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Standing Committee F
Tuesday 10 February 2004
(Afternoon)
[Mr. Joe Benton in the Chair]
Clause 22
Limitations of emergency regulations
2.30 pm
Mr. Richard Allan (Sheffield, Hallam) (LD): I beg to move amendment No. 103, in
clause 22, page 15, line 38, leave out 'three' and insert 'one'.
We seek to explore and test the limits of the emergency regulations, specifically in respect of offences that can be created and the penalties that can be applied under them. In order to provoke a debate and test the provision, we have suggested that the maximum penalty available for any offences committed under clause 21(3)(i) should be reduced from three months to one month. They are offences of failing to comply with the regulations or otherwise obstructing them.
This important provision needs to be highlighted in order to reassure the public about the nature of the emergency regulations. One of the biggest concerns is that people could be incarcerated indefinitely and all sorts of penalties applied. My reading of the way in which the various clauses work together is that there are limited powers in respect of anything that can be done to people who breach the emergency regulations. I wish to test the circumstances under which the offences could be invoked.
We must consider whether, in the kind of circumstances that have been described to date—for example, an emergency in which people must be prevented from entering or forced to leave an area—several offences could be committed during an incident in which an individual refuses to comply with the regulations. They might refuse to comply with the emergency regulations but might also be causing an affray, engaging in violent disorder or causing a breach of the peace. We are interested in the interaction of the offence of refusing to respect the regulations with other offences.
My hon. Friend the Member for Orkney and Shetland (Mr. Carmichael) and I had a discussion earlier that was educational for me and would have been educational for the Under-Secretary of State for the Home Department, the hon. Member for Slough (Fiona Mactaggart), but not, I suspect, for the Minister for the Cabinet Office and Chancellor of the Duchy of Lancaster. We were discussing the concept in Scottish law of thole an assize, which means that someone who has been prosecuted for one offence cannot be prosecuted for another offence that takes place during the same incident. Clearly, that would be relevant in this debate. If the Minister can stretch himself to English and Welsh law as well, I would be interested in how the regulations relate to that concept and how the legal process would work if
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someone were in breach of several different regulations.
We talked about circumstances in which people refuse to move, or move where they should not. Other circumstances were described earlier; for example, around animal welfare and animal husbandry, when there were clear instances of individuals refusing to comply with the Government's requirements to destroy their animals. They took the matter to court, and some found judgment in their favour. Clearly, in a future incident, if powers were brought into play through the regulations set out in the Bill, someone might have a legal difficulty under animal welfare legislation but also under the regulations. Again, the interaction between the various pieces of law is what will be most important to individual members of the public.
I hope that the Minister can provide some clarification about when and how offences might be prosecuted, particularly how they relate to tholed assizes, or the English equivalent, which is the inability to prosecute twice for what is effectively the same set of circumstances, and in doing so give us an assurance that where a more grievous offence has been committed, it is the more grievous offence in normal law that is prosecuted, not the less grievous offence under the emergency regulations.
Mr. Oliver Heald (North-East Hertfordshire) (Con): When we discussed the offences, the Under-Secretary said that some might be drafted in such a way as to allow recklessness or negligence to be one of their ingredients. Such an offence might show not knowledge, but that someone had been reckless in breaching the provisions. There could be a range of tests for such offences, and we suggested ''knowingly'' as an added ingredient.
Is the Minister satisfied that clause 21(3)(i) will allow us to create offences that could be more or less serious, depending on the exact ingredients that were included when the regulations were made? For example, paragraph (i)(i) refers to
''failing to comply with a provision of the regulations'',
which could be a strict liability offence. If so, would it not be right for the penalty to be somewhat less than that which would apply if the provisions referred to ''failing to comply with a provision of the regulations with intent''? Similarly, the Minister may create a range of offences under sub-paragraphs (ii) and (iii). Different penalties could apply, depending on whether someone negligently, recklessly or intentionally failed to comply.
I would be grateful if the Minister could tell us what he and his officials think the template for such penalties would be. I do not see much problem with a maximum penalty of three months, which is a modest term of imprisonment.
Mr. John Horam (Orpington) (Con): Given his knowledge of the issue, does my hon. Friend know whether there is a precedent for the term in the Bill? Why is it three months? Is there any evidence to suggest that that is the appropriate term?
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Mr. Heald: A range of offences carries a maximum penalty of three months. Those are minor offences, although, obviously, no offence is a minor matter. The maximum penalty in a magistrates court is six months, and the penalties that we are discussing are half of that, so that gives us a feeling of what three months represents.
It would be helpful if the Minister could explain whether three months is seen as the maximum term for all the offences, or whether he has in mind strict liability offences that carry a one-month maximum term or, perhaps, only a purely financial penalty. Are the Government saying that there will be just three offences, all of which will carry a maximum penalty of three months and a set level of fine, but that they have not worked out whether recklessness, negligence or intention will be the mental element? Are they saying that there will not be a family of offences as regards failing to comply, but just one, and that the same will apply to the other provisions? The Minister might also tell us what he thinks would happen in a serious case. Is he relying on provisions for other offences, such as those relating to affray or civil disorder?
Mr. Alistair Carmichael (Orkney and Shetland) (LD): I was going to keep my remarks for the clause stand part debate, but they are germane to what has just been said.
I wish to explore the reasons for these offences being triable only summarily. That follows on naturally from the last point made by the hon. Member for North-East Hertfordshire (Mr. Heald). It may be an unintended consequence of the offence being triable only summarily that it would attract a six-month time bar for prosecution. I would be interested to know if that is the case as it would affect a very small number of cases, certainly in Scots law. It may also lead to some procedural difficulties, which are always something to bear in mind. Will the Minister confirm that that would mean that it could never appear on an indictment? If an offence under this section were to run alongside more serious cases it may be necessary to level charges under this section for evidential purposes. Presumably, that would not be available to the prosecution. I would be interested to explore with the Minister his reasons for framing the provision in this fairly restrictive manner.
Mr. Heald: The present offences under the Emergency Powers Act 1920 carry a maximum of three months, or a fine not exceeding level 5. Does the hon. Gentleman think it is possible that the Minister has said, ''Well, we will just do what we have always done''?
Mr. Carmichael: The Minister can tell us his own thoughts, and I would never presume to second-guess them. I presumed for my own part that what we were in the business of doing here was creating a summary offence, for which three months for a first offence, and six months for any subsequent offence would be the normal statutory maximum under criminal procedure legislation. I think the level 5 fine is also the same so I was not particularly surprised to see that in the Bill.
Mr. Elfyn Llwyd (Meirionnydd Nant Conwy) (PC): Subsection 3(i)(i) clearly creates an absolute offence,
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and the Minister might confirm that. If it creates an absolute offence, are we happy that the regulations will be known to those persons who transgress? After all, we are dealing with an emergency situation, and the last thing anybody in this Committee—and, I am sure, across the House—wants to do is to criminalise people who did not know that e emergency regulations had come in. Will the Minister tell us how the regulations will be made known to the public, since it is incumbent on us as lawmakers not only to make good law, but to make good law that is known to people who might inadvertently break it?
I have no problem with sub-paragraphs (ii) and (iii), because there is an element of wilfulness, of mens rea in there. Sub-paragraph (ii) says:
''failing to comply with a direction'',
which makes it is quite plain that the person would have had a direction. Likewise, with the words ''obstructing a person'', the person obstructed would undoubtedly have advised the person obstructing that an offence was being committed. I have no problem with that. However, I am very concerned about the first limb. We may inadvertently criminalise many people who might not know that what they are doing transgresses emergency regulations.
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