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Lord Lucas: I was hoping that the noble Baroness would give us her explanation. Having decided to start Part 2 at this time of night, we might as well do it properly.

Baroness Scotland of Asthal: I was going to. I was not clear what the noble Lord, Lord Elton, was doing: whether he was inviting me to respond to the comments that he made before he decided whether to make an intervention or whether he was going to sit down. If he does not wish to make an intervention, and no one else does, I am more than happy to reply to the noble Lord, Lord Lucas, and to the remarks made by the noble Lord, Lord McNally.

Lord Elton: My intervention was to leave a thought in the mind of the noble Baroness to which she might respond in her response to the debate on the amendment.

Baroness Scotland of Asthal: I say straightaway to the noble Lord, Lord McNally, that I understand the nature of the concerns that he has expressed. I should like to reassure the noble Lord that we are not, and will not be, bedazzled by the technology. We intend to bring the same level of acuity and care to the examination of Part 2 as he would wish because we concur with his view that these are very important provisions.

It is also our view that this part of the Bill has already benefited substantially from the pre-legislative scrutiny that we have been privileged to take advantage of. I acknowledge too that history has taught us many lessons. If we still had the great advantage of Lord Russell, I am sure he would have delighted us even more with a few of those issues.

So it is important for us to remind ourselves that Part 2 is very clear in terms of its proposal and intent. It is absolutely clear on the face of the Bill that the emergency powers can be used only if they are necessary and needed urgently. If used, they must be
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proportionate. Also, any use of the emergency powers must be in accordance with the Human Rights Act and a declaration of compatibility would be issued when making emergency regulations. I am dealing in part with the concerns of the noble Lord, Lord Lucas, as to the misuse and indeed the use which the noble Lord, Lord Dixon-Smith, fears in relation to global warming. Although global warming may be an emergency, it will not be an emergency that would fall within the expected definition.

The triple lock included in the Bill presents a significant barrier to possible misuse. Emergency powers can be used only if, first, an emergency threatening serious damage to human welfare, the environment or security has occurred, is occurring or is about to occur; secondly, if the new temporary powers are needed urgently and are necessary as existing powers are insufficient; and lastly, any new powers taken must be proportionate. That is the triple lock that has to be unlocked before these provisions could bite.

The Bill also contains explicit prohibitions on instigating military conscription, prohibiting strikes or other industrial action, amending criminal procedures, altering the right to trial and the creation of offences other than the breach of regulations themselves, for which a strict limit on the punishment available is set out. We shall deal with that later in our debates on the amendments. I would hope that those restrictions would reassure the noble Lord, Lord Lucas, that the issues he fears have been properly dealt with.

Lord Lucas: I would point out to the noble Baroness that they have not, because you still have power under the Bill to change the nature of Parliament, the courts and indeed anything else and get around the back of the Bill, albeit in two stages. I am not arguing that it is likely to happen, but I am arguing that if the wrong person gets in with those powers there is no restriction on that happening.

Baroness Scotland of Asthal: I do not agree. I shall have an opportunity when we come to the amendments which specifically deal with those issues to explain much more fully why I understand the fear the noble Lord has expressed but do not think that it is well founded. On the way we have crafted and drafted the Bill, it actually makes it virtually impossible for that to occur. However, the will of the people of this country could be that they wish to have such a government and then of course it would be their democratic right to choose one.

It is also suggested that only serious damage should be capable of being considered to be an emergency as opposed to threats of serious damage. The definition already provides that only those threats that threaten serious damage are sufficient to require inclusion within the definition, and the emphasis is on the consequences and not on the level of threat itself.

Any use of emergency powers will be based upon an assessment of both the likelihood of an event occurring and the consequences of it doing so. In some cases the threat may not be high, but the consequences are so
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grave as to justify the use of the powers. If, for example, we were to receive warnings that nuclear devices had been planted in major cities, we might wish to take powers to find and neutralise them and to evacuate areas, even if there were a degree of doubt about the credibility of the threat. The seriousness of the consequences is the key factor in determining whether action is necessary. The likelihood of the threatened action materialising may be debatable, but the consequences of inaction would be disastrous.

At this very late stage, I hope that I have said enough to reassure noble Lords that the amendment is a proper amendment. We will, of course, come back to all the issues as we scrutinise Part 2.

Lord Dixon-Smith: I am grateful to the noble Baroness for her reply, which has done a great deal to relieve some of my concerns. She has not dealt with the issue of the Government being able to rule by regulation for the duration of a war, if such a war threatened the security of the United Kingdom. I would have thought that that was an arrogation of the powers that Parliament ought properly to exercise during a war.

Baroness Scotland of Asthal: As we move through Part 2, we will consider the quite rigid restrictions on the duration of the powers and the conditions that must apply before they can be discharged. That does not relate to this amendment. As always in Committee, we scrutinise the Bill clause by clause. The concerns that the noble Lord has properly raised do not arise in this clause; they will arise as we move on.

Lord Elton: In the last part of her reply to my noble friend Lord Lucas, the noble Baroness said that what was critical to the decision of whether to declare an emergency was not so much the seriousness of the threat as the seriousness of the consequences, were it to materialise. That disposes of paragraphs (a) and (b), but, in paragraph (c), it is the seriousness of the threat that is the criterion, not the seriousness of its consequences. The noble Baroness cannot have it both ways in the three paragraphs.

Baroness Scotland of Asthal: We envisage three different circumstances that may generate the need to exercise emergency powers. They differ. The last deals with security incidents, which may be war or terrorism. The three categories are important. They may coincide on occasion, or they may be entirely different, but any of the three situations may justify the exercise of the emergency powers.

Lord Elton: I do not follow the reason why the three are treated differently. The nature—the quantum—of the threat is, according to the noble Baroness's argument, the trigger. In the third case, according to the Bill, that is not so.

Baroness Scotland of Asthal: It is clear that, under paragraphs (a) and (b), the seriousness of the consequences of the threat will be of critical
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importance. I hope that the noble Lord will agree that, if the consequence of the threat would be disastrous, it is absolutely important that the threat be dealt with and taken seriously. The consequences of failing to take it seriously would be unimaginable. In relation to the security of the realm, a similar criterion must apply.

Lord Stoddart of Swindon: I wish to ask a question arising from a reply to the noble Lord, Lord Lucas, when he said that we may be putting in place powers that an unacceptable government—unacceptable to us, anyway—could then use. I was struck by the Minister's response that, if that government were democratically elected, so be it. That is exactly what I am worried about. If we put the legislation in place, we make it easier for an unacceptable government to say, "These are the regulations and laws that the previous democratic government left us and we are perfectly entitled to use them".

Baroness Scotland of Asthal: As we go through Part 2, I hope that Members of the Committee will see that the restrictions and impediments put in the way of any exercise of these powers are such as to retain sovereignty for Parliament so that it can scrutinise these measures. There are restrictions on how far the orders can be made and changed. The orders will be by affirmative resolution. Therefore Parliament will be able to decide whether it wishes to affirm or dismiss them.

I apologise for using shorthand, but I do so because of the lateness of the hour. If it were earlier, I assure Members of the Committee that they would be treated to a far longer, more detailed explanation of the arguments, which I am not entirely sure noble Lords would necessarily relish. Our clear view is that the restrictions are very tight. Many of the restrictions in the Bill are significantly firmer than the current legislation under the 1920 Act. That is what we will rely on. In due course, we will argue each clause properly.

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