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Mr. Alexander: I fully understand the hon. Gentleman's concern that Ministers should use the powers of direction under part 1 of the Bill, and the powers to make emergency regulations under part 2, in a reasonable fashion. I entirely agree with what the amendments are designed to achieve, but I must reject them, for reasons that I shall set out. Amendment No. 19–amendment No. 26 in the case of Scotland–proposes a requirement that a Minister
that there is an urgent need for directions. However, it is unnecessary expressly to require a Minister of the Crown or Scottish Ministers to act ''reasonably'', because it is a tenet of public law in this country that Ministers are bound to act reasonably. Furthermore, expressly to require that in this context could be dangerous. A court considering this legislation and another enactment that did not expressly require a Minister to act reasonably might legitimately infer that Parliament had intended to allow the Minister to act unreasonably. I can understand why hon. Members think that emergency powers are a special case and that it is therefore appropriate to be as full and forthcoming in the Bill as possible, even if the provisions are strictly unnecessary. The Government accept that part 2 of the Bill will need to be used only in extremis and that there is merit in drafting this part of the Bill as transparently as possible, but if including unnecessary material in the Bill would potentially cast doubt on the interpretation of other enactments, it would not be appropriate to include it. That principle holds good for part 2, notwithstanding the nature of the Bill. Even an enactment such as the Human Rights Act 1998 does not at any stage expressly require a Minister to act reasonably. That explains the Government's position and why we reject the amendments. Patrick Mercer: I am grateful to the Minister and to the hon. Member for Sheffield, Hallam. The point has Column Number: 115 been explained clearly, and I am content to beg to ask leave to withdraw the amendment.Amendment, by leave, withdrawn. Patrick Mercer: I beg to move amendment No. 21, in
'may be written or oral' and insert 'shall be written'.
The Chairman: With this we may discuss the following amendments: No. 24, in
No. 28, in
'may be written or oral' and insert 'shall be written'.
No. 31, in
Patrick Mercer: Again, this group of amendments deals with a not dissimilar point to the one that we made under the previous group. I fully understand that, in the event of an emergency, circumstances will always be difficult to judge. What concerns me is the fact that, by allowing a Minister or Ministers merely to give an oral instruction down the telephone, swingeing powers may be introduced without the proper course of thought having been gone through. British Telecom gave me a note that reflects clearly on that point. It states:
The note makes a sensible point, but I go further. According to all the principles of emergency planning in which I have ever been involved, there comes a point at which the word of the Minister, the officer or the incident commander simply must be backed up by something stronger. To delve back into history, there was an incident during the second world war when the German commander of the bridge at Remagen failed to give correct written orders. He gave only oral orders for the bridge to be blown up. As a result, the orders were misinterpreted; the bridge was not blown up. Fortunately for the British and indeed, the American and Allied cause, the bridge at Remagen was taken and the wall was considerably shortened. From the Nazis' point of view that was a most unfortunate incident. It has led, as no doubt other hon. Members will be able to tell us, to situations in the armed forces where crucial decisions have to be backed up in writing, although the executive order may be given orally. That applied in the British armed forces particularly where a bridge was to be blown up: a written order had to be given and an oral order was simply not good enough. As a victim of my past experience I take issue with the idea that a Minister can impose such orders by word of mouth. I believe that it is as simple as that; an Column Number: 116 oral order needs to be backed up by a written order. Perhaps in subsection (3) ''written or oral'' should be struck out and the phrase, ''shall be written'' inserted so that there can be no misunderstanding in these most serious of circumstances.Mr. Allan: Again, the hon. Gentleman does us a favour by picking up on the issue. The ability to give oral orders worried one of my colleagues to whom I spoke about the Bill, particularly in the context of part 1. Part 2 deals with what happens when an emergency has occurred. It is about Ministers perhaps having to take exceptional powers in those circumstances. Part 1 is about planning for emergencies. It is hard in that context to understand when there would be a requirement or necessity to give oral instructions under the terms of clause 7, which relates to an emergency situation in which written orders could not be prepared on issue. The grounds for confusion if oral instructions were given are apparent from the draft regulations. Are the instructions under clauses 2(3), 4(2) or 6(1) parallel to the incredibly complex draft regulations? They do not relate to orders that can be easily given down the telephone. It is not a question of picking up the phone and saying, ''You must do this.'' The only one that could sensibly be given in an oral form is draft regulation 13 in respect of compulsory plans, which has a blank space. It says, ''You must have a plan about–''. I can foresee circumstances in which a threat of a particular nature appears and a Minister might want to ring everyone up and say, ''You must have a plan about–'', but that is almost the only draft regulation that would fall within that category. The other powers that concern us are in clause 4 and deal with business continuity. I fail to see the circumstances in which we could sensibly give a business continuity instruction or why business continuity would be such a priority that an instruction would have to be given in oral form. We must be clear that we are trying to limit the powers to do things exceptionally to exceptional circumstances where appropriate. Giving oral instructions is clearly exceptional. It will be much harder to establish the chain of accountability if anything goes wrong when instructions have been given. If someone wishes to challenge the instructions at a later date, which is perfectly possible under the Bill, it will be much more difficult with oral instructions. The idea that we are giving Ministers the power to make urgent oral instructions in relation to business continuity seems bizarre. The other thing that I am not sure is necessary are the provisions in clause 6 relating to the disclosure of information. That might present a stronger case in that we may want to say to one category of people that they must share information with another, but I do not understand how that would be done for directions or regulations. As we have said, the regulations for clause 6 powers are complex and technical. I cannot imagine instructions on those being given orally. The only thing that could be dealt with orally is whether action is to be taken under the powers in that clause. The Minister must justify why oral direction powers are appropriate for part 1 activities generally rather than Column Number: 117 for a much narrower range, particularly in respect of a compulsory plan for which there is scope to issue oral directions. The provision is more wide ranging than it needs to be. Our role is to keep things as narrow as possible.Mr. Alexander: The Government cannot accept the amendments. Clauses 7 and 8 are designed to enable action to be taken by a Minister of the Crown in cases of urgency where there is insufficient time to make legislation. That exceptional power is designed to ensure that in cases of real urgency, the Government can arrange for coherent, effective action to be taken at a local level. There are circumstances during emergencies, or when they appear imminent, in which consistent, decisive action is necessary. Sometimes such action might be outside existing planning frameworks and at others it might not be apparent to local areas how best to deal with the situation. For example, there might be a sudden heightening of the terrorist alert state or a mass evacuation that requires responders urgently to reassess their plans for such an emergency. The hon. Member for Sheffield, Hallam suggested that these provisions are unnecessary because they are included in part 2. However, although there would be appropriate regulation powers under part 2, some circumstances would not merit the declaration of an emergency but would, none the less, require some quick, brief direction. That comes to the nub of the matter raised by the hon. Member for Newark, the central contention of which was that if an oral direction were given, it would be vital for it to be backed up with a written direction from the Minister. I think we would agree on that. Perhaps I can direct the hon. Gentleman to clause 7(5), which says:
I hope that we have addressed hon. Members' specific concerns and recognised the balance that needs to be struck between ensuring that there is speed of action where necessary and ensuring the rigour and clarity that would come from written communication. The Bill contains appropriate safeguards. Any oral direction must be confirmed
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