From Hansard http://www.publications.parliament.uk/pa/ld199900/ldhansrd/pdvn/lds04/text/40915-26.htm
September 15 2004 House of Lords
Civil Contingencies Bill
Lord Bassam of Brighton: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.
Moved, That the House do now resolve itself into Committee.—(Lord Bassam of Brighton.)
On Question, Motion agreed to.
House in Committee accordingly.
[THE DEPUTY CHAIRMAN OF COMMITTEES (Lord Boston of Faversham) in the Chair.]
Clause 1 [Meaning of "emergency"]:
Baroness Buscombe moved Amendment No. 1:
Page 1, line 7, leave out "a place in"
The noble Baroness said: In moving Amendment No. 1, I shall speak also to Amendments Nos. 2, 3, 4, 5 and 6. Before I explain in detail exactly what the amendments propose, I should like to put on record my feelings about how the Government are treating
15 Sept 2004 : Column 1207the Bill. During the Summer Recess, I have been inundated with letters, e-mails and phone calls from concerned members of the public about the Bill. They are concerned about what it will mean and are expressing deep concern about the Bill giving to such powers is this or any government. Clearly, this is a Bill which affects people greatly and to which there is much opposition. However, the Government have been treating it as though it is not a controversial matter and as though it does not introduce a huge reform of the power that a government may command at a time of emergency or possible emergency.
As I stated at the time, the Second Reading of the Bill was delayed and then finally tabled for late one evening. I can only put on the record that I hope that the Government start to take the Bill as seriously as we do on these Benches. I look forward to a fruitful Committee stage on the Floor of your Lordships' Chamber.
I also want briefly to express my thanks to all those who have been in touch with me over the past weeks. There have been far too many to reply to. But there are people out there who genuinely feel that we in your Lordships' House must do all that we can to strike that very difficult balance between ensuring that the government of the day can react quickly and responsibly in the time of an emergency and the need to protect our democracy, our civil liberties and our freedoms. We on the Conservative Benches will certainly do that.
All the amendments in the group are to Clause 1 of the Civil Contingencies Bill, which perhaps should be called the "Civil Emergencies Bill". Clause 1 concerns local arrangements for civil contingency protection and details the meaning of "emergency" for Part 1. Perhaps the definition of "emergency" in existing legislation is poorly focused and out of date. To that extent, we are pleased that the Government bowed to the wisdom of the Joint Committee's advice and removed from the definition in the Bill the words "political, administrative and economic stability". However, we still feel that there is much to be discussed regarding the definition, and I tabled the amendments to probe the Government's thinking further and to ask them to explain the current drafting in the Bill.
This group of amendments concentrates on subsection (1) of Clause 1, which tells us that an emergency is,
"an event or situation which threatens serious damage to"
"in a place in the United Kingdom".
"in the United Kingdom or in a part or region".Amendment No. 6 would ensure that the definition of "emergency" was the same for Part 1 of the Bill, which is currently under discussion, as for Part 2. We shall come to that shortly but not, we believe, this evening.
Will the Minister please explain why this form of drafting has been used and what exactly it covers? Clause 19 gives the definition of "emergency" for
15 Sept 2004 : Column 1208Part 2 of the Bill and uses the phrase that our amendments suggest. Why have the Government drafted that discrepancy?
We should also like to know how areas will be divided in an emergency: will it be by cities, by police boundaries or by regions? The matter was debated at some length in the Commons, and I have to say that we were not satisfied with the Minister's reply. Those responsible for assessing, planning and advising cover all sizes of area. They need guidance from the Bill about the parameters of their remit. Indeed, the Police Federation has made it clear that it believes that the Bill should make clear and unambiguous issues pertaining to jurisdiction, remit, lines of control and lines of communication.
What is "a place" composed of, and what is "a place" compared with a part or a region? An example posed during debate in another place to illustrate the point was a train accident, in which there would be possible considerable loss of life and disruption. Would that require a state of emergency? What of a forest fire that swept from one place to another? Are the Government going to explain to us that, in that regard, the Bill is referring to Part 1 or Part 2? Does the Bill, in a sense, augment joined-up planning from place to place? I beg to move.
Lord McNally: I associate our approach to this matter with the remarks of the noble Baroness, Lady Buscombe. In some respects, when one reads that the key Act is more than 50 years old and some of the basic legislation is more than 80 years old, it is understandable that the Government want to get a piece of modern legislation on to the statute book. We are obviously dealing with different circumstances, a different age and different technologies.
We can see that the noble Baroness, Lady Buscombe, has been very busy over the Recess and has put forward some interesting and probing amendments. We, like the noble Baroness, have been lobbied to quite an extent by various groups concerned that the Government are planning some coup of draconian proportions against civil liberties. Perhaps we shall let our civil liberties experts loose on Part 2 to see just what the Government are proposing.
As I see it, Part 1 consists of framework and enabling measures and, in many respects, prudent preparation. It is certainly in those terms that we shall be examining them, but we fully appreciate the way in which the noble Baroness, Lady Buscombe, is probing some of the detail.
Lord Waddington: The question is very simple: why must the wording of Clause 19 be different from the wording of Clause 1? Why is a "part" of the United Kingdom not a "place"? It seems to me that there is no real reason why the wording should be different, but I should like to know why the Minister thinks that it is necessary.
Lord Hylton: I support what the noble Baroness, Lady Buscombe, said earlier about the timing and the
15 Sept 2004 : Column 1209consideration of the Bill. We need to remember that it began its Second Reading after 8.30 p.m. on 5 July and is now being considered in Committee during the overspill period at a time when the whole House is working under very difficult conditions as regards its premises. I support Amendments Nos. 1 to 6 on the general ground that great chunks of the Bill are far too widely drafted.
Lord Lucas: My understanding is that this is a Bill which we can allow to be carried over if we so wish, it having been subject to a Joint Committee of both Houses. So will the Minister assure me that we are not under pressure to finish it in this Session if the discussions, particularly on Part 2, prove to be protracted, as I think they may be?
Lord Archer of Sandwell: I have been puzzled. I had not intended to intervene in this debate, but it seems to me that there is a consensus throughout the country that the Government should be organising preparations for the kind of emergency to which the Bill refers. If the Government failed to do that, very properly there would be an outcry.
That being so, I do not quite see what the problem is about Part 1 of the Bill. I can see that in Part 2 the Government are making inroads into individual liberties, and some of us will want to examine those a little more closely later. But Part 1 is simply making preparations in advance of the emergencies, so that everyone knows how they will fit into the machinery for dealing with them. What on earth is the danger?
Lord Dixon-Smith: I hope that I shall not be wasting the time of the Committee if I run a little over the background. During my time in local government, I had quite a lot of experience in the evolution of emergency planning. It is an honourable and identified profession in local government. It still exists and has been there for a very long time.
It is as well to remember that this all began after the war with the civil defence preparations made throughout the Cold War. That was where emergency planning had its origins, but the 1951 floods and a major industrial accident in the north-east began to alter the focus very early on with regard to this particular aspect of society. Subsequently, there was a major industrial accident in Seveso and another in Bhopal, in India.
They led to the COMAH regulations—the control of major accident hazard regulations—which required the preparation of emergency accident plans to deal with, and cope with, accidents at every major industrial installation or, indeed, any other installation that might cause such an accident. That was not simply oil refineries and power stations. We have a major plan for a very small factory in a town quite close to where I live that deals in matters of biological hazard. All of these different institutions have individual plans. They are all call-down plans. They say, "If this happens, this is what you do". They are very well prepared.
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The question that we have to deal with in the Bill, as has been mentioned by the Liberal Democrat Benches, is how we absorb the existing system into modern society and modern legislative practice as the law is now somewhat out of date. Many of the plans that rightly exist can be used and implemented without "the creation of a state of emergency". What concerns me is that the Bill does not properly clarify the point at which a local disaster with potential consequences for a particular locality, which can be dealt with perfectly properly under the existing system with existing plans, becomes a matter of national emergency that justifies the use of national emergency powers. It is for that reason that the amendments proposed by my noble friend are very important. There are many forms of accident that can cause an emergency that can affect a community. However, the number that could cause the creation of a national emergency will be remarkably small.
We need to work very carefully to make sure that there is a clear and precise definition, which is understandable and relevant to the modern context in which we have to consider the consequences of bioterrorism, as well as proper and secure planning for how one deals with institutions that, through inadvertence, can cause a hazard.
Lord Bassam of Brighton: I am very grateful to all noble Lords who have made a contribution in these opening exchanges on an extremely important and timely piece of legislation. I was particularly pleased to hear the noble Lord, Lord McNally, welcoming the fact that we will have a constructive approach to the Bill. In the few minutes that we have been debating the Bill, I have heard comments from all sides of the Chamber and I sense that there is a desire for constructive focus on a Bill that essentially aims to provide consistency of purpose on the subject, with clear responsibilities, a modernised legislative framework and practical civil protection measures. These should be at the forefront of our thinking in approaching the Bill.
I was a touch disappointed by what the noble Baroness, Lady Buscombe, had to say about sensing that the Government do not take the issue seriously. We have taken this issue very seriously. I understand that she is perhaps concerned that the Bill has taken some time to get to this point—we all get a bit frustrated with the parliamentary timetable from time to time—but we have used the time well in preparing for the legislation and in ensuring that, by and large, we take with us organisations and people that are disparate in nature, from Liberty through to the organisation that represent emergency planners, local government, voluntary organisations, ACPO and so on.
When the Bill was published, it received a very broad welcome. I could quote chunks from the editorials of the time. The one that stuck in my mind was in the Times. It welcomed the way in which the Government had approached the Bill and, in particular, the fact that we had given time for pre-legislative scrutiny. That probably explains why the Bill is in good health as it comes into your Lordships'
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House. That does not mean that I do not expect the detail to receive robust attention. I am grateful for that too because it will help us.
I want to turn to the issues that have been raised, deal with the amendments in turn and explain, as best I can, what we seek to do with different parts of the Bill. It is only right that we start with definitions. The definition of "emergency" underpins Part 1 of the Bill and it is intended to give local responders a clear picture of the types of events and situations for which they should be preparing. It is crucial that we get it absolutely right. I welcome the discussion that the amendments have provoked, even though I am unable to accept them. The definition of "emergency" in the Bill and, in particular, the thresholds within it were discussed in some detail in another place, as I am sure all noble Lords are aware, so it is perhaps worth setting out our intentions in a little more detail.
The overarching objectives of the Bill are to modernise local arrangements for civil protection and the emergency powers framework. In doing that, we have developed a new, updated definition of emergency that reflects the challenges of our times. It is the Government's intention to develop a single, consistent approach to defining an emergency. Thus, the definitions in both parts of the Bill follow the same pattern. The Bill defines an emergency as an event or situation that threatens serious damage to human welfare, the environment or security and lists the type of event that that may constitute. However, Part 1 and Part 2 of the Bill serve very different purposes. Part 1 establishes a new legal framework for local civil protection activity and sets out a clear set of roles and responsibilities for frontline responders at a local level. Part 2 establishes a mechanism for taking emergency powers for dealing with disruptive challenges that are of such a scale that extraordinary legislative measures are required.
These amendments would make the definitions in Part 1 and 2 the same, as the noble Baroness has explained. However, there is no reason why the duties imposed under Part 1 should apply only in the same circumstances in which emergency regulations may be made under Part 2. The Government's intention is that the duties under Part 1 of the Bill—risk assessment and emergency planning—should apply in relation to more localised events and situations whereas the scale of an event or a situation may be much greater before emergency powers can be invoked under Part 2. That is why the thresholds contained in the definition of emergency in each part of the Bill are different.
In Part 2, an event or situation must threaten serious damage to human welfare in a part of the United Kingdom—England, Scotland, Northern Ireland or Wales—or a region. In Part 1, an event or damage must threaten serious damage to human welfare in a place in the United Kingdom. I can understand why the noble Baroness might think that the prospect of an event that could cause serious damage in a place in the United Kingdom, which might be as small as a town, a village or even a street, might not seem sufficiently serious to require local responders to undertake risk
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assessments or to prepare emergency plans. Some people have even asked whether a fire in a single house might be enough to trigger the duties.
Members of the Commons Standing Committee commented that the term "place" also seemed a little vague. Oliver Heald particularly focused on that point. In Committee, he commented that the term "place" seemed a little vague. That was an issue that the Joint Committee helpfully raised. In response to its report, we introduced into the Bill a clear threshold for the scale of event for which local responders should be planning. Clause 2(2) makes it clear that the civil protection duties apply only in relation to an event or situation which,
"would be likely seriously to obstruct . . . [the responder] in the performance of his . . . functions",
or in relation to which the responder cannot respond in an appropriate way,
"without changing the deployment of resources or acquiring additional resources".
Clause 1 must be read in conjunction with Clause 2(2). Taken together, the provisions make quite clear the sort of events that local responders should and do prepare for. A single residential fire could easily be dealt with within existing arrangements, but a large industrial fire in a densely populated area could well require detailed multi-agency contingency planning. This is an objective test. However, the result may well be different, depending on the capacity of local responders and local geography. For example, a local authority in an area that is prone to flooding may be able to respond to a minor flood without changing the deployment of resources or requiring any additional support. However, another local authority that has not traditionally suffered from flooding and is perhaps less well prepared may well need to change the deployment of its resources.
This approach reflects current practice and is enshrined in Dealing with Disaster, the Government's key guidance for local responders, which practitioners know and understand well. This threshold also reflects the nature of civil protection—one size, as I am sure we all accept, does not fit all. To change the threshold in the way suggested in the amendments would be inappropriate. It would mean, for example, that the Hillsborough disaster, the Potters Bar rail crash and the Kings Cross fire would not have been emergencies for the purposes of Part 1 of the Bill. I venture to suggest to the noble Baroness, Lady Buscombe, that that would not be right.
The definition of "emergency" is fundamental to the way that Part 1 of the Bill works. That is why we have worked closely with practitioners and why they have worked to ensure that we get it right. It is in sympathy with their thinking that we have defined it in the way in which we have. The definition therefore has the support of the civil protection community, the Joint Committee—even the Plain English Campaign. While we may in this House from time to time stumble with definitions and understandings, the wider community
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that is more practically concerned with the Bill seems to agree with us that, having listened to their views and their challenges on the issue, we have got the balance about right.
I hope that that has dealt with the core issues raised by the noble Baroness and others in this short debate.
Baroness Buscombe: I thank the Minister for his very full response to the amendments. I also thank all noble Lords who have taken part in this debate. I say to the noble and learned Lord, Lord Archer of Sandwell, that I do not apologise for raising questions about the definition of emergency. This goes to the very heart of the Bill.
Lord Archer of Sandwell: I was not questioning what the noble Baroness, Lady Buscombe, said about the definition of "emergency"—that may be a very useful topic of conversation. I was questioning the general tone of a number of noble Lords opposite, who suggested that the Government were somehow imposing a dictatorship on this country.
Baroness Buscombe: In that case, I beg to disagree with the noble and learned Lord's interpretation of what was said. What we are attempting to do, and will attempt to do throughout the passage of the Bill through this House, is to ensure that the right balance is struck and that all those practical necessities are put in place in a responsible way by the Government of the day.
However, at the same time we need to respond to the concerns that are being raised all over the country on a daily basis with regard to the true import of the Bill. I hope that noble Lords will agree that we must not feel constrained, notwithstanding the fact that there has been pre-legislative scrutiny, in our efforts to ensure that we properly scrutinise the many important aspects of the Bill. I hope that noble Lords will be given sufficient time to do so.
It has been worthwhile having this debate on the amendments. We have had a number of concerns about the true definition of the terms "place", "part" and "region". These questions were raised in the Commons. There was also my concern with the Explanatory Notes, which state that the definition differed and that in Part 2 the situation must threaten serious damage in the United Kingdom or in a part or region, rather than a place.
The more we seek to understand the differences between the wording—"place", "part" or "region"—the better. Indeed, something happened, of which some noble Lords may not be aware, this afternoon in another place. Certain individuals broke into the Chamber of the House of Commons. That is breaking into a small place, but it is also a powerful breach of security in the Houses of Parliament. The definition of emergency could so easily apply, in terms of a "place". That is why we need to discuss and debate what we are talking about when we refer to the parameters within which the Bill works to ensure that all the necessary
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contingencies are in place to enable us to respond to a state of emergency. I am grateful to the Minister for his reply and I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
[Amendments Nos. 2 to 6 not moved.]Baroness Buscombe moved Amendment No. 7:
Page 1, line 16, at beginning insert "severe"
The noble Baroness said: I rise now to speak to Amendment No. 7 and in so doing I shall speak to Amendments Nos. 8, 9, 10, 11 and 12. The definition of "emergency", as I have already said, is crucial to the Bill. However, there is little reference to scale or geographical extent as parameters within which the Bill seeks to protect and introduce methods for dealing with contingencies. We are still considering Clause 1 of the Bill, but have moved on to see what clarification the Minister can give us in other areas. We have tabled these probing amendments in order to have a clearer idea of why the Bill has been drafted in the way that it has and to put forward what we hope are helpful suggestions and improvements.
Clause 2 details the kinds of events or situations that may threaten to damage human welfare, the environment or security. Our amendments add greater detail to the list or take wording away to develop these criteria. As there are a number of amendments in the group, I hope that the Committee will bear with me while I outline what each does.
Amendment No. 7 would insert the word "severe" into Clause 1(2)(d), so that it would read "severe damage to property". We feel that this paragraph needs clarification. Exactly what damage to property would qualify as an emergency? How much damage does there need to be and are there categories of property? Does there have to be damage to the extent of that caused in Florida by two successive hurricanes this summer? The Bill is focused on human welfare and the Joint Committee has reiterated the point many times. If that is the case, why is damage to property regarded as an event as severe as loss of human life? I look forward to what the Minister has to say on that amendment.
Amendment No. 8 leaves out of Clause 1(2)(e) the word "money". We feel that a disruption to the supply of food, water, energy or fuel would be an obvious threat to human welfare and we wanted to sound out the Government on why they have included "money" in this provision. What will constitute a disruption of the supply of money? Will it be a matter of a certain number of cash machines not working, or of banks being targeted by terrorists? Are local authorities equipped to deal with any disruption of money supply, other than for their own accounts? Surely this is a job that might involve the Bank of England.
Amendment No. 9 would amend Clause 1(2)(f), substituting "any" for "an electronic or other". This is designed to deal with concerns expressed by the Law Society and British Telecom. They are collectively concerned that the disruption of an electronic system of communication on its own should be left alone. After all, what does "other" mean?
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British Telecom believes that if there were disruption to its system by itself rather than as a by-product of a more serious incident, then it is best equipped to deal with any problems that arise. British Telecom has also questioned why the disruption to an electronic communications system such as the one it operates should involve local councils or other responders.
Amendment No. 10 would add another paragraph to subsection (2) using the words,
"spread of fire leading to circumstances damaging to human welfare".We feel that fire is not well covered in the Bill and that this is a dangerous omission. Many people in this country live in areas which are surrounded by dense woods or forests. The devastation which can be wreaked by a fire in such areas is well documented on television news broadcasts. Fires which have been started deliberately, as acts of arson, in places such as Australia or California, can be horrific. Why have the Government chosen not to add fire to the list in Clause 1(2)?
Amendment No. 11 is designed to probe what the Government have in mind for transport in Part 1 of the Bill. The amendment would leave out "transport" and insert,
"air, rail and sea transport and major roads considered vital to human welfare for the purposes of subsection (1)(a)".What will the role of local planning be for transport? Will air travel, which this amendment mentions specifically, require a national rather than a local response, especially in light of what happened in New York on 11 September 2001? What level of emergency are the Government expecting local authorities to plan for?
Amendment No. 12 would alter paragraph (h) to read, "disruption of services and impediment of persons concerned with preservation of health". This is another probing amendment. It is designed to deal with what would happen in the event of destruction of hospitals or the blocking of ambulances, doctors, nurses or other health staff trying to get to hospitals. That would clearly constitute a threat to human life and consequently, possibly, national security. Also, anything that prevents a doctor or nurse doing their job constitutes a threat to human welfare. We wish the Minister to clarify why there is so little definition in the Bill.
I thank the Minister for his patience while I have explained the amendments to the Committee. I look forward to his answer. I beg to move.
Lord Waddington: I am not quite sure that these amendments should be described as merely probing. I think that they are of considerable importance. In a moment or two, I may even persuade the noble and learned Lord, Lord Archer of Sandwell, that there is a read-across from Part 1 of the Bill to Part 2.
Obviously, it is Clause 19, not Clause 1, which sets out what is an emergency sufficient to trigger the emergency powers obtainable under Clause 22. But Clause 1 and Clause 19 are very similar; the Minister described them
15 Sept 2004 : Column 1216as following the same pattern. In fact, the situation is slightly different, because Clause 1(2) and Clause 19(2) are not simply similar; they are actually identical. If we accept Clause 1(2), it will be very difficult, when we come to Clause 19, to argue seriously against the wording of Clause 19(2). So we had better look here and now at Clause 1(2) very carefully and ask whether it is proper that the definition of emergency be drawn so wide when the existence of an emergency or the threat of one is the gateway to the use of the truly draconian emergency powers set out in the clauses after Clause 22.
A whole lot of matters should worry this House. In clause 1(2)(d), should the threat of any damage to property constitute an emergency? Should the threat of any damage, however trivial, constitute an emergency? I beg to doubt that. That is dealt with in Amendment No. 7. I do not look upon it as a probing amendment. I think that it is wrong that any threat of any damage to property should enable somebody to decide that there is an emergency.
Look at Clause 1(2)(e). Should the threat of the disruption of any supply of money constitute an emergency—any money, any amount of money, any supply of money, however trivial? Should that really enable somebody to come to a conclusion that there is an emergency?
Look at Clause 1(2)(g). Should the threat of the disruption of facilities for transport—an everyday event, I suggest, as an honourable Member in the other place also suggested—constitute an emergency? I beg to doubt that. That is dealt with in Amendment No. 11.
Look at Clause 1(3)(c). Should the threat of the disruption or destruction of plant or animal life constitute an emergency? I beg to doubt that.
All these could be serious threats. Equally, they could all be completely trivial. Is it not the duty of government to find a form of words in a Bill such as this which excludes trivial threats and includes real threats? Therefore, I am extremely worried about the wording of Clause 1(2) and Clause 19(2), which are identical.
I also point out that Clause 1(5) provides that the most junior Minister in government can, by order,
"provide that a specified event or situation"constitutes one of these threats. I say the most junior Minister, because "Minister", as provided in Clause 1(5) clearly cannot be a senior Minister within the meaning of Clause 20(2), and the definition of senior Minister in Clause 20(3) covers pretty junior Ministers. It covers, for instance, Whips, who are otherwise known as Commissioners of Her Majesty's Treasury.
Let us make no mistake about this. This Bill enables the most junior Minister in government to conclude that a very trivial threat of the interruption of transport could, if Parliament were stupid enough to approve the order, constitute an emergency. So let us look seriously
15 Sept 2004 : Column 1217at the wording of Clause 1(2) and ask the Minister to go away and try and find a form of words which excludes trivial threats.
Lord Archer of Sandwell: I am most grateful to the noble Lord for giving way. Does he appreciate that what is elaborated in subsection (2) are the matters which constitute human welfare? Under Clause 1, an emergency is an event which threatens "serious damage" to human welfare. So these matters cannot be trivial because Clause 1 prohibits that.
Lord Waddington: I am afraid I beg to differ. If I get a cold, my welfare is, to some extent, prejudiced. You could have some quite ordinary threat which nobody would imagine should lay the foundation for the assumption of emergency powers. You could get some very small threat which could be said to interfere, to some extent, with the welfare of the human being, but nobody in his right mind would say that it was a threat which should lay the foundation for the declaration of an emergency. So I do not think that the noble and learned Lord can really rely on Clause 1 to justify even the most trivial damage to property being included within Clause 1(2). Let us stick to the wording of Clause 1(2).
I suggest again that the Minister should find a form of words for Clause 1(2) which excludes trivial damage to property. It would be perfectly simple: one could just add the word "severe". My noble friend Lady Buscombe has made a number of suggestions as to how trivial threats could be excluded in that way. I do not commit myself to the precise words of my noble friend's amendments, but she does point the way towards excluding, as they should be excluded, truly trivial threats. That is of considerable importance for the reasons which my noble friend mentioned. Many people are very unhappy about the Bill because it appears to give the Government powers to order that a whole range of events and threatened happenings can be treated as an emergency and then to make regulations which give them powers which they never thought necessary in the darkest days of the war.
Let us get the Bill right from the beginning. We should not leave it until Clause 19. We should look closely right now at the wording of Clause 1(2) and exclude trivial threats.
Lord Archer of Sandwell: I fear that if the noble Lord were to write in an intermediate law examination what he has just said, he would never make the pass list. Let us look again at the structure of Clause 1. Subsection (1) states:
"In this Part 'emergency' means an event or situation which threatens serious damage to",
and it then lists three categories, the first of which is human welfare. Subsection (2) defines "human welfare". Its effect is that something is an emergency if it threatens serious damage in any of the ways it lists.
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The picture that the noble Lord, Lord Waddington, painted is out of Alice In Wonderland. "Serious" covers everything that he has just been talking about.
Lord Dixon-Smith: There is a difficulty that we need to face. Part 1 concerns "local arrangements for civil protection". We have contingency plans for all those "events" already. They all exist. They are not emergencies—Heaven help us—but they are part of normal life most of the time. They are dealt with by existing law and practice.
We have a problem in that the Bill repeals existing law so we have to put something in its place. We then have a further problem, because Part 1 and Part 2, which deal with emergency powers, both use the same word: "emergency". The real difficulty is that Part 1 does not deal with the word "emergency" in anything like the same context as Part 2, yet the word is identical and inseparable. The Government need to address that issue.
When I looked at the categories of damage to human welfare that are listed in Clause 1(2), I understood "loss of human life", "damage to property" and so on, but I had some difficulty with "disruption of a supply of money", particularly in this electronic age when money seems happily to slip out of one's wallet in the form of a little piece of plastic which goes into a machine. I would be slightly more concerned about the loss of electronic communication than about money, because most people seem to manage quite happily with minimal quantities of money a night. If we had to go back to the cash society, the provision would have some meaning, but money is very peculiar. However, the supply of water, food and energy are certainly fundamental to society and their interruption has properly to be dealt with.
I return to the basic flaw in the Bill, which is that it does not make the necessary distinction between "local arrangements for civil protection"—as Part 1 is headed—and the emergency powers with which Part 2 deals. However, both parts begin with "meaning of emergency". It cannot be right to have the same wording for those two, very different scales of problem.
Lord Hylton: I agree that these are important amendments that go beyond just probing. I say that because I take it—I may be wrong—that Clause 1, in defining emergency, triggers Clauses 7 and 8, whereby any Minister of the Crown, however junior, only has to think that the matter is urgent before he starts issuing directions. The directions do not even have to be written; they can be oral. While we all get on rather well with the present Government, we cannot foresee who are going to be Ministers in future governments.
As to the rest of the wording of Clause 1, the phrase "may cause", in line 12, is too loose and should be tightened up to something such as "be reasonably foreseen to cause". Clause 1(3)(a) lists "oil" as a qualifying form of environmental damage. We all know that a number of tankers have gone aground and broken up in places such as Milford Haven and the Cornish coast without a national emergency being
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declared. We also know that wrecks can cause pollution to the sea, again without national emergencies.
Clause 1(4)(a) contains the word "war", which we understand pretty accurately on the whole, but also "armed conflict". What is the meaning of that phrase? Does it mean just a gun crime that happens somewhere or does it include school massacres in the Dunblane style? The wording is generally unclear and I support the thrust of the amendments.
Lord Lucas: Could the Minister help me with some definitions? Where the Bill refers to "property", is that a wide definition of property or does it mean merely buildings? The wider definition is perhaps what we should be considering. The potential for our life to be disrupted by the disruption of data, relating to all kinds of aspects of our lives and not just money, is quite considerable. We live in an electronic society without a great deal of back-up. One does not have to attack just the money supply to cause an enormous amount of inconvenience to our ordinary lives. If one starts destroying government records—the records about us which permit us to go about our ordinary lives and give us our standard permissions to travel—and the records that businesses hold that allow them to operate, one is causing a considerable disruption. A successful virus attack might come into that kind of category. Those kinds of things should be prepared for under the Bill.
Does "communication" cover broadcast media, for instance, and newspapers? In this general planning part of the Bill we ought to be planning for that kind of disruption of communications. Since we are relying on the radio to tell us what to do if things go wrong, as part of Part 1 of the Bill, are we planning against the disruption of our broadcast radio communication network? My question is whether in this wording we are excluing parts of the structure of our society which we ought to be considering in the context of emergency planning.
Lord Brooke of Sutton Mandeville: One rarely has an opportunity personally to illustrate a speech by a noble friend, but perhaps I may make a highly personal intervention arising out of the speech of my noble friend Lord Waddington, with whom I had the privilege of serving in the Government Whips Office in another place in the early days of the first administration of my noble friend Lady Thatcher.
The difference between my noble friend and myself is that he was a Lord Commissioner of the Treasury and I was the most junior Whip in the office. Because my late noble kinsman and my late noble relative were both serving in your Lordships' House at the time, I regarded myself as profoundly junior to the most junior Whip in the Upper House and therefore as the most junior Minister in the entire Government, which was the example which my noble friend gave as being somebody who would have been able to trigger this legislation.
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Indeed, because my noble friend Lady Thatcher reshuffled—I personally prefer the word shuffled—her administration much less frequently than is the current vogue, I was the most junior Minister in the administration for a whole 21 months. If I may coin the phrase ab interiori, it concentrates the mind enormously to think that for 21 months I might have carried the responsibilities to which my noble friend Lord Waddington referred.
It was a quite sufficient challenge in the Whips Office to be given the job of manning the office on the Friday night of the Argentine invasion of the Falklands in order to field calls from the great British public about what the Government's position was arising out of that disaster. I can remember having to field a call from a man in Birmingham who asked why the Paras had not gone in already. An inquiry whether he had looked at a map before he asked me the question elicited the reply that he believed the Falkland Islands to be just west of the Hebrides, which of itself is an interesting demonstration of what knowledge of our great nation emerges during a crisis.
My noble friend has conjured the destruction of the entire administration and therefore these matters falling to the most junior Minister. As someone who did the job for quite a long time, it makes me profoundly nervous in retrospect that that possibility might ever have existed.
Lord Bassam of Brighton: I believe that these amendments have provided the opportunity for a useful discussion. I am grateful for all the contributions. I shall try to respond as best I can to the different points. I do not want to go over the issue which we dealt with under the first set of amendments concerning the different types and levels of emergency. I believe that I set that out fairly clearly. I was grateful to the noble and learned Lord, Lord Archer, for his support on that point during his intervention. His understanding is my understanding and that of the Government. I thought he explained the matter very clearly. He clearly followed what I said when we debated the matter with the first group of amendments.
Clause 1 sets out a clear definition of an emergency under Part 1 of the Bill. As I believe I said earlier, the definition underpins the framework of duties for local responders and ensures that we have a clear picture of the range and scale of events they should be preparing for. It defines an emergency as,
"an event or situation which threatens serious damage to human welfare . . . , the environment . . . or security of a place in the United Kingdom".
It then sets out what we believe is an exhaustive list of the kinds of events or situations that may constitute a threat to human welfare, the environment or security such as loss of life, contamination of land and terrorism.
It is worth reiterating here that this is not something that we have conjured up from nowhere. This definition has been very carefully drawn up in close consultation with a wide range of practitioners such as those who have to deal with these situations. They
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include the Association of Chief Police Officers, the Chief Fire Officers Association, the Emergency Planning Society and the Local Government Association.
The list reflects the diversity of situations those practitioners have to deal with. These range from localised flooding that we have experienced in places in my part of Sussex to a full scale chemical, biological, radiological or nuclear attack—which thankfully we have not suffered—and from flu pandemics to large-scale industrial accidents of which we have more experience.
This group of amendments proposes alterations to the range of events and situations that threaten human welfare. Subsequent groups of amendments probe the list of threats to the environment and security. These groups of amendments raise some interesting issues, but I strongly believe that the definition is robust, clear and helpful. It certainly seems to be to those who have to tackle the problems on the ground.
Debates were held at length in another place. It was a useful exchange of views and made us think about these matters again. As a consequence, it is worth setting out for the Committee in a little more detail why I believe the definition holds good. I shall work through each amendment in turn.
The effect of Amendment No. 7 is to provide that there must be severe damage to property before an event or situation can be treated as threatening human welfare. That is fair enough. Clause 1(2)(d) as currently drafted, requires only that there be damage to property. I certainly agree that for damage to property to constitute an emergency and to trigger civil protection duties it ought to be of a certain scale. I do not believe that we would lose much sleep over that.
However, I believe that the Bill provides for that. To meet the definition of "serious" in Clause 1(1) the threat to human welfare must be serious. These two provisions need to be read together. Thus the Bill already provides that damage to property will be an emergency only if it poses a threat of serious damage to human welfare. Furthermore, for an event to trigger the civil protection duties, it must also meet the thresholds set out in Clause 2. I shall go through that. It is described as an event or situation which would be likely seriously to obstruct the responder in the performance of his functions, or in relation to which the responder cannot respond in an appropriate way without changing the deployment of resources or acquiring additional resources. I believe that that covers what the noble Baroness seeks. We do not believe that the words of the amendment add anything further.
Amendment No. 8 proposes that the disruption of a supply of money should not be treated as a threat to human welfare. I hope that we can all agree that money is pretty fundamental to all our lives, whether in plastic or cash form, and a disruption of its supply can threaten human welfare; certainly it threatens mine if I do not have enough of it! Disruption to the supply of money has the potential to undermine the mechanisms
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of production, distribution and exchange. As I am sure noble Lords appreciate, this could have serious implications for human welfare and for the economic wealth of our country.
One could argue that a disruption of the supply of money would always have one of the effects mentioned in Clause 1(2), namely, the disruption of the supply of food or fuel, and is therefore not a threat to human welfare in its own right. But that will not always be the case. One can think of circumstances in which the disruption to a supply of money could disrupt access to food or fuel without disrupting its supply per se.
Furthermore, listing disruptions to the supply of money as a contingency that local responders should be planning for will be a useful clarification for local responders who may be required to deal with the consequences of such an interruption. One scenario might be a large-scale disruption of the electronic systems of banks. This could prevent consumers from access to cash via ATMs or the bank's electronic records and prevent consumers from using credit and debit cards. It is difficult to predict what can happen in these circumstances, but special arrangements might need to be put in place by the Department for Work and Pensions in co-operation with local authorities to issue vouchers or credit notes. Furthermore, there may be public order implications. I think it is right that we list it there. It is something for which we need to have contingency arrangements in place.
Amendment 9, the noble Baroness, Lady Buscombe, proposes, would remove express reference to electronic systems of communication. Again, this would remove a helpful clarification for local responders. Electronic systems of communication have become more and more important to the way we lead our lives: I refer to banks, shops, accessing government services online and firms conducting their businesses electronically. Electronic systems are therefore pretty crucial to human welfare and will only become more so, I suspect, in the future. While other forms of communication—telephone and mail—are also key, I think there is merit in making express reference to electronic systems. That we can do that is part of the benefit of new and modernised legislation.
Part of what we are trying to achieve with the Bill is a mind shift or culture change: getting local responders to think more widely about the range of risks we face in modern society, and to ensure that we are well prepared for it. It is not difficult to think of a scenario where a serious interruption of electronic systems would trigger the duties to assess risk and plan. For example, a possible attack on a social security computer system would require local authorities to ensure that it had alternative means of administering benefits to vulnerable people. How will they know who is eligible? How will payments be processed? The Bill would require local authorities to assess the risk of this occurring, and plan for this contingency if it was appropriate.
It should be noted that the purpose of including disruption of an electronic system of communication in the Bill is not to require or enable local responders to play a role in the recovery of the electronic system itself. That, of course, is for the service or system
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provider. But the failure of an electronic system may have wide ramifications right across the community. Local responders should be prepared to deal with those broader effects of disruption of the electronic systems of communication.
In Amendment 10, the noble Baroness, Lady Buscombe, proposes specifically adding the,
"spread of fire leading to circumstances damaging to human welfare",
as a threat to human welfare. I certainly agree with the noble Baroness that preparing for fires is clearly important. We have had some important debates during the passage of several recent Bills on fire and rescue services; I suspect that that is recognised across your Lordships' House. It is important, but the threat is adequately provided for in Clause 1(2)(a) and 1(2)(b). A fire would threaten human welfare because it threatens loss of human life or damage to property; there cannot be much doubt about that. No other provision in Clause 1(2) relates to the cause of a threat to human welfare; they all relate to consequences. To include a specific reference to fire would be awkward. Why mention fire, but not other sources of disaster such as an outbreak of an infectious disease or extreme weather conditions, flooding, severe storms and so on? That is the logic we have followed in drawing that particular clause together.
Amendment No. 11 makes it clear that disruption to certain forms of transport—namely, air, rail, road and sea—are covered by Clause 1(2)(g). I am not clear, on reflection, that this adds anything to the definition. It could actually weaken the definition. Does it mean that the disruption of travel by river, for example, is not covered? Nor is it necessary to refer specifically to vital transport. Disruption of a facility for transport would not necessarily, in itself, be an emergency. Noble Lords might recall that any disruption must, in addition, constitute a threat of serious damage to human welfare before it would be counted as an emergency.
Finally, Amendment No. 12 attempts to give clarity to the definition by ensuring that disruption of activities of health protection workers would be a threat to human welfare. I can certainly see the thrust of the amendment. The work undertaken by our health service—doctors, nurses, ambulance staff and so on—is clearly fundamental to the nation's welfare. But the amendment does not add much to the current drafting. If the disruption of the activities of health protection workers were to constitute a threat of serious damage to human welfare, it would presumably be the case because it had caused a disruption of services relating to health.
I take the point that it is difficult to strike a balance in the definitions of "emergency", and the noble Lord, Lord Waddington, I suppose, was picking away at that point. The noble Lord raised the issue of definition; I think we have got it right on balance. We have separated two definitions. I have explained that very clearly. They do relate to each other in some circumstances. Obviously, the definition, although different in Part 1 and Part 2, will cover the same, or very similar, events. But we do not think, to take the
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point of the noble Lord, Lord Waddington, that trivial threats will be caught. As I said earlier, the point of the noble and learned Lord, Lord Archer of Sandwell, was well made, in exactly understanding the nature of the emergency.
One or two other questions were asked. The noble Lord, Lord Hylton, asked what was meant, in the context of this debate, by "armed conflict". The inclusion of the reference to armed conflict will bring situations where these conditions are not met—for example, armed conflict involving a non-state entity—into the definition of "emergency". It would also obviate the need, in our view, to determine whether, as a matter of common law, a state of war exists between two states. This can, on occasions, be difficult. To put his mind at rest, I can say it will not cover gun crime.
The noble Lord, Lord Lucas, asked whether "communication" would include press and radio. The answer is yes, although to constitute an emergency the disruption would have to threaten serious damage to human welfare. It is quite possible to argue that, although perhaps difficult. I suspect it will also cover disruption to e-commerce. I think I covered the point the noble Lord, Lord Lucas, raised about damage to property. But, to add to that, I think we would see this as meaning that the damage would have to be severe and widespread before it would constitute an emergency. Of course, it is possible, in some circumstances, to conceive of cases where minor damage to a single property may be treated as an emergency. An example of that might be minor damage to a nuclear power station: the damage itself might be minor, but the consequences could be more severe. Such matters will depend very much on the circumstances.
We have covered this fairly. If I have missed a point, then I will try to come back to it.Lord Lucas: My Lords, may I take the Minister up on one of the illustrations he used, which is a disruption of the social security system? Suppose that I, as the terrorist, manage to destroy the underlying data in the Department of Work and Pensions, rather than disrupting any communications system—mind you, the department is quite capable of doing that for itself. Under what subsection of Clause 1(2) does that fall?
Lord Dixon-Smith: My Lords, the noble Lord has virtually taken the words from my mouth. I am not satisfied that the Minister has answered the point about the distinction between an emergency in Part 1 of the Bill, in Clause 1, and in Part 2 of the Bill in Clause 19.
Some of the Minister's comments concerned me. For instance, he said, using the illustration of the local social security office that loses its computer, that the local responders—which means the local authority—might have some responsibility to pick up the situation and do something about it. Well, if the computer of my bank, which probably has far more customers than the local social security office, goes on the blink, it is the bank that is responsible. Surely the first responsibility for the social security communication and information
15 Sept 2004 : Column 1225systems does not lie with the responder under this Bill? It lies with the social security service itself. So I was a little concerned that one might suddenly begin to extrapolate and say that the responders under the Bill have actually got some responsibility for that sort of service provision in a particular situation.
A Minister of the Crown, acting under Clause 1(5), may provide that,
"a specified event or situation . . . is to be treated as falling, or as not falling, within any of paragraphs (a) to (c) of subsection (1)".I do not need to quote it all. What is the distinction between that sort of emergency action and the emergency action implied by the emergency powers under Part 2?
There is a very clear distinction in my mind and, indeed, in practice, in emergency planning, between local arrangements for civil protection and those other arrangements. The arrangements for civil protection are clearly one thing, and the system works. I accept that those arrangements go all the way up to a minor accident at a nuclear power station. It could include, because the plans exist, the consequences of a major accident at a nuclear power station. The Minister will be aware that there should be plans for an emergency all the way along the south coast, in case something goes wrong, because there are 11 nuclear power stations on the south shore of the Channel—with the prevailing wind running as it normally does. If those plans do not exist, there is something seriously amiss.
The question of distinction is what I am talking about. A junior Minister acting under Clause 1(5) is performing precisely the same function as a Minister might perform in making emergency regulations under Clause 20. There is no distinction made—and yet there is a huge distinction. On the one hand, one is dealing with something that is local and can be dealt with simply, easily and straightforwardly on a local basis and, on the other, one is dealing with something that might be a serious national emergency. But the wording is the same.
I am sorry that the Minister has not explained the provisions in words that I can understand. However, we need to recognise that the solution to the sorts of problems that might arise, which could cause "a local difficulty", is not exclusively for the emergency responders. It involves the individuals who own the property, the banks and government services with their responsibility, and so on. The Minister began to imply that all those responsibilities fell on the responders. In so far as the responders are involved and are responsible, that may well be; but there are a lot of others who have responsibilities, some of whom will simply be co-operating with the emergency services—and that is as it should be. A large number of voluntary bodies are involved in all these systems, although they have not been mentioned yet. They are ready to participate in the consequences of such an event.
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I still have the problem that I cannot make a distinction between what the Minister says is involved in Part 1 and what the Bill says is involved in Part 2. There needs to be a clear distinction between the two things, because they are very different.
Lord Waddington: I wonder if the Minister could help me on the question of Clause 1 (5), because I am not sure that he has dealt with it. The unfortunate truth of the matter is that there does not have to be a situation which threatens serious damage to human welfare. What there must be is a Minister of the Crown who is prepared to make an order providing that,
"a specified event or situation, or class of event or situation, is to be treated",
Is the Minister really happy that there should be such a subjective test in the hands of the Minister involved, so that he does not have to show that there is a serious threat but can deem that a situation is one that poses a serious treat?
Lord Bassam of Brighton: I am grateful for the supplementary questions. In response to the noble Lord, Lord Lucas, the disruption of the administration of business was the point being made within the definition of "emergency". I believe that the noble Lord referred—I am sure that he will tell me if I am wrong—to the local administration of benefits, and I suppose by implication to the functioning of the government department administering benefits.
In itself, such a disruption would not constitute an emergency; it is really the consequences that flow from that disruption that is important. When the disruption can be seen to threaten human welfare, because it threatens the supply of money—benefits—then it may well do. Looking at the Bill, I suppose that one would then rely, strictly speaking, on subsection (2)(e), because that is where the threat would be felt. I believe that that answers his point.
In many respects, the noble Lord, Lord Dixon-Smith, was understanding and describing what he understood to be emergencies in different situations. It is difficult to wrestle with the two definitions, and how they interface with each other. I understand his search for a clear distinction; in most situations, I believe that there will be one. The key issue is not the content of the definitions; as a number of Members of the Committee have said, they are similar in most respects. The key issue is the triggers. I have already explained that the triggers are very different.
Clause 2(2) focuses Part 1 on local major incidents. The triggers in Clauses 19 and 21 focus Part 2 on national emergencies. I hope that that explanation helps to add some clarity, because it is very important. There will be times when a situation meets the Part 1 definition of an emergency but, as it develops and expands, it also meets the Part 2 definition. The situation will move on and change and, no doubt, the response will have to change to meet a different scale of
15 Sept 2004 : Column 1227threat. These situations are grounded in what actually happens and, obviously, we shall have to take account of them.
The noble Lord, Lord Waddington, further questioned me about ministerial involvement and what Ministers deem to be an emergency. Clause 1(5)(a) enables a Minister of the Crown to provide by order,
"that a specified event or situation, or class of event or situation, is to be treated as falling, or as not falling, within",the definition of emergency in subsection (1). An order under Clause 1(5)(a) cannot amend the definition of emergency in Clause 1(1), nor for that matter can it amend subsections (2) to (4). Thus such an order could not be used to make a provision that is contrary to subsections (1) to (4). In other words, the scope of the power is limited to those provisions.
The purpose of the power is, in part, to enable a Minister of the Crown 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 is the responsibility that rests with the Minister. I hope that that explanation helps the noble Lord, Lord Waddington. He probably had to deal with such situations in a former life, and perhaps he understands the matter better than I do as a consequence.
Baroness Buscombe: I thank the Minister and all noble Lords who have taken part in the debate. The debate on the amendments has helped to illustrate the extent to which it is sensible that we carefully scrutinise the Bill, because so many questions are being raised about the meaning of "emergency" in Parts 1 and 2. Perhaps one of the problems is that the title of Part 1 is "Local arrangements for civil protection" and it then goes straight into Clause 1, "Meaning of 'emergency'"; while Part 2 is titled "Emergency powers" and, again, "Meaning of 'emergency'" is the heading of the first clause under Part 2.
There is no question that there has been extensive consultation and pre-legislative scrutiny, but there remains in the mind of many Committee members and people in the world outside a great deal of uncertainty and a fear that there is a sufficient lack of clarity to cause concern. The Minister accepts that certain examples that noble Lords have suggested or raised are possibly—using his words, if I may—"difficult to wrestle with"; or that it is possibly difficult to argue whether, for example, a broadcasting communication breakdown could amount to an emergency.
Our perspective in Committee has tended, as illustrated by my noble friend Lord Brooke of Sutton Mandeville, to focus on the extraordinary responsibility of a person who may be an extremely junior Minister of the Crown to be able to respond sensibly, quickly and unequivocally in the event of an emergency, be it under Part 1 or Part 2. We have been trying to seek some clarity as to the parameters within which any Minister of the Crown should, would and could respond.
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I agree with my noble friend Lord Dixon-Smith that copious provisions are in place in current legislation and regulations to deal with localised problems for civil protection; in which case it is right that we probe with some vigour the need for the provisions in the Bill. I take on board my noble friend Lord Waddington's concern that I have raised the concerns this evening only as probing amendments and that perhaps I have not gone far enough in expressing our determination to ensure that before the Bill reaches the statute book there are clearer definitions and a clearer view of what will be the meaning of "emergency" and of the occasions when sometimes extraordinary measures will be introduced.
It is also right that we focus on a point raised by the noble Lord, Lord Hylton, that the problem rests with a very junior Minister and in almost all cases the need will be to respond quickly but the approach is totally subjective.
The title "Local arrangements for civil protection" masks the introduction of the wide-ranging powers that may be invoked. Therefore I am grateful to all noble Lords who have taken part in the debate. I hope that the Minister will take on board and reconsider some of the questions that noble Lords have raised before coming back on Report. While it is important that the perspectives of those involved in responding to emergencies have been able to take part in forming the view that the Bill is in some ways adequate, it is also important to consider it from the perspective of noble Lords and those who will have to make such difficult decisions once the Bill is passed. I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Amendments Nos. 8 to 12 not moved.
Baroness Buscombe moved Amendment No. 13:
Page 2, line 2, after "biological," insert "noxious,"
The noble Baroness said: In moving the amendment, I shall speak also to Amendment No. 14. We feel that it is important to consider situations that threaten to damage the environment. Amendments Nos. 13 and 14 make particular reference to subsection (3), which details events and situations that will be held to threaten damage to the environment. One such category is if the land is contaminated with,
"harmful biological, chemical or radio-active matter".
Amendment No. 13 would insert the word "noxious" after "biological".
Amendment No. 14 would add a new sub-paragraph:
"(iii) any controlled combustible substance".
We feel that it is important to underline the chemical, biological, radiological and nuclear threat and its effect on the environment. The Project Unicorn report states that,
"To the public at large the CBRM threat is undoubtedly the most frightening aspect of the new terrorism: it is also the one that the Government say the least about. It is little surprise, therefore, that the media fills the vacuum and the public assume the worst".
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Therefore, we would like the Government to accept Amendment No. 13 to insert the word "noxious", as it underlines the fact that this is an extraordinarily dangerous matter. Amendment No. 14 has been tabled to allow a discussion on combustible substances. Large-scale oil and petrol spills or the use of highly inflammable substances, either as a terrorist weapon or as a spoiling device—for instance, by animal rights or other movements—would threaten the environment as well as the welfare of anyone who became involved.
I look forward to the Minister's answers to the questions we have posed by tabling the amendments. I beg to move.
Lord Lucas: I would like elucidation of the meaning of some of the words in the Bill. To whom or what does the biological or chemical matter have to be "harmful"? If a farmer sprays a field with herbicide, that would be harmful to the weeds; it destroys a substantial amount of the environment including many insects that depend on the weeds. That would seem to fall within the Bill's definitions. I think that we are talking about harmful in a more restricted way; but in what restricted way? What gives us our understanding of what sort of events are to be planned for and not planned for under this category?
Contamination with oil can be temporary and cause little long-term damage to an ecosystem, as we have seen when various tankers have contaminated the shores: there is a period when things die and then everything comes back pretty straight. Is such contamination harmful or not? It probably destroys rather less than the deliberate acts of our average farmer.
What is meant by "harmful biological" material? How can we contaminate land with harmful biological material? What sort of flooding are we talking about that is to be the subject of regulations but does not come under Clause 1(2) because it threatens human welfare; and does not come under Clause 1(3)(a) or (c)? Surely any flooding that is not already covered by those clauses does not constitute a disaster of any description.
Lord Monson: The noble Baroness, Lady Buscombe, has made a good case for her two amendments but I should like, if I may, to raise another point in connection with Clause 1(3). Subsection (3)(b) refers to "flooding", but what about fire? Clearly, fire that threatens residential or commercial property will be covered by subsection (2), but what about forest fires? We are not habitually threatened by the sort of forest fire that plagues the south of France, Spain, Portugal and Australia to name just a few countries, but with climate change it is not impossible that this may start to happen. What about, for example, stubble fire? Nowadays, of course, stubble burning is banned but a stubble fire can easily be started accidentally. Supposing that it spreads, it could threaten a very large acreage. So far as I can see, this is not covered at all in the Bill as it stands. Although
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I am not generally in favour of extending the remit of this Bill, quite the opposite, I would be grateful if the Minister could consider the point that I have made.
Lord Bassam of Brighton: As I mentioned in relation to an earlier group of amendments, the definition of "emergency" goes a long way to underpin the framework of duties which are set out in Part 1 of the Bill, which gives a clear picture of the range and scale of events for which we should be providing.
As the noble Baroness explained, it is proposed through Amendments Nos. 13 and 14 to alter the range of events or situations that constitute a threat to the environment. We have worked very closely with the stakeholders to get this definition right and listened carefully to environmentalists and, no doubt, the Environment Agency and others, to ensure that our thinking is sound. We have finessed the measure in response to their thinking.
I turn to Amendment No. 13. Clause 1 provides that contamination of land, water or air with,
"harmful biological, chemical or radio-active matter"
may constitute a threat of serious damage to the environment. What the noble Baroness proposes would expressly provide that any chemical matter must be noxious to constitute a threat to the environment. The Bill already provides that biological, chemical or radioactive matter must be harmful to constitute a threat to the environment. That covers the term "noxious". I suggest that those things would be noxious in any event. I am not sure that the amendment would add anything. I ask the noble Baroness, what does it add to the definition?
As regards Amendment No. 14, to my mind it is very difficult to think of a threat of serious damage to the environment that would not be covered in the Bill as drafted. However, the noble Baroness suggested adding controlled combustible substances to the list. The noble Baroness is absolutely right to note that combustible substances pose a threat. However, in so far as they present a threat to human welfare, we believe that they are covered by Clause 1(2), and their threat to the environment will either be caused by the chemicals they contain or the impact they have on plant or animal life. We believe, therefore, that they will be covered.
The noble Lord, Lord Lucas, asked what we meant by harmful. We mean by that harmful to human welfare. The noble Lord asked how serious the harm and the floods must be. The provision explains what kind of event may threaten the environment, so we mean harm to the environment: plants, water, animals and so on. As I said, Clause 1(2) deals with threats to human health. The trigger mentioned in Clause 2(2) will apply. The event will engage the civil protection duties only if it overwhelms the day-to-day resources of the responder. As an old local government lag I suspect that events such as the floods in Uckfield or Lewes would trigger the legislation. Perhaps the noble Lord, Lord Dixon-Smith, has more experience of this than I because he can no doubt remember the Essex floods of the early 1950s. I was just born at that time—
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I am rather pleased that I was—but I have little doubt that the legislation would cover that situation. I hope that answers the point which has been raised. I believe that I have covered the point raised by the noble Lord, Lord Monson. If I have not, perhaps he will remind me of it and I shall return to it later.
Lord Monson: I asked why forest fire and fires of that nature were not included with flooding.
Lord Bassam of Brighton: I not sure that the noble Lord was present but I covered the fire point earlier. We believe that the definition is broad enough to encapsulate that and we do not think that it would be right to specify it on the face of the Bill. I explained that very carefully for the benefit of the noble Baroness, Lady Buscombe.
Lord Lucas: I think that the noble Lord has satisfied me on paragraph (a) but I still have a difficulty with paragraph (b). As I said, for this measure to be useful a flood has to pose no threat to human welfare because otherwise it would come under Clause 1(2); it has to pose no threat to the contamination of land because otherwise it would come under paragraph (a); and it has to pose no threat to plant life or animal life otherwise it would come under paragraph (c). So what kind of flood that has no such implications is a disaster which local authorities should spend time and money planning for?
Lord Bassam of Brighton: I shall think about that. I believe that the noble Lord sees a difficulty that I do not, but I shall think about it.
Baroness Buscombe: I thank the Minister for his response. I also thank the noble Lord, Lord Monson, and my noble friend Lord Lucas for posing questions with regard to the need for more clarity. Indeed, I refer the Minister to a comment he made in response to my Amendment No. 9 in which he stated that in drafting the legislation in this manner the Government were seeking to encourage those involved in civil protection to think more widely. The Minister gave the example of using the word "electronic" but not specifying other kinds of communication, in which case surely these amendments that I have tabled are consistent with what the Minister said with regard to the need to have a more extensive, clear explanation of what is and is not included.
I hear what the Minister said. In proposing these amendments we are seeking to alter that which is already in the Bill. However, we are also trying to add to what is already in the Bill in order to assist those involved in civil protection who will often have to act quickly, and also when they are assessing and trying to be strategic about their civil protection measures so that they focus on as many of the kinds of situations to which they will need to respond as possible. We have had a good debate on these amendments and, for now, I beg leave to withdraw the amendment.
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Amendment, by leave, withdrawn.
[Amendments Nos. 14 and 15 not moved.]
On Question, Whether Clause 1 shall stand part of the Bill?Lord Lucas: I have no rooted objection to Clause 1 standing part of the Bill. However, my noble friend Lord Waddington and others have put me very much in mind of the thought that we need some way of differentiating Part 1 and Part 2 because the use of "emergency" as the operative word in both parts—I agree with my noble friend—is in danger of confusing ordinary readers of this Bill. It requires one to hold in one's mind two definitions of the same word—a very crucial word—in the same Bill. That is probably undesirable. I should like to propose that in Part 1 we substitute the word "disaster". First, this is a word that is well used by the Government in their publication, Dealing with Disaster.
Secondly, there is a difference between "disaster" and "emergency" which applies well to these two sections. "Disaster" is something that, when it happens, is dealt with well because we have planned for it and organised for it and everything clicks into place. That is what Part 1 is about; it is making sure that when a disaster happens we deal well with it.
"Emergency" is more of a Corporal Jones incident—"Don't panic! Don't panic! Help!"—rushing about frantically trying to scramble things together to make sure that we hold human life and limb together in the way that seems impossible on day one. The terms are different; the consequences are different. We deal with a very different attitude to these things. Part 1 is all about planning; Part 2 is all about extraordinary powers for the Government to deal with extraordinary situations.
If we change the language in Part 1, it would be enormously helpful in the end to the world outside in appreciating the difference between the two terms.
Lord Waddington: I remain deeply worried about Clause 1(5). I know that the Minister did his best with a note that was passed to him, but I wonder whether he will just try again. Clause 1(5) reads:
"A Minister of the Crown . . . may by order provide that a specified event or situation . . . is to be treated as falling . . . within"subsection (1)(a). That paragraph refers to an event which threatens serious damage to human welfare.
When one therefore reads together Clause 1(1) and 1(5), Clause 1(5) now reads:
"A Minister of the Crown may by order provide that a specified event or situation is to be treated as (a) threatening serious damage to human welfare".
Lord Brooke of Sutton Mandeville: The question I want to ask does not follow immediately on the point made by the noble Lord, Lord Waddington, but may touch on it. I would have asked this question had we debated Amendment No. 15, but my noble friend Lord Lucas has given us the opportunity of asking it
15 Sept 2004 : Column 1233under these circumstances. I am delighted to have this opportunity. However, my question does refer back to Amendment No. 15.
Although the Explanatory Notes to the Bill say that subsections (2) to (4) of Clause 1 "specify exhaustively" the kind of events that the Government have in mind that,
"threaten damage to human welfare, the environment or security",it could be said that Clause 1(2) and (3) might be regarded as exhaustive, as the Explanatory Notes say. The Delegated Powers and Regulatory Reform Committee, of which I am a member, in our 25th report, concurred that Clause 1(2) and (3) could be regarded as exhaustive, but did not do so in regard to Clause 1(4). The report simply said, in paragraph 5:
"Clause 1(4) provides a list as respects security".It did not include the word "exhaustive". I would like to verify whether in the Minister's mind Clause 1(4) is exhaustive—as the Explanatory Notes say.
I mention incidentally that the example given by my noble friend Lady Buscombe in an earlier debate, relating to the events that have recently occurred in the Chamber of the other place, would not, as I understand it—since it was not presumably an act of terrorism—fall within the purview of this clause. I simply cite that as an example that has occurred in the course of this debate.
My late noble kinsman, to whom I alluded in my last speech, had a constituent called Miss Compton Collier who used to go round photographing the families of great houses. If you go round those families you will see photographs by her on side tables. Because she was my late noble kinsman's constituent, we got to know her quite well. She said that she took no newspaper; she did not own a radio; she did not watch television; she relied entirely for news of the world on her bank manager. Her bank manager, not unreasonably, said: "I shall need some guidance, Miss Collier. If I am to provide you with news of the world, could you give me examples of what you mean?" "Oh, yes", she said, "it is perfectly simple. I mean the death of the sovereign or the outbreak of war".
There are enormous virtues of simplicity in that, especially—as was mentioned earlier in the debate—given the reluctance of governments of all colours to allow additions to lists in legislation, in Committee, in the way that we might be debating now. But I would like confirmation from the Minister, as the Explanatory Notes imply, that Clause 1(4) is meant to be exhaustive.
Lord Renton: I, too, have had doubts about the effect of Clause 1(4). The use of the word "terrorism", just as it stands, could mean terrorism that has actually taken place, whereas we should be providing against the possibility of it being threatened. That is why Amendment No. 15 would have been of some help. I do not understand why it was not moved. But I support
15 Sept 2004 : Column 1234what has been said by my noble friend Lord Brooke and by others that we have to be very cautious indeed about the effect of Clause 1 and especially of subsection (4).
Lord Dixon-Smith: I thank my noble friend Lord Lucas for providing me with a solution to my dilemma, of the need to distinguish between Parts 1 and 2 of the Bill. I am most grateful to him for the possible use of the word "disaster". I would join him in inviting the Minister and the Government to consider that possibility very carefully. It would make the distinction between those two parts of the Bill much clearer.
As regards my noble friend Lord Waddington's concern over Clause 1(5), I think subsection (5) is tautologous. The meaning of the word "disaster" applies to situations which should be properly treated under Part 1 of the Bill. I have tried hard to think of something that a Minister of the Crown or a Scottish Minister might, by order,
"provide that a specified event or situation, or class of event or situation"—be treated as falling within that, which does not already fall in it. I would be interested to hear if the Minister can provide some examples of events that are not going to have the effects of subsections (1) and (2) of Clause 1, which a Minister might require to order to include. I have the greatest difficulty in seeing that. We would be on much safer ground if subsection (5) were not in the Bill. But that is for another day.
Lord Hylton: What the noble Lord, Lord Lucas, said about Part 1 being relabelled as dealing with disasters was extremely helpful. Perhaps he and your Lordships would like to consider whether "disaster" might usefully be expanded to include major threats and risk to the public. If that proved to be acceptable, the duties of Ministers—particularly under Clauses 7 and 8—should be essentially to co-ordinate national and local efforts to either prevent or remedy a given situation.
Lord Bassam of Brighton: I am grateful to noble Lords for the opportunity to respond to some of their additional points. I will try to deal with them in turn. In general, we have had a helpful debate on Clause 1. I can see that confusion still remains in the mind of some noble Lords. That is probably my fault, but there has been some useful clarification.
I shall start the comments of the noble Lord, Lord Lucas. The definition of "emergency" in Parts 1 and 2 is not the same. There is a distinction. The key issue is that of scale and effect, and that is why those two definitions are there. We started with that point and, in a sense, I finish with it. I am not attracted to the noble Lord's use of the word, "disaster". It is an overused word, and I am not sure that it would greatly help us. Sometimes my son uses the word to describe Brighton and Hove Albion conceding two goals before half-time. It may be a disaster for him, but it is not necessarily a disaster for all the other teams in the Football League. We start to get into difficulties with the use of a word which is not part of the language used
15 Sept 2004 : Column 1235by the practitioners. It is the practitioners who have to respond to the situations we are talking about. It is starting to use terms that the practitioners are unfamiliar with and avoids careful definition.
We have discussed this; we have worked with practitioners, and there has been a long consultation on the matter. They are not confused by the definitions nor their workability. That is the key issue here. Certainly, the descriptions relating to "emergency" that are itemised in Clause 1 will be well understood by responders who have to deal with those situations.
I can tell that the noble Lord, Lord Waddington, is exercised and worried by Clause 1(5) and ministerial responsibilities. But I believe that Clause 1(5) stands, and I do not agree with the noble Lord, Lord Dixon-Smith, that it is tautologous. It will be important for a Minister of the Crown, acting on information, to be in a position to specify by order the situations that need to be dealt with. No doubt that will be important.
I cannot recall precisely all of the responsibilities held by the noble Lord, Lord Waddington, when he was a Minister, but I have little doubt that during that time there may well have been situations where a Minister of the Crown was called upon to determine whether or not a certain situation was to be treated as an emergency in the terms which we have described. We certainly had events like the great storm and the impact that that had on local services across a wide part of the country and the desire, certainly in local government, to trigger the Bellwin rules and so on, to ensure that local areas could recover from the effects of that storm. It may well be that an order needs to be put in place to cover that sort of eventuality.
Of course, between now and Report, we will reflect further on Clause 1(5) and, if it helps, I am happy to— Lord Waddington: The Minister will recognise that one of the reasons I am raising this is that, again, this clause is mirrored in Clause 19. It is worth bearing in mind that Clause 1(5) and Clause 19(5) are identical. I am raising that at this point so that no one can say later, "Well, the matter was not canvassed at the earliest possible opportunity".
Lord Bassam of Brighton: I am grateful to the noble Lord for that clarification, and I hope that I have helped him by explaining the situation.
The noble Lord, Lord Brooke of Sutton Mandeville, asked whether the list described in Clause 1(4) regarding threats to security was exhaustive. I think that it is. We have given the matter a great deal of thought. In order to be absolutely certain, we will look again at the drafting, because I would not wish us to miss anything. This is too important for that. I am happy to write to the noble Lord on that point between now and Report. Of course I will gladly share the fruits of that correspondence with all other noble Lords who have been involved in this debate. In that, we can pick up the point made by other noble Lords about terrorism. So I am quite happy to ensure that we do that and provide some further clarification, because I accept that there is some unease—although I believe that the clause works well enough.
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Clause 1 agreed to.
Clause 2 [Duty to assess, plan and advise]:
Baroness Buscombe moved Amendment No. 16:
Page 2, line 27, leave out "from time to time" and insert "every three months"
The noble Baroness said: In moving the amendment, I shall also speak to Amendment No. 17. Both relate to Clause 2, which addresses the duty to "assess, plan and advise" with regard to contingency planning.
The Bill requires,
"A person or body listed in Part 1 or 2 of Schedule 1"—
namely, a county council, a district council, a London borough council, the Common Council of the City of London and the Council of the Isles of Scilly, to—
"assess the risk of an emergency occurring",
"from time to time assess the risk of an emergency making it necessary or expedient for the person or body to perform any of his or its functions".
Our amendment would change that to ensure that that rather vague phrase "from time to time" should be replaced by, "every three months".
That is a reasonable interval to review current risks. We are all aware how quickly situations can change. The threat of terrorism can change overnight. What was the Government's thinking when they drafted the words "from time to time"? What sort of timescale were they envisaging? How will it be possible to ensure that each council reviews its plans enough if the Government will not set a timetable? The Bill covers many bodies, and it is feasible that one police area will look at its emergency planning every three to six months, while another may look at it every five or so years. Do the Government think that the latter would be enough to keep up with the threats that modern society now faces?
Health authorities may be extremely well prepared, because they have emergency problems of their own to deal with. How often will they carry out systematic reviews of their procedures? Will it not be a temptation for such bodies to put off any reviews until it is too late? Local government associations will also have to think about budgets. If there is no pressure on them to ensure that they have adequate planning in place, will there not be a temptation to spend the money on other services?
I look forward to hearing the Government's view, and I beg to move.
Lord Renton: I agree with the comments of my noble friend Lady Buscombe about the expression, "from time to time". That could mean scarcely ever. Given the type of serious threat that might have to be dealt with, including the words, "every three months" places an obligation on authorities. I should tell my noble friend that I would have preferred the amendment to say, "at least every three months", because there may be more than one occasion for reassessment within those three months.
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So, although I hope that the Government will accept the amendment, we should insert the words, "at least" on Report.
Baroness Masham of Ilton: I should have thought that, "from time to time" was too vague, but that, "every three months" was too rigid. Why not have some words such as, "when necessary"? It might be that the situation would have to be reviewed every few days—or, in some cases, not every three months, but longer. I suggest that, "necessary" would be better.
Baroness Hamwee: Is the noble Lord, Lord Lucas, going to speak to his amendments?
Lord Lucas: No, we are off in a completely different direction, and I shall pick them up in their place on the list.
Baroness Hamwee: In that event, I am not happy. The Minister and I have had almost exactly this debate on the Housing Bill within the past three or four days. This amendment might suggest that a "tick-box" exercise was to be undertaken at a set period. I am comfortable with the phrase "from time to time", which, to me, suggests keeping under continual review. However, I note that it does not mean that to the noble Lord, Lord Renton, whose legal experience is far longer and deeper than mine, nor to the noble Baroness, Lady Buscombe, with her background. Still, whatever the traditional phrase, a reference in the debate on the Housing Bill to "keeping under review" seemed—forgive the pun—to fit the bill. The point is to look at the issue, not "tick-box exercises". A different amount of time and a different quantity and quality of attention will be required, depending on the context and the circumstances.
I picked up on a reference to "ring fencing" in the noble Baroness's speech. We on these Benches would be cautious about too great a degree of ring fencing. The Government already do enough of that with their grants—too much, in fact. Local authorities should be treated as responsible bodies; they need to judge what the requirements are. I cannot see any of them taking a view that they do not need to take emergency planning seriously.
Lord Dixon-Smith: I have some sympathy with my noble friend on the Front Bench on this matter. It seems awfully casual to assess the risk "from time to time", whereas it needs to be a continuous rolling process. However, I have to admit that I have some difficulty with "every three months", because there are so many separate emergency plans in the county of Essex that it simply would not be physically possible to review them that often, unless one had the most enormous staff.
The plans do not need reviewing every three months, but they certainly do whenever circumstances change. That might mean changes in access, or developments in a particular industrial installation that increase the scale of the risk. It could even be the other way round:
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that an oil refinery finds it does not want a part of its installation to work at all, which might reduce the level of risk. All those things go on. There is, in fact, a process of rolling review.
We need to think about the wording. The existing wording is not adequate, but I have not heard wording that I prefer. Will the Minister look at this issue, and see if he cannot come up with something that more nearly fits the situation? As it is, the emergency planners I am aware of try to keep everything under more or less permanent review. Of course they prioritise the different areas of their work, because they know the local circumstances and can make that judgment. While a three-month period provides a proper stimulation in one direction, there are circumstances where it would be completely inappropriate. Equally, a situation might develop where a review would be necessary more often. It is a question of practice.
The wording ought to be better, although I have not put my mind to what it should be. Since I regard myself as an amateur draftsman where Bills are concerned, and usually compose wording simply for amusement and fun—though always with a serious intent—it would be much better if the Government would grasp the nettle and do the drafting for us.
Lord Brooke of Sutton Mandeville: I apologise if my question is unduly simplistic, but one of the disadvantages of the looseness of "from time to time" is that it is not immediately clear whether the phrase in subsection 1(b) of Clause 2 is the same "from time to time" as in subsection 1(a). In other words, whether the person or body is obliged by statute to perform the two functions coincidentally, or whether, although statutory, it is also permissive in allowing them to do so at different times. It would be helpful if the Minister could clarify that when he rises to respond.
Lord Bassam of Brighton: I always like the noble Lord, Lord Brooke of Sutton Mandeville's, interventions. They always add a note of levity, but with a serious purport behind them, and it greatly enlivens our proceedings.
I want to start with the point I have made several times so far this afternoon. We have developed our framework in a very open way. It would be fair to say that it has been one of the longest consultative processes we have ever engaged in. I am probably going off at a tangent here, but we have had two major public consultations on this issue, we have received some 400 plus different responses, and we have given the framework a great deal of thought. To take up the point made by the noble Lord, Lord Dixon-Smith, that the use of the expression "from time to time" was rather casual, we have not approached this issue in a casual way at all.
Lord Dixon-Smith: I certainly would not wish to imply that the Government's approach was in any way casual, and I hope that was not read into what I said. However, we are dealing with the wording of the Bill, and that is what we have to get right. I am prepared to
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accept that the Government have been assiduous in trying to get the Bill into a reasonable form, but the fact is that, when it then comes before this Chamber, it is our function to improve it if we can.
Lord Bassam of Brighton: I am grateful for that support. I welcome the fact that the noble Lord believes the Government have been assiduous, because I think we have.
These amendments deal with the issue of risk assessment, which is critical in ensuring that the effort, resources and protection go where they are most needed. The Bill imposes a duty on all category 1 responders to assess the risk of emergencies occurring, and to use that to inform the emergency planning. I do not accept the need to require local responders to conduct risk assessment every three months. The noble Lord, Lord Dixon-Smith, half made the point for us: the way in which that particular amendment is drafted would in the end impose something of a bureaucratic straitjacket, and I do not think that is the spirit behind it. The noble Baroness, Lady Buscombe, is trying to ensure that there is a necessary regularity to risk assessments. There is a problem there, though: the amendment provides too constrained a timeframe, and, as the noble Lord, Lord Dixon-Smith, said, is probably unnecessary. We want to retain the use of the expression "from time to time" within the legislation.
The purpose of the duty to assess risk will be to ensure that each category 1 responder is aware of the kind of level of risks they may face, so they can maintain plans to respond to them. They should assess the risk of an emergency happening as often as necessary to maintain the right level of preparedness. Local responders prepare and respond to a wide range of events, ranging from flooding to flu, from train crashes to terrorist attacks. I am sure the noble Baroness will appreciate that some aspects of risk assessment for emergencies need to be undertaken more frequently than others. It will depend, ultimately, on the range of change in the risk environment—for example, the type and volume of traffic at an airport or on a railway. Assessing the risk of terrorism in a major city may need to be done almost on a daily basis. At the other end of the spectrum, assessing the risk of a building or a bridge collapsing will need to be done a lot less frequently.
Accepting the amendments tabled by the noble Baroness would mean that, in some circumstances, risk assessment would be carried out too frequently, causing waste of valuable resource, and in other circumstances local responders might not review risks sufficiently frequently to inform effective emergency planning and ensure that robust plans are in hand.
The current wording, "from time to time", recognises the time-consuming and resource-intensive nature of risk assessment. It also recognises that the risks faced by local responders are diverse and need to be assessed and reviewed against different timescales. Local responders support that approach. I received a letter yesterday from the Local Government Association in which it makes
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plain, in the fourth paragraph, where it sits on the argument. Its views on the matter are very important because it will have a major role to play. It says:
"The Bill requires responders to assess the risk of an emergency occurring from time to time. The LGA is aware of an amendment to be moved at Committee stage which aims to require such assessments to be carried out every three months. We believe that the wording of this clause should not be changed, as ideally good practice demands that plans should be under continual review. "From time to time" allows the flexibility to assess a risk as and when information suggests a potential change in that risk".
That letter makes the argument for us. For that very important reason, we wish to retain the current wording.
We need to empower local responders to make the right judgment about the frequency of risk assessment. The Government will produce helpful and practical guidance to help responders make informed decisions. We are committed to working with the practitioners that matter—ACPO, the Emergency Planning Society, the Association of British Insurers and the Association of Local Authority Risk Managers—to ensure that we get it right.
The current draft guidance emphasises the importance of reviewing risk assessments often enough to ensure that they are fit for purpose. It recommends a wholesale review of assessments, and their implications for plans, every three years, with a continuous process of review. This guidance, to which local responders must have regard, would ensure that the duty was pitched at the right level.
For those reasons, although I understand the concern expressed, I cannot accept the approach. We are happy to rest with the current wording in the Bill.
Lord Renton: Before the noble Lord sits down, will he bear in mind that "from time to time" could mean every year or two, which is utterly inappropriate?
Lord Bassam of Brighton: As I have carefully explained, risks vary and some emergency events occur less frequently than others. The wording enables flexibility. Fortunately, a bridge collapsing is a very uncommon experience in our society, so it would be mad to assess that risk three-monthly. On the other hand, there are other more frequent occurrences in society; therefore, we need the flexibility to respond to them more rapidly and to ensure that our plans are robust enough to ensure that the public have the highest level of protection available.
The noble Lord, Lord Brooke, asked whether responders need assess the risk of an emergency occurring at the same time as they assess whether they would need to respond to it—that is what the Clause 2(1)(b) duty implies. The answer is no; they are different duties. The risk of a particular event happening may change, which would necessitate a review of the risk assessment under Clause 2(1)(a). Alternatively, the functions of a responder may alter, which might necessitate a review of the kind of risks to
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which a responder will need to respond under Clause 2(1)(b). That should answer the noble Lord's point.
Baroness Buscombe: I thank the noble Lord, for his response, and all Members of the Committee who have taken part in the debate. I should say straightaway that the note passed to the Minister from the Local Government Association is quite instructive. It suggests that the strategy, the ability to assess and the local civil protection measures should be under continual review. That makes my point very well, in the sense that continual review is very different from "from time to time". As my noble friend Lord Renton has said, "from time to time" can mean scarcely ever, whereas continual review could be just what the Minister suggests the Bill does not intend: that is to say, create a bureaucratic straitjacket. We are trying through our amendment to encourage local authorities and others to think about the situation regularly, to reflect the often stark changes experienced in the world perhaps over a shorter period than we might have reflected upon even five years ago.
I take on board the point made by the noble Baroness, Lady Hamwee, that we do not want a situation of tick-boxing, with which those involved in local government, the police and others are already hugely burdened. We are talking about crucial measures that can affect human life. We are trying to create a situation whereby we inject management of civil protection in a way that is meaningful but not too onerous.
Perhaps we have not got it quite right, and every three months is too often. But, given the suggestions that all Members of the Committee have made, I urge noble Lords to join me in the coming weeks in thinking about other wording that we might use instead of "from time to time" or "every three months". I reassure the Minister that I heard the noble Lord, Lord Dixon-Smith, say that the wording itself, as opposed to the Minister's response to the need to consult, was casual. For now, I beg leave to withdraw the amendment
Amendment, by leave, withdrawn.
[Amendment No. 17 not moved.]
The Deputy Chairman of Committees (Viscount Simon): Amendment No. 18 is tabled in the name of the noble Lord, Lord Lucas.
Lord Lucas: I do not know whether the Committee wishes to carry on the debate now. I warn noble Lords that I am likely to take 20 minutes-plus on this group.
Lord Triesman: I beg to move that the House do now resume, and that the Committee stage begin again at approximately 8.30 p.m.
Moved accordingly, and, on Question, Motion agreed to.
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Lord Patten rose to ask Her Majesty's Government whether they now consider that the United Kingdom needs a written constitution.
The noble Lord said: My Lords, I congratulate the noble Baroness, Lady Ashton of Upholland, on her new appointment. She has come from a department that is always full of challenges to one that might have been thought by some to be a rather quiet place. But I suspect that the Department for Constitutional Affairs will have many more challenges as constitutional change shoots up the political agenda in the next months and years. The noble and learned Lord the Lord Chancellor is very lucky to have the noble Baroness to help him in what will be a very difficult and challenging time for his department. I am also grateful to all those who have chosen to speak in this debate on the Motion, to the end of which might have been added the immortal words, "and, if not, why not?".
I freely admit that I am surprised to be asking this question at all, having had a hitherto inbuilt respect for our uncodified, partly written constitutional arrangements. Rather like the apocryphal Peer in that far-too-often-told tale who had a dream about speaking in this place and woke up to find that it was actually happening, here I am wide awake at least exploring the case for a written constitution. I am no expert nor a noted constitutional authority, as is my noble friend Lord Norton of Louth. Rather, representing the ordinary Back-Bench Peer in the street, I am sadly drawn to think that more formal arrangements may have to come along in the face of what I believe to be a constitutionally frivolous administration.
What is the charge sheet to support that? There is no mention of any proposed changes in manifestos to obtain legitimacy for constitutional change. There is no respect for precedent. There is no evidence of carefully thought-out planning for constitutional changes, and no belief in prior consultation, let alone Green or White Papers to test the water to gain understanding, let alone to seek consent.
My natural delicacy prevents me lingering too long on matters such as botched reshuffles, reducing, for example, changes to the Lord Chancellorship to the level of a Gilbert and Sullivan farce, painful parliamentary defeats in this place, or the setting alight of our judiciary for a while—alas, not keeping them alight and blazing long enough for my taste—let alone the broken constitutional pledges galore, for example, to our hereditary colleagues back in 1999, and very much more.
The outcome of the Government's self-styled "constitutional radicalism" has, I believe, turned out to be seriously half-baked. Let us just look at your Lordships' House, now left alone, as what was glaringly obvious to the most indolent of us—that the Government were on the verge of giving this House real political clout—has actually sunk in to the Government.
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In the face of what seems to me to be rightly called "constitutional chaos", I asked on 9 May, in order to see what the view was, whether the Government were considering introducing a written constitution. I asked that because I believe in due process in constitutional change. I believe that constitutional change should not be left to one man—the Prime Minister—on a whim in this new era of sofa government, which I find so alarming.
If the Minister wants an example of that attitude, she needs only to look back to the Prime Minister's Pauline conversion on holiday one day from being dead against a referendum on the European constitution to being thoroughly in its favour, having, so far as I can see, never left the sofa of state to discuss the issue with his Cabinet colleagues for one moment. But the answer that I received from the Secretary of State for Constitutional Affairs was not very revealing; he simply said "No".
Another example of just how lightweight and frivolous I believe the Prime Minister has been on constitutional matters is that afternoon back in June 2003 when the right honourable gentleman decided on the spur of the moment to make those sweeping changes to the post of Lord Chancellor and to our top judiciary. As it happens, some of those changes—particularly to the judicial functions of the Lord Chancellorship—I do not dissent from. Indeed, a good few years ago—long before the cause became fashionable in your Lordships' House—I remember taking part in a debate with the noble Lord, Lord Desai, whom I see in his place. We both argued in the same vein, and, as it turned out, ultimately not in vain, for some of the changes to be made.
But I say to the noble Baroness that it is the constitutionally abhorrent way in which the changes have been carried out that makes me genuinely fear for our freedoms and to look to other jurisdictions with more settled arrangements—that is, requirements for two-thirds majorities of their legislatures before changes are made, and so on—with some envy. How those kinds of administration must look with wonder at our sofa-government arrangements in this country.
By coincidence, the law firm Ashurst is holding a debate this very night in London and at this very time to be addressed by, among others, our noble and learned colleague Lord Lloyd of Berwick on these very issues. The leaflet that I was sent inviting me to this debate gives it the excellent title, "A Constitution on the Back of an Envelope". Just so, my Lords. Perhaps in future we shall see the Great Envelope of State carried during State Openings of Parliament by the Lord Privy Seal.
Since the Prime Minister and the noble and learned Lord, Lord Falconer, got going, I have become more and more concerned. Since they have got going, I have rather revised my view that written constitutions are suitable only for foreigners and that they are just not British. In some foreign administration, there is an economic meltdown, a revolution, and the Nth republic is born with all the paraphernalia of articles of the constitution, supreme courts and what not. I am reassessing my thoughts now.
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I am afraid that I have to tell your Lordships that I no longer have as much faith in our "now we are going to get really tough—oh no, perhaps we are not going to get really tough" judiciary as the guardians of our constitutional arrangements. However, I suspect that if the Government ever do succeed in ejecting the judiciary from their place here in this Chamber, then distance, far from making their judicial hearts fonder, might incite them to set up shop more as a pukka constitutional court with all that boring appellate work being rather a humdrum sideline.
I do not believe that the British constitution belongs to any here-today, gone-tomorrow politician who happens to be the current PM of the day; rather, I think that it belongs to the British people. Therefore, I conclude by asking the Minister what protection there is for the individual or the nation in constitutional change matters. I want to ask the Minister that but I do not expect to receive an answer. Secondly, do the Government have any plans to codify, at least, the parts of our constitutional arrangements that are written down? Again, I doubt that I shall receive a clear answer tonight.
In the mean time, I want to end with a burst of bipartisan constructiveness, which may surprise the Minister. We have an admirable and hard-working Constitution Committee in your Lordships' House, now under the chairmanship of my noble friend Lord Norton of Louth. For as long as this pell-mell constitutional change goes on, before we go back, or advance, to more settled arrangements, I should like to put it to this House that I think that the Constitution Committee should, once a year, report on the constitutional changes that have taken place in the previous year as a result of the activities of the government of the day and that, as a result of that report, we should have a full debate in your Lordships' House on what has happened to the constitution during the previous year. I believe that the present style—the sofa-iste approach to constitutional change in this country—cannot be allowed to continue.
Lord Morgan: My Lords, in the allocated three minutes, I shall endeavour to make three points. I shall do so briefly because I believe that other noble Lords, particularly on the Liberal Democrat Benches, will raise them. First, the Government's admirable constitutional reforms nevertheless call for a further move towards written safeguards. I shall mention briefly devolution.
The Constitution Committee, referred to by the noble Lord, Lord Patten, chaired by my noble friend Lord Norton and on which I have the honour to sit, suggested how devolution is quite unsatisfactory at present. It does not deal adequately with intergovernmental relations; it does not deal with the possibility of conflict resolution; and it is perfectly possible that we will not have congruent governments of the same party in Westminster, Cardiff and Edinburgh. We therefore need more formal mechanisms. In particular, we made the point in our
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report that the concordats should be much more open and much more publicly available. At the moment, it all depends on informality, and that is not enough.
Secondly, and more importantly, the Royal prerogative is a fiction and a dangerous fiction. It includes a wide range of ministerial appointments and vast areas of patronage. It makes it difficult for the Royal Family. The present Queen has behaved impeccably but it is possible that a future head of state, for example, might have different views on fox hunting—I throw that out as a possibility—and that that might lead to problems. At present, the whole situation with regard to the Royal prerogative is an enormous cop-out for Ministers of any party. It has absolutely aided the growth of uncontrolled, undemocratic and unaccountable patronage—the so-called "demi-monde" of which the noble Lord, Lord Smith of Clifton, has written. I believe that it also has the effect of emphasising the status of our citizens as subjects and not as citizens.
Finally, I refer to the Prime Minister. Any Prime Minister is a beneficiary of Royal prerogative. We have seen the dangers of it in the Butler report. That report showed how changes in our constitutional mechanisms have led to serious effects in our foreign policy, and it absolutely makes the case for a far more written constitution.
First, the Prime Minister's power to declare war under the Royal prerogative should absolutely come to an end. As it happened, there was a parliamentary vote in March, before the Iraq war. But simply leaving it to one individual, particularly in the way in which the Butler inquiry showed that that decision was reached and with all the misrepresentation attached to it, means that we should go towards the American system of having parliamentary approval and should draw a great distinction between it and the fiction of the prerogative.
Finally—I know my time is up—the question of legality should be set out. If a war is to be undertaken, it should be clearly set out that it is legal and that constitutionally and internationally it is approved in law. Far too much is taken on trust. Our presently informal, secret, enclosed constitution is dangerous to our liberties and I greatly welcome the Motion that has enabled me, however briefly, to say that.
Lord Thomas of Gresford: My Lords, from the platform of Rhyl town hall in my first and, as usual, unsuccessful parliamentary election in 1964, I called for three reforms: a Welsh parliament, proportional representation and the abolition of the House of Lords in its mainly hereditary state. The Liberal theme that linked, and still links, these issues was the absolute necessity for a new constitutional settlement that reconnects power to the people.
At the time, and for many years thereafter, these ideas were dismissed by Labour and Conservative politicians and supporters alike—the Conservatives because they were largely in power and were
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complacent with the processes that put them there. In Wales, we have never forgotten that it was Neil Kinnock who led the opposition to devolution in the 1978 referendum campaign before he became leader of his party. But under the wise leadership of John Smith, the Labour Party developed policies of devolution, parliamentary reform and concern for human rights that were his legacy to his party and resulted in substantial advances.
The legislative changes that the new Labour Government have, without any enthusiasm, put in place are curiously likely to be the Prime Minister's only lasting achievement in government, his place in history being subverted by the follies and failures of the Iraq war. I join with the noble Lord, Lord Morgan, in drawing attention to the fact that by convention only he exercises the royal prerogatives in foreign affairs and in decisions of peace and war. Although, as a concession, he took his flawed prospectus for war to the House of Commons to receive parliamentary support—from a tame majority obtained by what we have always regarded as an unsatisfactory system of first past the post voting—he did not have to that.
The Acts of Parliament that created Scottish and Welsh elected bodies and brought into our legal system the European Convention on Human Rights are only a piecemeal approach towards a written constitution. They are not entrenched in any way. Only last weekend, the Welsh Labour Party said that it wanted more powers for the Welsh Assembly, as the Richard commission had suggested, but it wanted to get back to first past the post voting so that it could have 95 per cent of the seats in Wales, as it thinks, and dominate the Welsh government for all time. No doubt, a Labour government with an overwhelming majority elected on first past the post at Westminster could grant them that with ease.
In throwing out the hereditary Peers, this Government shirk the introduction of democratic accountability in this House. Other noble Lords will speak of constitutional reform by diktat, notably the abolition of the Lord Chancellor without discussion and without consensus. I believe that a written constitution would define and protect the constitutional rights and freedoms of the people of this country. It would define the relationship between the head of state, the Government, both Houses of Parliament, the devolved parliaments and assemblies, and the judiciary and it would provide in itself a mechanism for change and adaptation that would ensure popular assent and consensus. The doctrine of parliamentary supremacy, which was a useful tool to fight the power of the monarch in past centuries, has been subverted and this Government do not hesitate to challenge the rule of law, nor to make overt attacks on judges and the judicial system.
The Earl of Erroll: My Lords, I thank the noble Lord, Lord Patten, for this opportunity to discuss this subject. I never thought that we needed a written constitution. Our constitution was in several places, but while people had respect for morals and standards that did not matter. The problem is now that, without
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an impregnable defender for a written constitution, it is not worth the paper it is written on. The new Supreme Court will still be subject to the Commons, who can introduce legislation that can change the method of appointment of judges, the parameters in which they operate or whatever. In fact, at the moment, the Supreme Court is going to be subject to a junior Home Office Minister. He who pays the piper calls the tune.
We now have a system in which the checks and balances have mostly been dismantled or outflanked. The Prime Minister used to be primarily the head of the executive. He was the chairman of the Cabinet. But now the Prime Minister controls the monarch's powers and has arrogated most of those powers to himself. This person now also controls the more powerful Chamber of the legislature, the other place, which should be controlling him. He can also push anything through this, our upper Chamber, if he wants to.
The problem is that we have nowhere to go for protection against an executive that gets out of control. We must re-establish that protection. Therefore, I am beginning to think that we should start to talk about separating the powers of the executive from those of the legislature and re-establishing a three-band system, rather as they have in America, of which I never used to approve. Until we have totally protected, separate and proper checks, we cannot have an effective written constitution. At that point, we can have one, and it might be useful in this modern day and age.
Lord Norton of Louth: My Lords, I am not as easily swayed by such short-term considerations as some noble Lords appear to be. My noble friend raises an important question. It may save the time of the House if I reveal what the Minister will say in answer to it. I know because the Minister in the other place, Christopher Leslie, gave it last week in a Written Answer. He said:
"We have no plans to formulate an overarching codified constitution".—[Official Report, Commons, 7/9/04; col. 1059W]
That is an appropriate response. I say so for two reasons. The first derives from an apparent paradox. One reason why there is pressure to introduce a written constitution is, as my noble friend explained, because of the changes to our constitutional arrangements brought about by the Government. The problem for the Government is that they have not been able to locate their constitutional changes in any intellectually coherent approach to constitutional change.
The Government have not been able to say what a constitution is and have no view about what a constitution is for. Do they see the constitution as a constraining document, designed to entrench certain fundamental pre-political values, or do they see it as a means of enabling the will of the people to be paramount? Those positions—characterised as negative and positive constitutionalism respectively—are not necessarily mutually exclusive, but deciding the relationship between them is fundamental to crafting an
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entrenched, codified constitution. The problem for the Government is thus that they are unable to say what constitution they want to see in place in the United Kingdom. Until they are able to do so, there is no basis on which they can even contemplate introducing a written constitution.
I come to my second point. One can see why some advocate a written constitution. We have heard the arguments already. It is argued that it will provide greater clarity and protection for citizens. Government and Parliament will not be able to use the constitution as a political plaything. However, a written constitution will not necessarily deliver the benefits claimed for it, and certainly not the benefits that have been claimed for it so far. It does not necessarily inject greater clarity—far from it. The provisions are often drawn so broadly that one only knows what they mean when there are challenged in the courts.
Written constitutions may be designed as constraining documents but be interpreted in such a way as to strengthen executive power. They can be, and variously have been, interpreted in such a way as to shift power from one political institution to another. That has happened in the United States. Changes have occurred without any reference to the people. In the United Kingdom, if people do not like what the Government have done to our constitutional arrangements, they can turn the Government out at the next election. If people do not like what a Supreme Court has decided, there is very little they can do. Some may say that is no bad thing, but that brings us back to different interpretations of what a constitution is for.
Of course there are problems—various noble Lords have already mentioned them—but a written constitution is not an answer to those problems. It has not been an answer elsewhere, and I see no reason why it would be an answer in this country. A written constitution is undesirable. It is also, under our present constitutional arrangements, unachievable. We do not have the means for bringing about a written constitution, certainly not an entrenched constitution because it would derive its authority from Parliament and the doctrine of parliamentary sovereignty prevents entrenchment.
For reasons of time, I conclude by saying that the Government have arrived at the right answer, but for the wrong reason. When they have reflected more fully, and can contribute authoritatively to the debate, they will be able to justify their answer with much greater force.
Lord Desai: My Lords, demands for a written constitution and complaints about prime ministerial powers are always louder when the Labour Party is in government than when it is not. However, this is a serious issue. I have always believed in a written constitution, because in a sense there are written drafts of the Westminster constitution in existence in many of the former colonies. We actually know how the British constitution can be written down. It is nothing very mysterious and we have several experiments in Canada, India and Australia that throw light on how
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a Westminster constitution could work. Looking at America is the wrong idea—we should look at the Commonwealth countries.
We have been going through a tremendous constitutional revolution in the past seven years. Of course, it is not completely entrenched, it is not written down and it is still evolving, but the fact that devolution has happened and the fact that human rights are embodied in law, has fundamentally changed the British constitution. That is what has led to the reform of the judiciary.
It is a pity that the House has treated the Government's Constitutional Reform Bill with less than the credit it deserved, but I hope that eventually we will have a supreme court, because that will be the beginning of the separation of powers that the noble Earl, Lord Erroll, wanted. At least there will be a separation of powers between the judiciary and the two other branches of government—the Executive and the legislature.
The problem of executive power is of course—as Tom Paine pointed out 200 years ago—that the Royal prerogative now resides in the Prime Minister. We now have an effectively unicameral legislature. A majority in the House of Commons gives any Prime Minister enormous powers. It is to the credit of this Prime Minister—I do not often give him credit—that he came to Parliament on the question of the Iraq war, which no previous Prime Minister has done or had to do. That is a new precedent.
We should think of the constitution in terms of the acquis communautaire—we should have an acquis brittanique. As it accumulates, we will know what the unwritten constitution would look like if it was written down or at least gathered together in one place. As bits become outdated we should throw them out and staple in new bits. Perhaps that would be the only way that we would be able to have a written constitution. Given the limitation of time that I face, I cannot tell the House what I would do further to improve the constitution, but I thank the noble Lord, Lord Patten, for initiating the debate.
Lord Hooson: My Lords, I am pleased to have the opportunity to make a brief contribution to this ongoing debate, which has been a characteristic of political life in this country throughout the time that I have been involved with it. It has been accentuated by our accession to the European Union, the development of various levels of devolution within our country and the evolution of an idea of a supreme court, designed among other things to replace the House of Lords Appellate Committee as the ultimate appellate court.
We have had reason, because of the Iraq war, to consider the ultimate power of the Executive—the use of the Royal prerogative. Some of your Lordships will remember that when the Attorney-General gave the Government's view of the war, I pressed him to give an undertaking on behalf of the Government that they
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would not simply rely on the Royal prerogative to declare war on Iraq, but that they would seek a resolution of the House of Commons, which is very important. This situation is simply not good enough for modern times. I entirely agree on that point.
We risk the lives of many of our citizens by means of the use of a Royal prerogative, which simply is not justifiable in modern times. The Government acknowledged that by agreeing to have a resolution of the only elected House governing the whole country. I have not the slightest doubt that our country needs, pretty urgently, a written constitution. I congratulate the noble Lord, Lord Patten, on his timely raising of the issue, which should be the prelude to a much wider debate on all the implications of a written constitution.
Lord Lucas: My Lords, I am very grateful to my noble friend Lord Patten for the chance to speak for three minutes. Actually I have got a chance to speak for rather more because we are running well ahead of time, but I shall not abuse that. What we really need is a proper debate. I count on the authorities to give us the chance, and the suggestion of my noble friend Lord Patten of an annual debate as a result of the Committee's deliberations seems to me a most excellent idea.
My feeling that I want more of the constitution written down comes from two aspects of what has been going on. First, we have had a lot of changes, which, as my noble friend Lord Norton said, are not joined up, are not part of a consistent programme—I cannot see where they are going. It is clear that other changes are needed to follow on and we again have no idea what they are. The second aspect involves a certain feeling that some of the changes which are being sneaked up on us are ones that we should not agree to, and no democratic country should agree to, if we had a proper regard for our rights. I think we are seeing a process, and we will certainly see a process if we get a third Labour government, of the erosion of the status and powers of this House. We are about to get a Bill rammed down our throats on as unimportant a subject as fox hunting. Now, if they can do it on fox hunting they will start to be able to do it on all sorts of things, and the use of that power will become more prevalent.
We had a position, when most of the hereditary Peers were removed, that we would have a considered reform of this House. That has been abandoned. We had a position where it was accepted that the proportions of the parties in this House should reflect, broadly, votes cast at elections. We are now moving towards a position where it seems to me the principle is that the party in government should have day-to-day control over this House and that votes overturning the government's wishes should be the exception. That at least is the rhetoric of Mr Hain in another place and is the direction in which it seems to me decisions are moving.
We have a Bill before us at the moment—the Civil Contingencies Bill—which will place the whole power of Parliament, the absolute power in the constitution,
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in the hands of a single Minister in the event of an emergency, with no obvious way in which that power could ultimately be taken back, because the power could be used to amend or change the constitution of this country in any way that that Minister so chose. We are in a position in which there appear to be considerable dangers. Under those circumstances one wants to be able to put a few pegs in and say, "No, let us not go down that road".
I think that I share the feeling of my noble friend Lord Norton—I do not want to go entirely for a written constitution or for something that is entirely the subject of judges' decisions. But as he has pointed out on other occasions, we are already heading in that direction. We are subject, as a result of being a member of the European Community, to the courts in that aspect. We are subject, as a result of the Human Rights Act, to the courts in that aspect. They are, if not in absolute, at least in effective control of part of our constitution. To go a little further and to entrench some of our basic rights, as things over which the judges have an influence, seems to me something which we should discuss.
The Earl of Mar and Kellie: My Lords, I remind the House that I am also a member of the Constitution Committee.
I was attracted to this Unstarred Question by the opportunities afforded to me to pursue the cause of further Scottish autonomy and, in so doing, to discourage anything which would prevent or hinder the free flow of the ever-developing will of the people of Scotland.
I believe that the people of Scotland would serve themselves best within a dominion. I do not wish to end the social union of the United Kingdom, and wish Queen Elizabeth to be head of state. Rather more calmly, I draw some significance from the wording of the noble Lord's Question—the fact that he has chosen to refer to a written constitution in the lower case. I do not know whether I am reading more into this than is really there, but I could develop the argument that the United Kingdom already has a—lower case—written constitution. It is to be found in the myriad documents, laws, traditions, agreements and conventions, both written and unwritten.
A constitution is, of course, no more than the way things are done in a state at the present time. I suspect that my noble friends would prefer to have a tangible document of statutory proportion. I am sure that my noble friend Lord Goodhart will restore Liberal Democrat order to this short debate.
I conclude by seeking to establish that an "upper case" Written Constitution would be impossible to set down in any form of brief document, and that anyone attempting to draw up such a document would find too many valid anomalies. They would have to approach the task with a sense of logic. Without proposing massive changes, I doubt that our United Kingdom constitution could be committed to paper in a logical form. Consider, for example, the many different forms of devolution.
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The Question of the noble Lord, Lord Patten, is a good one. The answer is that we need a fluid constitution rather than a fixed written one, with all its false implications of permanence.
Earl Russell: My Lords, I thank the noble Lord, Lord Patten, for introducing this very important topic. It is one on which, is this country, we are all out of step but our Johnny. When Lord Wilberforce spoke in the farewell debate for Lord Taylor of Gosforth, he pointed out that the only two countries dealing with this issue which did not have a written constitution were Britain and Israel. It is a very limited list of exceptions. Why this came to be so and how long the thinking behind it has been there are instructive questions.
This involves a great many areas of state. Like my noble friend Lord Mar and Kellie, I am interested in its effect on a state of many parts. This is something that the English—and I say the English, not the British—have had great difficulty, over the centuries, in assimilating.
It has been held that a state was made up of many joined parts with different forms of government, different laws and different institutions. Sir Thomas Craig of the Scottish Court of Session, writing on the Union of the Crowns in 1604, drew up a list in which he found that only the English had a strict unitary sovereign state of English dreams. The English thought it was the only way in which anything was ever done. The result was that the English were quite unable to accommodate the difference between the different parts of the many-partied British state.
Sir Edwin Sandys, speaking in another place in 1604, said:
"A kingdome is indivisible, and may not contain within itself several kingdomes".
It is a trouble the English still have. They dream of treating Scotland like Wales and have done so since 1604, to the offence of the Welsh and the bewilderment of the Scottish.
The English cannot see the world as it is; they constantly stumble over the errors they make and constantly think, like King John in 1208, that they can banish someone because they are cross with them. It is not a constructive way to carry on.
Lord Goodhart: My Lords, I start by welcoming the noble Baroness, Lady Ashton, on her first appearance on the Front Bench in her new ministerial capacity.
Our policy, as Liberal Democrats, has for a long time been to have a written constitution. I therefore very much welcome the noble Lord, Lord Patten, as a slightly belated convert to this belief. Before we ask whether we need a written constitution, perhaps we should ask ourselves whether we already have one. To a large extent, as my noble friend Lord Mar and Kellie suggested, the answer is yes—from Magna Carta through the Bill of Rights, the Act of Settlement, the
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Act of Union, the Reform Bill of 1832 and subsequent Bills on the franchise, the Parliament Acts of 1911 and 1949 and the European Communities Act 1972.
We have had a particular rush since 1997—we have had the Scotland Act, the Government of Wales Act, the Human Rights Act and the House of Lords Act. The Constitutional Reform Bill, which we largely support, is going through your Lordships' House. There is the possibility in the not-too-distant future of a Civil Service Bill and, we hope, further significant reform of your Lordships' House.
To describe the United Kingdom constitution, therefore, as unwritten, is not altogether accurate. There are, of course, important gaps, especially in relation to the Crown prerogative. Do we need to fill those gaps and bring together the constitutional statutes we now have into a formal written constitution? That is certainly possible to do. As the noble Lord, Lord Desai, pointed out, it has already been done in relation to the Commonwealth countries to which we bequeathed, as a gift on their independence, constitutions which had been drafted by distinguished British academics.
The question whether we want a formal written constitution really turns on whether we want to entrench some provisions of that constitution. Should we require some special protection such as an enhanced majority for making amendments to the constitution, at least for its core provisions? I believe that we do.
At present, in theory, the Scotland Act could be repealed and the Scottish Parliament abolished by a simple majority of Parliament and, indeed, using the Parliament Act, by a simple majority of the House of Commons alone.
In most countries, the key provisions are indeed entrenched. The main constitutional provisions—the franchise, the provisions of the Human Rights Act and the central elements of devolution among them—should be not only written but also entrenched in order to prevent their casual alteration by a temporary majority in the House of Commons based on a minority of votes at a general election.
Lord Henley: My Lords, I join the noble Lord, Lord Goodhart, and my noble friend Lord Patten in offering my congratulations to the noble Baroness, Lady Ashton, on taking up her new responsibilities. It is some time since I left the Department for Education and Skills and I have been through various other spokesmanships since then. The noble Baroness has gone straight from education to constitutional affairs and I can assure that she might find it quite a big jump, but I look forward to what she has to say later this evening.
I also thank my noble friend Lord Patten for introducing this subject, which everyone would agree is very large. We have had a distinguished list of speakers, including three Members of the Constitution Committee, and it is virtually impossible to do justice to a question of this kind in a one-hour debate during
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the dinner hour in this House. For that reason, I offer my support, echoed by others, to my noble friend for his suggestion that the Constitution Committee should report on any changes that have been made to the constitution at least yearly and that, through the usual channels, that report should result in a full debate on such matters in this House. The Government should welcome that suggestion and this House should be able to carry it out very well indeed.
As my noble friend made clear, we have seen some fairly major changes to the constitution under this Government. Such changes include the change in the status of the Lord Chancellor, which we are in the process of debating, and changes to the House of Lords judiciary, born of the desire to have a Supreme Court and so on. As my noble friend made clear, we have had very little consultation on that. There has been no planning whatever and one could say, as has been said before, that much of it has resulted from botched attempts at reshuffles. As we now know, one such reshuffle led to the Constitutional Reform Bill and the desire to remove the Lord Chancellor. That Bill now seems to be slipping rather fast simply due to the Government's urgent desire to abolish hunting, but we can debate that on another occasion.
On this occasion, I simply echo the view of my noble friend Lord Norton of Louth that we on these Benches do not see the case for a written constitution. It is both undesirable and unnecessary. In the three minutes that I have available to me, it is not for me to develop that argument any further. I shall merely repeat a number of questions that have been put before the Minister, because it is important that she should answer them. First, will she give a guarantee that the Constitution Committee will be allowed to have a full debate on a report, should it produce that report annually, as suggested by my noble friend Lord Patten? Secondly, will she turn her mind to the important question raised by her noble friend Lord Morgan and others of the Royal prerogative and comment on his views that Parliament should have to consent to going to war and that it should not be a matter which the Prime Minister can bring forward under the Royal prerogative?
The Parliamentary Under-Secretary of State, Department for Constitutional Affairs (Baroness Ashton of Upholland): My Lords, I thank the noble Lords, Lord Patten, Lord Henley and Lord Goodhart, for their comments about my arrival in your Lordships' House in my new role. As the noble Lord, Lord Henley, said, I have gone straight from education to constitutional affairs. It is a move that I very much welcome and I look forward to working with noble Lords on my new brief.
Inevitably, on my first appearance before your Lordships five days into a new brief, I have listened with great interest to noble Lords who have huge experience and I am delighted that we have had the opportunity for this debate. I am in full agreement with noble Lords who have also indicated that, in the
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time allotted to us, we have not done justice to the subject and I hope that an occasion will arise when we can debate these matters at greater length.
The noble Lord, Lord Henley, asked about the role of the Constitution Committee—an issue in which the noble Lord, Lord Norton of Louth, is particularly interested. I fear that that is a question not for me but for the will of the House. I am sure that there are ways in which the issue can be taken forward through the usual channels, not least through the chair of the committee, and opinions will come forward. I look forward with interest to hearing them.Lord Patten: My Lords, notwithstanding what the Minister has just said about the usual channels addressing my suggestion of an annual report from the Constitution Committee followed by a debate—which seems to have met with some approval around the Chamber—will she perhaps take back to the Lord Chancellor the fact that, to the best of my knowledge, since his department, which is now such an ornament, was set up, it has never sponsored or brought before your Lordships an opportunity for a debate on constitutional matters? He should take the initiative in doing that and I am rather surprised that he has not done so.
Baroness Ashton of Upholland: My Lords, as the noble Lord will know, the procedure of your Lordships' House can sometimes seem unusual. The matter is very much in the hands of those who wish to bring forward debates. I will ensure that my noble and learned friend understands the points which this debate have raised. It partly depends on the work of the usual channels and on the Constitution Committee itself. It would be completely wrong for me to take a view without the noble Lord, Lord Norton of Louth, being able to take the matter back to the committee. That would be the right way to do it.
I say to the noble Lord, Lord Patten, that I read his speech of 16 February 2000 on judicial appointments. It is very interesting that the noble Lord referred to that in his comments. That is of particular interest to me. I was also very interested in his use of the word "sofa". It is not something that I recognise in how our Prime Minister operates—in the work that he undertakes or the style in which he does it. As regards this particular reshuffle there is nothing botched about me.
It is very important that I take this opportunity to listen and learn. I am delighted that the noble Earl, Lord Russell, was able to be here this evening. I am particularly delighted that I have not lost the ability to have the rapport with the noble Earl which I had with him on education matters. I have a great deal to learn from the noble Earl and it is a great pleasure to see him here this evening.
The constitution has been described as being unwritten, but that is inaccurate. I quote Vernon Bogdanor, who said it was a misleading statement that implies that our constitution provisions are handed down from generation to generation by word of mouth. As my noble friend Lord Morgan said—and this also refers to the noble Earl, Lord Mar and Kellie, who spoke
15 Sept 2004 : Column 1256about the "lower case constitution"—large parts of it are written. The distribution of powers in Westminster and the devolved administrations were matters raised by a number of noble Lords. That is set out in the legislation. The human rights provisions applicable to citizens of the United Kingdom are also written.
I realise that that is not the heart of the argument. Noble Lords were very clear about that and the question of codification, which is upper case, according to the noble Earl, Lord Mar and Kellie. As the noble Lord, Lord Patten, said, that is the critical part of what we would look at. Codification is scattered across a range of statutes, case law and conventions. I was interested in the comments of my noble friend Lord Desai about gathering them together. It would be interesting to see what it would be like. That is quite different from saying that we should move towards a codified constitution.
If we were to collect these provisions as my noble friend indicated, the constitution would still be unenacted. Parliamentary sovereignty, rather than a written constitution, has been the foundation of our legal and political system.
Noble Lords will recognise that for me this is the first foray into this debate. I was struck by two particular arguments or issues which I would like to share with noble Lords. The first is that I believe that it would create a fundamental change in the way in which the people of this country are governed. I recognise that parliamentary sovereignty is a critical issue. The noble Lord, Lord Norton of Louth, said that it is the core of our constitution and political system. It has always had the authority to change part of the constitution. In practical terms some changes are very unlikely. For example, now that we have separate assemblies for Scotland for Wales I believe it is very difficult to see how Westminster could take back those powers nor, indeed, in my view, should it.
The issues which have been raised as regards the Richard commission and the work taking place in developing that are also a critical part of the evolutionary nature of our constitution about which I shall say more in a moment. Therefore, my contention would be that to introduce a written constitution would in a sense introduce legal limits on the authority of Parliament.
Noble Lords have raised concerns about the authority of Parliament. Politically, whichever government are in power it is the nature of opposition to talk about how the government use the authority of Parliament. But as my noble friend Lord Morgan and others said, there are real issues of concern. On the specific point that my noble friend raised, the Government's response to the Public Administration Committee said:
"The government are accountable to Parliament for any armed conflict it engages in, as for anything else, and the government have given repeated assurances that Parliament would be given an opportunity to debate and scrutinise decisions about the deployment of British forces in armed conflict overseas. Furthermore, the Government is also mindful of the need to keep Parliament closely informed of developments during the course of the conflict through statements and . . . debates as necessary".
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I believe that that sets out very clearly the Government's position. I shall take on board and ponder what more has been said about the Royal prerogative. That is a new issue for me, as noble Lords will recognise. In conclusion on the particular issue of Iraq, there was a vote in Parliament, as has been recognised.
Apart from the monumental change that a written constitution would involve, it is also true to say that we would have the example of a court that was unequivocally superior to Parliament, because this court would be able to tell the legislature that it was acting unconstitutionally. I would draw the attention of the noble Earl, Lord Russell, to the example of the United States of America and the Supreme Court. We know that the Supreme Court plays a very important role: issues around racial segregation in schools, abortion, euthanasia and voting rights. Whether one approves or disapproves of the role and decisions of the US Supreme Court, it has none the less played a particular role in terms of the constitution.
We believe that decisions should ultimately rest with politicians, elected by and accountable to the public. I have always understood that the core principle of democracy is that you can throw a government out. That is a principle that we should hold dear, rather than look beyond to say that we would put power in the hands of essentially unaccountable and unelected judges—good, honest people though they may be—in that way. That is not this Government's position.
I think—and noble Lords have expressed this concern, too—there are real issues around the politicisation process that go alongside that. Noble Lords know only too well the issues around the Supreme Court in America. I will not bore your Lordships with them. But whatever commission is appointed to appoint people, there are always issues. Doing the Higher Education Bill, I had a number of interesting debates about how one appoints individuals, never mind in this way. There are real issues that one would have to consider very carefully.
I found the point of the noble Lord, Lord Goodhart, about the percentage interesting. But, again, I think about America and some of the issues about changing the constitution there. One thinks about voting, particularly at the moment. There have been a number of examples where a decision over whether one should have the same basis of voting across each state in the United States required—I think—a two-thirds majority in each state's vote. That is very difficult to achieve. One would have to think very carefully about how one moves away from a simple majority. But the noble Lord makes an important point. Again, I am taking all these points away to consider more carefully.
One of the really important aspects of our constitution is its flexibility. I mentioned evolution, and it is quite important that we have a constitution that can evolve over time, that can be refined to respond to political or popular pressure, and can respond to change and be remodelled. We have already talked a little about devolution. I have said
15 Sept 2004 : Column 1258that that is an ongoing process, particularly in the light of the work of the noble Lord, Lord Richard. But there are many other issues, I am sure, that noble Lords will know far better than I. One would want to consider flexibility.
It is worth saying that if you write it down, it does not mean it is the end of everything. There have been 11,000 proposed amendments, as I understand it, to the US constitution, 27 of which have been made. But the way in which our constitution operates gives us that flexibility, that sense of evolution. I believe it confers ownership on the people, through the elected representatives—the critical factor being, as I have already indicated, that they can be thrown out.
I think an unwritten constitution gives us that flexibility. Those would be—for me, at this stage in my ministerial career in the Department for Constitutional Affairs—the two critical points upon which I felt very strongly. I would probably go on to argue that it is not a priority. Governments always have to think in terms of priorities.
Earl Russell: My Lords, if the Minister studies the judgments of the noble and learned Lord, Lord Reed, on liabilities of the disabled, I think she will find an example of flexibility outstanding even by the examples of parliamentary practice.
Baroness Ashton of Upholland: My Lords, I will indeed look at those and, if I might, talk to the noble Earl about them. I thank him for the intervention. These are important issues where as much information as I can receive is critical.
I do not recognise, inevitably, that what we have done since 1997 has been either frivolous or on the spur of the moment, or any of the other words that have been used. This Government are committed to promoting reform where it is needed. The way we are working is very important in terms of what we offer to the people of this country, and the evolution of our constitution—hence my delight in being part of the Department for Constitutional Affairs.
My final point is about an important issue for those who, perhaps, are less involved in constitutional law or in the matters at the heart of our debates—that is, the interpretation of our constitution. The issue is about the rights, relationships and practices expressed in the constitution and how they are upheld and respected—about how we apply the constitution, if I can put it that way, in daily life. It is critical that we do not give ourselves up to the illusion that we can write down the constitution and that that is the end of the story. As I have explained, it would be far from it.
All those countries with a written constitution have a raft of supporting legislation to back up and interpret that constitution. That is the critical function of the department to which I belong. It is a critical part of the work that we do, ensuring that the interpretation is there and that our constitution is working for the people of this country. Perhaps the classic example of that process is with the Human Rights Act. It is critical that we ensure that the Act
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leads to greater respect for human rights in public services, that citizens can exercise their information rights effectively, and that they are connected to the democratic processes, including voting, which is such an important part of our democracy.
In conclusion, I again thank the noble Lord, Lord Patten, for raising the debate. I look forward to many other opportunities to discuss and debate these issues, I hope at greater length. I look forward to that debate not only in your Lordships' Chamber but also outside. I hope that I have successfully answered the question laid before me.
Lord Davies of Oldham: My Lords, I beg to move that the House do now adjourn until 8.30 p.m.
Moved accordingly, and, on Question, Motion agreed to.
[The Sitting was suspended from 8.27 to 8.30 p.m.]
Civil Contingencies Bill
House again in Committee on Clause 2.
Lord Lucas moved Amendment No. 18:
Page 2, line 45, leave out "necessary or desirable" and insert "not undesirable"
The noble Lord said: In moving the amendment, I shall speak also to Amendment No. 19. The amendments are concerned with the provision of information to the public and the way that is embedded in the Bill. The first is an attempt, albeit it in rather inelegant English, to turn the emphasis away from keeping things secret to letting things out. Clause 2(1)(f) reads:
"in so far as publication is necessary or desirable",
which with Amendment No. 18 would become,
"in so far as publication is not undesirable"—
in other words, publication would happen unless there were a good reason for it not to.
That seems an enormously important part of the functions of these organisations. They should be telling people what they are doing and what is going on, unless telling us would in some way put us at risk. Amendment No. 19 enlarges on what is at the top of page 3, where there is a duty to,
"maintain arrangements to warn the public, and to provide information and advice to the public, if an emergency is likely to occur or has occurred".
In other words, the person or body will suddenly start talking to us when there is a problem, although they have said nothing to us before.
The amendment seeks to insert in advance of that that they should inform us,
"about the arrangements that may be made should an emergency occur"—
in other words, what is likely to happen if there is an emergency—and that they should tell us where we should go to find out information on what to do if an emergency happens, so that we know.
Suppose that someone in the Gallery—not that there is anyone there at present—were now to throw a purple condom into the middle of the Chamber, we
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would not know what to do any more than the Commons knew what to do three months ago. Why not? Because no one has told us. I presume that someone has plans and such occurrences have been thought about, but such things happen in an instant. We are the ones who have to react, and no one has told us what to do. Who knows what to do? We do not know whom to turn to. From whom do we seek information? Are the Clerks prepared? Is the Minister briefed? Is he the one who is going to stand up and say, "It is a purple condom; therefore you all stay here" or disperse us to Black Rod's Garden?
Even if we do not know what to do, we should know who does know what to do, so that we can obtain that information. Suppose we were in session and Al'Qaeda was kind enough to explode a dirty bomb somewhere in the air above London and it suddenly became unsafe to go out in the streets. Who knows where is the door that leads to the tunnels that will take us out through Whitehall up into Holborn and the safety of Hampstead? Does the noble Lord, Lord Bassam, know? I did not know when I was a Minister.
If that is what we are going to have to do, we need to know who knows. We need to know where to turn and what are the procedures to follow. That basic preparation is what gives the public confidence that should an emergency occur it will be properly dealt with. There is the beginning of that in the document that we have all received which says that we should listen to the radio. Fine, that is the beginning, but we may find ourselves in the middle of a high street and rather a long way from a radio. We would want to know what were the proper sources of information rather than milling around pointlessly. If the news comes out that there is smallpox in London, who is going to wait for someone to think what to say on the radio? No, we shall head out for the country as fast as we can. We do not want to be the ones who are infected. However, if we know the plans that are in place, should an infection like that occur, and if we know that matters will be properly organised and planned, we may have the confidence to stay where we are and not spread the infection round the country.
Information and the knowledge of what to do and what other people are doing is what gives people the confidence to behave properly, and it is absolutely crucial to people behaving properly in an emergency which involves a good deal of uncertainty or personal danger. I want to see the Government embrace what is, after all, the spirit behind the Freedom of Information Act, and should be there because it makes the response to emergencies so much better; that is, telling us all what is going on—and they could start with this House. I beg to move.
Lord Garden: While I have some sympathy with the thoughts of the noble Lord, Lord Lucas, on information, we are talking about an enormous range of different emergencies with very complex responses. In some cases the responses can be completely different depending on the nature of the emergency. Certainly the development of the Government's website in terms of the plans in general is always worth doing, but only a very limited
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number of the population will actually spend much time looking at these. It seems to me more important to have the contingency plan that will allow those who are going to deliver the information about a particular emergency to give simple instructions to the population at the time of the emergency.
We could waste enormous amounts of resources on publishing vast amounts of detail about possible contingencies that no one would read. I am glad that the noble Lord, Lord Lucas, has received his copy of the document. The post has not reached NW3 for some years now and we have not seen ours. However, I have looked at someone else's copy. We all know what happens to those kind of documents. Some may read them but they will be tucked away and lost by the time the emergency happens. What will be key is to have a set of responses to emergencies that will inform the public at the time when they need the information.
Baroness Hamwee: I agree enormously with that comment. I remember that a couple of years ago there was a problem with the Tube and the power was lost. I believe that happened a couple of years ago but one loses track. I believe that lessons have been learnt from that. Certain mayors whom the media wish to interview on air immediately such an incident occurs have a script to which they stick rather than giving a personal reaction. As I say, I believe that lessons have been learnt from that.
I do not know whether the noble Lord, Lord Lucas, read the report of the Committee stage of the Bill in the Commons which took place before the incident to which he referred. There was a good deal of fairly complacent chat about how the House of Commons would know what to do were such an incident to occur.
I wish to use this amendment to make a point and to ask a question about the booklet that has been distributed. How effective do the Government think the booklet has been and what evaluation are they undertaking in order to learn lessons for any future similar exercise? I shall not indulge in a lot of criticism. My noble friend Lord Garden rightly reminded me before today's proceedings began that, frankly, one cannot win on this kind of thing. People will always try to pick it apart.
However, I refer to the languages in which the booklet is available and particularly to the offer regarding those languages. The back cover of the booklet states that it is available in a number of different languages. However, that is not stated in those languages. I have taken part in an exercise in another organisation publishing reports that we wanted to be widely read. It was obvious to us after a little thought that you need to say, in Gujarati, for instance, "This document is available in Gujarati, and this is what you do to get it".
It was also important to assess what languages were required, not necessarily those which are most frequently used by communities whose first language is not English because it may be that within those communities there are some people who speak good
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English. One might need some very minority languages to be available. As regards the availability of large print versions, one needs to have pretty good eyesight to be able to see on this booklet that a large print version is available.
I confine my criticism to those matters rather than the contents, but I would be interested to know what the Government are doing—because I am sure that they must be doing something—to see whether that publication was the best way of going about this exercise and evaluating its success.Lord Bassam of Brighton: This is a useful discussion. It is a difficult area: what information should one put in the public domain? Does one scare and frighten, or usefully advise and inform? How does one strike the correct balance? Who should have what duty in which sets of circumstances? That is a very difficult equation. I dare say that in the end you are "damned if you do and damned if you don't". That also goes for any advice that seeks to warn or alert. It is difficult to achieve.
The noble Lord, Lord Lucas, wants to reverse the onus in this debate. That is what his amendments would do. Amendment No. 18 probes the limitations on the duty to publish. It is perhaps worth reminding ourselves what the Bill does.
The Bill imposes a duty on category 1 responders to make arrangements to inform the public about civil protection arrangements, which will include—prior to the event—what information should be put into the public domain; the potential for emergencies and risks; the actions that will be taken by the relevant authority if an emergency occurs; and advice about the sorts of things the public can undertake for protection and to avoid harm. The Bill also requires local responders to maintain arrangements to warn the public and provide appropriate advice at the time of an event if an emergency occurs.
The Bill ensures that effective public information provision is built into the civil protection processes. I am not sure that has been the case in earlier legislation. I do not think it has been. In this field we had that interesting publication Protect and Survive, which it would be fair to say was effectively lampooned. We have moved on from Protect and Survive. The current publication, Preparing for Emergencies, goes a long way to offer reassurance and careful and sensible guidance. This time round, perhaps because some of the earlier drafts were given a degree of exposure, I think we have got it about as right as we can do.
It is important to help the public understand the nature of the risks that are prevalent, and how the authorities will respond. We think that will improve public confidence in civil protection processes. It is also important to avoid a situation where information is published simply for the sake of it, or because it is required by the Act. Plans and assessments should be published only where needed. Publishing too much unnecessary information could be counterproductive,
15 Sept 2004 : Column 1263because it could lead to a situation where one loses the interest of the public and they simply turn off. A few simple and effective messages are required which alert the public to the situation confronting us.
The Bill requires only local responders to publish plans and assessments that that is "desirable" for various purposes. The amendment would reverse that test so that more information would have to be put into the public domain as a matter of course, unless it was "undesirable". That is the wrong way round.
The Government are working closely with the key stakeholders on this issue—including the National Steering Committee on Warning and Informing the Public—to develop clear guidance on this point. I am not convinced that the amendment would be wise under the circumstances. It could lead us to a situation where we have a surfeit of information which would probably be confusing to the public. I am not patronising the public by saying that. It is sometimes difficult for members of the public to sort the wheat from the chaff and we have a duty to lead and advise. That is precisely what we achieve in the way that we have balanced this matter.
Perhaps it is worth adding that local responders will have a clear role and the Bill provides for that. Clause 2(1)(g) obliges category 1 responders to maintain arrangements to warn, inform and advise the public if an emergency occurs. Clause 2(1)(f) already requires the publication of aspects of plans and assessments. The need to make information available about local risks, response arrangements and sources of warnings, information and advice in the event of an emergency are brought out more clearly in the current draft guidance.
A couple of useful points were made by the noble Baroness, Lady Hamwee, about the need to ensure that information is available in a range of languages. We agree with that. That is why we propose in regulations under the Bill that when responders provide information to the public, both before and during an emergency, they must have regard to the needs of their local public. That will vary from place to place. In particular, those who do not speak English as a first language or have a disability, where appropriate, large print and other language versions of the information should be issued in a form that suits and is fit for the purpose.
Experience shows that at least one person in most households will have a sufficient grasp of the information that is provided in English. I guess that that is the rationale behind producing this information in this way. The point made by the noble Baroness was well made and I recall that when I was leader of my local authority we were providing leaflets that were a pathway to better information. We ensured that there was a language clue to the information that was behind it.
The noble Baroness made a point about feedback and the design of the leaflet. We shall take note of her comments. We looked at many other examples when we were compiling the current leaflet. A rigorous evaluation is taking place and it will inform future
15 Sept 2004 : Column 1264campaigns and, no doubt, future editions of the leaflet. We have covered that point which was well made and I am grateful to the noble Baroness for raising those issues.
I doubt whether I have satisfied the noble Lord, Lord Lucas, but I hope that I have gone some way towards that. This is a difficult matter to get absolutely right, and collectively we are all right to be concerned about the information that is produced, the way that it is being produced and ensuring that people can access the information—not just in written form, but also through e-delivery and other means—so that we achieve the widest possible sensible distribution of information that is appropriate in the circumstances.
Lord Lucas: I thought that was a helpful reply. I am happier when it comes to Amendment No. 18, because we all have access to the information we want under the Freedom of Information Act 2000 anyway. Those of us who want the information will, to the extent that it is publishable, be able to dig it out of local authorities and others and make articles out of it for the newspapers. That means that most of the information will get out there to those who want it, so in practice I will get as far as I want on Amendment No. 18 by other means.
As far as Amendment No. 19 is concerned, I still have an attachment to subsection (1)(g)(b) of Clause 2. There are types of emergency, particularly the sort we might associate with terrorism, where one would want to influence the public's behaviour quickly, whether they should stay where they are or go somewhere or do something in particular. People will not be carrying their copy of the booklet with them. What makes people confident in those circumstances is the knowledge that information will be provided, and a reasonable idea of where it will come from. The noble Lord, Lord Garden, has come from an organisation where one knows just that: in a difficult situation, everyone knows the person who has the information—or at least has to act as if he does—and takes the decisions. That is a great source of comfort, and is one of the main reasons that the Army does what it is supposed to in difficult circumstances. We do not need that sort of discipline in civilian life, but if we want the right reaction from people, they need to know where to turn.
I come back to the example of this House, which the noble Lord has not addressed at all. If someone threw a condom into the middle of the Chamber, who would tell us what to do? There may be somebody, but we do not know who. My first reaction on seeing the condom come down would be to head for the exit, but if I knew the Clerk was going to stand up and tell us what to do, I would wait. That depends on my knowing that there is someone who will tell me what to do, and having a rough idea of who it is. In the case of contamination by radioactive substances or biological agents, we would need to control people's movements, and not by ringing London with soldiers carrying machine guns. The authorities would have to move very quickly to contain a population who all had reserve petrol in their tanks and knew exactly the route they intended to take
15 Sept 2004 : Column 1265out of London in an emergency. However, people will stay contained if they have confidence and are quickly given reason to believe that right things will be done.
Three months after a similar incident down the other end, the noble Lord cannot even tell me what the arrangements are for this House. Suppose one of those people who rushed into the Commons today had created an emergency, in any of the ways a terrorist might. Nobody would know where to turn. It is a ridiculous state of affairs, borne of an obsession with secrecy, and it is entirely self-destructive. Despite the noble Lord's words, I shall hang on to the second part of my Amendment No. 19, and we will doubtless see it again.
Lord Bassam of Brighton: I am reluctant to get into a discussion across the Dispatch Box about the arrangements for your Lordships' House, which would be quite wrong, save to say that I am sure there is a well-ordered plan in place. I have great trust in Black Rod, who will no doubt be acting on information from the emergency services, as well as being in direct communication with the Metropolitan Police. I will not fully rise to the bait and go further than that, as it would be an abuse of the circumstances, but I think it important to place those words of reassurance on the public record.
Lord Lucas: That does not reassure me at all, of course. The information I have is that the moment an incident occurs, I had better look out for myself, because I have no clue who will tell me to do otherwise. If I knew someone was informed, I would wait for them. That point is crucial, and, as I say, we shall come back to it. I beg leave to withdraw the amendment.
[Amendment No. 19 not moved.]
Baroness Buscombe moved Amendment No. 20:
Page 3, line 7, at end insert ", and
(h) consult with voluntary organisations through the development of plans maintained under paragraphs (c) and (d) to such extent and in such manner as a person or body listed in Part 1 or 2 of Schedule 1 shall think fit"
The noble Baroness said: I shall speak also to Amendments Nos. 27, 29, 30, 31, 32, 34, 36, 42, 79 and 80. At Second Reading there was almost universal support for expressly including in the Bill the contribution of voluntary organisations, which play a crucial role in any emergency. All these amendments relate to the duty to assess, plan and advise regarding contingency planning. The Bill does not currently refer to voluntary sector organisations with regard to consultation. We feel that that is a huge oversight on the part of the Government and have tabled the amendments to urge them to think again.
Voluntary sector organisations such as the British Red Cross and St John Ambulance have huge experience in emergency situations. In their briefing to us, they pointed out many of the tragedies in which they have intervened and made a real difference. I hope that the Government will find it instructive if I run through some of them. In February this year, British
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Red Cross volunteers were present to comfort the survivors of the Morecambe Bay cockle-pickers' tragedy. After the Ladbroke Grove rail crash, St John Ambulance volunteers gave assistance for seven days and ambulances transported many victims to hospital.
Many foreign countries recognise the expertise that the voluntary sector has to offer. The aftermath of the tragic events in Madrid showed what a vital role the voluntary sector can play in helping to minimise damage caused and ensuring that all casualties are dealt with as swiftly and sensitively as possible. The statistics of the tragedy speak for themselves. Within minutes of the bombs going off, Spanish Red Cross volunteers were on the scene. Over the next 24 hours and beyond, 900 volunteers provided medical care, gave psychological support and handled inquiries from the public. Fifty-two ambulances and 26 transport vehicles and mobile blood collection units run by the Spanish Red Cross worked in close collaboration with the statutory services. Sixty-one requests for information on missing persons were received from abroad and dealt with through the International Red Cross message and tracing service. The Spanish Red Cross was able to achieve such an exemplary response to the bombings because in Spain the voluntary sector has a formal role in the civil protection framework. It plays an integral part in emergency planning and is designated to be involved in rescue, medical care, information and communication, together with emotional support.
In the Bill the Government have a chance to use the voluntary sector in the same way as the Spanish Government. We feel that the Government would be short-sighted not to take note of the statistics and the response provided in Spain, and not to give Britain the same chance to have a first-class response to such an event. The voluntary sector should be properly recognised and involved. Our amendments would mean that the knowledge of the voluntary sector would be put to good use and ensure that they were consulted on planning. We feel that they are good common-sense proposals, and I hope that the Minister will look upon them favourably.
Amendments Nos. 42 and 43 relate to Clause 4, on advice and assistance to business. This clause imposes on local authorities a duty to provide to those undertaking commercial activities in their communities, advice and assistance about business continuity management (BCM). We feel that the Government, again, have made a huge omission by not including the voluntary sector in the clause. It means that the voluntary sector will not receive the advice and assistance from local authorities that business will. It is well documented that only 40 per cent of organisations without a continuity plan exist 12 months after a disaster—that is from Continuity Central, 2003. Just 8 per cent survive long term—that is from Safetynet, 1993—and only 58 per cent of larger charities and 43 per cent of smaller ones have a continuity plan, according to PKF in 2003. Few have practical contingency arrangements, but those that do successfully continue, as was shown in New York on 9/11.
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It is also clear that, if a disaster should occur, we would look to the voluntary sector to help out: there is no question of that. I am sure that it would cost councils little extra to include the voluntary sector, so I cannot understand the Government's reluctance to include them in this clause. However, I must also point out that the voluntary sector should not be expected to pay for advice or assistance received under the clauses.
I also want to make clear that, although the Local Government Association has expressed some opposition to our amendments, I understand that communication between the Local Government Association and the voluntary associations has now been established. Discussions will shortly take place between the parties and I hope that an understanding will be reached. For our part, the concerns expressed by the LGA to date do not, with respect, diminish the strength of our commitment to the amendments. I also want to remind the Committee that, as I stated on Second Reading, we already have a precedent for that in the Homelessness Act 2002, Section 3(3)(b). In that provision, a similar argument could have been and was raised, and it was decided that the voluntary organisations should be there, clearly in the Bill and their contribution properly recognised. I beg to move.
Lord Archer of Sandwell: I have been asked by the right reverend Prelate the Bishop of Newcastle to express his regret that he could not stay for this debate. He wished to participate, but he has a commitment elsewhere and he begs that your Lordships will excuse him. So that the noble Baroness will not interpret some of my earlier remarks as being personal, I say at the outset that I support everything that she has just said.
In the interests of saving time, I propose at the outset to speak simply to Amendment No. 20, as the other amendments rest substantially on the same argument. If my noble friend on the Front Bench accepts the principle, we can consider in tranquillity the specific amendments that would follow.
I made particular reference to Amendments Nos. 41 to 43, because I think that they raise a different issue. That is the question of advice to community activities. But the noble Baroness has covered that completely, and I do not think that the case would be benefited if I added anything specific to it. I may say that I did suggest that it should be treated as a separate grouping but, not for the first time in my career, my advice was not followed.
The amendments were prompted when some of us serving on the pre-legislation committee were impressed by the evidence of some voluntary bodies: notably, the Red Cross, because it acted as the lead department, so to speak. It was concerned that its existence was not recognised in the Bill.
On Second Reading, several noble Lords mentioned specifically four of the voluntary services: the Red Cross, the Women's Royal Voluntary Service, the Salvation Army and the St John's Ambulance. It was those four services that attended a meeting in this building that I was privileged to chair and they earned our gratitude for their patient explanations and
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response to our questions. But they are not, by any means, the only voluntary organisations that have expressed concern. It would be wrong to assume that that concern is limited to those four.
It is true that some voluntary organisations do not wish to be included. But I wonder whether they have misunderstood what is proposed. I appreciate the concern that some of them do not have a presence in every locality and that they would not be able to respond to every obligation that they fear may be placed on them. That would be understandable if it were proposed to include them in the schedules, because then they would be under statutory obligations. I believe that, at one time during the committee's deliberations, such a proposal a was ventilated.
The amendments would not include the voluntary bodies in the schedules. They propose to ensure that those bodies are consulted by the schedule providers, and that would not impose on them any burden or, indeed, any obligation to find resources. One could say that it would ensure that they have an opportunity to indicate what they can and cannot do.
In the Government's original paper dealing with disaster, the role of the voluntary organisations was recognised and discussed. In the consultation paper of June 2003, they were forgotten, and in the Bill they have sunk without trace. Now, they rate a passing nod because, in responding to the report of the Joint Committee, the Government said that they will encourage Part 1 providers to consult the voluntary services. Some of us are troubled that their recognition should depend on whether providers respond to that encouragement. We believe that they should be given a statutory right to be consulted, subject of course to the right of the Part 1 provider to decide which bodies are appropriate to be consulted. That is the why Amendment No. 21 is drafted in the way that it is.
I support the noble Baroness for two reasons: one is a matter of principle; the other, pragmatic. Since I usually find that pragmatic reasons are more persuasive than reasons of principle, perhaps I may speak to that first.
In this country, we have a treasury of skills and experience in the voluntary services. They include people who give their time not only to serve the public but to undergo training for that purpose, and in many cases the training is to a very high degree of expertise. Sometimes there is available to the statutory bodies no equivalent resources. That is true at the cutting edge, and it is true at the management level. A number of examples were quoted at Second Reading, and the noble Baroness has just quoted two others. Perhaps I may add one from an area which I was once privileged to represent in another place.
On the evening of 10 May 2003, an industrial depot in Tipton caught fire. On the premises was a store of liquid petroleum gas, which formed the subject matter of an intervention by a noble Lord earlier in our debates. There was fear of a serious explosion. Mercifully it did not happen, but that did not reduce the danger at the time. It was necessary to evacuate
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homes in the surrounding area. It was not the most convenient time to concentrate resources: it was a Saturday evening. The council services requested the help of the West Midlands branch of the Red Cross. Fortunately, a rest centre was available in the local community centre. The Red Cross responded at once. Within a very short time, 120 people had been evacuated to the rest centre. Some were able to make other provision for the night, but 60 people had to spend the night at the centre.
The Red Cross branch mobilised local members to form an emergency response team. They provided food, covering and other necessities; they provided emotional support for those who were distressed; and they provided an ambulance equipped with medical provisions. People remained at the centre until 10 o'clock the next morning. The statutory services were in no way negligent, but they could not provide a 24-hour response of that magnitude.
Perhaps I may add in passing that, in the recent flood disaster at Boscastle, the Salvation Army provided food for victims and for the emergency workers, and St John Ambulance made 12 vehicles and 40 helpers available.
The amendments imply no criticism of the statutory services. They have an impressive record of which this country may well be proud. But we are discussing situations where there may be a sudden tidal wave of disaster and where the need cannot be channelled over a period of time so that every call can take its turn. Every resource may be called on simultaneously, and it may be vital to supplement the statutory services. It may be essential to integrate every resource which can be called on. That will need to be planned for and rehearsed, so that there is a joined-up response when the time comes.
Of course, it goes further. At Second Reading, the right reverend Prelate the Bishop of Coventry reminded us that the victims and their families may well have emotional, psychological and spiritual needs. That is not to say that the statutory services do not have sensitivity but they may be fully extended with other functions and, in any event, they have a rather different training.
These amendments ask simply that that expertise may be recognised, involved and integrated at the planning stage. Of course, the majority of local authorities are well aware of the value of that resource. They know about working with the voluntary services. Officials in the two sectors are frequently on terms of personal friendship. But there are two dangers in those rare cases where that does not happen and where common sense is in short supply. First, there are some local government officials who do not feel the need to consult. At various times, we have all encountered them. They know what to do and they do not need advice from those whom they regard as amateurs. If a voluntary organisation is needed, they will tell them when that need arises.
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The point about consultation is to consider what action may be needed before there is an emergency so that it may be included in the planning. If a requirement to do that is enshrined in statute, it may prevent local self-importance getting in the way.
The second danger is that the advantages of consulting the voluntary sector may simply be overlooked by busy councillors and officials. They may not intend to ignore the asset that is available. In a busy life, they may simply forget. We sometimes fail to appreciate that the important advantage of including something in a statute is that it is there on the list of things to be done. In a letter that I recently received from the Local Government Association, it referred to the possibility of a statutory duty and said:
"We believe that such a duty is unnecessary and would in fact demonstrate a lack of commitment by both central and local government to the 'compact' way of working".
I believe that it would do precisely the opposite. It would demonstrate that central government, with the concurrence of local government, takes the compact way of working seriously. I am confirmed in that view by a letter that I recently received from the NCVO, which said:
"In summary, we believe that the proposed amendment could be helpful for voluntary organisations and would also reinforce the Government's commitment to the Compact and in particular the requirement to consult with the sector".
I do not know whether that was the letter to which the noble Baroness was referring but the NCVO is pretty clear about its view on the subject.
I said that there is also a reason of principle. In this country, we have a tradition of enlisting and recognising the merits of the voluntary sector. Many, if not most, of our statutory services grew out of initiatives by the voluntary sector. They should not been seen as the junior partners, dependent on such recognition as the statutory services choose to accord them. Their inclusion should not be subjected to the discretion of the statutory services. They are part of our national community. An essential part of belonging is the right to be called on to serve. Paradoxically, there is a right to share an obligation.
It cannot be often that the Government receive such a willing offer. Nothing is more likely to evaporate a spirit of co-operation than waiting for a telephone call that may or may not come. All that these amendments ask for is an assurance that it will.Lord Luke: I support my noble friend's amendments very strongly indeed. I would almost say that I would like to start by quoting the speech of the noble and learned Lord, Lord Archer, in its entirety because I agree with every single word he said. He really covered the ground. So what I am going to say will be very short indeed.
I have some experience. I was commissioner of St John in Bedfordshire and, subsequently, commander. I also had two weeks' service in the then WVS during the floods in 1952 so I have heard about it a little. In an emergency, all kinds of things happen. The depth of injury to be dealt with depends on the kind of emergency.
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St John and the Red Cross will deal with the superficial situations that may arise. However, if there is a really serious disaster with hundreds dead and lots of injured and glass flying about all over, there will be quite a lot of what I would call minor injuries—although no injuries are really minor. Where there is a tremendous call on the statutory services to get people to hospital as quickly as possible, St John or the Red Cross can cope with those minor injuries in the short term. That is one of the most important things.
Also important is the back-up during the recovery period afterwards, when all the people have been taken away—to hospital, one hopes. If there has been a bomb, there is a building to be cleared up. There are lots of people, as the noble and learned Lord, Lord Archer, said, who may be in schools being looked after on a temporary basis. That is when the WRVS particularly comes into its own, as well as the others—the Salvation Army, the Red Cross and St John—providing the continuous back-up services that are needed as the emergency slowly becomes a clear-up operation.
I would like to add my view that I find it extraordinary that the voluntary bodies are not mentioned in the clause. They must be brought into the clause, so that they are brought into all consultations at local and central government level, because they can do an enormous amount of good.
Baroness Masham of Ilton: I am pleased to support the amendments, which aim to include the voluntary organisations in the clause. It is important that the appropriate voluntary organisations are involved at the planning stage. I would like to give two recent disasters as examples. The first is the tragic events at the school in Russia, where there seemed to be a lack of any planned organisation to help find injured children divided from their families, amid chaos in a terrible situation. In Madrid at the time of the bombs on the train, there was good organisation of voluntary help, as the Spanish Red Cross had been involved at the planning stage. That helped in a terrible and dangerous situation.
I cannot understand the Local Government Association not seeing the value of having well planned, well trained volunteers to help in disasters. Is it a sort of professional jealousy, or just a matter of not wanting to be bothered to work with them? As a long-standing, or perhaps long-sitting, member of the Red Cross, I know volunteers can be most useful if they are well organised, well trained and there is a lead organisation that knows whom to contact for help.
If the volunteers are to be useful, they will have to know what they are to do and to whom to report. Without a system in place, there will be a waste of much-needed help. Surely that means planning at local level. We need to be prepared—one never knows when there will be a terrorist attack of horrific dimensions, or a disaster such as floods or fire or anything that threatens human welfare. One never knows what is round the corner.
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Volunteers give their time freely. Does the Minister not think that they should feel valued? Also, I feel that information should be freely available, as the noble Lord, Lord Lucas, said, in speaking to Amendments Nos. 18 and 19. Volunteers could help to disseminate this. Volunteers deserve to be recognised.
I hope that the Committee will be able to realise this as the Bill proceeds through your Lordships' House, with the help of the Minister.
Baroness Emerton: I agree with all that has been said in support of the amendment. I should also like to add my thanks to the Minister for his communication following Second Reading in July and for arranging the briefing meeting afterwards. However, I wish to express concern with regard to the Bill's exclusion of voluntary organisations from planning and practice for emergencies.
I have a specific concern. At the risk of repeating what I said at Second Reading, I am concerned that the voluntary aid societies have not been recognised alongside the voluntary organisations. The voluntary aid societies have a specific responsibility, as recognised by the Government, following the Geneva Convention. It is very important that that is recognised and remembered. I declare an interest as a former chancellor and chief commander of St John Ambulance. I have been involved in local county and national emergency planning for years.
Mention has already been made of the Boscastle emergency, which happened during the Recess. I should like to illustrate what happened in relation to the ambulances which were mobilised. It appeared that the local statutory agencies were in desperate need of 4x4 vehicles. Four of those were provided by St John Ambulance, plus seven further ambulances and one support vehicle. That was in addition to 33 members being mobilised, and a medical officer responded immediately. That would not have been possible had they not been involved in the planning beforehand, because speed is of the essence in such a situation and volunteers, who are probably engaged in full-time employment, need to be aware of what is required of them when called.
The modern fleet of ambulances is maintained to the European standards. All the crews are trained to the level of ambulance technicians, but not all are of paramedic standard. All have up-to-date qualifications and have reached appropriate levels of competences. The fleet of ambulances brought into service in St John Ambulance since 1999 exceeds 1,000 up-to-date vehicles, which I think is the largest number of vehicles owned by a voluntary organisation. Not only are they used for private commitments, they also support the statutory services.
Closely following the Boscastle disaster, a grandstand collapsed at a Grapevine event in Lincoln on 29 August. St John Ambulance members were already on site, but a major incident was declared and the 12 members, with their three vehicles, treated and transported casualties to hospital at the request of the Lincolnshire Ambulance Service, another example of
15 Sept 2004 : Column 1273partnership working and the confidence that the statutory services have in the voluntary services. The two incidents in the past few weeks indicate what has been repeated year after year—the Ladbroke Grove disaster, for example, and the other incidents which have been mentioned this evening.
This afternoon, outside the Houses of Parliament, St John Ambulance members and ambulances were mobilised; they had been involved in the planning for what was to happen this afternoon. I am afraid that I have not been able to get the details of the numbers, but they were definitely there.
Most voluntary organisations are actively involved at county level in emergency planning, and county major incident practices are a regular event. In Surrey, for example, voluntary organisations are involved in the Gatwick major incident plan.
As has already been said, volunteers are highly trained and give their time and expertise freely, but they appreciate being valued for the contribution that they make to society. If volunteers are not thought to be important enough to be included in emergency planning, it will inevitably have a tremendous effect on the recruitment of future volunteers.
It is strange that there seems to be so much opposition to the inclusion of voluntary organisations in the planning and practice for emergencies when the Government have given volunteering such an important place on their agenda.
During the past year, I served on a Department of Health working party chaired by Nick Young, the chief executive of the British Red Cross, which has produced a policy document entitled Making Partnerships Work: A Strategic Agreement between the Department of Health, the NHS and the Voluntary and Community Sector. The document is to be launched next Monday by the Secretary of State, John Reid. The strategic agreement sets out a robust approach to partnership between statutory agencies and the voluntary sector. Like other Members of the Committee, I was therefore surprised to receive a letter from the Local Government Association which stated that it did not support the inclusion of the voluntary sector in planning for emergencies because of its not complying with the compact. Surely central government are committed to fostering partnership arrangements. The statement made by the Local Government Association is counterproductive to moving forward.
While I have declared my interest in St John Ambulance and mentioned the part it played in recent events, in no way do I exclude the British Red Cross and St Andrews Ambulance Association, which form the two other voluntary aid societies, or the other appropriate voluntary organisations, which offer such a wide range of humanitarian aid in times of emergency.
I urge the Minister to give urgent consideration to the amendments, which would include the appropriate voluntary organisations in the planning and practice for emergencies. That would demonstrate central government's support for the Making Partnerships
15 Sept 2004 : Column 1274Work strategy and give recognition to the voluntary sector, especially as 2005 will be the Year of the Volunteer.Baroness Thornton: Before asking the Minister a question that has been whirling about my head as our discussion has gone on, I pass on the sincere apologies of the noble Lord, Lord Adebowale, for not being in the Chamber to support the amendment. He was at a major conference today and he was not able to get away.
I thank the Minister for making sure that we received the draft guidance confirming the role of the voluntary sector prior to our discussion. I have not had the opportunity to discuss it with my colleagues in the voluntary sector, but it looks quite good. However, be it the best guidance in the world, how do the Government intend to make those recalcitrant local authorities and emergency planners which do not want to talk to the voluntary sector take it on board? That is the question that lies at the heart of the amendment and it reflects the concerns that voluntary organisations have.
The voluntary organisations that have been so exercised by this issue throughout the passage of the Bill could not possibly be labelled as troublemakers. Those organisations exist to serve. If they have persisted in their concerns, the Government need to take them very seriously indeed and find a way through.
Lord Hylton: I agree with almost everything that has been said in support of the amendments. Only for the sake of completeness, I mention, first, the role as a focal point of councils of social service in emergencies and, secondly, the vast amount of property that is owned by churches and community organisations, which can be essential when people are displaced from their homes.
Baroness Hamwee: The notion of such organisations as the Red Cross, the WRVS and the Salvation Army being trouble makers is a delightful one. But they have a role to be that and they have exercised it jolly well in getting us to focus on the issue. In view of the briefing which clearly many noble Lords have received from the Local Government Association, which refers to compacts between governmental and other agencies and the voluntary organisations, I should declare an interest as a member of the NCVO's Compact Advocacy Advisory Group.
The case will not be improved by anything I can say. I hugely support the points which have been made and in particular those by the noble and learned Lord, Lord Archer of Sandwell. I welcome the discussion which now appears to be under way to which the noble Baroness, Lady Buscombe, referred. We need a way of getting the best and not increasing the burden on anyone. The noble Baroness ended her speech by saying that the contributions of the voluntary organisations should be properly recognised. I put it this way: we need to make sure that we do not fail to
I am not at all comfortable at taking a position against, as it may appear, the Local Government Association when I so often support what it says. I hope that we shall end up without taking sides on this because we should not.
Lord Brooke of Sutton Mandeville: In the interests of the hour, I shall be extremely brief. I shall not repeat but I do echo everything that has been said in earlier speeches. One is normally daunted when confronted with 18 amendments in a group. This evening and as far as I am concerned, one is totally undaunted because of the consistency of the language and the motivation of the 18 amendments as one reads them one by one.
On what normally would be a maximum of 72 names, with 18 amendments with four names each, 59 names were put down. As in a one-day cricket international, most of the runs were scored at the top of the order in Committee and those were the names put down on the original Amendment No. 20. No adverse reflection attaches to those whose names appeared less often because of the limit of four names to each amendment. But on every single amendment appeared the name of the noble and learned Lord, Lord Archer of Sandwell, and in my view great credit attaches to him for that. The other three names on Amendment No. 20 are those of my noble friend Lady Buscombe, the right reverend Prelate the Bishop of Coventry and the noble Lord, Lord McNally. Their names appeared, give or take an amendment, on two-thirds of the 18 amendments. They form a powerful all-party alliance.
My own name does not appear on any of the amendments and neither did I speak in the debate at Second Reading. But I did speak several months ago in a debate on international development, which was moved by my noble friend Lady Chalker. At that stage I made a paving speech for tonight in alluding to the subject that we are discussing in this group of amendments. I compared it to the interest of the development NGOs which, however good their relations with DfID and the Foreign Office, would wish to develop a statutory proactive relationship which would integrate them too into the Government's international aid and emergency plans. A statutory relationship of the sort which we are developing in this group of amendments will inevitably come one day. It would give the best of starts to this particular legislation if this were the occasion when the new statutory link were to be established. I hope that the Minister can speak encouragingly in that regard.
Lord Bassam of Brighton: I suppose, in following the noble Lord, Lord Brooke of Sutton Mandeville, I am at the bottom of the order. That probably makes me a "tailender". Whether I shall be as big a hitter as some tailenders are, I very much doubt, and I offer that in modesty. It is nice to know we share such an interest in cricket.
I want to say first—because I believe in being direct about such matters—that these are not amendments that the Government can accept, and I have to resist their inclusion in the Bill. That is a pretty bold start, but I do think it is right to say that and to be very clear from the outset. That is not to say that I do not recognise the value of the arguments that have been made, nor the force with which they have been made, nor the sincerity with which they have been made. Nor do I fail to recognise the very valuable contributions that all participants in this debate have made, in drawing out the immense value of the voluntary sector and voluntary aid organisations.
Two things I take from the comments that have been made are that a statutory location is important to elements of the voluntary sector as they see it, because it underlines and gives expression to the value that they feel they bring to our society. I happen to believe that it is not necessarily the case that it is needed to underpin their role in statute or on the face of the Bill. We do recognise—and recognition is the other point—the value of the voluntary sector in this field, as we do across government. The noble Baroness, Lady Emerton, made the point very well, that, from her perspective, this Government have been very supportive indeed of volunteering. I make the bold claim that this Government have been rather more than that, and have been positively encouraging, probably investing more than any previous government in ensuring that the activities of volunteers are well supported, well appreciated and well resourced. The debate raised some interesting questions about the voluntary sector in contingency planning, and took us forward a stage or two from the valuable debate we had at Second Reading.
My response is going to be long, because the issue deserves to be dealt with thoroughly. I want to go over the points that have been made very carefully. The Government encourage membership of voluntary organisations and their engagement with key responding organisations. We fully recognise the important role they can perform, particularly in the field of humanitarian support for individuals and families affected by emergencies. The recent Boscastle emergency, as a number of speakers said, gave full voice to that, and was a very powerful example of the way volunteer support and organisation can be very well directed and well used. That is greatly appreciated. Indeed, I pay tribute to the well known and long-standing contribution that voluntary organisations have made to the effective response to civil emergencies. Reference was made by the noble Baroness, Lady Buscombe, to the role played at the Ladbroke Grove rail disaster. I cite, too—in aid of her point, if you like—the response to Potters Bar, and others referred to the tragedy at Morecambe Bay with the cockle pickers.
There is no question of the valuable contribution that volunteers can make to emergency response. This critical work will go on whether or not there is reference to the voluntary sector in statute. The noble and learned Lord, Lord Archer of Sandwell, made reference to the Government's key commitment and
Most local multi-agency co-ordination groups and local resilience forums under the Bill, have a voluntary sector liaison group. A very significant amount of work is done by local authorities and others in training volunteers for their roles in cases of emergency, involving them in multi-agency exercises.
However, it is important that we are also clear about the limitations of the voluntary sector. With one or two notable exceptions such as the RNLI or mountain rescue, the voluntary sector is not a first responder and only ever acts in support of statutory bodies. There are few reported problems with the current, permissive system. The briefing note issued by the voluntary sector in advance of this session provided evidence of how the voluntary sector is playing an important role. But it is limited in terms of the resources it can bring to bear, in comparison with the statutory services.
"We strongly agree with the statement in the Consultation Document that voluntary organisations are not included in the Duty . . . Even with over 23,000 adult volunteers trained in First Aid and 1,300 vehicles (including the largest single ambulance fleet in the country), St John Ambulance is unable to guarantee a particular level of provision of emergency aid in all of the 42 counties where we have offices and management structures. The type of response we can provide and the amount of support we can offer varies on a geographical basis . . . Some of our volunteers (including 1,500 Doctors, Nurses and Paramedics) are unavailable to St John Ambulance in times of emergency, as they will be required to respond by their full-time employers . . . Whilst the roles and activities undertaken by St John Ambulance will (at the very least) support and complement activity of Category I or 2 Responder members, we agree that . . . we are unable to guarantee a consistent standard and level of support nationwide".
"The LGA would . . . not support amendments to place a blanket, specific duty on local authorities to consult voluntary agencies. This objective can equally well be achieved by the inclusion of the matter in Guidance, thus avoiding the need to resort to further bureaucratic regulation and maintaining the independence of the voluntary sector. It would also allow each local authority to respond to the nature and requirements of the sector in their local area. The LGA believes that the existing procedures and arrangements work very well (indeed no voluntary organisation has expressed to the LGA any dissatisfaction with the current level of consultation or involvement in contingency planning at local level). The LGA certainly would not wish to see any changes that might adversely affect arrangements that work well as they are".
Members of the Committee also commented on international comparisons. I have seen the presentation, too, and there is no doubt about the excellent work which the Red Cross undertook in response to the Madrid bombings. But in Spain it is
It is also the case that the voluntary sector also has a far from simple relationship with the statutory services. Many voluntary bodies have no involvement or interest with civil protection. Of those that do, the relationship tends to be a mixture of "real" voluntary provision and "commercial" contractual relationships. It is this very set of complications which lends itself to the permissive approach.
We should also be clear about what the Bill already provides. There is nothing in the Bill that will prevent voluntary organisations from remaining fully engaged, and we will continue to encourage local responders to engage the voluntary sector wholeheartedly in local multi-agency planning and response through the guidance supporting the Bill. We will use the guidance supporting the Bill to make this vision into a reality. Indeed, we have encouraged the voluntary sector to engage in the open and inclusive process we have set in train to review the draft regulations and develop guidance under the Bill. I understand that a senior representative from the National Voluntary Aid Societies Emergency Committee is taking a prominent role in that work. We have also made available the draft guidance to a wider community of interested parties, and the response has been extremely positive.
I do not wish to undermine the role of the voluntary sector; I simply wish to make it clear that this is far from an open and shut case and it is important that we consider the views of all stakeholders, not simply the major voluntary sector bodies. It is fair to say that we all have the same aim: the effective engagement of the voluntary sector in emergency planning and response. The essential disagreement is not about the ends but the means; how we achieve that objective.
Baroness Thornton: I am sorry to interrupt the Minister, but before we leave the guidance I want to return my question of how we can be sure that this excellent guidance will be carried out locally. What is there in any part of the Bill that will ensure that that will happen?
Lord Bassam of Brighton: I was not intending to overlook the point. I am grateful to my noble friend for drawing me back to it. Perhaps I should deal with it here and now so that we can focus on it. The question is, what force does the guidance have in relation to the voluntary sector? Under Clause 3(3) responders must
have regard to guidance. That is not the same as being bound by it, but guidance under the Bill is exactly that: it will indicate the best way to proceed. A responder must ensure that they look at the guidance; they have no real reason to diverge from it. There is no way that they can disregard it altogether.
We have to trust guidance. We trust it in all other aspects of legislation and I know that we have this debate in many different guises, as the noble Baroness, Lady Hamwee, mentioned. Guidance is important. It would be wrong of statutory bodies to ignore it and they will not be able to do so. We will ensure that they take it carefully on board and fully engage with voluntary organisations at a local level. That is the expectation and they will be encouraged to do that from the centre. That is how we see the issue proceeding.
Baroness Emerton: At the risk of interrupting again, all that the Minister read out about the St John Ambulance being in support is correct. There is not a standard service across the country. It is important that what there is is there to support the statutory services. Unless they are recognised and involved in the planning they cannot be there to back up the statutory services when there is an emergency.
Let us take the examples of the King's Cross fire and Ladbroke Grove—I am taking London as an example because it is a good example—where the London ambulance service relied on the London district St John Ambulance to provide cover for the 999 calls because there are paramedic staff on the ambulances. If they are not involved in the planning—as they were for this afternoon's episode outside—they cannot be mobilised.
Lord Bassam of Brighton: I understand the point that is being made but we rely on guidance, which has force and value. All that is said about the importance of having the volunteer sector involved in planning at the outset is right. It is our intention to ensure that that will happen. No one has yet regaled me with example after example of where the voluntary sector has been cut out of the planning process with the statutory sector. I have not been given examples of that. We do not have experience that that is the case.
I turn to the detail in the amendments as the amendments are in themselves very important. Amendments Nos. 20 and 21 would impose a duty on category 1 responders—the emergency services, local authorities and so on—to consult with voluntary organisations in the performance of their duties under the Bill while leaving the manner and extent to which they are consulted as a matter for their own judgment. By virtue of Amendment No. 80, the definition of "voluntary organisation" is extremely broad,
capturing any body other than a public or local authority whose activities are not carried out for profit, including many organisations which do not undertake activities relating to civil protection.
Of course I agree that where it is appropriate statutory responders should consult and involve voluntary sector partners to the fullest extent in the planning process—the very point on which the noble Baroness, Lady Emerton, touched. Statutory responders absolutely accept that. Voluntary sector bodies are already engaged very closely in multi-agency planning. It is already happening. We propose to include in the guidance supporting the Bill a clear and unequivocal statement of the expertise and resources that the voluntary sector can offer. We also expect there to be a clear statement that local responders should involve the voluntary sector in civil protection work. Furthermore, we will give clear and helpful guidance on how this can be done, for example, by engaging the voluntary sector in the planning process and ensuring that it is represented in multi-agency planning arrangements. As I said earlier, we are working closely with a whole range of stakeholders, including the voluntary sector, in working up the content of this guidance. That in itself has been applauded already. It is difficult to see what the amendment would add to that approach. The merits of imposing a legal obligation on responders to consult the voluntary sector where the responder itself decides who must be consulted, the extent of the consultation and the manner in which the consultation takes place, must be doubtful. This is particularly true when the duty to consult is so wide. Local responders must "have regard" to the guidance we propose and cannot set it aside without good reason.
It is inconceivable that statutory responders would not want to use all resources available to them and to ensure that those bodies they did work with are fully integrated into their plans. We believe that civil protection professionals on the ground are best placed to decide which voluntary organisations they consult or engage with. While the emergency services and local authorities do not support this amendment, they do, however, recognise the need to work in partnership with the voluntary sector and wholeheartedly support the use of guidance to help to make sure that happens systematically. I refer the Committee to the comments that I read out earlier from the Local Government Association.
These amendments would enable but not require—that is an important qualification—regulations under Part 1 to require responders to consult the voluntary sector. We think that the amendments are unnecessary. Clause 2(5)(d) already enables regulations to require responders to consult any person or body or class of person or body in the course of performing their civil protection duties. It is difficult to see what specifically referring to voluntary bodies will add to that.
Amendments Nos. 41, 42 and 43, referred to by the noble Baroness, Lady Buscombe, constitute a slightly separate subject. They would extend the duty on local authorities to provide business continuity advice. The
Bill currently requires them to provide advice to members of the public who carry out commercial activities within their area. These amendments would extend this duty to cover organisations undertaking "community activities". Local authorities would not be allowed to charge for such advice, even on a cost recovery basis.
By virtue of Amendment No. 79 "community activities" are interpreted very widely as including organisations such as parents' associations, tenants' associations or recreational clubs throughout the country. I certainly recognise that the provisions of the Bill do not cover all the activities of voluntary organisations. However, the purpose of the duty in Clause 4 is to minimise the economic impact of emergencies. It is for that reason that the focus of local authorities' efforts must be on commercial activities. Furthermore, through two public consultations there was certainly not a strong call for the voluntary sector to be included in the duty despite the high profile of the Bill with parts of the voluntary sector and the National Council for Voluntary Organisations. That is not to say that individual local authorities could not or should not extend their advice to voluntary organisations where they feel it would be appropriate. Much of local authorities' work in this area would be light-touch, awareness-raising activity, with websites containing advice, for example, which would be open to all organisations.
We have established a number of working groups to review the draft regulations and develop supporting guidance to accompany the Bill. One of these working groups is looking at BCM promotion. While its work is at an early stage, it is likely that the guidance will emphasise to local authorities that there are a large number of bodies, which, while not undertaking commercial activities, do provide services of importance to the community. The representatives of the practitioners which would deliver the service—namely, the LGA—also support this approach.
To conclude, I listened with great respect and carefully to what has been said in the Chamber this evening. It has valuably underlined the importance that everybody sees in the voluntary sector playing a pivotal role in emergency planning and response. But I have tried to indicate that the voluntary sector has its limitations, too.
The Bill and supporting regulations and guidance will help ensure that the close engagement of voluntary bodies in emergency planning work continues and develops. The guidance under the Bill provides an excellent opportunity for the Government to give a clear statement of the role of the voluntary organisations in civil protection arrangements. I am delighted that the guidance in its draft form has attracted support and been welcomed. The guidance sets out very clearly how it expects the statutory responders to engage with the voluntary organisations. Cabinet Office officials are working closely with key figures in the voluntary sector to ensure that that happens.
I go back to the words of the Local Government Association and its briefing note that sums it up. The LGA says it will not therefore support amendments that place a blanket specific duty on local authorities to consult voluntary agencies. That objective can be equally well achieved by inclusion of the matter in guidance. The LGA does not want to have changes made to the arrangements where those arrangements work well.
The arrangements work well at the moment. Everything that has been said about the LGA working closely in concert to establish a memorandum of understanding with the voluntary sector has a value. We want to see that voluntary approach continued. That is what we seek to achieve in the way in which we have worked out our policy and the way the Bill is drafted. Guidance is where it is best left.
I understand the strength of feeling, but it is contingent on all of us—not least me and certainly all those who have been critical of our position—to reflect hard on the important points made from the Government's perspective in this debate. I think there is more merit in our argument than perhaps has been given credence. That is not to say that we do not value highly—because we do—the important, pivotal role that the voluntary sector will have to play in civil contingency preparation.Baroness Masham of Ilton: We have not got examples of voluntary bodies being cut out as this legislation is not yet law. We want to ensure that that will not happen. How can the Minister ensure that the guidance will be adhered to? What happens if voluntary bodies are cut out?
Lord Bassam of Brighton: That is a similar question to that asked by the noble Baroness, Lady Thornton. As I explained at the outset, it is clear that we will have an expectation that local authorities in particular, through their emergency planning preparations, will engage with the voluntary sector—as they do now. I am not aware that, as a matter of course, those involved in emergency planning are ignoring, or failing to work with, or not co-operating with, or not receiving or absorbing the advice and information that come valuably from the voluntary sector.
As I said in conclusion, the Cabinet Office—which has the central responsibility through its officials—is working closely with the voluntary sector to ensure that it can be enabled to work very closely at a local level with those who have the responsibility. That, and the obligation that will be placed upon local authorities to engage with the voluntary sector, will ensure that the arrangements which largely work well now, will continue to work well and develop further.
Baroness Thornton: I am really sorry to have to say this, but I feel, given that the Minister quoted the LGA briefing at length, that the discussion that has taken place in the past 24 hours since the briefing was
The noble and learned Lord, Lord Archer of Sandwell, is correct. We are talking about a treasury of skill. This is no criticism of the statutory services, but all that noble Lords have said about the contribution and the crucially important role that the voluntary organisations make should be recognised on the face of the Bill. The voluntary organisations need to be involved in the planning process, as the noble Baroness, Lady Emerton, has said.
In all my experience, whether it is at the local fete or at the biggest pop concert that I have attended in my life, I have always noticed that St John Ambulance volunteers are always there. They are already on site. So many times they are the first to respond because
The Minister wanted to make a bold start. I shall make a bold finish. In your Lordships' House we have a powerful all-party alliance. I want the Minister to think carefully about our amendments between now and Report, because if the Minister feels unable to return with similar government amendments then, I shall divide the House on these amendments and we will win. For now, I beg leave to withdraw the amendment.