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Lord McNally: My Lords, I hope that Ministers recall the serious mauling of Clause 19 in Committee and the concerns that were expressed then and that at this stage their briefs are not too rigidly written. The amendment seems to me entirely constructive. I hope that Ministers will show flexibility in trying to meet the concerns that have been expressed.

Baroness Scotland of Asthal: My Lords, I hope that I will not disappoint the noble Lord, Lord McNally. I well remember our interesting debates in Committee; in fact, I think they will stay for ever in my memory.

I say to the noble Baroness, Lady Buscombe, and to the noble Lord, Lord Lucas, that we take these issues seriously. We understand the concerns that they have expressed. We also understand the desire expressed elegantly by the noble Lord, Lord Elton, that there
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should be a little bit extra security if it can be managed. We understand those sentiments. However, regrettably, I am not able to agree. I shall explain why.

I preface my comments with a reminder to the House—the noble Lord, Lord Lucas, will remember this well as he was a member of the Joint Committee that considered the matter—that the Joint Committee in considering this very part of the Bill queried the use of, and the reference to, a serious threat in the draft Bill. Your Lordships will remember that previously the damage was not referred to. The Joint Committee prayed in aid the suggestion that the Government should amend the draft Bill to ensure that damage comprised serious damage. That is what we have done in Clause 19(1)(a) and 19(1)(b). That was done in response to that recommendation.

As your Lordships mentioned, we have for drafting reasons taken a slightly different approach towards the reference to threats to security in Clause 19(1)(c). I thank the noble Baroness, Lady Buscombe, for her warm words in relation to that matter. Your Lordships will find the reference to the text of the consultation on page 8 of the Joint Committee's recommendations.

I should state clearly that the Government agree that emergency powers should be used only in the most serious of emergencies that have large scale effects. I do understand the comments made by the noble Viscount, Lord Goschen, regarding the need for that to be emphasised. The Government believe that this is inherent in the language of the Bill. A threat of serious damage to human welfare in the UK, a part or region implies very strongly the scale of incident in question. A disruption to the supply of electricity affecting only a few hundred people is not a threat of serious damage to human welfare in the UK, a devolved territory or an English region. The loss of electricity to a wide area housing millions of people on a long-term basis may, however, be such a threat, given that it would clearly threaten human life and disrupt essential services and supplies.

Even in such a serious emergency, where the risk of serious damage to human welfare is obvious, there are very clear limits regarding what may be done if it is determined that use of emergency powers is appropriate as existing powers are insufficient. The Bill is very clear that regulations can be made only if they are needed urgently, aimed at preventing, controlling or mitigating the emergency and are both necessary and proportionate in the circumstances.

It is important to continue to keep those requirements at the forefront of one's mind when discussing the seriousness of the events regarding which emergency powers may be invoked. The Bill sets out an overlapping range of tests of which seriousness is just one part. Even if it is clear that an event is very serious it may not be possible to invoke the powers to make specific provisions if one or more of these tests is not satisfied. Clause 19 is very much just the starting point in considering whether, and how, the powers may be used.
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I turn to Amendments Nos. 58 and 59. To require the list of events and situations listed in Clauses 19(2) and 19(3) seriously to threaten human welfare or the environment, as opposed to seriously threaten damage to these, would shift the emphasis away from the significance of their effects and onto the seriousness of the threat itself. Any use of emergency powers will be based upon a reasonable assessment of both the likelihood of an event occurring and the consequences of it doing so. Ultimately, however, it is the potential consequences and not the level of threat itself that must trigger the use of the powers. I was grateful for what I have taken as the assent given by the noble Viscount, Lord Goschen, in relation to that principle, although the judgment that an event may cause "serious damage" must be reasonable.

It is important to keep in mind that the tests in Clause 19 are just the starting point for a set of overlapping safeguards. Even if a situation or event is said to meet the tests in Clause 19, it must also require the urgent making of emergency regulations as existing powers are insufficient. Any regulations made must be proportionate to that situation. It is simply not the case that an emergency is said to exist and unlimited powers are taken on that pretext. The tests in the Bill must be satisfied.

In some cases the threat may not be that serious but the consequences, as we discussed in Committee, may be so grave as to justify the use of the powers. On that occasion we used the example of what would happen if there was a nuclear device where the consequences would be overwhelming. The seriousness of the consequences would be the key factor in determining whether action is necessary. The likelihood of the threat materialising may be debatable, but the consequences of inaction would be disastrous.

As to Amendments Nos. 60 and 61, it has been suggested that the requirement for an event or situation threatening serious damage to the environment falling within the definition of emergency should be removed. That would mean that any event or situation within Clause 19(3) could constitute an emergency. Thus contamination of land by radioactive matter would automatically satisfy Clause 19(3) without any consideration as to its effect. It would therefore automatically satisfy the requirement at Clause 19(1)(b) as a threat of serious damage to the environment of the UK, a part or a region and thus remove one of the layers of the test to be satisfied before emergency regulations can be invoked.

Amendments Nos. 66 and 57 are on very much the same theme. They remove the requirement for an event or situation threatening damage to human welfare before an order under Clause 19(4)(b) could be made and instead require it to simply threaten human welfare. That would not alter the meaning of the clause, but it would, if I may respectfully say so, reduce its clarity. Clearly, disruption to supply, systems, facilities and services can be said to threaten welfare only if they threaten to damage it in some way.
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We have talked at length about this issue. I can certainly reassure noble Lords that we have given the matter a great deal of thought. We think that the balance is about right and that the Joint Committee was right to suggest that we should include damage. We do not think that it would be appropriate to expunge that criterion now, and the test for the threat to security is the same as that for the human welfare and environment categories because it still provides that the threat must have serious consequences before the test is met.

The drafting is slightly different for the category of security and for human welfare and the environment. We think that the way in which we have done that is now appropriate. I would invite the noble Baroness and the noble Lord on consideration of those matters to feel perhaps a little more content than they did before.

Lord Lucas: My Lords, I shall read very carefully in Hansard what the noble Baroness has said. My impression is that she has outlined one substantial difference between us, which is that she believes this clause should be triggered by a remote threat of a substantial event. In extremis, I do not think that one of Mr Öpik's asteroids should trigger the powers of the Bill. Although the noble Baroness keeps saying "proportionality", it is proportionality not to the event as a whole but to an aspect or effect of that event.

So, once you have got to those clauses, you have assumed that this thing is actually going to happen. You are measuring whether the measures you are taking will be effective to prevent or deal with the consequences of a nuclear explosion in central London or wherever it is, and just in the absolute and not in anyway connected with the likelihood of that event occurring.

Therefore, the triple lock does not operate in the way the noble Baroness is trying to allege that it does. I really think that we must concentrate our thoughts on Clause 19. I suspect that I will accept her comments—I shall certainly look at them—on my subsidiary amendments. Perhaps they are not necessary, which is fine. But she has not attempted to outline at all the reasoning behind the different wording in paragraphs (a), (b) and (c); she has just said, "That is the way we prefer it". No justification has been forthcoming, nor has any illustration of the consequences of accepting my first two amendments in terms of particular situations which she would wish to have triggering these powers. That would not then work because of the change in wording. I find that extremely unsatisfactory.

I hope that the noble Baroness may feel able to advance some further thoughts before we get to Third Reading. I am very happy to listen to serious argument on why I am wrong and she is right, but just the mere assertion that the Government are right will not get us any further. If that is where we remain, we will certainly see this issue again at Third Reading. For now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
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[Amendments Nos. 59 to 62 not moved.]

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