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Patrick Mercer: I am sorry if I spoiled the hon. Gentleman's breakfast; I have no doubt that he consumed all the sausages that he might otherwise have thrown to us. The analogy cannot go on; I have obviously had my chips. The Minister has made it clear that he is not going to give any ground, despite the eloquent intervention of the hon. Member for Sheffield, Hallam.
I have no doubt that we shall wish to return to this subject on Report, but in light of what the Minister said, I beg to ask leave to withdraw the motion.
Motion and clause, by leave, withdrawn.
New clause 3
Compensation
'(1) Nothing in this Part shall affect existing rights under common law or under enactment to claim compensation.
(2) (a) Compensation shall be given for any loss or damage incurred as a consequence of any regulation passed under this Part if the regulations—
(i) cease to have effect under section 26, and
(ii) the loss or damage would not have occurred had the resolution not been passed or approved or had
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originally been passed subject to any amendment passed in section 26(3),
(b) sub-clause (a) shall not apply if the Secretary of State determines that there is compelling reasons why compensation should not be awarded,
(c) if sub-clause (b) applies the Secretary of State shall give his reasons as to what the reason is.
(3) Compensation may be given for any loss or damage incurred as a consequence of any other regulation passed under this Part.
(4) The Secretary of State may by regulations make such provision as he considers necessary for the purposes of determining compensation.'.—[Mr. Allan]
Brought up, and read the First time.
Mr. Allan: I beg to move, That the clause be read a Second time.
As my hon. Friend the Member for Orkney and Shetland says, this is my last attempt to persuade the Government to accept something so that we can finish on a high note.
Patrick Mercer: Anything.
Mr. Allan: Indeed. This new clause is everything: its scope is comprehensive. It refers to the entirety of common law, and one cannot get more comprehensive than that. It would establish two things in respect of the powers set out in clause 21(3)(b) and (c). Those paragraphs leap off the page because they say that emergency regulations can
''enable the requisition of confiscation of property . . . enable the destruction of property, animal life or plant life (with or without compensation)''.
There may be circumstances in which compensation cannot be paid because of the nature of the incident that has occurred. That returns to the notion of rights and responsibilities: where the Government have the right to destroy confiscated property, animal or plant life, they should compensate wherever possible. The new clause would establish that. Subsection (1) would clarify what I hope the Minister is going to say, which is that existing rights under common law would be preserved. In other words, if an individual felt that they had a problem, they could take action under common law and nothing in the emergency regulations could strike that out.
Subsection (2) would establish a presumption in favour of compensation. The Government explicitly referred to that issue in their response to the Joint Committee. In paragraph 33, concerning interference of property rights without compensation, they cite the European convention on human rights as the primary safeguard. The ECHR would establish a presumption in favour of compensation. The Government would have to establish a case to destroy or confiscate property without compensation, or they would be in breach of the convention.
In terms of major sausages achieved in Committee—''sausage'' is shorthand for an amendment—the fact that the Government conceded the point that the regulations should have a certificate of compliance with the Human Rights Act is welcome. I hope that it means that regulations affecting property will similarly be in accordance with the ECHR. The new clause goes further in seeking to establish the presumption in favour. It looks bad, from the
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Government's point of view, to have legislation that does not establish that presumption.
The draft legislation implies that it is arbitrary as to whether or not compensation is paid. It is not arbitrary, because Ministers must behave reasonably, in accordance with the convention rights, but the Bill does not imply a presumption in favour of compensation. The new clause therefore tries to establish that, and gives the Government a tool to do that. I do not expect it to be gleefully accepted by the Government immediately, but I hope that they will at least recognise that a question about compensation remains unanswered, and the point may continue to be queried if they do not accept that the Bill should be drafted more explicitly to establish a presumption in favour of paying compensation rather than paying it arbitrarily, at the toss of coin—''with or without'', as subsection (3) says.
Mr. Heald: On recent form I would expect the Minister to reply by saying that yes, of course, he will certainly be thinking of paying compensation in almost all circumstances, unless there are compelling reasons for not doing so. That is what the new clause says, but I do not expect him to accept it.
Mr. Alexander: After that less than charitable contribution, I shall choose my words carefully. If the whole reach of common law is encapsulated in new clause 3, I can make a suitably lengthy response, because it contains some important points that merit consideration.
The Committee discussed compensation at some length during its sitting on 5 February. To recap briefly the Government's position, they accept that, where it is necessary in an emergency to damage a person's property or otherwise affect their financial position, it will often be appropriate to provide compensation. They also recognise that the availability of compensation will often make it easier in practice to operate emergency powers: people will co-operate more freely.
Mr. Michael Trend (Windsor) (Con): The Minister said ''often''. Can he give the Committee an idea of the circumstance, real or imaginary, in which compensation would not be paid?
Mr. Alexander: The hon. Gentleman anticipates me. With his forbearance, I shall address exactly that point in a moment.
To ensure that emergency regulations can provide compensation in appropriate cases, the Bill provides that they may enable action to be taken in relation to property ''with or without compensation'', as paragraphs (b), (c) and (k) of subsection (3) provide. However, to answer the hon. Gentleman's question, there are circumstances in which compensation is not appropriate; for example, where the loss is insurable or where the owner's negligence is to blame. If an owner wilfully infected cattle and thereby caused a major outbreak of an infectious and communicable disease, that would be a reasonable example of a circumstance in which the Government would not have to pay compensation.
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The Human Rights Act 1998 will require compensation to be awarded in certain situations. Under article 1 of protocol 1 of the convention, any interference with property rights must strike a fair balance between the demands of the community or society and the need to protect the individual's fundamental rights. Compensation will often be a key aspect of a fair balance, especially where property has been taken on a permanent basis or destroyed.
Mr. Llwyd: The Minister referred to article 1 of the first protocol. He did not finish the sentence, which includes the words
''except in the public interest''.
In other words, the Government would be allowed, in the public interest, not to compensate. Will the Minister elaborate on that?
Mr. Alexander: As I said earlier, there could be circumstances in which it would be inappropriate for compensation to be paid, but the framework in which I must consider the new clause is that, as the Bill states, the Government will pay compensation.
The new clause raised some specific concerns, such as the need expressly to protect common law or other existing rights to compensation. The Bill does not affect any right to compensation that the person may have by virtue of article 1 of the first protocol—the protection of property.
On the specific point about the need to ensure that compensation can be given under the regulations, I can tell the Committee that the regulations may provide for it in appropriate cases, as subsection (3) makes clear. Compensation may well be appropriate in other cases. There is nothing in the Bill to prevent it, but it is less likely. That is why the Bill concentrates on compensation for interferences with property and in circumstances where a person is required to carry out a function.
The suggestion that compensation be given as a matter of course if Parliament fails to approve the regulations is an interesting one. If the Government take action of which Parliament subsequently disapproves, it may be appropriate to consider compensation, but the regulations may have been rejected by Parliament for reasons unconnected with the provisions that have given rise to the claim for compensation; for example, the situation may have ceased to warrant the use of emergency powers. In addition, the existence of the provision might impede appropriate action in the interim between the regulations being made and their being considered by Parliament.
On the related point about the details of compensation, the Government agree that it may not always be appropriate or possible to set out the full details of the compensation scheme in the regulations. Those details may often be technical and take time to settle. However, it is unnecessary to provide expressly that the details of compensation may be set out in regulations. Clause 21(3)(a) provides that the regulations may confer a function on the Minister of the Crown or other person. That could include the function of determining the details of such a compensation scheme.
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