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Freedom of Information (Scotland) Act 2002 (Consequential Modifications) Order 2004

Lord Evans of Temple Guiting rose to move, That the draft order laid before the House on 12 October be approved [31st Report from the Joint Committee].

Moved, That the draft order laid before the House on 12 October be approved. [31st Report from the Joint Committee]—(Lord Evans of Temple Guiting.)

On Question, Motion agreed to.

Civil Contingencies Bill

Consideration of amendments on Report resumed.

Clause 19 [Meaning of "emergency"]:

Lord Lucas moved Amendment No. 58:

The noble Lord said: My Lords, in moving Amendment No. 58, I should like to speak to Amendments Nos. 59, 60, 61, 66 and 67 as well.
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Amendments Nos. 58 and 59 do the same thing in different places. Amendment No. 60 is misdrafted and should have been sitting along with Amendments Nos. 61, 66 and 67, removing the words "damage to". They are all of a piece, replacing the words "threatens serious damage to" with "seriously threatens".

I take these amendments extremely seriously. Ever since I have been involved with this Bill and its draft, I have been worried that the gateway to an event becoming an emergency is left too open. The noble Baroness was quite correct in the way in which she described this in Committee. Quite a remote threat of something extremely serious can trigger the Bill. I do not think I am fussed about that; it is the way of expressing it, the words that are used and what breadth is attributable to them.

I suppose that I had turned over a lot of alternatives in my mind as well as listening to all the thoughts that were expressed in the Joint Committee; I had not arrived at any comfortable conclusion when the noble Baroness put down her own amendment, using words that seem perfect, changing the wording in subsection (1)(c) to "seriously threatens". I find that much more satisfactory.

It is very important that the wording in the Bill is right legally but that, at the same time, it is expressed in a way which sounds right to ordinary people. The Bill may have to be, in extremis, interpreted and understood without the help of constitutional lawyers. Although we had a fascinating discussion earlier on various principles of administrative law, they meant absolutely nothing to me. Your average general will never begin to understand what is meant by that, whereas I think that they will understand "seriously threatens". That encapsulates the concepts of whether it is a serious threat and whether it is threatening serious damage very nicely in one phrase, which allows those two aspects of a potential emergency to be balanced and for a conclusion to be drawn in language and understanding which is in common usage.

It is far too easy, in English usage, to interpret the phrase "threatens serious damage to" as meaning, "Does it threaten serious damage to?", not "Is it a serious threat?". It is very easy to threaten serious damage to something. You just say, "I will do it". That is a threat, but it is not a credible threat. None the less, it is something which "threatens serious damage to" in the use of English.

I find that looseness worrying. This is the gatekeeping phrase. When we come to the other aspects of the triple lock in Clauses 20 and 22, we are referred to,

By that time, it has been assumed that there is an emergency and the likelihood of an emergency coming to pass is no longer relevant. It is a question of whether this "aspect or effect" of it will be dealt with by the regulations.

So we lose our grip on proportionality and our grip on what is necessary if we let through in the wording of Clause 19 something that is inherently unlikely, but none the less extremely damaging, without being able
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to look at it together and say that it "seriously threatens" human welfare or the environment. That is a formulation that I would be happy to live with. I would not be happy to live with "threatens serious damage to". I am very grateful to the noble Baroness for having provided this solution to my little dilemma. I wish to encourage her to take that solution and apply it to the rest of the clause. I beg to move.

Baroness Buscombe: My Lords, I rise to support the amendment, to which my name has been added. My noble friend Lord Lucas has picked up a very sensible use of language. As he said, the wording is already used in Clause 19(1)(c). It is quite clear that a number of noble Lords, including those on these Benches, are still concerned about the scale of emergency that should sensibly trigger the provisions of the legislation.

These are simple amendments, but they would enormously improve the drafting of the Bill and help to allay our remaining fears about the operation of Part 2. The definition of "emergency" is still too wide and needs to be tighter so that the powers are not abused or used too readily.

As I said repeatedly in Committee, I am not talking only about this Government. One has to contemplate governments of the future who may be more willing to invoke these draconian measures. They are draconian and we should not pretend otherwise. Nor should we underestimate the extent of these powers. I hope, therefore, that the Government have given serious thought to the small changes that the amendment proposes. If they were accepted, the Opposition would feel much happier with the clause.

While thinking through some of the issues, I looked again at the Joint Committee's report on the Draft Civil Contingencies Bill. At that stage, the Joint Committee was concerned about the generality of the overarching definition of "emergency". Notwithstanding the fact that the Government have responded in a number of ways to the Joint Committee's concerns, the spirit of what the Joint Committee was trying to convey is still with us. "Emergency" is still defined incredibly broadly in the legislation. It continues to give rise to a number of questions that merit further explanation.

As the definition is still wide, there is ample scope for ambiguity and misinterpretation of events. For example, the Joint Committee referred to the possibility of questioning whether we are talking about major accidents or serious economic crises. We no longer have to concern ourselves with the question whether we are talking about a serious economic crisis, but we are looking for a way of trying to raise the threshold of what is sensibly meant by the term "emergency".

I hope that the Minister has thought about this matter. I hope that she will accept and take as a compliment the fact that we believe her wording in Clause 19(1)(c) really does raise the threshold of what is meant by an emergency. I hope, therefore, that the Minister will consider the amendment seriously.
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Viscount Goschen: My Lords, it sounds like a tiny point of drafting. If one had heard the debate in isolation, one might have thought that this was about pedantic drafting, but it is not. I agree with my noble friend that this is an extremely important amendment.

What we are talking about must be the combination of the likelihood of an event happening and the seriousness of the damage that that event would cause if it did happen. It must be the product of those two things. I certainly agree with my noble friend that, the way the Bill stands at the moment, the level of the damage is specified but not the level of threat. The combination has to comprise a very serious situation in order for such potentially draconian powers to be triggered.

I certainly support my noble friend's amendment. I would go further than him: I am concerned about emergency powers being invoked because of an event that could be absolutely catastrophic to the planet but which constituted a very, very remote threat, for example, an asteroid collision. There may be a millionth of one per cent chance that such an event would happen, but if it did happen it would not be especially good news.

I hope that the Minister has listened to the arguments that have been put forward. I would even prefer the expression, "seriously threaten serious damage", but that would be much clumsier than the term suggested in my noble friend's amendment. I support the amendment.

Lord Elton: My Lords, the noble Baroness is persuaded of the importance of seeing that the powers are not improperly used through the use of the triple lock in which she has asked us to repose our confidence. However, every lock has a little piece that slides over it. I think that it is called the scutcheon or the escutcheon. This is what my noble friend is proposing. His amendment would add just that little bit more security. It would also make the situation much more easily understood by the man in the street or, as my noble friend would probably say, the general on the Clapham omnibus. I hope that the Government accept the amendment.

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