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Patrick Mercer (Newark) (Con): It defeats me why subsections (5) and (6) are necessary. The powers in the clause are spelt out clearly and thoroughly in subsections (1) and (2), and they give a sufficient level of power. In combination with the triple lock that we were talking about earlier, that means that the powers can be considered in some detail, and that there can be negotiations and debates. The imposition of subsections (5) and (6), however, seems wholly illiberal. Every other check and balance in the clause will be overthrown at the whim—perhaps that is a slightly unfortunate word—certainly at the behest of a Secretary of State whose party enjoys such an enormous majority in the House. The amendments are intended to redress that balance. I really do not see why subsections (5) and (6) need to be included. The rest of the clause means that things can be dealt with perfectly competently and capably. I would be most interested to hear how the Minister can possibly justify the imposition of the two subsections. Mr. Trend: I recognise what the provisions are intended to do. Most human beings would think that the fact that those who drafted the Bill drew up a huge list would suffice. They would think that ''damage to property'' and ''loss of human life'' would catch almost anything going, but there is a terrible temptation among those who draft Bills to say, ''Oh well, just in case there's something that we haven't thought of, let's bung in a catch-all provision at the end. We can think of some way of doing that, using this sort of instrument or that sort of instrument.'' Speaking for myself, I think that it is part of the role of Governments to question strongly whether such things are needed, or whether in certain circumstances, which one cannot Column Number: 167 imagine, they may have some mischievous purpose. I ask the Minister to consider carefully whether the subsections are justified. Could something that was so extraordinary not be seen on the radar and appropriate legislative measures be taken in a timely fashion? I understand why a catch-all provision has been recommended, but I am not persuaded that it has a purpose. We need to be able to envisage the sort of circumstances in which it might be used, and in that case we ought to make a judgment about that.Mr. Horam: Is there any precedent for this sort of conjunction of arrangements, whereby on the one hand we have an extremely comprehensive list of the circumstances in which emergency measures may be taken, and, on the other, we have a catch-all provision? I have seen legislation that is pretty wide-ranging, whereby more or less everything bar the kitchen sink can be considered, and I have seen legislation that is clear about what is involved. What I have never seen before is the two brought together in this way. I wonder whether the Minister has any precedents that she can quote to back up her case. Fiona Mactaggart: I start by telling the Committee about the purpose of the power. People have assumed that it has a slightly different purpose than that which is intended. It is designed to enable the Secretary of State to specify more precisely whether a particular event or situation, or a particular class of event or situation, falls inside or outside the definition of emergency. It is not designed to give a power, nor does it do so, to amend that definition. So, all the provisions of subsection (1) will continue. That definition is a broad one. It is not possible to specify in the Bill every event or situation that is an emergency. However—this is the circumstance in which the power might be used—it may be possible to identify impending events and situations that might become emergencies. An example of a situation that turned out not to be an emergency, but that we all thought might become one, was the millennium bug. That was an example of an apparently impending potential emergency that turned out not to be an emergency. There are hon. Members in the Committee who know much more about the consequences of the millennium bug than I do. The intention of subsection (5)(a) is not to change the list of what is required to provide a threat to human welfare, but to say whether an event falls inside or outside the definition in subsection (1). That would provide an opportunity to have a debate in advance of an event occurring about whether it might be an event for which it would be appropriate to use emergency powers. Mr. Trend: I agree that the millennium bug is a good example, but surely that would be covered by subsection (2)(f), the hugely controversial disruption of electronic or other systems of communication. That rather makes my point. I think that it is covered. Fiona Mactaggart: Indeed not, because I am talking about the power in subsection (5)(a). That power provides Column Number: 168
Mr. Allan: Will the Under-Secretary clarify how it is intended that the power should be used? This is the part of the subsection that we think is sensible. It is more restrictive than open. Is it the Government's intention to publish a set of regulations that say that floods of a certain magnitude and certain types of terrorism will fall within this, or will it be used specifically on a case-by-case basis? Will the Government say, ''We expect floods of a certain magnitude next year, therefore this year we are bringing in the regulations''? I wonder if she could clarify how they intend to use this order-making power. Fiona Mactaggart: Matters will need to be dealt with on a case-by-case basis. Had we been able to make complete provision in advance, that would have been built into the Bill, as we have tried to do throughout. That is why we have tried to be comprehensive. What we are trying to do here is ensure that, in a matter that could fit within the concept of emergency with which the Bill is designed to deal, and that, if, as could be the case, it is foreseeable and foreseen that under subsection (5)(a) a class of event could be considered to fall within subsection (1)(a) to (c), there would be an additional opportunity for Parliament to hold the Executive to account. The hon. Member for Stone was concerned about the other parts of the clause that he felt might be a catch-all opportunity. I will try to assist hon. Members to understand how the rest of the provision continues. Having agreed that subsection (1) is not amendable, although Parliament could decide that a particular event was covered by it—we are not seeking to amend it, but to give Parliament an opportunity to decide whether an event is included—the second part of the provisions could allow subsection (2) to be amended in order to provide that
We discussed earlier how the 1920 Act did not envisage the importance of telecommunications and information technology. The complete collapse of the telecommunications system might cause a national emergency on its own. The second part of the provision says that either something is, on its own, not threatening damage to human welfare, or one could add to that list to ensure that the Bill is constructed in a way that makes the list comprehensive. If it is, Parliament is the body to which Ministers are properly accountable. We need a mechanism to ensure that the Column Number: 169 list remains comprehensive in order to sustain the structure that says that, ''A matter can be treated as an emergency only if one of the following happens.''Although the appropriateness of much of the definition of emergency will not be affected by the passage of time, it is possible—it has happened since the 1920 Act. We do not want continually to pass legislation on the matter. New supply systems, facilities and services might become so essential to human welfare that civil protection duties should apply to an event that disrupts them. Mr. Carmichael: Subsection (5)(b) refers to
Fiona Mactaggart: Subsection (2)(e) to (h) uses the same fundamental language and concept of the disruption of a supply. Subsection (5)(b) gives the power to rule out one of the events in subsection (2)—for example,
3.15 pmMr. Carmichael: It might be clearer if we echo the language of subsection (2)—''an event or situation''—in subsection (5)(b) by putting those words with
Mr. Carmichael: That is what we are here for. Fiona Mactaggart: It seems to me that the meaning and the intention are clear. If we use subsection (2), disruption of the kinds of supply that are not currently listed could be included in circumstances where there could be serious damage to human welfare was threatened. Unless such a provision is included—I am not prepared to banter about the language—we will be unable to sustain the principle of the Bill, which is to be comprehensive about what constitutes damage to human welfare.
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