if it is clear and robust, rather than leave things undefined. Much of the Joint Committee's work was an attempt to give clarity and robustness to that framework, which was extremely weak and therefore dangerous in the draft Bill. The Government's acceptance of most of the Joint Committee's recommendations has therefore gone some way towards satisfying our concerns. In particular, the relationship between the Bill and the Human Rights Act 1998 was of concern, not just to the Joint Committee considering the Bill but to the Joint Committee on Human Rights and a number of other Joint Committees. In a wonderfully understated part of their response, the Government concede the point on treating secondary legislation as an Act of Parliament:

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Fortunately, on this occasion, a major constitutional issue has been settled the right way. Liberty, in its evidence to the Joint Committee, helpfully clarified the significance of that point. Parliament has accepted that it may pass legislation that is incompatible with the European convention on human rights. It has retained the right to do so and have that legislation upheld by the courts, but it intends that it should be the only body with the powers to do so. It did not intend the Executive to have that right, and therefore explicitly framed the Human Rights Act in terms whereby Parliament's legislation—primary legislation—cannot be struck down by the courts, but that any regulations made by the Executive under secondary legislative powers can be struck down. A crucial test for the Bill is whether or not that distinction still applies.

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