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Lord Archer of Sandwell: I do not want to embarrass my noble friend the Minister by shooting him a question of which I have not given him notice. However, I wonder whether the Wednesbury principle was in his mind when he spoke. If it was, I give notice now for when we debate this matter at a later stage that I believe it is a fairly vacuous protection in these circumstances. The Wednesbury rule extends only to someone who behaves as no reasonable person could behave. If the Minister is saying that in any event these matters can be tested in the courts, I would have thought that he had undercut his own argument. Surely the whole point is that one has to take action before they can be tested in the courts.
The Earl of Onslow: A slither of fear runs through many Members that the whole Bill gives far too much power to people in government. However well meaning and good those people are, be they Conservative, Liberal, Green or whoever they might be, it is the sort of power which, unchecked, can be abused. It is that which worries a lot of us, which is why we want the little bits of the provision to be tightened up. We want string and sealing wax, nuts and bolts, chains and hawsers, to ensure that these powers are not abused, however well meaningly.
Lord Stoddart of Swindon: I do not know whether the Minister has sat down or whether we are just having a little conversation. I am just as worried about what the Minister saidcertainly with reference to the test of reasonablenessas the noble Earl, Lord Onslow, who makes a very good point. Many people are very worried about the powers contained in this Bill, particularly in Part 2.
Another worry which concerns me is the question of which Ministers are deemed to be senior Ministers, who can take these decisions. One group of Ministers, the Lord Commissioners, are empowered to take these decisions. I can tell the Minister from my own experience about Lord Commissioners, who are near the lowest level of ministerial responsibility though not at the very lowestassistant Whips are at the very lowest level. They occasionally have to sign guarantees. I believe that I signed guarantees for about £400 million when the Electricity Board wanted to borrow money from Germany. The other extent of their duties is signing the warrants which give firms the
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royal seal of approval. Apart from that, Lord Commissioners have no governmental experience at a senior administrative level.
In a matter such as declaring a state of emergency, I wonder whether someone who lacks that sort of experience should be given that power. I must say that I would not have wanted to exercise such power, if it had been given to me. Without the administrative experience of high office in government, I would be very frightened of using that power. That is the sort of thing that concerns not only Members here today but many other people throughout the country.
Lord Jopling: I can add to what the noble Lord, Lord Stoddart, has said. As another Member of this House who was at one time a Lord Commissioner of the Treasury, I remember in the Heath administration that the Treasury used to send documents around for signing without filling in the amount of money. At that stage, a number of us were referred to as the "revolting Lord Commissioners", because we refused to sign them until the Treasury filled in the amount. The situation in those days was even worsebut certainly, in the rest of my time, there were never again any of those orders for signing by Lord Commissioners unless the entire amount was entered.
Lord Monson: Even if one accepts the Minister's argument that the word "reasonable" should not be usedand I can see that it was a fairly convincing argument, if one accepts the argument of the noble Viscount, Lord Goschen, that the word should not be used generallywhat is wrong with the wording suggested by the noble Lord, Lord Stoddart of Swindon? He suggested the words,
Lord Bassam of Brighton: I see that the debate is exercising Members of the Committee more than somewhat. It has certainly provided me with some food for thought. It is worth the Committee reflecting a little more on my points about including the amendment.
If Parliament expressly provides in the Bill the powers conferred on the Ministerit is worth saying that it is a Minister of the Crownwhy should that not be the same in subsequent Bills? If the provisions had to be expressed in those terms in all subsequent Bills, it might ultimately make it impossible to confer on a Ministeror, for that matter, a public authoritythe responsibility without expressly requiring that it be exercised reasonably. Inevitably, that would cause confusion, particularly in relation to old powers drafted without reference to reasonablenessa consideration in itselfand to the occasional power that is unqualified.
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In the end, I am drawn to conclude that the best approach is the one that results in the simplest drafting with the fewest words that is least likely to cause confusion or cast doubt on the application of public law. If we were to depart from that principle, it would be more difficult to make our legislation work efficiently, particularly with legislation such as this that is designed to deal with very urgent situations, as I set out at the beginning of our debates.
The noble and learned Lord, Lord Archer, asked a very important questionwhether we meant to apply the Wednesbury test. That is what is meant, but we think it a robust test. It has stood the challenge of time and can be adjudicated in the court, albeit after the direction has been issued. It is an important protection that has been relied on for a very long time. The wording that we have is the best in the circumstances. It provides the necessary flexibility and, importantly, relies on the public law duty of reasonableness that must apply to all Ministers in the circumstances in which they have to make a decision and give a direction.
Lord Lucas: If the Minister wants to keep things simple, he should leave out subsection (1) entirely. Then the clause would have the same effect, but we would have none of the confusion arising from subsection (1).
Baroness Buscombe: I thank the Minister for his response, and thank all Members of the Committee who have taken part in the debate. As I pointed out earlier, I have real concerns in relation to the wording in the Bill, particularly given the fact that we are talking about oral directions and very junior Ministers. I take on board the point made by the noble Lord, Lord Stoddartthat we are giving an extraordinary power to Ministers who might be very junior and have to act in extremis with very little experience. Perhaps we should all go away and think further about that in relation to amendments on Report.
Like the noble Lord, Lord Monson, I am drawn to the wording suggested by the noble Lord, Lord Stoddart, which was, "believes on the available evidence". Notwithstanding the Minister's reply, I believe that there should be recognition that a Minister has to have some grounds for making the decision, no matter how urgently. It is all very well saying that action can be challenged in the courts, but that is so long as the Acts that allow for judicial review have not been disapplied under Part 2. We will have to come that point when we reach Part 2.
Obviously, we all have to envisage the possibility of someone acting way beyond their powers and without reasonable care. But that is our duty when scrutinising legislationparticularly legislation such as thisthat gives such extraordinary powers; powers about which many people beyond your Lordships' House are deeply concerned.
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I shall think more about the Minister's reply. I hope that before we come to Report stage he will think more about some of the serious and intelligent contributions made by all noble Lords. For now, I beg leave to withdraw the amendment.
The noble Lord said: First, I shall deal with the government amendments in this group. In our discussion on the previous group of amendments I outlined the purpose of the power to issue urgent directions. While the Government firmly believe that these powers are necessary, we have looked again at their precise detail in light of the comments by the Delegated Powers and Regulatory Reform Committee.
As currently drafted, Clauses 7 and 8 enable Ministers to issue a direction to a responder containing a provision that could be included in legislation under Part 1. A direction may be made only where there is an urgent need to do that, and where there is insufficient time for legislation to be made.
The Delegated Powers and Regulatory Reform Committee argued that, where regulations can be made using the negative resolution procedure, urgent directions are not required because regulations can be made against similar timescales. It also argued that the Government needed to give greater explanation as to why they needed oral direction powers, particularly in relation to Clauses 2 and 4, which relate largely to contingency planning.
Having looked again at the issue in the light of the committee's comments, we agree that the case for urgent direction powers under Clauses 2 and 4which are about planning for, rather than responding to, emergenciesare not sufficiently robust. On those grounds, the Government have tabled a set of amendments to turn off the urgent direction powers, both written and oral, for these clauses.
However, the Government propose to retain powers of urgent direction in relation to Clauses 5 and 6. Clause 5 permits Ministers to make regulations requiring responders to perform a function in order to prevent the occurrence of an emergency; reducing, controlling or mitigating the effects of an emergency; or taking another action in connection with an emergency. It is a wide-ranging power designed to enable the Government to ensure that preparation for, and response to, a specific emergency or threatened emergency is coherent and effective.
As the Delegated Powers and Regulatory Reform Committee recognised, the case for an urgent direction power in relation to Clause 5 is very different, as regulations are made according to the affirmative resolution procedure. There may well be situations where there is insufficient time to arrange for a debate in both Houses before issuing a direction. Furthermore, whereas Clauses 2 and 4 relate exclusively to
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contingency planning, Clause 5 does not, and contains powers that will be useful in responding to an emergency or threatened emergency. We therefore believe that it is justifiable to retain the oral direction powers under Clause 5. The case for urgent directions under Clause 6 is also strong, since it allows Ministers to make provision about information sharing, which may be required urgently in the face of an emergency.
Turning to the other amendments in this group, Amendments Nos. 55 and 69 would mean that any urgent direction lapsed after seven days, rather than 21. I can agree with the sentiment behind that amendmentthe Government are committed to ensuring that directions are kept in force only for the shortest possible time. To that effect, Clause 7(4)(b) provides that directions must be revoked as soon as is reasonably practicable.
However, I cannot accept those amendments. While, in many cases, seven days will suffice for legislation to be made in the ordinary way, this will not always be the case. For example, regulations under Clause 5 are made according to the affirmative resolution procedure and a debate will need to be arranged. This could mean that seven days was not sufficient, particularly if Parliament was not sitting. It is for that reason that a maximum period of 21 days, along with a requirement to revoke as soon as is practicable, is more appropriate.
Amendments Nos. 57, 58, 71 and 72 would limit the ability of Ministers to reissue a direction once it had lapsed. In effect, these amendments would prohibit the Minister from making more than two successive directions. We think that the amendments are largely unnecessary. The Bill provides that urgent directions can be made only where there is insufficient time for legislation to be made. Before making a further direction, the Minister must first be satisfied that that is, in fact, the case.
In the case of directions containing provision requiring a responder to exercise one of its functions, the relevant legislationan order under Clause 5would be subject to an affirmative resolution. It might not be possible to ensure that the affirmative procedure had been completed before the first direction lapsed. But that should generally be possible by the time the second direction lapsed.
None the less, there may be extreme cases where it is not possible to make appropriate legislation before the second direction expires. The obvious example is where the approval of both Houses is needed before legislating and Parliament is in recess. In the light of that possibility, we cannot accept the amendments.
In Amendments Nos. 60 and 74 the noble Baroness seeks to probe the legal effect of an urgent direction. The Bill currently provides that a direction shall be treated for all purposes as if it were a provision of legislation made under the Bill. That means that a
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direction can be enforced through the courts under Clause 10. It also means that the provision for liaison with the devolved administrations applies to directions and that the powers to monitor compliance also apply. I beg to move and trust that the noble Baroness will not move her amendments.
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