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Baroness Hamwee: Building on that example, and looking back at Clause 6, is the Minister suggesting that regulations under Clause 6 about disclosure of information will require a direction for them to bite? Unless that is the case, perhaps I may gently suggest that sharing information is not a very good example because the previous clause deals with it.
Lord Archer of Sandwell: Before the noble Baroness, Lady Buscombe, replies, I would like her to resolve a puzzlement in my mind. I understand her to be arguing that there is a distinction between "no time" and "insufficient time". On that basis, supposing that there is some time to make regulations but that it is insufficient to make them, is she saying that there should not be a power to make a directive, so that we would have neither the regulations nor a directive?
Baroness Buscombe: The point is well made by the noble and learned Lord, Lord Archer of Sandwell. Perhaps I should think about it. My point was that we believe that the power to make an oral direction should be given only if there is so little time that nothing could be written down. I understood that even in days of old when we went into battle, somebody wrote notes to tell everybody what to do.
We are talking about somebody just giving an oral direction. Therefore, we are focusing on the extent of the power, with precious few safeguards, if I may put it that way. However, I take on board what the noble and learned Lord said: perhaps we are going a step too far, in the sense that we would remove the opportunity for any direction if there were no time. On that basis, I beg leave to withdraw the amendment.
The noble Baroness said: The amendment relates to the question of whether a direction should be oral or written. It is important to debate the issues, to help us appreciate why such extraordinarily wide powers are being introduced in this enabling Bill. In moving Amendment No. 53, I shall speak also to Amendments Nos. 59, 67 and 73. The amendments deal with the question of urgency, covered in Clauses 7 and 8. They would ensure that any direction by a Minister to make regulations urgently would be written.
We hope and understand that Clauses 7 and 8 would be used only in a real emergencythat is, not very often, if at all. We also understand that any such use would be in a situation that would require swift action. However, we feel that, even in such a situation, it is best practice to write such directions down; indeed, it would be common sense to do so. We are talking about situations in which spur of the moment decisions may not be the best ones. Taking the time to write something down may give a Minister a chance to think.
"If it is determined that speed is of the essence in establishing important requirements in such circumstances, then a written Notice under the hand of the relevant Minister should be issued to the relevant body or person. Oral directions are open to interpretation and abuse and it is difficult to envisage when oral direction would be necessary in a non-emergency situation, where speed of reaction cannot be that critical".
It is also important, when the crisiswhatever it might beis over, to be able to review how things were handled and consider what went right and what went wrong. It will be essential to see how the Government reacted to what happened, so a written record should be kept of what the Minister ordered. I have in mind an expression used in the Butler report"sofa politics", I think it was. That impinges on the point. With regard to the government of the day or any succeeding government, it is surely better for everybody concerned, including the Minister and his or her colleagues and officials, that, no matter how urgent the situation, something is written down to clarify matters.
I wish to refer to a letter, dated 22 July, addressed by the Minister to the noble Lord, Lord Dahrendorf, in response to a concern that he expressed at Second
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Reading. The Minister referred to the report of the Select Committee on Delegated Powers and Regulatory Reform in response to the Civil Contingencies Bill and its concerns regarding oral versus written directions. He said:
"In light of the Committee's report, I have asked officials to look at these points again and ensure that the power to issue an urgent written direction in these circumstances is warranted, particularly in relation to clauses 2 and 4. I expect that work to be completed in time for the Committee stage".
"The Committee query in particular the circumstances in which a written direction would be given under Clause 7 . . . which contains a provision which would otherwise be contained in regulations subject to the negative procedure".
I hope that the Minister has considered what the noble Lord, Lord Dahrendorf, said at Second Reading and the response of the Select Committee on Delegated Powers and Regulatory Reform to the Bill. I hope that he will respond positively to our amendments. I beg to move.
Lord McNally: We give the strongest possible support to the amendments. Ministers should ponder the fact that one of the strictures mentioned in the Butler report was the habit that has grown under this administration of informal meetings, with various memories of what was decided. Even in the height of battle it is very sensible to record what is ordered and what the responses are. Nothing could make the handling of an emergency more perilous than oral orders. We all know the jokes about Chinese whispers; that would be the exact danger. I suspect that the utilities are afraid of misunderstanding and misdirection because of oral communication. We live in a world of very sophisticated written messaging, so I cannot see why these amendments should not be accepted.
Lord Lucas: I agree entirely with both noble Lords who have spoken. Beyond anything else, we have enacted legislation that extends the meaning of the word "written" to include any authenticated electronic communication. If the Minister has been properly equipped, he should be able to communicate by any practical modern means, including writing as it is now understood, with whoever is supposed to be in receipt of the order.
Anyway, we are dealing not with an emergency but with planning for an emergency. It is not a second's delay that matters; there must be the odd minute to put pen to paper. If we are making regulations, we must be asking someone to do either something illegal or not within their current powers or something that is against what they wish to do.
Under either of those circumstances, it is of the utmost importance that it is put in writing. That is the proper way to proceed. One might think about it under Part 2 where it may be necessary to pick up a telephone and say, "Close Oxford Street" rather than having to find somewhere to fax that instruction.
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Under Part 1, it seems entirely inappropriate and only likely to lead to disputes afterwards about what was actually said, which would be quite unnecessary and to no benefit.
Viscount Brookeborough: I support the amendment. It seems that the use of the word "orally" in this Bill is taken in isolation of the fact that we have entered the technological world. We are not dealing in pre-First World War semaphore or in only the spoken word. It is as simple as that.
I have lived in Northern Ireland for my whole life. During the past 30 years we have lived in a state of actual emergency, let alone urgency. There is no single action taken by the emergency services that is not written down: it is a written instruction. What is more, a reply is received to say that it is understood or, indeed, a question is received, asking, "Why are you talking such rubbish?".
In my mind, there is absolutely no question about it. We could not have got to where we have in Northern Ireland or, indeed, in Iraq without every single instruction being written down and verified. I simply think that there has been no communication with whoever made that up or with anyone who is technologically minded. It would create not a bureaucratic paper nightmare but a verbal shambles.
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