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Session 2007 - 08
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General Committee Debates

Counter-Terrorism Bill

The Committee consisted of the following Members:

Chairmen: John Bercow, †Mr. Edward O'Hara
Bailey, Mr. Adrian (West Bromwich, West) (Lab/Co-op)
Blunt, Mr. Crispin (Reigate) (Con)
Brake, Tom (Carshalton and Wallington) (LD)
Brown, Mr. Russell (Dumfries and Galloway) (Lab)
Campbell, Mr. Alan (Lord Commissioner of Her Majesty's Treasury)
Coaker, Mr. Vernon (Parliamentary Under-Secretary of State for the Home Department)
Davies, David T.C. (Monmouth) (Con)
Grieve, Mr. Dominic (Beaconsfield) (Con)
Gwynne, Andrew (Denton and Reddish) (Lab)
Heath, Mr. David (Somerton and Frome) (LD)
Heppell, Mr. John (Nottingham, East) (Lab)
Hodgson, Mrs. Sharon (Gateshead, East and Washington, West) (Lab)
Hogg, Mr. Douglas (Sleaford and North Hykeham) (Con)
Holloway, Mr. Adam (Gravesham) (Con)
Llwyd, Mr. Elfyn (Meirionnydd Nant Conwy) (PC)
McNulty, Mr. Tony (Minister for Security, Counter-Terrorism, Crime and Policing)
Mercer, Patrick (Newark) (Con)
Mountford, Kali (Colne Valley) (Lab)
Reed, Mr. Jamie (Copeland) (Lab)
Salter, Martin (Reading, West) (Lab)
Taylor, Ms Dari (Stockton, South) (Lab)
Wallace, Mr. Ben (Lancaster and Wyre) (Con)
Wilson, Phil (Sedgefield) (Lab)
Chris Shaw, Mick Hillyard, Committee Clerks
† attended the Committee

Public Bill Committee

Thursday 15 May 2008


[Mr. Edward O'Hara in the Chair]

Counter-Terrorism Bill

1 pm
The Minister for Security, Counter-Terrorism, Crime and Policing (Mr. Tony McNulty): On a point of order, Mr. O’Hara. It is more a point of information. Members of the Committee will see that I have tabled a letter to you and to Mr. Bercow, your co-Chairman. I am glad to see that the hon. Member for Somerton and Frome has a copy, because, as I promised, it refers specifically to “noxious things”. There is also a reference to jurisdiction and the retrospective nature. But I draw the Committee’s attention to the comments on jurisdiction in relation to Northern Ireland: there is a remote possibility that such a transfer of jurisdiction could include the Diplock provisions. I do not want that to be the case, and nor does the Committee. I therefore draw the Committee’s attention to the part of the letter that says that I shall table an amendment on Report to ensure that that potential, however remote, does not occur in the context of the relevant clauses. I hope that that is helpful to the Committee.
The Chairman: I shall treat that as a request to make a statement for the information of the Committee.
Mr. David Heath (Somerton and Frome) (LD): Further to that point of order, Mr. O’Hara. The Minister’s statement was extremely helpful. It is essential that we have sufficient time on Report to cover this now expansive range of issues. If there is any attempt to truncate the time available on Report, we will be in the same situation as we were with proceedings on the Criminal Justice and Immigration Act 2008.
The Chairman: We must now return to our business.
Clause 78 ordered to stand part of the Bill.

Clause 79

Designated gas transporters
Mr. Dominic Grieve (Beaconsfield) (Con): I beg to move amendment No. 202, in clause 79, page 56, line 19, leave out ‘negative resolution procedure’ and insert ‘affirmative procedure’.
We continue our consideration of gas transporters and utilities. The amendment raises the question of whether the designation of
“a person who is the holder of a licence”
Mr. Heath: I tend to agree with the hon. and learned Gentleman. If anyone had any doubt about the deficiencies of the negative procedure, they would only have to have been at business questions this morning. My hon. Friend the Member for North Southwark and Bermondsey (Simon Hughes) pointed out how extraordinary it is that orders can be made that are subject to that procedure, and despite there being a prayer against such orders, they can come into effect and be in effect for some time prior to any debate taking place in the House. On Tuesday evening, a Minister agreed that an order was deficient and offered to come back with a new one, despite the fact that it had been in place for some time. Such procedural matters are not for the Committee, but they nevertheless need to be addressed in the near future.
Mr. Grieve: When I was a member of the Joint Committee on Statutory Instruments, I learned that although the Committee can consider an instrument and regard it as defective, it does not prevent the Government from going ahead and implementing it under the negative procedure.
Mr. Heath: The hon. and learned Gentleman is absolutely right. These are not matters that we can consider now, but he underlines the point that the negative procedure is not satisfactory for making rules and regulations that could materially affect the interests of an individual or a company.
Mr. McNulty: It is an interesting debate, and one for which I have some degree of sympathy. Any number of times on Committee I have flipped from the negative to the affirmative in the interests of scrutiny, but I am not going to do so on this one. The matters concerned are of such importance that the sooner, for example, the police are deployed to a particular location, the better. The negative procedure approval mechanism is appropriate in this case. However, I do have a lot of sympathy for what has been said.
I never had the dubious pleasure of being on the Joint Committee on Statutory Instruments, but I am sure that it is very interesting. We have had some fun quite recently with a statutory instrument that it sent back about 10 times as deficient, and we did not lay it until we got it in order for the JCSI—that is the Home Office being cutting-edge as usual in terms of the primacy of parliamentary scrutiny.
On the substance of the amendment, notwithstanding the importance of the potential impact on a designated individual, the negative procedure is appropriate. While the Under-Secretary of State for the Home Department, my hon. Friend the Member for Gedling and I have anything to do with it, we will deal with the matter when and if such an order is prayed against. For all the reasons outlined, I would rather resist the amendment and stick with the negative procedure in this case, although I have some sympathy with the broader ideals.
Mr. Grieve: I will not press this matter to the vote. I suppose that if we ever get a situation in which the Secretary of State makes a designation, it is challenged by the gas transporter and the issue subsequently gets raised on the Floor of the House, I shall say to the Minister, “I told you so.” Subject to that, I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 79 ordered to stand part of the Bill.

Clause 80

Costs of policing at gas facilities: recovery of costs
Mr. Grieve: I beg to move amendment No. 203, in clause 80, page 56, leave out lines 38 to 40.
The Chairman: With this it will be convenient to discuss the following amendment:
No. 204, in clause 80, page 57, line 1, leave out paragraph (a).
Mr. Grieve: These are more in the nature of probing amendments. I do not find the implications of the clause particularly easy to follow. Will the Minister explain how the system will treat the payment or costs, and how he will be able to determine or designate them?
Mr. McNulty: I am very happy to do that and will, if I may, treat this as a clause stand part debate as well, effectively.
Clause 80 provides the means for a designated gas transporter to recover any payment or cost that he has incurred with respect to the provision of extra policing at gas facilities. A designated gas transporter will be able to recover any payments he has made or costs that he has incurred from consumers via the regulatory arrangements in place for the term of the gas transporter’s transmission charges. We wish to ensure that the recovery of any payments made or costs incurred by a transporter is without detriment to the transporter’s finances and is not at risk of a future change of view as to how those payments or costs are to be treated by the industry regulator.
In crafting the recovery mechanism, we have provided that the mechanism applies despite anything in the gas transporter’s licence, issued under section 7 of the Gas Act 1986, that would prevent the transporter from recovering such payments or costs.
Amendment No. 203 would remove the provision in subsection (3) which disapplies any licence condition that would hinder or obstruct the recovery of payment or costs made or incurred by the gas transporter. In addition, our consultations with the industry show that they desire certainty—quite naturally—and have agreed to this recovery mechanism on the assurance that there would be no obstacles to them being able to get reimbursement of the policing costs placed on them by the Secretary of State. As a result, removal of the provision could seriously impede the ability of the Secretary of State to recover the costs of extra policing.
Amendment No. 204 appears to attempt to restrict the Secretary of State’s means to implement cost recovery for police deployment. To facilitate the recovery of payments made or charges incurred by the gas transporter, subsection (4) of clause 80 provides a means for the Secretary of State to direct the industry regulator to allow the payments made and costs incurred by the gas transporter to be taken into account in determining the transporter’s charges, either in determining its current year charges or by allowing the designated transporter to take the costs into account as an allowable regulatory cost over an agreed longer period.
In short, the provision allows the Secretary of State to direct the regulator to ensure that the designated gas transporter is able to recover its costs for policing. The amendment removes the ability of the Secretary of State to direct the regulator to treat the costs of the designated gas transporter in a particular way—for example, as if they were operating expenditure for the purposes of the regular price control mechanism. That would negate the proposed recovery mechanisms of clauses 79 to 82, so I would ask that the amendment be withdrawn.
The difficulty is imposing a recovery mechanism on an industry that, quite rightly, already has a rather complex regulatory framework under Ofgem. I apologise for the clumsiness of the architecture, but we are trying to deal with existing law, the regulatory framework and the new elements, and that explains the complexity. In that context, I would ask that the amendment be withdrawn.
Mr. Grieve: The Minister has done a good job of explaining what was previously somewhat opaque, and I am most grateful to him. I beg to ask to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 80 ordered to stand part of the Bill.

Clause 81

Costs of policing at gas facilities: supplementary provisions
Mr. Grieve: I beg to move amendment No. 205, page 57, line 22, leave out ‘28 days’ and insert ‘6 months’.
The Chairman: With this it will be convenient to discuss amendment No. 206, page 57, line 26, leave out subsection (3).
Mr. Grieve: I sense the desire of the Committee to make progress. Clause 81 states that
“the Secretary of State is not take into account representations made after the end of the period of 28 days beginning with the day on which the person making the representations was consulted”.
The first question is: is that long enough? The amendment we suggest is to substitute six months. On the second matter, we considered whether we should leave out subsection (3) simply because I would like the Minister to tell me what subsection (3) actually means.
Mr. McNulty: Clause 81 places on the Secretary of State the statutory obligation to consult both the regulator—Ofgem—and the designated gas transporter before requiring the payment of any costs under clauses 77 or 78. In so consulting, the Secretary of State is not required by subsection (2)(a) of this clause to take into account, as the hon. and learned Gentleman says, any representations made after 28 days. In effect, this provision sets a 28-day cut-off date for representations to the Secretary of State, so that discussions of the details of the cost recovery mechanism can proceed quickly—which, I think, is in everybody’s interests—based on the issues raised by the affected main parties, namely the transporter and the regulator, during the consultation period. The hon. and learned Gentleman asked quite fairly whether that was enough: in our view, the answer is yes.
Amendment No. 206 seeks to remove the relevant subsection entirely. That would create a conflict between the principal objective and general duties of the Secretary of State and the authority in this area, and the exercise of the functions under clauses 77 to 81 of the Bill. The deletion of the subsection might prevent the Secretary of State and the industry regulator from using the powers under these provisions. The subsection allows the regulator to permit the cost of recovery arrangement for the specific purpose, without being in breach of its own obligations. As with the complexities we talked of earlier, we now have not only the law governing gas regulators but the provisions in this Bill; not only the regulatory framework that the designated transporter operates on, but the law and the statutory obligations that the regulator has. Despite its complexities, the provision is intended to afford the regulator the right to disapply its own obligations in the course of allowing the designated transporter to recover its policing costs. That sounded complex even when I said it, and the drafting of it is equally complex. I apologise for that, but it needs to be that way to allow choreography between the position and obligations of the Secretary of State and the regulator, and to allow their relationship with the designated transporter.
1.15 pm
Mr. Grieve: I am most grateful to the Minister for his answers on amendment No. 206. To return to amendment No. 205, has he consulted the industry about whether 28 days is sufficient?
Mr. McNulty: As I understand it, we have certainly consulted about the overall architecture. I am not entirely sure whether we have consulted specifically on 28 days, but I shall provide the hon. and learned Gentleman with the answer before Report. As I have indicated, we have certainly consulted on the broad thrust of how the whole thing will work. I ask that the amendment be withdrawn.
Mr. Grieve: I am grateful to the Minister for his replies on both matters. I look forward to hearing from him about the consultation period and to hearing his explanations of the operation of various sections of the Gas Act 1986. I beg to ask leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Clause 81 ordered to stand part of the Bill.
Clauses 82 to 89 ordered to stand part of the Bill.
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