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Baroness Scotland of Asthal moved Amendment No. 63:

The noble Baroness said: My Lords, in Committee, there was a lot of discussion about the ability to amend the definition in a limited fashion under Clause 19(4). That raised a lot of concern. The Government therefore propose that the purpose of Clause 19(4)(a) is to allow the Government to specify more precisely whether a particular event or situation, or a particular class of event or situation, falls within or outwith the definition of emergency. That would, in situations where such an event or situation is expected, enable Parliament to have a say on whether it might be appropriate to exercise emergency powers. That would allow the Government to determine the mood of Parliament on using the powers and for Members to highlight any concerns that they may have.

In Committee, I used the example that we were faced with when dealing with the millennium bug in December 1999. As I indicated in Committee, the Government have reconsidered whether that is absolutely necessary. The Government believe that, on reflection, although it may add some value, it is not essential and is unlikely to be used in practice given that, by their nature, emergencies tend to arrive with little warning. With that in mind, and following concerns raised in Committee, the Government are content to remove Clause 19(4)(a) from the Bill. That renders unnecessary Amendment No. 64. Therefore, with the permission of the noble Lord, Lord Lucas, no doubt supported by his Front Bench, I shall not deal with Amendment No. 64 on the basis that that is not a matter that needs to trouble them.

On Amendment No. 65, although the Government are happy to concede on the earlier point, we must resist the removal of Clause 19(4)(b), which contains the power to make limited updates to the definition of emergency. Perhaps I may explain that a little further. As we all know, emergency powers legislation exists to provide a legislative safety net, in part from recognition that legislation may become outdated as time goes by. If the definition for when it can be used becomes itself outdated, it will no longer be able fully to perform this function.

One need only look at how much things have changed since the days of the 1920 Act. The rapid development of technology; changes in lifestyle; the patterns of employment; the growth of new means of production; and the networks of supply and delivery since 1920 are startling. If we consider only what has happened in the past five years, the speed of change is startling.

In the 1920s, before the NHS, it is unlikely that disruption to health services would in itself be considered so serious as to trigger emergency powers. The same could not be said of disruption to systems of communication or the supply of money. With the pace of change seemingly ever increasing, we feel that it would be irresponsible not to allow for the updating of
 
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the list of specified means of supply, systems, facilities and services to ensure that it reflects future developments whose disruption may threaten human welfare.

Clause 19(4)(b) allows for this, but only for this—it does not do anything more than that. It does not allow for wholesale changes to the definition of emergency to be made that would subvert the limits of the definition in Clause 19(1) to (3). Any changes would require the approval of Parliament. It would not necessarily mean that emergency powers would be used if and when such an event occurred; that would depend on the circumstances. But it would allow the Government to indicate that they were considering their use if the worst happened in the kinds of scenarios in question.

On Amendment No. 68, consequential amendments may be required if the powers in Clause 19(4)(b) are exercised to ensure that any change to the definition of "emergency" can be followed through in the other parts of the Bill. Thus, were Clause 19(2) to be amended to remove the reference to disruption of an electronic system, for example, it might also be appropriate to remove the reference in Clause 21 to regulations being made for the purpose of protecting or restoring such systems.

The power is limited to making provision that is consequential on an order under Clause 19(5) and is subject to the affirmative resolution procedure. It is very difficult to see how an amendment to any of the safeguards set out in the Bill could ever be said to be "consequential" on such an order, allowing as it does only the limited ability to update the list of items that can be said to constitute an emergency if the safeguards are met.

I hope that I have said enough to reassure noble Lords that this is a limited and proportionate power which would be used appropriately and would be subject to parliamentary scrutiny through the affirmative resolution procedure. I beg to move my amendment and invite the noble Lord, Lord Lucas, not to resist.

Lord Lucas: My Lords, I agree that Amendment No. 63 is better than Amendment No. 64, tabled in my name. I thought that I was offering an olive branch in Amendment No. 64; I am delighted to receive an olive tree in return. I am quite content with that.

Provisions such as paragraph (b) belong in primary legislation. I shall be very much guided by what other noble Lords say, but we are dealing with fundamental matters and I cannot see how those categories would change fast. It is argued that the ability in 50 years' time to include an unforeseen issue that might become important will save us primary legislation. However, in 50 years' time we should have primary legislation. The downside is that we have very limited protection, even under the current constitution regarding the House of Lords. If we believe Mr Hain, it will be attacked in the Labour Party manifesto, and our ability to deal with secondary legislation will be severely curtailed.
 
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Under those circumstances we would be very unwise to agree to this critical legislation being added to or even subtracted from by secondary legislation. It is possible to imagine what might be added to the list. In Australia one might add the beer supply; in France one might add the wine supply; in this country one might add the supply of football. If the legislation were less serious, I would be relaxed about it. It is a crucial part of the Bill. It says what is meant by "human welfare", which is one of the main avenues to using the Bill. We owe it more respect than to say, "We think it might change in 30 years' time, and to accommodate that possible and unlikely event we will leave the list open to trivial or malicious change under other circumstances". It does not seem right or proportional.

Baroness Buscombe: My Lords, I was delighted to see Amendment No. 63. Noble Lords will know that we had a very extensive debate on the issue in Committee. I was deeply concerned about the wording of Clause 19(4)(a), which would have enabled the Secretary of State to,

It was an extraordinarily broadly defined approach to an amazingly wide-ranging power. It was a blanket power for the Secretary of State to act at will. I am very pleased. The Minister had assured me that she would write to me on the issue, but how much nicer it is to see an amendment that does the trick instead. I wish to add to my noble friend's words of appreciation to the Minister for listening to us on Clause 19(4)(a). I am delighted to see Amendment No. 63.

On Question, amendment agreed to.

The Deputy Speaker (Baroness Pitkeathley): My Lords, I remind the House that as Amendment No. 63 has been agreed to I cannot call Amendment No. 64 because of pre-emption.

[Amendments Nos. 65 to 68 not moved.]

Clause 20 [Power to make emergency regulations]:

Lord Lucas moved Amendment No. 69:


( ) protecting or restoring public access to justice"

The noble Lord said: My Lords, in moving Amendment No. 69, I shall speak also to Amendment No. 77. The Minister has been extremely kind to table Amendment No. 77 in my name, as I had nothing to do with the drafting of it. It is really her amendment. I appreciate the honour enormously. I am going to have to listen to what the Minister has to say about the amendment.

With my limited legal knowledge, it seems to me that it answers the question that I posed, which is how we make sure that due consideration is given to the necessity of having the courts in operation for the protection of the public and Parliament in operation for the scrutiny of the legislation. I would appreciate it
 
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if the Minister could explain how her drafting bites, but I look forward to supporting her, and I do not intend to press Amendment No. 69. I beg to move.


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