Examination of Witnesses (Questions 240-259)|
16 OCTOBER 2003
Q240 Lord Archer of Sandwell:
You have obviously taken some legal advice on this. Are you satisfied
that if this were challenged in court the courts would confine
the harm in question to serious harm and not simply a likely threat
of frivolous harm?
With the Chairman's indulgence, perhaps I could invite Rebecca
on the legal points and Roger on some of the detailed points to
join me in supporting it. It would be helpful, given the legal
advice, to ask Rebecca to answer that point.
Ms Lane: We have
discussed it with parliamentary counsel and he has advised quite
clearly that the natural meaning of the term serious threat to
human welfare is a credible threat with serious consequences and
that is exactly what we want to achieve.
Lord Archer of Sandwell: Thank you.
Q241 Mr Clappison:
In Part II, which deals with emergency powers themselves, the
definition refers to a serious threat to `welfare' rather than
`human welfare', as in Part I. Can you throw any light as to why
this distinction has been made and could you also respond to the
view which has been put which is that the core definition of an
emergency is an event which threatens the essentials of life for
all or a substantial part of the population?
As I understand it you are raising two points. The first is more
easily dealt with than the second. Again, I will not offer this
answer to every question, but this is merely a point of drafting
for the elegance the parliamentary counsel was seeking in terms
of Part I and Part II. If it would be helpful for that to be extrapolated
further then Rebecca can confirm that, but that was simply a drafting
point and we did check that with parliamentary counsel following
a question that was raised as to whether there was any material
distinction between welfare and human welfare, but, no, it was
merely to reflect the drafting style of the Bill.
Ms Lane: It reflects the different
structures of Part I and Part II. Part I refers to threats to
human welfare in place in England and Wales. Part II is much wider,
it is talking about a threat to a part or region of the United
Kingdom and the parliamentary counsel said he would have used
the same terminology if he could but he felt the difference in
structure meant a different wording was needed.
Q242 Mr Clappison:
And your view on the core definition of emergency?
We have offered what we have on the face of the Bill in a genuine
attempt to achieve our policy objectives. We have stated throughout,
both in the letter that I communicated to the Chairman and previously,
that we would consider a trigger or a threshold being used in
relation to emergency. Our original intention had been for that
to be framed within either the regulations or the guidance, but
I am aware that there has been evidence brought before this Committee
suggesting that a threshold should be on the face of the Bill.
If it would be helpful for me to elucidate on thinking with regard
to thresholds or triggers at this point before the Committee,
I am happy to do so.
Q243 Mr Clappison:
I think that would be helpful, yes.
The first definition that was raised in the questions from the
Committee related to Dealing with Disaster and whether
in fact that offered a more comprehensive guide to and understanding
within Government of emergency than that which was offered on
the face of the Bill. There are actually two definitions contained
within Dealing with Disaster. The first one, which was
the one that the Committee cited in their questions to me, we
believe there is a drawback with, which is specifically that it
is a relative notion of disaster in the sense that since it relates
to the capability of local responders to respond to a particular
incident then it could be deemed to be conditional upon the level
of preparedness or capacity of that particular local correspondent.
Turning to the second definition that is offered in Dealing
with Disaster, we believe there are some concerns with IT
given that when you try to start to place in clear language on
the face of a statute the appropriate language to capture your
policy intention the danger is you end up with something circular,
and that is what happened in the second definition of Dealing
with Disaster, where something that is an emergency can find
itself repeated later on in that definition. Where we find ourselves
in terms of our own thinking within Government, in light of the
evidence that has been received by the Committee, is that we are
now considering the merits of placing on the face of the Bill
rather than solely within the regulations or the guidance a more
explicit trigger which, as I said, was always the policy intention.
One way forward would be to consider the merit or demerit of a
proportionate scale of emergency, that is, for example, the approach
taken in the Emergency Powers Act 1920 where a threat to a portion
of the community or the community itself is deemed to be one of
the criteria having to be met. The second criteria is seeking
to better define the notion of serious threat itself and trying
to add greater clarification to the notion of serious on the face
of the Bill. The third option would be to look at whether there
could be any additional tests that could be added on the face
of the Bill or perhaps a test linked to the exercise of responders
in circumstances of emergency. I cannot be definitive at this
stage as to where our thinking within Government will lead. I
can assure you that this is a matter we are giving very serious
attention to and we would certainly be very interested in the
deliberations and decisions of this Committee with regard to how
better we can achieve the policy objective we set for ourselves
in terms of providing a trigger which gives the confidence and
assurance people are looking for in relation to a definition of
Q244 Kali Mountford:
Minister, I thought that was quite a helpful answer. As the Bill
currently reads the existence of an emergency is judged according
to the seriousness of a `threat', which we have already started
to cover, rather than the seriousness of the potential outcome.
As one of our witnesses has put it, "it attempts to define
the causes rather than the effects of the emergency" and
that seems to be at odds with the Terrorism Act 2000 which requires
a threat of action involving serious harm, rather than a serious
threat of action involving harm. So we have two different approaches
in the legislation. Why have you adopted that particular approach?
As Rebecca sought to outline, our view is that the definition
on the face of the Bill at present encompasses both a notion of
threat and a notion of harm. This is consistent with our view
that emergencies should be prevented, if possible and not simply
allowed to happen. So the intention behind the drafting was to
catch a credible threat with serious consequences. If we can take
action before a situation escalates into an emergency then we
want to be able to do so and that was the intention behind the
statute. The most natural meaning of a phrase like "serious
threat to human welfare" would seem to be that both the threat
and the consequences must be serious.
Q245 Kali Mountford:
Could you just clarify that, both the threat and the consequences,
not either/or, but both?
Yes. Clearly I think this was the point that was made by Lord
Archer. We would need to be in a position where the definition
in the Bill includes situations in which serious consequences
were envisaged. That would obviously have a bearing in terms of
the statutory construction of the words used on the face of the
Q246 Kali Mountford:
But the Terrorism Act is different and some of these clauses which
have consequences could be from that source as well obviously.
Would there be any jarring of intention between those two pieces
Well, as I say, I cannot see so on the basis of the question you
have put before me, but I would qualify my answer by saying that
I feel more competent to speak on behalf of the draft Civil Contingencies
Bill than on the full detail of the Terrorism Act 2000. If it
would be helpful, I will certainly reflect upon the point that
you have made, but nonetheless, I think the policy intention whereby
we capture a notion both of serious threat and of serious harm
is one which I think would not cause us difficulties in terms
of other areas of legislation.
Q247 Lord Lucas of Crudwell and Dingwall:
Minister, you expressed yourself admirably when you were talking
about what the phrasing of legislation meant, but the phrasing
of legislation itself is obscure perhaps to everybody except parliamentary
counsel. Is it not best to have something in the legislation which
is probably going to be looked at by a minister for the first
time and occurs in a situation of great panic and difficulty so
that the wording in the legislation is clear to ordinary mortals
rather than just to parliamentary counsel?
I certainly have sympathy with your general point, that we should
always endeavour to ensure the language used on the face of a
statute is as clear as possible. Having said that, I would make
a few observations. Firstly, I think the very fact that we have
undertaken a process of pre-legislative scrutiny and are seeking
at every stage to consult effectively with as wide an audience
as possible, both members of the public, of course Members of
Parliament from both Houses and also the responders affected,
gives credence to my claim that we are determined to make sure
that we canvass as wide a range of views as possible to make sure
that we get this right. Secondly, I would say that I am aware
from having read the evidence that has come already before this
Committee that we have come in for some criticism in terms of
what has been judged by some of the witnesses before you to be
the breadth of the legislation as presently drafted. Again I would
plead guilty to the claim that we are determined to make sure
that where we can we are clear as to the intention of Parliament
on the face of the Bill, and I think a distinction in that regard
could be drawn between the Emergency Powers Act 1920 and the draft
Bill before the Committee today in the sense that we consciously
sought to be as explicit as possible about the circumstances in
which one could countenance using emergency powers. In that regard,
there is a balance always to be struck between ensuring that on
the advice of parliamentary counsel and others we find language
which is legally watertight and robust, but, on the other hand,
ensuring that, where possible, we give people as clear a guide
as possible as to the intention of Parliament when the legislation
Q248 Lord Archer of Sandwell:
Just before we leave the question of definition, clause 17(2)
sets out the kind of phrase which brings a situation within the
definition. We have, ". . . which presents a threat to the
welfare of a population if, in particular, it involves . . ."
Now, I was just wondering what you thought the force of the words
"in particular" were because it seems to suggest that
the list which you have set out underneath is not exhaustive and
you could have something arising which is not set out in the statute.
Yes, that is, as I am aware, an accurate reflection of the intention
of "in particular" being contained within that clause
which is to flag up again explicitly, consistent with the answer
I have just given, that this is not deemed to be an exhaustive
list, but rather is an illustrative example of what we were endeavouring
to do which was, where possible, to be explicit with people as
to the range of possible reach of the legislation as drafted.
Q249 Lord Archer of Sandwell:
But does it not really mean that it is any situation which the
Secretary of State or whoever thinks ought to be included? Do
you need a list at all if you are going to do that?
Well, of course a balance has to be struck, I would suggest respectfully,
but there are very clear limits on the powers of the Secretary
of State or government acting under the draft legislation as presently
drafted, the foundation of that of course being the triple lock.
However, having said that, I think where it is possible to provide
illustrative guidance consistent with precedent as to how statutes
are drawn, I think it is actually an aid and assistance both to
Parliament and to those in the courts or elsewhere who are obliged
to look at the statute in future that we be more forthcoming rather
Q250 Mr Llwyd: Minister,
you have just referred to the triple lock, but there is indeed
nothing, as far as I can see, to prevent the proclamation of an
emergency without reference to the triple lock. Can you think
of any reason why the actual triple lock was not explicitly outlined
in a single clause on the face of the Bill as the threshold that
has to be crossed before emergency powers can be invoked?
I think there is a presentational issue here and there is a substantive
issue. The presentational issue can be put simply. No, there is
no reason why the triple lock cannot be gathered together from
the various clauses of the draft Bill and presented in a single
clause and if the Committee were so minded to recommend it, that
would be something that would weigh heavily in the Government's
deliberations about translating this from a draft Bill into a
Bill that would be introduced in due course. I think it would
also be appropriate to recognise that notwithstanding the fact
that the triple lock be gathered together in a single clause,
it would have no material bearing on the strength of the triple
lock which is as important and as robust in its present construction
in statute as it would be if it were gathered together in a single
clause, so I think there is nothing which diminishes the triple
lock at the moment, but if, consistent with our broad intention
to be as clear as possible on the face of the Bill, the Committee
were minded to recommend to us that it should be gathered together
in a single clause, I would endeavour to take that back to parliamentary
counsel and see whether that could be achieved.
Q251 Mr Llwyd: Thank
you for that helpful answer. On the question of human rights generally,
the consultation document, as you know, Chapter 5, paragraph 36
says that the case for including clause 25 is "by no means
certain". Therefore, what alternatives have you considered
to treating regulations made under Part II as Acts of Parliament?
Are there any other ways in which urgent action would not be frustrated
by the courts? For example, would it be sufficient to provide
a stay of execution until all appeals had been exhausted or just
to derogate from the European Convention on Human Rights?
In my attempt to answer your question, it might be helpful, first
of all, to set out for the Committee the route by which we came
to clause 25 as drafted at the moment and what is language contained
in the consultation document, which I hope is deemed admirably
frank in terms of the consideration within government as to whether
the clause should be contained in the draft Bill at the moment.
What we were aiming to do was to reflect the fact that since we
started work on this Bill, it became apparent that we would of
course have consideration to the role of the courts in relation
to emergency powers and the driver behind clause 25 as drafted
was a clear recognition of the operational need for emergency
powers to be effective in an emergency. In that sense, there is
clearly a balance that needs to be struck between the legitimate
concern for the operational effectiveness of emergency powers
as drafted in statute with very appropriately the concern for
human rights that you mentioned in your question. How best to
balance those two interests is frankly a difficult job and one
which we are engaged in at the moment and the issue is far from
resolved, as we set out in the consultation. Clause 25 is certainly
one way to endeavour to strike that balance. However, as I say,
we made clear in the consultation process and in the consultation
documentation that we provided that we were by no means convinced
that clause 25 was necessarily the correct balance. We have looked
at other alternatives, which was the main focus of your question.
Relying on the provisions of the European Convention on Human
Rights which cater for emergencies is one way forward which has
been suggested, and I understand by some witnesses before your
Committee, that many of the Convention rights are qualified and
provide for exceptions, so in that sense that is one matter which
is being considered within government. Secondly, another point
that has been made before this Committee has been the attitude
of the courts in the United Kingdom in similar, if not identical,
circumstances to those envisaged by the Emergency Powers Act in
the past and whether in fact a commonsensical and reasonable attitude
taken by the courts for the need for operational effectiveness
for the Emergency Powers Act would in and of itself be sufficient
comfort that in circumstances of an emergency, the emergency powers
would indeed be operationally effective. There could be other
routes that could be considered that would require legislation,
but I hope by the manner in which I have answered the question,
I have communicated the extent to which there is a genuine and
real desire on the part of government to strike the correct balance
between the need for operational effectiveness in circumstances
where sometimes a matter of hours can literally mean the difference
between life and death and, on the other hand, the need to ensure
that we do ensure the rights and human rights of individuals,
as you would expect.
Q252 Mr Llwyd: Thank
you for that. I note that you refer several times to the balance,
I think quite appropriately. Some of us are a bit perplexed about
the inclusion of clause 21, subsection (3)(b) and (c) where property
could be requisitioned or destroyed with or without compensation.
In what circumstances do you envisage it would be appropriate
to destroy property without compensation? How would you react
to the suggestion that this might indeed hamper the emergency
services response to an emergency? If there are circumstances
when the government may allow agencies to take property without
compensation, will consideration be given to appropriate insurance
schemes such as Pool Re?
In terms of how we got to the drafting of clause 21, again I return
to what has been one of the public policy objectives of the Bill,
which has been to be as forthcoming as possible given the constraints
of statutory language and the need for legal rigour in terms of
the language that we are using. In that sense, the clause that
was contained was an attempt to be as explicit as possible about
the fact that we do believe there are circumstances in which compensation
would not be appropriate. It might be helpful by way of illustration
to give two examples of that. First where, for example, there
was the deliberate infection of livestock by a farmer; we would
not judge that to be an acceptable basis on which compensation
would be forthcoming from the public purse. Or where the loss
was insured, for example, where there was damage to household
property resulting from fire. There are several points I could
add to that. First of all, I think it is fair to say that we do
adhere firmly to the view that government should not be in a position,
notwithstanding some of the points that I am about to come onto,
to say that there should be effectively a blank cheque from the
public purse in all circumstances that can be envisaged following
on from the passage of this legislation and the implementation
of regulations under the Emergency Powers Act. Point two would
be there was some concern raised as to whether Pool Re would be
an adequate guide as to the conduct of government. That case stands
on its own merits. Where there would be a need for a specific
policy response as in those circumstances that would be a matter
that government would keep under review. The substantive point
that I think needs to be borne in mind when there is consideration
of the statutory language that we have devised and is before the
Committee at the moment is that of course it remains the case
that, both in terms of the European Convention of Human Rights
by which this government remains bound through the Human Rights
Act, and also through the draft regulations under the Emergency
Powers Act 1920 which I understand is before the Committee, or
has been before the Committee in recent days, there are provisions
for compensation and that would certainly be our intention in
terms of the drafting of regulations to reflect the type of circumstances
narrated in the regulations under the Emergency Powers Act 1920.
I would hope that what I have been able to offer the Committee
is a very clear steer that it is absolutely and categorically
not the case that there are no circumstances in which the government
would offer compensation under the Bill as drafted. Rather, we
are keen to ensure that there is a recognition that there can
be circumstances where compensation would not be paid out, but
nonetheless there would be both in the regulations as reflecting
the 1920 Act regulations and the European Convention of Human
Rights, as expressed in the Human Rights Act, circumstances in
which compensation would be paid.
Q253 Lord Lucas of Crudwell and Dingwall:
Clause 21(3)(j) as drafted allows you effectively to wipe the
Constitution clean and start again. Do you not think there should
be some core of the Constitution which is protected from attack,
whatever the circumstances of an emergency, so that we end up
with the parliamentary prerogative rather than somewhere else?
I think again it is helpful to draw a distinction between the
factual position and the legal position. The factual position
is of course the scenario that you have set out. I cannot envisage
any circumstances in which it would take place. Legally, we think
it is unlikely that it would be possible but my training prior
to entering Parliament was that of a Scottish solicitor, so matters
of constitutional law were of great interest to me. There are
genuine and practical legal difficulties in seeking, given the
British Constitution, to draw the kind of distinction that your
question suggests would be appropriate; that somehow there is
a body of constitutional law which stands alone, apart and above
any other type of statute brought forward by Westminster. I am
aware that there has been recent case law in this, the Metric
Martyrs case, so called. That case did suggest that such a
distinction could be drawn but I would merely flag up the fact
that to attempt to draw a clean delineation of what is a core
constitutional law from any other type of statute is frankly more
difficult in a British set of circumstances than might be the
case in other jurisdictions with other constitutional arrangements.
I return to the locks and insurances which can be offered by the
Bill as drafted, which is the triple lock. In that sense, the
three criteria that are set down in the triple lock, factually
and legally, would make sure that the kind of threshold that I
trust you would be seeking to ensure is in place is pretty high
in the case of the Bill as drafted at the moment.
Q254 Lord Lucas of Crudwell and Dingwall:
Let me set a scenario for you. Some future Conservative Government
not getting a majority relies on a far right wing party to be
in power. The Deputy Prime Minister is the leader of that far
right wing party. A small nuclear device destroys the Cabinet
and Parliament while in session but happily not the Deputy Prime
Minister, who thereupon declares a state of emergency, not unreasonably.
He abolishes Parliament, the judiciary and the monarchy and sets
up whatever he wants. We are allowing that to happen legally just
because it is difficult to find a way of drafting it otherwise.
Is not that a bit careless?
Greatly tempting though it is to be drawn into the particular
scenario that you set out, there are a number of points I would
take great pleasure in either disputing or contesting. I think
it would be injudicious of me to describe a specific circumstance
such as that, but the substantive point that you raise is do I
feel that there are sufficient assurances which can be described
as presently presented in this Bill so that we can in conscience
offer it to Parliament for consideration in due course on the
basis of the deliberations of this Committee and others. Yes,
I do believe that the assurances are in place. The principal assurances
that I would identify would be the triple lock. We also continue
to be bound by the Human Rights Act and there are a range of different
legal safeguards against the kind of arbitrary use of power which
certain scenarios might suggest.
Q255 Lord Lucas of Crudwell and Dingwall:
Would they be safeguards that you would feel able to outline in
a letter to us?
Certainly. I would be happy to do so.
Q256 Lord Lucas of Crudwell and Dingwall:
The Bill declares that regulations may not prohibit or enable
the prohibition of a strike or other industrial action, but it
makes no reference to individuals. Does that mean it would be
possible for regulations to make it unlawful for specific individuals
or groups of workers to take part in industrial action?
No. It will not be possible for emergency regulations to prohibit
individual groups from taking part in industrial action. Again,
this is merely a drafting point. The effect of this provision
is the same as under the 1920 Act. We were keen as much as possible
to seek to reflect what is a settled position from the 1920 Act.
In that sense, notwithstanding the drafting point you have just
identified, there is a reasonably wide consensus that there has
not been a material change from those provisions.
Q257 Lord Lucas of Crudwell and Dingwall:
Are there any circumstances in which it would authorise by regulation
the suspension of a non-derogable right under the European Convention?
If not, should they also be something which is protected from
attack by clause 21(3)(j)?
It is not possible for emergency regulations lawfully to contravene
the UK's obligations under the Convention. If the government wanted
to do something which breached them and it was not possible to
derogate from that right, the government would have to bring forward
a Bill. It would not be possible to use emergency regulations
in such circumstances and even if enacted clause 25 would not
alter this. All that clause 25 would do would be to limit the
remedies that a court could award where regulations have been
made in breach of Convention rights.
Q258 Lord Lucas of Crudwell and Dingwall:
Surely, the Secretary of State has power to do anything by regulation
that he can do by legislation?
Ms Lane: Under section 6 of the
Human Rights Act, any minister who does something which is in
contravention of the Convention rights commits an unlawful act.
Although it is not on the face of this Bill, it is very clear
from the Human Rights Act. It just would not be possible.
Q259 Lord Lucas of Crudwell and Dingwall:
If you can disapply the Human Rights Act by legislation, then
you can do it by regulation under this Bill because it specifically
Ms Lane: As the Minister has explained,
we did not think it would generally be lawful to disapply or tinker
with the Human Rights Act.
Lord Lucas of Crudwell and Dingwall: I am either
not convinced or not understanding, but I leave it there.