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Lord Brooke of Sutton Mandeville: I speak as a member of the Delegated Powers and Regulatory Reform Committee. It so happens that the committee met yesterday. Its 30th report is among the papers laid before us for this debate. In the course of that meeting, I inquired whether the Minister had written again since 22 July or whether we could infer that the Minister regarded the matter as now having been settled. I am alluding to the matters in our report that were raised by my noble friend Lady Buscombe.

Because we had not heard, the committee inferred that the Minister regarded the matter as satisfactorily concluded. In the circumstances, I am looking forward to what the Minister has to say about paragraph 7 of his letter of 22 July, which begins,

I had not expected that I was going to be able to get the question which I asked yesterday in the Committee answered so rapidly on the Floor of the House.

Lord Dixon-Smith: I rise with some hesitation at this stage, particularly because my noble friend Lord Jopling mentioned the possibility of the breakdown of electronic communications. That can happen if there is an appropriate sort of nuclear blast.
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But whether communications are available or not seems to be neither here nor there. If a Minister is going to issue an order of any sort, even if it would communicate with no one, it should be written down. Then there is no question about its content and where it is supposed to be directed. Even if, ultimately, it has to be delivered by hand by some slow means, at least it is clear and everyone will understand it. If it is oral, as the noble Lord, Lord McNally, has mentioned, we are into the problem of Chinese whispers, which would be very dangerous indeed. It must be written down.

Lord Bassam of Brighton: There has been much discussion about the Delegated Powers Committee, its suggestions and propositions. Of course, Members of the Committee are right to seek a clear and convincing case for oral directions. I have little doubt that that is the purpose behind these amendments. It would mean that all directions in all the circumstances we have discussed would have to be made in writing.

That is desirable, but I question whether it is ultimately sensible. Wherever possible, of course Ministers would seek to put directions in writing, which would offer greater clarity and minimise the scope for confusion as well as—although it is plainly obvious—adding to accountability. That is because what is written down in black and white in front of one is much more challengeable at a later stage.

However, there are two sets of circumstances in which oral directions may be required. First, in an emergency the normal arrangements for communications may become unavailable. One could envisage a situation in which the postal system might be disrupted and where electronic means of communication have been brought down or disrupted by a power cut. An oral communication may be the only practicable option.

Lord Lucas: If there are no means of electronic communication, how is the oral direction to be given if you are out of earshot?

Lord Bassam of Brighton: It is plain that if one is giving an instruction orally, one would not necessarily be shouting. I think that the noble Lord understands the point I am trying to make.

Lord Elton: What we are asking for here is that there should be an accurate and reliable record of what is done for purposes not only of history but also of litigation. Therefore it would suffice in the circumstances that the noble Lord is describing if the order is written down first and then read out, but not that it is delivered orally and then recollected only some days later, to be jotted down inaccurately on a piece of paper.

Lord Bassam of Brighton: Of course it would be desirable to do that, but if one has to act quickly in an emergency, it may not be possible first to write the order down and then read it out. It may well be that the
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instruction has to be given orally. However, one would seek to ensure that any oral direction is confirmed in writing as soon as possible. That is desirable and sensible for all the reasons outlined by noble Lords.

There may be other situations in which time is of the essence and where there is merit in being able to issue directions as quickly as possible, subsequently to be confirmed in writing. In the face of a specific threat requiring an immediate response, a direction may need to be given in a matter of minutes, perhaps even seconds. Matters might be all the more pressing in the aftermath of a terrorist incident, in particular where there are fears of a multi-faceted attack. Those are the situations we are talking about.

The noble Baroness, Lady Buscombe, raised the issue of the utilities and their concerns. Directions can be given only in accordance with a responder's duties under the Bill. Utility companies such as BT are category 2 responders and as such are only subject to duties to share information and co-operate. Therefore it would not be possible, and indeed it would be inappropriate, for a direction to be given in the terms suggested by the noble Baroness; in other words, it can be given only in relation to the responsibilities of the utility.

I take up the further point raised by the noble Baroness, and spoken to by the noble Lord, Lord Brooke, relating to correspondence with the noble Lord, Lord Dahrendorf, about concerns raised in the Select Committee on Delegated Powers and Regulatory Reform about oral directions under Clauses 2 and 4. I think that I have fairly dealt with this issue in earlier amendments. The Government have thought further about oral directions in relation to these clauses, and for that reason we have brought forward the amendments just agreed by noble Lords to remove the power to issue any direction, either written or oral, under Clauses 2 or 4. That is all I have to add on the subject.

Lord Lucas: Can the Minister give an example of a situation under Clauses 2(3), 4(2) or 6(1) where the time taken to write something down rather than just speak it would make a difference? We are not dealing with an emergency itself, but with preparing for an emergency here. How can 30 seconds make a difference to anything which can be done under any of those powers? I await an example.

Lord Bassam of Brighton: As I said, we may well be dealing with an emergency and it may well be the case that a direction has to be given orally. It would be our expectation that that direction would be sent in writing at a later stage and as soon as practically reasonable in the circumstances.

The noble Lord would not thank any government Minister—either from my government or from a future government featuring the Conservative Party—if, for the sake of giving a quick oral direction, there was some further calamity or tragedy or the emergency
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was made worse in any way. It is important to realise and sense that we are talking about situations where people's lives are at risk and where it is important that someone literally gives an instruction at that moment so that something can be done.

Of course it is right that it should be subsequently put in writing and confirmed in that way; and of course it is right that that is done as a matter of urgency. The example I gave earlier about the Tokyo underground and the sarin attacks is a perfectly reasonable and respectable one in the circumstances.

Lord McNally: Perhaps the Minister will go a little further on the point raised by the noble Lord, Lord Elton. Have the Government gone through scenarios with the utilities, most of which are now private companies and will be jealous of commercial confidentiality and other aspects? Will they really respond to oral requests as the Minister is saying? Have the Government talked this through with them? It is no use suddenly sending an oral request and getting the response, "Let me have that in writing".

I appreciate that we are talking about emergency situations, but I still get the impression that companies which may be subject to litigation against them for actions taken will be very cautious about this. The idea that it can all be done by word of mouth is rather optimistic.

Lord Lucas: If you are being asked to respond to an oral instruction, how do you know who it is from unless you have had something which is the equivalent to—or at least takes as much time as—receiving the request in writing?

Lord Bassam of Brighton: The noble Lord is right to ask the question. But it comes back to having confidence and trust in the situation. The noble Lord, Lord McNally, raised a pertinent point about commercial confidentiality. That is why I made the point earlier that this would relate specifically to that particular utility's range of responsibilities and so on.

We have to assume that in extremis people will accept that it is not unreasonable for someone to rapidly give an oral instruction where that is sensible in the circumstances. We will have to rely on good sense to prevail in such cases. I do not think we could work it any other way.

I listened very carefully to the noble Baroness, Lady Buscombe, quoting the correspondence from BT. I shall undertake to ensure that we have more consultation with the commercial utilities, for want of a better description. My understanding is that, by and large, they are satisfied with the arrangements described in the legislation. However, there is no point in legislating to that effect and subsequently finding out that it will not
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work because they will not sign up to it. I am fairly confident that they will, but I shall check back on that precise point.

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