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Column Number: 159
Standing Committee F
Tuesday 3 February 2004
(Afternoon)
[Mr. Joe Benton in the Chair]
Clause 18
Meaning of ''emergency''
Amendment proposed [this day]: No. 91, in
clause 18, page 11, line 36, leave out paragraph (d).—[Mr. Allan.]
2.30 pm
Question again proposed, That the amendment be made.
The Chairman: I remind the Committee that with this we are discussing the following amendments:
No. 78, in
clause 18, page 11, line 38, leave out paragraph (f).
No. 93, in
clause 18, page 12, line 4, leave out paragraph (b).
The Parliamentary Under-Secretary of State for the Home Department (Fiona Mactaggart): It might reassure the Committee if I review the structure of the clause. For an event or situation to qualify as an emergency, it must threaten serious damage to human welfare and to the environment and the security of the United Kingdom, as listed in subsection (1). Subsection (2) gives comprehensive exemplars of things that are required in order for the damage to be considered serious. It is therefore not sufficient for something to fall within paragraphs (a) to (h) or within any subsections in other clauses: that something is pre-eminently required to qualify as causing serious damage to human welfare, to the environment or to the security of the United Kingdom. Bearing that point in mind might mitigate some of the concerns that hon. Members have expressed. Some of the examples that they have described would not qualify as an emergency because serious damage would not have occurred.
Mr. Richard Allan (Sheffield, Hallam) (LD): The Under-Secretary's comments are helpful, and this is precisely what the amendments seek to clarify. The weakest interpretation is that something that may cause damage to property can also be defined as damaging human welfare. In other words, at what point would a Minister judge damage to property to be seriously detrimental to human welfare? Such a definition is difficult to arrive at. Incidents of death or injury are clearer, but we are trying to establish the threshold at which damage to property can be defined as being seriously detrimental to human welfare.
Fiona Mactaggart: Let me give an example, although examples are always full of risk because, as I said earlier, they involve speculation. Damage to an
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installation, such as a nuclear power station, might lead to further damage to human welfare—an example of damage to property at an initial stage creating a serious threat to human welfare. It is also important to recognise that the items listed in subsection (2) are deliberately designed to be comprehensive. They will overlap in many, if not most, situations.
To achieve transparency, we have tried to list comprehensively all the situations that might constitute serious damage to human welfare, so that nothing is left out of this provision that could suddenly be deemed to create serious damage. That is why this approach is preferable to the more general approach taken in the Emergency Powers Act 1920, in which there was much room for ministerial discretion. In order to be accountable to Parliament, we are seeking to allow Parliament to be clear about the things that need to happen to qualify as constituting serious damage to human welfare. Serious damage to human welfare must also have its natural meaning. The combination of those two factors is designed to provide the transparency and accountability to Parliament that the hon. Gentleman rightly seeks, and to provide the security that the threshold for moving to the use of emergency powers is sufficiently high. We need to be confident of both of those things.
Mr. John Horam (Orpington) (Con): I am grateful to the Under-Secretary for giving examples, as they help to elucidate the generalities of legislation. She will remember the ships that came across the Atlantic and the huge row last summer about whether they could be cleaned and dealt with at Hartlepool. From what she is saying, I guess that that case would not be included as an emergency, even though it could have led to contamination and environmental damage in the surrounding area.
Fiona Mactaggart: That episode was dealt with by existing legislation, so the use of emergency powers would not be contemplated. Apart from anything else, such a case would be dealt with by other parts of the triple lock and would fail to meet the necessity provision. I do not know enough about the nature of the threat that was on those ships, so it is not for me to speculate, but one part of the triple lock is that there needs to be a serious threat to human welfare. Action must be urgent and necessary, and in due proportion to the threat.
There are a series of tests, which at each stage narrow the opportunity for using emergency powers as opposed to something else. Hon. Members are rightly keen for proper reassurances that the new provision is not a first stop when confronted with a situation that is difficult to deal with. It is a backstop. If the usual mechanisms at the Government's disposal are not sufficient because, for example, they cannot be deployed swiftly enough, the use of an emergency power could be considered if the event meets all the characteristics of the triple lock.
Mr. Oliver Heald (North-East Hertfordshire) (Con): As the Under-Secretary knows, amendment No. 78 addresses, in part, the interrelationship between subsection (2)(e) and (h). Threatened
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disruption to health services, money, food, water, energy or fuel is covered under paragraphs (e) and (h). However, why would we want a situation involving an electronic or other system of communication, such as an internet virus or other communications disruption, covered unless it involved the disruption of one of the other things—supplies, money, food, the health system? In other words, what is the case for having
''disruption of an electronic or other system''
listed on its own as an emergency trigger?
Fiona Mactaggart: I have made it clear that our aim is for the list to be comprehensive. Subsection (2) contains a comprehensive list. Something can qualify as an emergency only if it includes one of the things on the list. It is necessary to be as inclusive as possible if one is also protecting the rights of Parliament by making it an ''only'' list.
I worry about giving too many examples, as I will reach the point when I can no longer think of any. However, I can think of one that might help. The threat of disruption to communications systems might on occasion have a significant effect on air traffic control, for example. In itself, that would not necessarily constitute an immediate threat to human welfare, but emergency powers might be needed to intervene and to deal with the situation urgently. One can imagine such circumstances. It is important that if we are to provide Parliament with security as to what might happen, we must ensure that there is clarity on what the circumstances that constitute a threat to human welfare are.
I am certain that most of the cases that would come under subsection (2)(f) would very likely be brought together with paragraphs (g) or (h), which deal with disruption of facilities for transport and the impact on health respectively. However, intervention might be required because many other systems now depend on electronic communications. I do not think that such powers are likely to be used, and I hope that the general powers in the Bill are not likely to be used anyway. However, they may, of course, have to be. In many cases, the utilities might be perfectly capable of dealing with matters arising from the kind of emergency that is envisaged in part 1. However, one can envisage a situation in which, for example, the duty of the utilities to their shareholders might conflict with the Government's duty to the nation. In those circumstances, the Government might have to make a temporary provision to direct how the utilities operate in order to deal with the situation.
Some hon. Members talked about how electronic systems could be disrupted, and the hon. Member for Meirionnydd Nant Conwy (Mr. Llwyd) mentioned the Sobig virus. He must be reassured that only disruption that was a serious threat to human welfare—''serious'' is clearly stated—would require such action. The Sobig virus did not meet that test.
The hon. Member for North-East Hertfordshire (Mr. Heald) raised the slightly daunting spectre of legal action by a landowner when the Government had not taken action under emergency powers. I have
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sought advice on the matter and it is quite true that it would be possible for such action to be contemplated, although I do not think that his point about coastal erosion would be covered by emergency powers. If someone attempted to take action through the courts to show that the Government should have used emergency powers, they would be able to do so. However, my judgment, which is supported by the history of judicial review, is that the judiciary would be reluctant to substitute its discretion for that of Ministers in such cases.
Mr. Elfyn Llwyd (Meirionnydd Nant Conwy) (PC): I am interested in the Under-Secretary's remarks. If she is correct, surely there is an entirely new concept in the law in England and Wales. Let us say that, in a flooding incident, householders A, B, C and D were looked after because a barrage had been erected. If householders E and F unfortunately did not receive that benefit, however, they would go to the Government and say, ''Look, because you've not protected us, we're going to sue.'' The provision could offer carte blanche for some rough rides through the courts for the Government in the coming years. I would welcome the provisions if the Under-Secretary is right, but I question whether that interpretation is correct.
2.45 pm
Fiona Mactaggart: What I was saying, in answer to the hon. Member for North-East Hertfordshire was that anyone could raise an action, but that I saw no prospect of an action enjoying any success under the approach that our judiciary takes. Our system of law permits people to take legal action, but it does not guarantee them success.
On amendment No. 93, the hon. Gentleman raised flooding, which can be devastating to infrastructure and property. It is appropriate that powers are available if there is a threat of flooding on such a scale as to sever vital road and rail links and devastate buildings vital to the provision of essential services. Although it is proper to discuss what might be considered an emergency, the Government must resist the amendments.
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