Joint Committee on Draft Civil Contingencies Bill Minutes of Evidence

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?

Mr Alexander: 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?

Mr Alexander: 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?

Mr Alexander: 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.

Mr Alexander: 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 emergency.

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?

Mr Alexander: 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?

Mr Alexander: 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 Bill.

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 of legislation?

Mr Alexander: 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?

Mr Alexander: 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 is passed.

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.

Mr Alexander: 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?

Mr Alexander: 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 than less.

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?

Mr Alexander: 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?

Mr Alexander: 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?

Mr Alexander: 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?

Mr Alexander: 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?

Mr Alexander: 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?

Mr Alexander: 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?

Mr Alexander: 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)?

Mr Alexander: 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 says that.

  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.

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