asked Her Majesty's Government:

My Lords, our concerns about the failure of both sides to implement phase 1 of the road map are compounded by the increased levels of violence in recent weeks, particularly relating to Gaza. Palestinian failure to deal with security and Israel's increased settlement activity must be addressed urgently. There is a need for both sides to demonstrate that they will honour the commitments that they made in signing up to the road map, which is currently the only credible route to the two-state solution supported by the international community.

My Lords, I thank the Minister for that reply, but is she aware of an interview, published in the Israeli newspaper Ha'aretz on 8 October, with a senior adviser to Prime Minister Sharon in which he claimed that any withdrawal from the West Bank would be a purely token one; that the larger settlements in the West Bank will remain part of Israel indefinitely; that while 10,000 settlers may be evacuated from Gaza, the hold of 200,000 settlers on the West Bank will be strengthened; and that the whole political process—that is, the road map—has now been frozen? The adviser concluded that the whole package—that is, a Palestinian state—has been removed from Israel's agenda indefinitely with the blessing of President Bush and the ratification (I am not sure what this refers to) of both Houses of Congress.

How does the Minister reconcile those apparently authoritative but unsurprising statements with the view expressed by both President Bush and the Prime Minister in April this year that the proposed Israeli withdrawal from Gaza represented an opportunity to inject new life into the peace process in accordance with the road map? Is it not time for Europe to play a more active and positive role in the quartet?

My Lords, I have, indeed, read Mr Weissglas's interview and I have also seen Mr Sharon's remarks distancing himself from the views expressed. Mr Sharon's plenipotentiary said that the disengagement plan was not intended to freeze the political process with the Palestinians but to preserve the road map as the only political process.

I am aware of the degree of scepticism that has been excited by this exchange of views. Perhaps I may say that if Mr Weissglas's aim was to subvert the road map, I am certainly not going to help him by giving that view any credibility from this Dispatch Box. I shall stick with the Sharon version of Israel's policy position.

My Lords, does my noble friend agree that, although we do not all recognise Mr Sharon as a kindred spirit, he has shown great political courage in proposing and persisting with the disengagement plan, despite opposition in his own party, problems with the Knesset and a distinct lack of enthusiasm from Mr Arafat? Should we not strengthen his arm so far as we can and encourage him in well doing?

My Lords, it was because Her Majesty's Government took that view that the Prime Minister welcomed Mr Sharon's plan to withdraw all settlements from Gaza and the West Bank, and of course we hope that it will be a significant step towards the goals set out in the road map. But this move must be consistent with the two-state solution. It must involve not only security for Israel but a viable and contiguous state of Palestine, and it must not undermine the final status negotiations between the parties. Those are very important prerequisites in pursuing the disengagement plan.

My Lords, can the Minister tell us how active the quartet is now being? This was a major initiative in which the Europeans—our Government included—played a large part. We now read far less about quartet initiatives. Is the quartet still active or is that, too, beginning to go into the ground?

My Lords, the quartet met in New York on 22 September and reaffirmed the principles on which a two-state solution would be based, with the road map as the way of getting there. The quartet expressed disappointment in the failure of phase 1 of the road map. I had the opportunity to discuss the matter with Marc Otte, the EU representative, when I was in New York recently. But I am bound to say that it would be unrealistic to suggest that a tremendous amount of activity is taking place in the two weeks before the American election.

My Lords—

My Lords—

My Lords, will my noble friend confirm that the British Government's position is still that the disengagement plan is not only wholly consistent with the road map for peace but is in fact an excellent—and, at present, unique—opportunity to try to break the logjam in which the peace process finds itself?

My Lords, it is a good opportunity but it needs very careful handling. The withdrawal from Gaza is clearly a very difficult problem, given that there are real security issues. The United Kingdom Government, with our friends in the Palestinian Authority, have put in an enormous amount of effort on questions of security. The Egyptians have also been very closely involved in the discussions on this matter. But I stress to my noble friend that the points I made a moment or two ago in answering the noble Lord, Lord Wallace of Saltaire, about the final status negotiations are also important.

My Lords, of course, we all want to see the Gaza withdrawal as the beginning of an improvement and not the end, as some have suggested. But what does the Minister think of the new proposal now being aired about the West Bank as a separate state? As it is already virtually bisected by Israeli settlements, the future there must be a Palestinian state but with a substantial Israeli minority—a rather different concept from simply the two-state solution for which we have all been hoping and which is clearly becoming more and more unrealistic.

My Lords, the noble Lord makes a very important point. The Gaza withdrawal is important as a step in the road map process towards a two-state solution, but it must not be seen as an end in itself. That was the purport of the Weissglas piece to which the noble Lord, Lord Wright of Richmond, referred. However, I made two very strong points in answering the Liberal Democrat Benches: ultimately the state of Palestine must be viable and it must be contiguous. The point about contiguity is important. We wish to stick with that point and we want it to form part of the final status negotiations on the question of borders.

My Lords—

My Lords—

My Lords, we are into the ninth minute of just four Questions.

asked Her Majesty's Government:

My Lords, the Government are not convinced that new legislation is necessary in order to enable the creation of competitive producer co-operatives in the dairy sector. However, we strongly support greater co-operation and collaboration in the sector and in agriculture generally, and we have commissioned a study on possible legislative and fiscal barriers to that.

My Lords, will the Minister acknowledge that, at 16p per litre of milk, producers are not able to make a profit from dairy farming and that 1,700 dairy farmers left the industry last year? Does he agree that the only way forward is to strengthen the role of milk producer co-operatives in the UK and to allow them to grow, enabling them to co-operate and negotiate with supermarkets in strength? At present, the UK milk co-operatives are placed at numbers 16, 19 and 20 in the EU's list of the top 20 producer co-operatives. Dutch, Danish and Swedish co-operatives supply up to 80 per cent of their domestic markets, whereas we supply only 50 per cent. Will the Minister urgently bring forward legislation to produce a milk marketing Bill to rescue dairy farmers from this corporate exploitation?

My Lords, the dairy sector is the sector of British agriculture where co-operatives have been most successful and prominent. The situation in the dairy sector is that although there has been a steady long-term decline in the total number of dairy farmers, milk production has not reduced. That must, of itself, have some bearing on the current price, as well as the relative bargaining strength with the supermarkets. Current legislation has not prevented major mergers between co-ops and other bodies, both horizontally and laterally, in recent years.

My Lords, I accept the Minister's response that legislation is not needed, and I agree with him. What assurance can he give to the milk industry and the co-operatives that they will not be referred to the Competition Commission because the Government see them as becoming too big and dominant in the UK market, bearing very much in mind that we now have to do business in a global market?

My Lords, under competition law there is a trigger when any organisation, whether it is a co-operative or a company, has more than 25 per cent of a given market. The OFT will then look at it and decide whether there is a potential or actual abuse of the market situation. It will therefore be referred. It will do that on a case-by-case basis in this sector, as with other sectors. There is also a trigger on size of total operation, which goes through the same process.

My Lords, the noble Baroness put the point I was going to put, so perhaps the Minister would expand on why the Government backed, through the Competition Commission, the break-up of Milk Marque into four. If they are going to encourage co-operation, breaking it up is surely the wrong way to go about it.

My Lords, the competition authorities at that time recommended the break-up of Milk Marque. That is not on the grounds of its size of market share but on the abuse of that market share. That is always the case under British law, European law and the law in each of the member states. It is the abuse of a market position rather than the existence of a market position which is relevant.

My Lords, is not the important point that the marketing of milk products is becoming increasing global—the very important point made by my noble friend Lady Byford? The Minister will remember coming to the Royal Bath and West show. We had the dairy show last week with an important speaker from New Zealand, from Fronterra. It represents 90 per cent of New Zealand dairy farmers, and undoubtedly has been a hugely important force in the success of the New Zealand dairy industry.

My Lords, the New Zealand situation is of course different. Whereas the situation in European countries should be the same, the situation in New Zealand is very different. Fronterra, with its origins in the state sector, has statutory protection of what is close to being a private monopoly. I am not sure it is normally the Conservative Party's view that that should exist in this country. The point about it being a global market is undoubtedly important. We are doing all we can to improve collaboration in this sector so that our industry can compete.

My Lords, I declare an interest as a milk producer and a member of a co-operative. Is it not the case that prices received by British milk producers are lower than almost any others in the whole of the European Union? Are the Government not ashamed of this situation; and what are they going to do about it?

My Lords, it is true that milk prices are lower at the present time. There are a number of factors on that which do not relate to the ability to establish co-operatives. They relate to the bargaining position of the industry, the structure of the processes and, to some extent, the exchange rate. That has little to do with the form of organisation of dairy farmers, but we are—I repeat—strongly in favour of greater co-operation in this as in other agricultural sectors.

My Lords, does the Minister not realise that this 25 per cent rule is penalizing UK dairy farmers? The Danish/Swedish co-operative, Arla Foods, which has up to 80 per cent domestic penetration in its own market, is now marketing milk in the UK and competing unfairly with our own co-operatives.

My Lords, I think that the noble Lord will have to indicate what he means by "competing unfairly". Danish competition rules allow the Danish authorities to look at Arla Foods, as at any other co-operative, and consider whether it is abusing the market. I repeat, it is a question of abuse of the market position, not the size of it. If the noble Lord has been spending his time reading Danish newspapers recently, he will know that the Danish authorities are looking at alleged abuses by Arla Foods. But it is abuse not market position that is the trigger for action. The 25 per cent figure triggers a look into the possibility of market abuses, but the authorities will take action only if they find market abuses.

asked Her Majesty's Government:

My Lords, bovine TB is on the increase. The current strategy of human health protection measures, cattle testing and controls, and a wide-ranging programme of research is under review.

Following consultation earlier this year, we have announced our intention to implement new measures this autumn and have set up a stakeholder group to help us to develop, in partnership with farmers, wildlife interests and others, a long-term strategy for TB by early 2005.

My Lords, I thank the noble Lord for that reply. I declare an interest as the wife of a farmer. We have two cattle. We sold our herd because we are surrounded by herds with TB.

Does the Minister agree that there will always be a wildlife reservoir of TB? Research by Warwick University demonstrates that TB can remain viable for up to four months in the soil. Does he agree that farmers therefore have an awful uphill job in trying to restore their farms to a TB-free status? What exactly is Defra doing this autumn to contain TB until a viable vaccine is found?

My Lords, Defra has invested substantially in research on a vaccine, but it has to be recognised that neither vaccine of cattle nor vaccine of badgers is an instantly implementable solution, even once that research is successfully completed.

As far as concerns this autumn, following the consultation I referred to there will be a recalculation of testing intervals, livestock movement restrictions will be more instantaneous, there will be a more rigorous approach to identifying and dealing with potential new TB hot spots, and rigorous testing schedules for new and re-formed herds will be introduced. That will feed in to the consideration of a further strategy for implementation in 2005.

My Lords, is the noble Lord aware that by 1986 the incidence of TB in the national herd had been brought down from 40 per cent to 0.01 per cent? So what is it that this Government are unable to do that previous governments have successfully done to bring the incidence of the disease down to that low level?

My Lords, there was a successful near eradication of TB in this country. However, the hot spots in the south-west have developed an increase in TB over the past decade. The delay in some of the testing during the foot and mouth outbreak did not help the situation, but the fact that it has spread from those hot spots to other areas is also due to long-scale cattle movements, which probably did not exist to the same extent in the 1970s.

My Lords, if badgers are found dead, are they tested for tuberculosis and how are they disposed of?

My Lords, as we have discussed before, if they are found by the roadside they are not routinely tested; they are disposed of. There are some parts of the country where we are conducting tests on dead badgers of all sorts, but not nationwide.

My Lords, I declare an interest as a dairy farmer in Cheshire, an area where, thankfully, TB is in retreat. It is crucial to prevent further geographical spread to new areas. What are the Government doing on that point?

My Lords, more instantaneous imposition of movement restrictions when we have missed the testing date and when a farm herd is identified as having TB will help to restrict the movement of TB from one area to another. In a sense, that has been the new feature of the past few years. In addition, the Government's ability to carry out the testing system more rapidly, recovering from the foot and mouth period, when little or no testing was carried out, is helping to identify potential and actual disease.

My Lords, following on from the question of the noble Baroness, Lady Masham, can the Minister bring the House up to date on progress on the project to restrict the number of badgers in various parts of the country?

My Lords, an ongoing series of tests under the so-called Krebs trials will be completed in 2006. Until that point, we will not have the full picture of how the different methods of control or non-control of badgers impact on the spread of the disease. Those trials are ongoing.

My Lords, the Minister has told us on so many occasions that this whole question is under review. The Krebs trials go on and on. Does he not accept that this whole business is now completely out of hand? We were told by vets only yesterday that 30 per cent of badgers are believed to be carrying TB. That is spreading far and wide right through the country, especially the south-west. There are herds of 1,000 cattle, because people cannot move them. When bull cows are born, they are immediately shot because they cannot be moved. That is a disastrous situation and I appeal to the Minister through this House that action be taken and that we do not hear again that the Krebs trials are going on and on without being given any result or information about what is happening.

My Lords, the noble Lord is absolutely right: it is the most serious animal health problem that faces this country. For many dairy cattle farmers, it is a disastrous situation. But it is also true that fewer herds are under restriction now than last year; that the testing system has caught up and overtaken the backlog; and that therefore the situation is not out of control, as he puts it. It has already spread far too far, but we do like to make our policy on a scientific basis. The Krebs trials will show the scientific basis for any further action. As for badgers, badgers do not move from Somerset to Cumbria; it is cattle or personnel movements that have spread the disease long distances.

My Lords, I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I declare an interest as president of the Motorsport Industry Association.

The Question was as follows:

What action Her Majesty's Government intend to take to ensure that the British Grand Prix is secured for the future.

My Lords, the Government support and desire a British Grand Prix at Silverstone. We understand that commercial negotiations are continuing between the British Racing Drivers' Club and Formula One Management to reach an agreement to secure the British Grand Prix on the 2005 Formula 1 calendar. Discussion on behalf of government about the future of the British Grand Prix at Silverstone continues to be facilitated, where appropriate, by Derek Mapp, chairman of the East Midlands Development Agency.

My Lords, the ongoing negotiations that the Minister mentioned, taking place rather publicly, are damaging to the reputation of the British motorsport industry, which will be further damaged by the possible loss of 1,000 highly skilled jobs at Jaguar Racing and Cosworth. Is it not now time for Her Majesty's Government to take a more direct role to limit any further damage and demonstrate that this country is committed to and capable of hosting world-class sporting events, such as the British Grand Prix?

My Lords, I certainly agree that the negotiations have been taking place rather publicly. I have been reading the press coverage for some time and the situation is not very satisfactory. However, despite reports of their death yesterday, they are ongoing. This morning, Sir Jackie Stewart is reported as saying that the fat lady has not sung yet. As to whether the Government should take a more direct role, I hope that the noble Lord, Lord Astor, is not suggesting that we should be a party to commercial negotiations between Formula One Management and the British Racing Drivers' Club. That would not be appropriate or legitimate. We are helping to secure the interest, which he rightly points out, of the importance of motor racing to our economy.

My Lords, if the noble Lord is asking the Government to put money into the sport, I hope that my noble friend will resist and give an assurance that no such money will be forthcoming.

My Lords, motor racing is a comparatively rich sport and it would not be appropriate for Sport England to put money directly into motor racing at the expense of grass roots sport, for example.

My Lords, although it is sad and rather puzzling that Mr Ecclestone and Mr Mosley have not concluded an agreement for the continuation of the Grand Prix with the BRDC, that, as the Minister said, is a commercial negotiation that he cannot enter into. However, are there not two other matters that must concern us? Those are, first, the amount of public money that has been given to the BRDC, which, I think noble Lords will agree, is being sensibly used to improve access to Silverstone; and the second, as the noble Lord, Lord Astor, said, is engineering excellence, which goes beyond Jaguar and which has developed in and around Silverstone over many years. That is internationally renowned and employs many expert people, but could be in jeopardy if the Grand Prix was removed from Silverstone, even to another part of the United Kingdom.

My Lords, I acknowledge that money—about £8 million—was given to accelerate the A43 bypass around Silverstone. That money was not given to the British Racing Drivers' Club, it was money for a bypass that is used by local people and for all the other motorsports events that take place at Silverstone. As for the point about the motorsport engineering industry, that is why the Department of Trade and Industry set up a motorsport competitiveness panel and development board and is, as I said, working to secure the continuation of that valuable industry.

My Lords, are the Government aware that Formula One Management has already been paid the enormous sum of 93 million dollars by IPG when it gave up its contract to run the British Grand Prix? In demanding an additional 13.5 million dollars per annum, escalating at a compound 10 per cent per annum, the promoter, Formula One Management, is effectively asking to be paid twice for the same event. Is there any way that the Government can pressure the promoter to be paid once only to run that event?

My Lords, I understand that the negotiations are very difficult. I do not think that they would he helped if the Government took a position on any of their commercial aspects.

My Lords, it is not a good omen for the Government that the clock has stopped on the British Grand Prix. Does the Minister agree with today's Times leader that:

"It cannot be right that a major sport, on which so many jobs and so much investment depend, be reduced to one man's Circus Maximus"?

If so, what will he do about it?

My Lords, I can only answer as I did to the noble Lord, Lord Laidlaw: it would be neither desirable nor appropriate for this Government to comment on commercial aspects of negotiations to which they are not party.

My Lords, we will, with the leave of the House, have a Statement repeated later today. The Statement, on UK forces in Iraq, will be repeated by my noble friend Lord Bach. It is difficult to say precisely when it will come, but it will be repeated immediately after the Companies (Audit, Investigations and Community Enterprise) Bill, which we hope to take as close to 1.30 p.m. as possible.

My Lords, on behalf of my noble friend Lord Warner, I beg to move the Motion standing in his name on the Order Paper.

My Lords, I understand that no amendments have been set down to this Bill and that no noble Lord has indicated a wish to move a manuscript amendment or to speak in Committee. So, unless any noble Lord objects, I beg to move that the order of commitment be discharged.

My Lords, I beg to move that the House do now again resolve itself into Committee upon the Bill.

Moved, That the House do now again resolve itself into Committee.—(Lord Bassam of Brighton.)

moved Amendment No. 100:

I wonder what the purpose is of bringing the person making the regulations into it at all. It would surely satisfy the test that the Committee wants by simply saying, "provided that the regulations contain only provision which is necessary for the purpose". We should leave out this judgmental, dubious, unknown, anonymous person with great power in the future.

I concur with my noble friend but also support very much the words of the noble and learned Lord, Lord Archer.

I also support the amendment tabled by the noble and learned Lord, Lord Archer. It seems very sensible and something that the Government ought to be able to give on.

Our view is that this amendment is not necessary, but, if I may respectfully say so, I have very much enjoyed the exposition on it by my noble and learned friend Lord Archer. I shall explain how the clauses work together. I hope that Members of the Committee will find that we have entered into more tranquil waters with these amendments.

Clause 20(5)(b)(ii) ensures that regulations can be made only for the purpose of preventing, controlling or mitigating an effect of that particular emergency. Clause 21(3) ensures that emergency powers can be made only where the person making them is satisfied,

"that it is necessary to make provision for the purpose of preventing, controlling or mitigating an aspect … of the emergency".

Clause 20(5)(b)(iii) requires that,

"the effect of the regulations is in due proportion to that aspect or effect of the emergency".

The public law test of reasonableness applies to those making decisions on those requirements.

The effect of these is to ensure that any use of the emergency powers must be necessary and proportionate in the prevailing circumstances. The Government accept that a number of the preconditions to the making of emergency powers require the exercise of judgment. It is difficult to conceive of appropriate limits on the exercise of emergency powers that would operate in a more objectively verifiable way. The limits which related to, for example, the area affected or the number of people affected would be easier to verify but would make the exercise of emergency powers inflexible and mechanistic. That is why it has been expressed by the draftsman as requiring that they "think" that it is so. It is subject to the reasonableness test, too. The determination by the regulation-maker that the preconditions for use of the emergency powers are satisfied will be subject to review on the reasonableness grounds in the normal way. I hope that Members of the Committee will see therefore that that is why the drafting is expressed as being that the maker -thinks" that this is so.

The exercise of emergency powers would be challenged on several other grounds. In particular, regulations can be challenged on the ground that they are incompatible with convention rights. If convention rights are at issue, the court is likely to adopt a heightened standard of review.

Although I enjoyed the exposition by my noble and learned friend, I think that the way in which the Bill is drafted enables us to have the matter reviewed, if necessary, in a way that makes sense. I am happy to go back to the draftsman to see whether there is a more elegant way in which it can be expressed, but I do not think that it is inaccurately expressed now.

We do not wish for elegance: we wish for clarity. I may be fairly thick—I am perfectly prepared to concede that—but I found the arguments in all those subclauses incredibly complicated.

What my noble friend Lord Elton said was crystal clear and precise. That is the sort of thing that always ought to be in legislation—not convolution, however elegant or beautifully expressed. Legislation should be clear and precise.

I am grateful for noble Lords' contributions. I appreciate that those who prepared my noble friend's brief had not had the opportunity of hearing what I said a few moments ago. Most unusually for my noble friend, she did not address the point that I was making.

I was not suggesting that the Government were trying to slip something past us to produce a great increment in their power; I was simply saying that, as the clause reads, it is nonsense. I am grateful for the offer that my noble friend made a few moments ago. Meanwhile, I beg leave to withdraw the amendment.

moved Amendment No. 100A:

My noble friend has touched on an incredibly important aspect of the Bill. I want to question the Minister on a matter to which I will return until I feel satisfied that the Minister can reassure me. That matter is judicial review.

I have a feeling that the Minister will respond by saying that my noble friend's amendments are not necessary because, at the end of the day, there is always judicial review. But what happens if a Secretary of State or the Prime Minister of the day has disapplied the legislation enabling those who believe that a Minister has taken or is taking unreasonable action under this legislation to seek judicial review? As far as I can see, judicial review is the only real safeguard in the Bill. I think that my noble friend is seeking to ensure that certain actions are taken quickly so that we do not lose the possibility of judicial review.

Perhaps I may help in this matter. Although the noble Lord, Lord Lucas, has made it clear that his amendments are perhaps not drafted as accurately as he would want, he is raising the issue simply so that we can clarify it. We have looked at the issue very carefully, and, in a few moments, I will be saying that we will take it on board and try to make the drafting clearer. I do not know whether the noble Baroness would find it useful if I gave my response now so that we could see whether I can deal with these matters to her satisfaction. I could then come back and deal with any further matters on which, having heard my reply, she wanted further clarification. I am rising now simply to be helpful.

I am entirely happy with that; I thank the noble Baroness.

I understand the import of what the noble Lord said. Although we think that Clause 22(2) makes it clear that emergency regulations are intended to be used to protect or restore rather than hinder public functions such as the administration of justice, and to protect or restore the activities of Parliament, and although we think that that creates a very clear presumption that regulations should not be used in a way which is contrary to these aims, exactly as the noble Lord would wish, in order to make that clearer, the Government will consider an amendment that will put the maker of the regulations under a duty to consider what steps can be taken to protect or preserve the ability of Parliament to scrutinise the regulations and actions under them and the ability of the courts to entertain challenges to the regulations. We believe that that will give effect to the intention behind Amendment No. 100A.

The courts will expect the maker of the regulations to act reasonably, and so—just to take up the noble Baroness's points—a failure reasonably to make emergency regulations to protect Parliament or access to the courts could be challenged on that basis. It may assist if I provide a couple of examples of how we see that operating.

If parliamentarians have been exposed, for example, to an infectious disease and it is necessary to quarantine them or to close the Palace of Westminster, that should still be possible. However, the maker of the regulations should consider what provisions can be made to allow Parliament to continue functioning; that is, for example, by quarantining MPs in a building that has video-conferencing facilities. If a cloud of toxic gas was heading towards London and it was necessary to evacuate London, the maker of the regulations should be able to do so. But he or she must consider what steps should be taken to protect Parliament and the operation of the courts. In those circumstances, the regulations may need, for example, to requisition property elsewhere for Parliament to use and to give High Court judges a priority place in the list of the evacuees.

The Government hope that the House will appreciate that this approach will ensure appropriate provision is included in the regulations to allow Parliament and the courts to scrutinise them and actions taken under them and will also ensure that where action needs to be taken that may affect Parliament or the courts which is necessary to respond to the emergency, then that action can still be taken. I think that the amendment which I hope to move on Report will meet the concerns behind Amendment No. 100A and answer some of the questions raised by the noble Baroness about how we will manage judicial review.

The noble Lord, Lord Lucas, raised a point about the Regency Act. If I may respectfully say so, it is difficult to conceive of a situation where in order to prevent, control or mitigate an aspect of an emergency it would be appropriate to amend the Parliament Acts or the Regency Act.

In theory, were the Queen to become incapacitated and the range of persons specified in the Regency Act who may appoint a regent—namely, any three of the spouse of the sovereign, the Lord Chancellor, the Speaker of the House of Commons, the Lord Chief Justice of England and the Master of the Rolls—were all also to be incapacitated, it might be appropriate to modify the Regency Act to provide that other appropriate persons could appoint a regent. However, examples of that kind show that the range of circumstances in which such an amendment would be appropriate or possible under the Bill is extremely narrow. I hope that that will be some comfort to the noble Lord.

I am not sure whether that was meant to terminate the debate, but it has created a friendlier and less anxious atmosphere for the debate. I just hope that the noble Baroness has in mind how different this Chamber, the people in it and the feeling would be if it had been Margaret Thatcher who had been asking for these powers towards the end of her prime ministership. If there is a party in power which does not have the trust of the people, the people are very anxious; and it does not happen only to Conservative governments. It is also the case that the further along the political spectrum in either direction one goes, the greater is the danger of a totalitarian break-in. And this is the point at which it would take place.

Therefore, I hope that we deal with Part 2 with great care and possibly even strengthen the provision in Clause 22(3)(j):

"(other than a provision of this Part)".

As I read the Bill as presently drafted, those are the words that actually entrench these provisions against alteration by the Minister. That is their intention. I just wish that they could be carved in stone, written in bold and endorsed in some other way in the Bill.

I think that the Minister has been extremely helpful. There is only one point, which was raised by the noble Lord, Lord Lucas, that still concerns me; that is, if there is a very serious emergency after a dissolution. After a dissolution there are no Members of the House of Commons; they cease to exist. In those circumstances, what arrangements will there be for Parliament to continue to exist?

It is true that Peers of the realm receive a Writ of Summons immediately Parliament is dissolved. So in that sense Parliament still exists. But would it mean that the House of Lords would then exercise the powers of Parliament, in which case it would need the power to arrange finance for whatever was taking place during the emergency and what was needed? I think that that is a very important point. I do not think the Minister addressed it, but perhaps she could give it some consideration.

On that point there is historical precedent to which I alluded the last time we talked about this. When William III landed on 5 November 1688, the Commons was not sitting because James II had refused to issue Writs of Summons for the Commons. When James II fled, the Lords, acting in convocation, made sure that the Commons could sit and arranged as quickly as possible for an election which then confirmed King William in power. I would presume that that is one of the advantages of a Chamber which can exist outside the other one in these obviously extreme circumstances.

Perhaps I may just add to that point. My noble friend reminds me that of course it would be, I believe, the Lord Chancellor who would convene the House of Lords in the absence of a sitting Parliament. That has a read-across to the Constitutional Reform Bill. I hope that the noble Baroness or her advisers will take note of that. It is very important that what we do here is consonant with what is done there, so that the Lord Chancellor or whoever will be in a position to convene this House in such circumstances after the enactment of what is now the Constitutional Reform Bill.

On this side, we would associate ourselves with and support Amendment No. 100A proposed by the noble Lord, Lord Lucas. I welcome the noble Baroness's openness to the principle behind the amendment. The noble Lord, Lord Lucas, invoked the possibility of even a Liberal Democrat government perhaps finding themselves making decisions. I will therefore quote a good liberal, perhaps with a small "1" rather than a large one, since we are talking about the constitution. Walter Bagehot described the English constitution to be of two parts:

"first, those which excite and preserve the reverence of the population—the dignified parts—and next, the efficient parts—those by which it, in fact, works and rules".

The sentiment behind this clause would cover both. It would cover not only the dignified part in the sense of publicly stating that that rule of law in a democracy is where we would wish to find ourselves at the end of the emergency, but also the efficient part. Earlier in the week, the noble Baroness referred in debate to trying to be as inclusive as possible. I am speaking for the first time on the Bill. Our concern is that the general tone is sometimes over-inclusive—that is, prescriptive—and at other times leaves out principles that it should cover. In that spirit, I should like to support and welcome the noble Baroness's comments.

I understand the concern that has been expressed by noble Lords on this matter. We are absolutely clear and of one mind that of course we want the powers to be used proportionately and properly. None of us would like them to be used or misused in the way that the noble Earl, Lord Onslow, and the noble Lord, Lord Lucas, have suggested. Therefore, I very much understand the sentiment expressed by the noble Baroness, Lady Falkner of Margravine.

We have tried to make Clause 22(3)(j), which the noble Lord, Lord Elton, mentioned, as strong as we can. I am more than happy to look at whether the draftsman can do even better. I know that the noble Lord is saying that it is jolly good and seems to do it, but if we could have some gold standard reinforcing that anyone can think of, we would all agree that it should be there. I shall certainly take that back to determine whether there is anything that we can do about it. It may be that this is the best guarantee that we have, but I shall look at it very clearly.

In relation to the point made by the noble Lord, Lord Stoddart, about what happens when Parliament has been dissolved, pending a new election, of course, it would always be possible for the Queen acting in Council to recall the old Parliament using emergency regulations. She also has the advantage of having available to her Privy Counsellors from across the piece. As noble Lords know, the Government continue in being, notwithstanding the dissolution of Parliament. So it would be possible for my right honourable friend the Prime Minister or someone standing as First Lord of the Treasury—

So the powers of the Sovereign to recall Parliament once it has been dissolved, exist? I thought that once Parliament was dissolved, it was dissolved. But can it be recalled or "undissolved", if that is the word I am looking for?

I think that it would be possible. I shall certainly go away to check that. There are two points: first, of course, the Government continue notwithstanding the fact that Parliament has been dissolved. So the Government are entitled and able to act, particularly in a position of emergency. Secondly, of course, the Queen in Council can still make regulations in relation to meeting the needs of the emergency.

In those circumstances, one would imagine that it would be perfectly proper for Parliament to be recalled very quickly under those provisions. It would probably be that the old Parliament would be recalled until such time as we could do something better. It appears that the rules would enable us to do that which we would need to do to get Parliament back as quickly as was needed in those emergency situations.

But I will take these issues away to ensure that what I have said to the Committee is accurate. I will come back with a fuller exposition. It may be that this is a matter about which I could write to all Members of the Committee so that we would have that information. Noble Lords could then decide whether they want to bring the matter back later.

I think that I would much rather that the noble Baroness spoke about the matter on the Floor of the House. It is too important just for individuals who have taken part to be written to. I would much rather—I hope the Committee agrees—that it should be written into the record.

I absolutely agree with the noble Earl, Lord Onslow. As a matter of courtesy, I was suggesting that if I were to write to Members of the Committee about the position that would enable them to consider their position. When we come back on Report, they would be able to raise any further or other issues on which they wish to have clarification. When I answer I will be able to give a full answer that will he on the record. The House could therefore feel more comfortable that it has been dealt with. That is what I had in mind, if that would meet the needs of Members of the Committee.

I am exceptionally grateful to the noble Baroness and, indeed, even more grateful to her officials for enabling this progress to be made. I look forward with great interest to the amendment, which will presumably be laid at Report. We will see how far it goes and whether there are any other little gaps we would want to put some putty in. But it has been progress in absolutely the right direction. I am extremely grateful for it.

Perhaps I may raise a couple of other points. We have had reference to Clause 22(3)(j), which is supposed to prevent Part 2 being amended by regulations. My concern is that those words are qualified in the opening words of subsection (3), which state, "in particular". On reading the two together, the words "in particular" seem to open the question again of whether paragraph (j) is just a particular example of what the regulations can do; that is, the regulations could amend Part 2 because of the opening words in Part 3 making the concept unlimited and the rest just examples. Under those conditions, would it not be better to have the prohibition in Clause 23, which clearly covers the limitations on emergency regulations? If it were put there, and thus outwith the qualification of the words "in particular", I would feel more comfortable.

Secondly, I want to pick up a point made by my noble friend Lord Onslow about the possible role of the House of Lords in extremis. If we really want a resilient House of Lords that would be available in all circumstances, perhaps we should think of making it hereditary. I beg leave to withdraw the amendment.

moved Amendment No. 101:

If Amendment No. 101 is agreed to, I shall not be able to call Amendment No. 102 by reason of pre-emption.

I rise to speak to Amendment No. 102. I have found myself looking in the opposite direction from my noble friend, which I think arises out of the length of the semantic chain we have to follow in order to reach this point. We start with Clause 19(1),

"'emergency' means an event or situation".

I suspect that an event is something which has a period of time attached to it, while a situation can be pretty much spread over time and suggests that the state of affairs may be indefinite. A further blurring takes place in Clause 20(2) which qualifies the condition of emergency by stating that a Minister of the Crown has to be "satisfied" about its existence, which again offers considerable scope for judgment. We come then to Clause 21(2), the subject of these amendments, which states that,

"an emergency has occurred, is occurring or is about to occur".

The noble Baroness made it fairly clear in her opening remarks that we may quite possibly have to deal with fictitious emergencies or ones that are not actual. We have just been through one of those. What else is the 45-minutes claim but a fictitious emergency? It is very easy to see how those things can arise in all honesty. We have to make judgments on the basis of the best information that we have, and that information may be pretty poor.

The false emergency has been used as a weapon of tyranny before. It was one of the main planks in Nineteen Eighty-Four if I remember rightly. Indeed, it was part of Hitler's armoury in getting into power, with the burning of the Reichstag, which was an imaginary emergency, along with various other things that he did to stir up public fear. Such tactics are used in this country only by the Animal Liberation Front, and we can see how hard such tactics are to counter in a democracy. I suppose that we might find a political party using them some time.

If we are to go down this route, we must allow the Government to act on their best beliefs. Having listened to my noble friend, I am not sure whether the blurring in Clauses 19 and 20 is sufficient to allow us to do without the words that he wants to excise. One can cover any situation when one wants to take action just by calling it a situation rather than an event, and allowing ministerial judgment.

My first thoughts were that the problem was in the other direction, and that the uncertainties around an event might be considerable, to the point that it was very hard for a Minister to be satisfied that an event was about to occur, but when the risks of it occurring were so great, such as a nuclear bomb in London, that we absolutely had to do something. That was my worry, and I look forward to being enlightened by the noble Baroness.

One of the things that the Bill has brought out is that when talking about it we have to invent more and more horrendous forms of emergency. They range from blue tits being swamped by olive oil—I have been laughing and giggling happily to myself for the past few days about that—to hidden nuclear bombs, to this, to that and a third thing. In some ways we are in danger of over-hyping what could happen. We are enacting legislation on a tiny risk of a major hazard. We have to go on inventing wilder and wilder scenarios to frighten ourselves into giving Ministers those powers.

My two noble friends, having come at the problem from different ends, and in asking for completely different answers, shows best why I am beginning to wonder whether the Bill is necessary in the first place. It is a question not of making regulations but of getting people to do things. It is so out of the imagination that it is almost too hard to know what to do about it.

I have no doubt that the Bill is necessary. It is also urgent, but we need to get it right. I have been deeply impressed by the care with which Members of the Committee have considered its detail.

I cannot support the amendment. The Emergency Powers Act 1920 uses the words "occurred" and "about to occur", so we are hardly changing the world. It is difficult to understand why we would not want to use emergency powers if we could prevent the loss of life in anticipation of an emergency that we were pretty sure was coming.

I fully understand what was said about hoaxes—we know all about them from the IRA. However, we have to assess the degree of risk and the best countermeasures. I therefore cannot support the amendment.

The noble Lord, Lord Garden, has been succinct in saying why we need such measures. He is right that the phraseology is similar to that used in the 1920 Act, with which we have been comfortable for a considerable time. We know what it means. Prevention is always far better than the cure. We would want to take action as speedily as possible to obviate the need to take more drastic action later.

An example that is not so far fetched would be if there were a realistic anticipation of an infectious disease. We would want to take preventive action as a matter of emergency to ensure that the population was safe. We would have to section off an area, set up quarantine, get additional vaccinations, and requisition buildings, all of which would be essential to ensure that the population was kept safe. That is a good and sensible thing to be able to do.

The noble Lord, Lord Lucas, is on the right side of the argument. He talked about the blurring, and we need it to be clear that we can do something about prevention. We do not want people to be worrying about whether they have to wait before something arrives before they are legally entitled to take preventive steps. We want people to be clear that if there is evidence that prevention is necessary, the provisions will enable measures to be taken.

It is for those reasons that we cannot accept either of the amendments. Amendment No. 102 would alter the drafting of Clause 21(2) to allow regulations to be made if a Minister is satisfied that an emergency "appears to be" occurring rather than that one "is about to occur".

I hope that we have reassured the noble Lord, Lord Dixon-Smith, that the provision has been well and accurately expressed.

The noble Baroness said that such decisions would be taken on the basis of evidence. I very much agree with that, but it seems to me that the Bill provides that such action can be taken if the Minister thinks it should. Is she coming round to our way of thinking that perhaps the Bill ought to be tightened up, and that any action that is taken should be on the basis of evidence, not because the Minister thinks it should?

It is implicit that Ministers have to act reasonably, and must do so on the information provided. All the discussions that we have had about reasonableness bite when considering those issues. Ministers are not entitled to go on a frolic of their own and make decisions for which there is no basis, or make decisions that no reasonable person who was properly directing himself as to the facts could possibly make. That would be outside the bounds and ambit of reasonableness. We work on the basis that Ministers behave like reasonable human beings. I know that that may be a challenging concept, but I assure your Lordships that it is one with which I struggle daily.

I am grateful to the noble Baroness for her reasonable explanation. I heard what my noble friend Lord Lucas said, without particular surprise, but I thought that we should discuss the issue as the implications are serious. Such problems have unquestionably existed in the past with the IRA, which has been mentioned.

With regard to the remarks of my noble friend Lord Onslow, I believe that thinking about what can go wrong is always interesting and instructive. I remember that some of the most productive times in my local government experience were spent on just such matters. I am not talking about problems on a national scale, but one can imagine scenarios if, for example, someone wanted to defraud the system. Thinking of ways in which to defraud an organisation is intriguing, and Members of the Committee would be surprised at the number of ways in which to do that. There are just as many ways in which to create disaster or the illusion of disaster. I have to defer to the reminder of the noble Lord, Lord Garden, that the phraseology is already in the 1920 Act. I must admit that I did not look to see whether it was.

This has been a useful discussion. I am somewhat reassured. I beg leave to withdraw the amendment.

moved Amendment No. 102A:

I must inform the Committee that if this amendment is carried, I cannot call Amendments Nos. 103 and 104.

I am very happy for my noble friend to pre-empt my Amendments Nos. 103, 105, 140 and 142, to which I will now speak.

I should say straightaway that I almost prefer my noble friend's amendments to mine. However, I wish to speak to my amendments. The Committee may notice that they are similar to amendments which we tabled in Committee in relation to Part 1 of the Bill. I have used this opportunity to table these amendments because I was not satisfied with the answers that we were given in relation to Part 1. Perhaps my noble friend has provided us with a solution.

Indeed, I made it clear during the debate on Part 1 that I slightly preferred the suggestion put by the noble Lord, Lord Stoddart, that perhaps we should be discussing "based on the evidence"—not least because this Government are very fond of talking about acting in response to evidence, consultation and so on.

My amendments are simple but go to the heart of the concerns that we on these Benches have in regard to the Bill. Clause 22 details the scope of emergency regulations. All the way through the clause, the current drafting allows emergency regulations to be made when the person making the decision—we assume the Minister—"thinks" he should be making such a decision. Our amendments seek to change the reference from "thinks" to a more appropriate one of "reasonable belief".

To put these amendments into context, emergency regulations will be made only in the gravest of situations. They will be made in the heat of the moment and possibly when events are still occurring. We believe that it is essential that the Prime Minister, or whoever is making these regulations, has a clear head and can take a reasoned view on the best course of action. The term "thinks" does not seem to be a strict enough test to invoke these powers.

Reasonable belief that the regulations are for the purpose of controlling the emergency or protecting human life would seem to be a more appropriate threshold for these substantial powers. "Reasonable belief" would ensure that the person making the decision is acting on information that they have been given and facts that they know to be correct or the best information available at the time. The term "think" is much looser. It seems not to imply that there has to be any evidence before these powers can be used.

Another particularly important point—one that we made in similar amendments to Part 1—is that we prefer the term "reasonable belief" as it would allow any retrospective scrutiny to look at decisions made during a time of crisis and for them to be judged by this well used legal test.

I have looked at this issue with care since our earlier debates in Committee. I have found that the term "thinks" is used in delegated legislation. But here we are talking about crucial primary legislation. There are examples in primary legislation. Indeed, I know that my noble friends debated this point hard during the passage of the Planning and Compulsory Purchase Bill because they believed then that the word "thinks" was not a good enough safeguard and that there should be a clear, unequivocal test of reasonableness on the face of the Bill.

I heard what the Minister said in relation to Amendment No. 101—that it is implicit that Ministers have to act reasonably—but given our concerns, of which the Minister is aware, in relation to judicial review, and given our concern in relation to what will happen in practice, however many safeguards we may feel are in the Bill or are pressing to place on the face of the legislation, we believe—this is probably pertinent to much of what noble Lords have said during the debate—that we should put in place as many safeguards as possible.

The Bill is all about unprecedented acts; it is about taking care with regard to what might happen out there at any time, perhaps something which at this present moment may seem inconceivable to noble Lords. It is a tough job for all of us—a real challenge—and that is why this is so important. Although technically it may not be necessary to say "reasonable", I believe that in practice it would make a great deal of sense.

Not for the first time—if I may say this within the rules of order—I congratulate the noble Lord, Lord Elton. He has achieved with a degree of elegance what we have all been searching for.

I say that for two reasons. First, normally brevity is the soul of good draftmanship and the fewer words the better; secondly, it solves the problem that I attempted to raise under Amendment No. 100. The noble Lord has applied Occam's Razor and eliminated the intermediate metaphysical entity, the Minister's mind. It seems to me that he has achieved exactly what we are trying to do and, subject to anything my noble friend may say, I cannot see why the result should not be judicially reviewable.

I support the noble and learned Lord, Lord Archer, in abolishing the Minister's metaphysical, mythical entity. That must be removed at all possible costs.

I completely support the view of my noble friend Lord Elton. It is clear, it is precise and you know exactly what you are doing. There is no subordinate clause, no qualification; it is clear. The noble Baroness has given some indication that she will look at this issue a little differently following the amendment of the noble and learned Lord, Lord Archer, but I urge upon her the clarity, brevity and complete comprehension that my noble friend Lord Elton seeks.

I, too, congratulate the noble Lord, Lord Elton, on his elegant language and on trying to get rid of tautology in legislation. Perhaps we ought to make him a consultant to the drafting committees on these various Bills; in that way, we might get some better Bills.

We keep coming back to whether a Minister "thinks". Everyone who has spoken is clearly concerned about the use of this word rather than a much tidier and better understood word. I hope that the noble Baroness will give more consideration to this than has been given so far. Will she please recognise the depth of feeling throughout the House on this particular word—one single word—and not reject it out of hand at this stage? Will she at least give the House the assurance—the promise—that she will think very seriously about this and, it is to be hoped, come back with her own amendments on Report?

We, too, support the amendment. It would be a good thing to, ipso facto, instil a basis for reviewing the situation and the action taken on the basis of fact rather than judgment, irrespective of how sound Ministers' judgment may occasionally be.

The strength of the argument put by my noble friend Lord Elton is witnessed by its universal support and by the fact that it has taken us only 11 minutes so far to come to a conclusion, compared with about an hour on Tuesday. I hope that the noble Baroness will simply stand up and agree. Surely it must be right to remove, as far as possible, all references to the Minister "thinking". It is such a dubious concept that it should not be in the Bill, whereas my noble friend has offered a solution that is simple, concise and to the point.

I hate to disappoint, but on this occasion I just might. I should, however, like to give some clear comfort. I do not detract from anything I said earlier in terms of Ministers having to behave reasonably. It is very important not to see the Bill in isolation, because it does not operate in a vacuum.

The powers conferred by Part 2 will be subject to the additional limitations by virtue of the generally applicable legal principle. The key here is the public law. This requires any public authority, which includes Ministers and Her Majesty, to exercise their powers in a reasonable way. One of the aspects of the duty to act reasonably is that all relevant considerations and evidence must be taken into account. It will not be open to the maker of the regulations to ignore vital evidence or to decide, capriciously, to make emergency regulations. This kind of conduct will be unlawful and any regulations made on this basis can be challenged in the courts.

One of the very first things that Ministers will need in an emergency is information. What is happening? When is it happening? What do we need to do to prevent or to mitigate the emergency? It is inconceivable that Ministers would not seek out all available information before exercising emergency powers. It is even more inconceivable that Ministers would ignore information before them when taking that decision. If they were to do so, they would be acting improperly—we would say ultra vires: outwith their authority. Any such act would be capable of challenge.

No damage to human welfare has yet occurred, nor has the event or situation which threatens damage to human welfare. The fact that there are very limited issues when this may happen does not detract from that importance. We should look at the Bill within that context. That is what the law says now and that is what would be implicit in these provisions.

Of course I understand the nature of the amendment of the noble Lord, Lord Elton, but the reason I restate those principles with what I hope is sufficient clarity is that it goes to all the amendments raised by the noble Baroness. One could write a number of learned articles about the point of law, and we could talk about semantics, but that is the position we have at the moment, and it is clear.

The noble Baroness is actually arguing for the amendment of my noble friend Lord Elton. She is saying that they are doing all these things anyway; that is part of the public law and no Minister may act in any other way. Therefore, my noble friend's amendment must fall into place. The noble Baroness is saying that Ministers think—that is part of their duty and part of their legal duty. So she has just given a super argument for accepting my noble friend's amendment—at least, I thought so.

Will the noble Baroness clarify the difference between the words in Clause 20 and those in this clause? In Clause 20, Ministers are "satisfied". Ministers are often satisfied—that seems an entirely reasonable word. But to have a Minister "think"—is that not what civil servants are for? What is the difference between the application of the two words?

I suggest that we hear the rest of the noble Baroness's argument before we tear it to shreds.

I regret to tell Members of the Committee that Ministers do think. They think all the time because they have the burden of exercising a discretion, devising policy and making decisions. So it is absolutely critical that the Minister thinks and does not allow all the thinking to be done by civil servants, no matter how skilled.

The fact that the Minister has to be satisfied goes to the nature of the information and evidence that is put before the Minister so that the Minister can feel confident that in the exercise of the Minister's discretion there is sufficient information to be satisfied that this is an appropriate thing to do.

As far as using the word "thinks" is concerned, it identifies that this is a discretion which has to be exercised by the Minister as opposed to anybody else. That gives the lead-in for the way to review. The Minister is allowed to "think" only if the Minister "thinks" reasonably. We are able to review what the Minister thinks by trying to see whether there are things which any reasonable person, properly applying themselves to that issue, would have taken into account and what they would not have taken into account had they behaved reasonably. That is where the reasonableness test comes.

This jurisprudence has been developed over a very long time, right back to Ridge v Baldwin in 1968, in which Lord Reid made his great pronouncement, and to 1980 in Inland Revenue Commissioners v Rossminster with Lord Diplock. I am sure that this is first year administrative law; the noble Baroness, Lady Buscombe, probably remembers only too well the famous words of Lord Denning. He could always be relied on to get it right. Right back in 1976, in the case of Congreve v Home Office, he said:

"It would be a misuse of the power conferred on him by Parliament: and these courts have the authority—and I would add, the duty—to correct a misuse of power by a Minister or his department, no matter how much he may resent it or warn us of the consequences if we do … When a Minister is given a discretion—and exercises it for reasons which are bad in law—the courts can interfere so as to get him back on to the right road".

The courts have been putting us back on to the right road ever since.

Those principles have been developed well in our jurisprudence. They are protected in our law and are there better to support the way in which the exercise should be carried out. I would be very worried indeed if we eradicated thinking from ministerial office. It would make my life a lot easier, but the country would not be in safer hands as a result. Abrogation of thought is certainly not what I would advocate.

These provisions are structured to enable judicial review to take place and matters to be reviewed, and they preserve the sanctity of the law and the jurisprudence that we have now. I can see the attraction of the simplicity suggested by the noble Lord, Lord Elton, but we do not think that it is necessary. I caution noble Lords: if we start putting it clearly that Ministers have to behave reasonably in situation X, lawyers may come along and say, "Does that mean that on another occasion where it does not specifically say that the Minister has to act reasonably that the Minister can act unreasonably and go off on a frolic of his own?". I would rather that my ministerial colleagues did not do that. These rules should bite on every single decision that a Minister makes whether in this Bill or elsewhere.

The excursion that the Minister has just entertained us with by explaining how Ministers exercise their responsibilities and describing the contribution made by Lord Denning to the solidification of the courts' oversight of the ministerial exercise of discretions was useful. However, I am left with the feeling that the Minister would not be absolved from the duty of thinking if the words were not actually present in the clause.

When I listened to the Minister it occurred to me how this would actually work in practice. If a Minister, as she said, in exercise of the responsibilities conferred on him or her by this Act ignores material evidence, fails to consider evidence that should have been considered, or falsely reaches a conclusion from the evidence that is available, that could be challenged by the courts. As the Minister assured us, that could take place during the period of operation of the emergency regulations. However, I am anxious about how the courts would be able to deal with this in the time-scale available to them of the three months during which the emergency regulations last. Knowing how long it takes to mount a case of judicial review, the mischief that was caused by the misapplication of the Minister's discretion will have continued all the way through the period of the emergency regulations. By the time it reaches the courts it will be too late to provide remedies for the aggrieved persons.

One thing could be considered, although this is off the top of my head and might be dealt with in the next stage of the Bill. Suppose that such circumstances did arise, the case came before the courts, the court decided that the issue should be looked at and a hearing was arranged. At the end of the three months, if the courts had not yet examined that exercise of ministerial discretion, would it not be right to provide that there was no power to renew the regulations? When we come to that part of the Bill, we will see that regulations may be renewed at the end of the period an indefinite number of times. Therefore, the mischief that we are considering and trying to make provision against would then continue until the courts, some time later, had reached their decision.

Will the Minister think about that suggestion? She has given us some useful and valuable assurances about the rights of the courts to protect the individual during the period of emergency regulations. To make that protection really effective, the courts would have to have the ability to look at the complaint during the operation of the regulations and, if necessary, suspend the regulations themselves.

I am very disappointed that the Minister will not make some concession about the word "thinks". Of course we want Ministers to think, but I often think things. I might say, "I think that", but then I look at the evidence and see that my thinking is defective. I would like to draw the Minister's attention to a programme that is unfortunately no longer with us—"Yes, Minister". So very often the Minister thought something, but Sir Humphrey came along and put a different point of view. He saw the implications of what the Minister was thinking and often said, "How on earth can we persuade the Minister that his thoughts are not good?".

Thinking is simply not good enough. Every experience that we have teaches us that when we act, especially in an emergency, we have to act on evidence and not on what we are thinking at that moment. I appeal to the Minister once again to take this matter away and have a think about it. She may then come round to our way of thinking. That is all I ask.

That is the crucial difference between "thinks" and "is satisfied". To think, one has to make use of what is in one's head but one does not have to turn one's mind outward. To be satisfied one has to make reasonable inquiry. "I think we're going to win the next election" and "I am satisfied we're going to win the next election" are clearly different statements. We are saying that the Minister does not have to consult anyone, but merely has to act on the basis of what is already in his head—he decides that these are the right things to do. If we let the Bill go through as drafted, that is what we are saying we agree with.

Having had experience of this sort of thing, I wonder whether the noble Lord, Lord Garden, has an opinion about whether he would wish Ministers to be able to do things off the top of their heads. Or would the noble Lord prefer them to sit down for five minutes with their civil servants and talk about what the real world was actually like? Should we have a Bill that allows them not to seek evidence and not to be satisfied or one that requires them to have made inquiry and be satisfied before they make these regulations?

I have been asked a question, but I am not sure of the procedures of the House. I have great confidence in Ministers having worked with many from different sides of the House. "Thinks" has a technical meaning in all of this. It involves the taking of advice from experts. The things that we are talking about are so serious that it is inconceivable to me that Ministers would take decisions in an enclosed room without taking advice. I am not as worried as others in the House about this matter.

When I finished speaking about my proposed amendment I should have made it clear that I prefer the amendment of my noble friend Lord Elton. All that the Minister has said adds weight to the sensibility of my noble friend's amendment. As regards the word "thinks" being implicit, my noble friend's amendment would remove any equivocal reaction on the Minister's part in responding to this legislation.

The noble Lord, Lord Avebury, discussed rather more eloquently than I what would actually happen in practice. The difficulty we have as regards this entire matter is the timescale for judicial review given that the mischief may have occurred before we gain access to judicial review. Certainly for my part that remains a matter of deep concern. I believe that my noble friend's amendment would help enormously to remove some of our concerns with regard to this part of the Bill.

Before the noble Baroness replies, I refer to the one aspect of her argument that I did not understand. I can understand the arguments against including such words as "reasonable" and "satisfied"—the noble Baroness has made those arguments on previous amendments—namely, that if they are not included in every single clause there is a difficulty with saying that a Minister is acting unreasonably and so on. However, if we envisage the noble Baroness as one of the people who might take these decisions—although we rehearsed on Tuesday the fact that she is not a Lord Commissioner—and she was sitting in her department when a tidal wave headed up the Thames, the question of what powers were available would arise. Under my noble friend's Amendment No. 102A, the power would be:

"Emergency regulations may make any provision for the purpose of preventing, controlling or mitigating an aspect",

and so forth. What is missing there? What limitations are there on how the Minister could act? I cannot see any. If the Minister wants to act to ensure that people are removed from their homes, the gas is turned off, or whatever, she could do that under the terms of my noble friend's amendment. We would not need the words "reasonably" or "satisfied"; she could take that action. I do not see that any lawyer or civil servant could tell the Minister that she could not take that action because the clause would state so clearly that she could.

I return to the word "thinks". We are talking about a decision being made and the fact that, on the basis of the information which the Minister has, he or she believes that the regulations are now needed. That is what becomes reviewable. The Minister is in effect saying,? I have decided that on this basis I will do as follows".

We must take account of the point made by the noble Lord, Lord Avebury. I hope noble Lords understand that judicial review does not have to be a lengthy process; it can be a very speedy process indeed. A 24-hour duty High Court judge is available 365 days of the year. If the need arises, it is possible to make an application for decisions to be made, particularly if they concern a great emergency, within a matter of hours. That is what one has to understand. I respectfully suggest that for the duration of these regulations there will be time for expedited applications to be made if that is necessary.

I remind your Lordships what the process is. These regulations would have to be laid as soon as reasonably practicable. There would then be a lapse of seven days, but if the matter was not affirmed by both Houses within seven days, the regulations would lapse in their entirety. If it is affirmed by both Houses, it can then last for only 30 days before the whole process has to be gone through again.

I remind your Lordships that we have a very peculiar procedure with the affirmative resolution procedure adopted in relation to this Bill; that is, contrary to other procedures we can amend the order for regulations because of the emergency nature of the matter. Therefore, it is not the case, as we so often find in other affirmative regulation procedures, of the measure being accepted in toto—the good and the bad rather like a curate's egg—and you cannot identify parts that you can amend. In this case we can amend. The whole process is fast, efficient, effective but also capable of being reviewed judicially.

Much care has been taken over the way in which these provisions have been drafted. I understand the comments made by the noble Lord, Lord Stoddart, but I hope that what I have just said about being able to amend the regulation satisfies him that it is possible to do that on an emergency basis, and that it can be done reasonably.

I accept entirely that the noble Baroness, Lady Buscombe, prefers the drafting of her noble friend Lord Elton. However, we do not believe that the amendment of the noble Lord, Lord Elton, would deal with the matters as effectively as the current drafting of the Bill.

This has been an interesting debate. I reply to it as a former Home Office Minister who on frequent occasions debated with Lord Denning and who learnt from him that one of the basic principles is never to put in an enactment words that are not necessary. The noble Baroness said that my amendment was not necessary. However, it is not up to me to prove that; it is up to her to prove that her words are necessary. I continue to think that they are probably not.

The noble Baroness started out some time ago by setting out in detail the context in which we have held this debate. I accepted the five points she made with one exception. She said it was inconceivable that a Minister would not seek out all information before seeking powers. We had a debate earlier this afternoon—my noble friend Lord Onslow and I and others took part—in which we recognised that it was perfectly conceivable that an emergency might be declared for improper reasons and that Ministers might behave improperly. Therefore, I do not think that that matter is inconceivable. At that point the noble Baroness was interrupted but returned to the fray to say that Ministers do think and must be satisfied, which I entirely accept.

However, the question really is the one that my noble friend Lord Goschen put—and it is almost the only one that needs to be asked—namely, what would happen in fact in the case of judicial review if my amendment were accepted and the noble Baroness's words were left out? The noble Baroness said that the Bill would not be as effective. She said that what triggered the right to judicial review was the requirement on the Minister to think and have good reason.

As I say, I have sat in the noble Baroness's place before and I hope I do no one a disservice if I take some blame for the position she is in because I put my amendment down yesterday afternoon. I suspect that that occurred long after the noble Baroness's speech had been written. Her speech was mostly concerned with defending the word "thinks" as being necessary in the context of the rest of the words in the paragraph. However, I have taken out other words and I honestly think that judicial review would be as feasible in the words I have because the Minister would simply be rehearsed on why he thought the conditions of the Bill had been met. He does not need to be mentioned. The words are not necessary and therefore I hope that the noble Baroness will persuade me otherwise at the next stage, and will do so also in regard to similar words in the following clause.

In the mean time, with graceful thanks for the quite undeserved compliments that have been showered on me from all other quarters of the Committee but not from the noble Baroness, I beg leave to withdraw the amendment.

moved Amendment No. 107:

I hope that my Amendment No. 110 still belongs to the group. Had the situation been otherwise, I am not sure that it would have belonged to the group at all, as perhaps it should not logically be grouped with the noble Baroness's amendment. I hope that I will not introduce an irrelevant note in speaking to Amendment No. 110.

My point is that we do not really need to discuss the limits on where the power should be drawn, because—if my amendment is not accepted—there are no limits on the powers. Subsection (3) begins:

"Emergency regulations may make provision of any kind that could be made by Act of Parliament".

Nothing limits those words. The list in subsection (3) begins with the words, "in particular", so the items there seem simply to be examples for the purpose of clarification. They do not limit the breadth of the opening words. As the noble Lord, Lord Lucas, pointed out, those words seem to open the power up to infinity.

Of course, there are conditions precedent to the power to make regulations. As we are all now very much aware—we have been dreaming about them for the past two days—they are set out in Clauses 20 and 21. But if they are satisfied, the floodgates are open. Because an Act of Parliament may change the law in any way in which Parliament thinks fit, the regulations may do anything. If the answer is that the safeguards are set out in the conditions precedent—presumably, for example, in Clause 21(3), on it being necessary to make provision for dealing with the emergency—that imposes no requirement that the regulations be effective or appropriate for that purpose.

If it is said that the safeguard lies in the need for affirmative resolution, to which we devoted a certain amount of the Committee's time two days ago, what is the point of setting out at length in Clause 22 the limitations on the scope of the regulations? Why not simply say that the regulations may contain anything that can be got past the two Houses in a debate on the affirmative resolution? What is the point of anything in Clause 22 if it can all be disposed of in that one sentence? It is like taking a Minister through the rule book and then saying. "But, of course, you may do whatever you like". My noble friend is very persuasive, but I cannot wait to hear what she says in reply.

This is about the most worrying thing that one has heard on the whole Bill. If I understand the provision right, it basically says that the Minister can do anything he likes—period. He can alter the constitution, change the law—he can do literally anything he likes. No emergency allows the concept of unfettered autocracy like this. No ruler of England has ever, in the history of this country since the heptarchy, had those powers. We should not give them to anyone. They are terrifying. No emergency is worth giving that amount of power from the people to Ministers.

That is quite clearly the truth of what we are doing. We are giving the entire power of Parliament into the hands of the executive, subject only to saying, "Can we have it back in five or seven days? Can we be involved later?". It is extraordinary. It is a tribute to the power of fear that we have been brought to the point, following 9/11 and all that has come after it, at which we are prepared to contemplate reserving nothing for ourselves as legislators, and giving away discretion over absolutely everything, as my noble friend said. That is the substance of the Bill; that is to what the Commons has given its assent; that is what we are asking to be dealt with.

I want to pick up my earlier point about paragraph (j), on whether the words "in particular" at the beginning of subsection (3) make the protection in the latter half of the paragraph ineffective.

My noble friend may notice that I have tabled Amendment No. 132 to address that point.

I support previous speakers in their view that, unamended, the provisions give the Government absolute power. It is true that Amendment No. 110 seeks to limit what the Government can do, but paragraph (h) removes that protection, as it says that the Government can do anything they like anyway. There is no doubt that the provisions are very dangerous. Although one accepts that any existing form of government we care to contemplate might not act in a dictatorial way, there are circumstances in which other groups may do otherwise. In a Bill of this sort, it cannot be right that a government be given absolute powers—whoever that government are, whatever political view they take, whatever political colour they may be—because they are powers that ought not to be in the gift of people without proper parliamentary control and agreement. I sincerely hope that the Minister can reassure us that our fears are unfounded, but I very much doubt that he can.

We are almost having the clause stand part debate, so I merely endorse the very grave considerations raised by the provisions, and repeat the request for a great deal more iron cladding of the reservations modestly expressed in the previous clause.

In addition, the words "subject to" should appear pretty regularly referring to those parts of the Bill which contain sunset provisions in relation to this. It may be superficial. It may be that the courts would rule without those words. I am now slightly on the other side of the argument I was on a moment ago. Although in those terms such words may not be necessary, in terms of a stark reminder to the Minister of the obligation he is under and the threat he is under if he misconducts himself, that should be on a piece of paper which is put on his desk when he is asked to do something.

Certainly, I understand the concerns expressed by the noble Earl, Lord Onslow, which rather overshadow the way in which the Committee considers the whole of the Bill. No one likes the situation that might emerge whereby any government have to take emergency powers and enact draconian measures by regulation.

However, Clause 22 tries to be more specific. I am grateful to the noble Baroness, Lady Buscombe, for making the concession that she can now understand why perhaps it is no longer necessary to amend the parts of the Bill which she originally thought would need amending. Clause 22 sets out what may be included in emergency regulations if the situation which is anticipated meets the definition of "emergency" in Clause 19 and it is necessary and—another important word here, particularly in view of our earlier debates—"proportionate" for action to be taken in order to prevent, control or mitigate a particular aspect of an emergency.

I shall deal, first, with Amendment No. 110 tabled in the name of my noble and learned friend Lord Archer. We cannot accept the amendment. However, I think that everyone would accept that by their very nature, emergencies are unpredictable. Some of what needs to be done in order to mount the most effective response may not be clear in advance. To attempt to construct an exhaustive list of actions that would cover every possible scenario in which emergency powers may be needed now and in the future would be not only unfeasible but, it may be reasonably argued, could put us at risk.

I am grateful to my noble friend for giving way. If these emergencies are so unpredictable that we cannot make a list of what is required to be done, why make half a list in Clause 22?

Not unreasonably, because we can anticipate some of those situations. That is exactly why we have the clause. However, it is important to leave ourselves with the space to say that there are situations that we cannot predict or imagine, perhaps because of technological or other changes. The noble Baroness asked me a reasonable question; that is, what other specific activities might we need to account for. There may be things such as rationing, which is not contained in the list. But there may well be other measures that at this point we cannot anticipate and predict. Any government would be—

Does that mean that the power would not be in the Bill to deal with such unforeseen instances? Surely, we are providing legislation to deal with what cannot be foreseen. Merely to list what we happen to foresee now seems to weaken the Bill under the law of—the noble Baroness will correct my pronounciation—expressio unius est exclusio alterius: if one thing is included in the Bill, by inference the other does not need to be included.

I am trying to imagine what the debate would have been like if we had not attempted to anticipate some of the things that might happen and some of the actions that might be necessary. The items listed give a very clear indication but I am sure that the noble Lord can see that we cannot anticipate every event. It is just not possible to do that. That is why the legislation is framed in the way that it is.

If the noble Lord can foresee that there may be an emergency which would require the Government to impose rationing, why was that not included in one of the paragraphs (a) to (q)?

Exactly, as the noble and learned Lord, Lord Archer said. But, surely one of the things that we must anticipate is that the Government will decide that in order to limit an emergency it is necessary to kill a substantial quantity of citizens. If, say, a nasty virus is confined to Winchester, they might wish to destroy the population of Winchester to prevent the rest of us dying. That would be an entirely reasonable thing to do. It would not be a comfortable provision to find in legislation. By listing in this way, they are somehow making the Bill seem less objectionable. If they just included the bare, absolute power, we might more generally realise what it is we are being asked to do.

It is interesting that the debate is turning in this way. I feel more secure with an identity or vision of what it is that we may have to do. It is for that reason, because we are taking a reasonable and common sense approach, that we framed the legislation in the way we have. I draw attention to the Emergency Powers Act 1920. This is in contrast to the way in which that piece of legislation is framed. That Act gave no indication as to what kind of provision was made. As I made clear, the list is designed to assist parliamentarians in scrutinising the Bill.

What the noble Lord is doing is rather like "The Charge of the Light Brigade": half a list, half a list, half a list onwards. But the list is then completed, as was said by the noble Baroness, Lady Buscombe, by the inclusion of paragraph (h) which immediately makes the list otiose because it says that he can do anything. If I can do this, this, this and this and anything else I want to do, why have any list at all?

The range of possible emergencies makes it impossible to predict, let alone list, all the activities that may have an effect. No doubt new activities will emerge over time. Having a power to prohibit or enable the prohibition of other activities is therefore necessary, and I think is sensible. It "future-proofs" and ensures the comprehensiveness necessary to facilitate effective responses in all possible scenarios. All regulations made, including prohibiting activities, must be necessary—they have to go through a necessity test—and proportionate in the circumstances. More importantly, they are subject to scrutiny by Parliament and must be compatible with the ECHR. Those important hedging, fencing, conditioning and qualifying measures have to be in place. That is why the legislation is framed and phrased in this way.

I find it rather surprising that noble Lords think, in the circumstances, that we should either list everything we can possibly imagine or not have any list and just state a power which is absolute and widespread. I suppose, in the nightmare scenario envisaged by the noble Earl, Lord Onslow, that is more of a nightmare than is currently the situation. I find that very surprising.

That is the whole point behind my amendment. Perhaps I have been a little too subtle. This part of the list says that he or she can do anything they want to do and it need not be specified.

I am sure that the noble Baroness is very subtle in the structure of her argument. Certainly, her amendments are very subtle, but I made the important point that all of the regulations that would fall to be considered have to be necessary and proportionate. They are subject to parliamentary scrutiny and have to be compatible in terms of the ECHR. That all provides an effective check on the way in which the legislation is framed and designed to work.

The noble Lord said that the regulations would be compatible with the ECHR. Later in the Bill is a provision for the Government to repeal any Act they like, and so that would "uncompatibilise" them. While I am on my feet, I also note paragraph (q), which states:

"make different provision for different circumstances or purposes",

and that is also pretty wide. The noble Lord cannot see what we are getting at.

Of course we can see where the noble Earl is coming from, and we are explicit in terms of the European Convention on Human Rights. I can well understand the general feeling that lies behind the concerns expressed on the Benches opposite and behind some of the concerns raised on our side of the Chamber. But the important point is that there is effective scrutiny and checking here. We are trying to be as helpful as we can in listing as many situations as we consider reasonable, although clearly there will be others. However, ultimately we have to rely on the strength of our system and the process of scrutiny because those are extremely important.

The list in Clause 22(3) gives an indication of other provisions that may be required, and it is very valuable in that respect. We can debate the issue raised in particular by the noble Earl, Lord Onslow, when we reach Amendment No. 136.

We cannot accept the amendments. I am grateful that the noble Baroness has, in part, accepted our argument and I hope that she will reflect further on the important points that have been made in response to Amendment No. 125. I also trust that my noble and learned friend Lord Archer will think further about his Amendment No. 110.

I am grateful to the Minister for his response to my amendment. I am also grateful to the noble and learned Lord, Lord Archer, for his amendment, which I believe entirely complements and further articulates or amplifies the point that I have been trying to make. We have had a good debate. At this stage, it is sensible to say that we should agree to disagree. I shall think about what the Minister said. I am not satisfied but, for now, I beg leave to withdraw the amendment.

I beg to move that the House do now resume. After we have dealt with the Companies (Audit, Investigations and Community Enterprise) Bill, we will take the Statement and return to the Civil Contingencies Bill after that. For that reason, I am unable to suggest a time at which the Committee stage should resume.

My Lords, I beg to move that the Commons amendments be now considered.

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 1 and 2. I shall also refer to Amendment No. 6, which is grouped with them.

The two new clauses proposed in Amendments Nos. 1 and 2 address the important issue of directors' liability. The Government consulted in December last year on a range of options for the reform of the law in this area, and the Secretary of State for Trade and Industry made a Written Statement on 7 September setting out the Government's response. I know that a number of noble Lords have a keen interest in the Government's proposals in this area. Perhaps I may, first, by way of introduction, set out the two main conclusions from the consultation.

Respondents were clear that reform to the law on directors' liability needs to strike a careful balance: on the one hand, we need a diverse pool of high-quality individuals willing to assume the role of company director and a willingness by directors to take informed and rational risks; on the other, the law must be firm and robust in order to deal fairly with cases where something has gone wrong as a result of either negligence or dishonesty. The Government very much agree.

Secondly, the consultation provided strong anecdotal evidence that concerns about liability are affecting the recruitment and behaviour of directors, particularly in struggling companies and in sectors such as financial services. There appear to be two main concerns: exposure to third party liabilities, particularly in the US; and the cost of lengthy court proceedings. The two new clauses address those concerns as part of a balanced and carefully targeted package of reforms which also clarifies a technically difficult area of law. I shall look briefly at each in turn.

The first new clause amends the existing provisions in the Companies Act 1985 relating to directors' liability. It does two things. First, it inserts into the Companies Act 1985 three new sections—309A, 309B and 309C—which replace the existing provisions on directors' liability, but not auditors' liability, in Section 310 of that Act. Secondly, it disapplies existing Section 310 from directors and other officers.

New Section 309A begins by restating the core prohibition on companies exempting directors from, or indemnifying them against, liability. Many of the key elements are retained from Section 310 of the 1985 Act. In particular, a company is prohibited from exempting a director from, or indemnifying him against, a liability to the company, and a company is also permitted to purchase and maintain insurance against any such liability.

There are, however, three important changes from the existing Section 310 of the Companies Act 1985. First, in line with the recommendation of the Company Law Review, the new section does not extend to liabilities of officers other than directors.

Secondly, new Section 309A clarifies the law relating to indemnification by a third party and, in so doing, closes an important loophole. In some groups of companies, it is current practice for one group company to indemnify a director of another company in the same group. We do not believe that that should be permitted. If the company itself is not permitted to provide indemnification, it cannot be right for another group company to circumvent the prohibition by doing so.

Thirdly, the new section addresses directors' concerns about their exposure to third party liabilities by clarifying the law in respect of the ability of companies to indemnify directors against liabilities to third parties. There is no reason why companies should not be permitted to indemnify directors in respect of third party claims in most circumstances. After all, such claims could—and, many would argue, should—be brought against the company. Moreover, this is a major area of concern, particularly in the case of companies with an overseas listing.

Permitting indemnification by the company would be of particular benefit to companies with a US exposure as it would enable them to indemnify directors against liabilities arising from class actions by groups of shareholders. New Section 309A(4) therefore states that the prohibition against indemnification by a director's company or "associated company" does not apply to a,

"qualifying third party indemnity provision".

The meaning of a "qualifying third party indemnity provision" is explained in new Section 309B, which sets out three conditions which must be satisfied for an indemnity to qualify. Condition A is that a qualifying provision may not provide any indemnity against any liability incurred by the director to the company itself or to an associated company.

Condition B is that a qualifying provision may not provide any indemnity against any liability incurred by the director to pay a civil penalty to a regulatory body, such as the Financial Services Authority, or a fine in a criminal case.

Condition C is that a qualifying provision may not provide an indemnity against any liability incurred by the director in defending civil or criminal proceedings in which he is convicted or judgment is given against him—in other words, the costs of an unsuccessful defence—except for civil proceedings brought by third parties.

That condition is largely the mirror image of the current Section 310(3), under which a company is permitted to indemnify a director against any liability incurred by him in defending any proceedings, whether civil or criminal, in which judgment is given in his favour or in which he is acquitted.

Subject to these conditions, companies will be permitted to indemnify directors in respect of proceedings brought by third parties. Indemnification in such cases could cover both legal costs and the financial cost of adverse judgment, except criminal penalties, penalties imposed by regulatory bodies and the legal costs of unsuccessful criminal defences or applications for relief.

New Section 309C concerns disclosure. It is clearly important that companies and directors act openly and transparently. We therefore intend to require a statement in the directors' report that a director has been indemnified by the company or by an associated company. Shareholders will also have the right to inspect qualifying third party indemnity provisions made by the company or associated company. That is achieved by applying Section 318 of the Companies Act 1985, under which directors' service contracts must be open to inspection by shareholders. Companies which choose not to indemnify directors will not have to make any disclosure.

The current Section 310 covers both director and auditor liability. Although the issues are clearly linked, it is not inevitable that this should be so. Indeed, the Companies Act 1928, which first introduced the statutory prohibition, had separate sections relating to director and auditor liability. Under the Government's proposals, the current section would be amended by subsection (2) of the first new clause so that it deals only with auditors' liability, with new Sections 309A, 309B and 309C addressing directors' liability.

I come now to the second new clause. As I have said, many respondents to the consultation were particularly concerned at the cost of legal proceedings. That is understandable, as at the moment a director may have to fund his own defence, even if the action is malicious or unlikely to succeed. The company can indemnify a director against his legal costs, but only if he is successful in the proceedings. In the mean time, the director may face years of financial hardship, or even financial ruin. The Government therefore intend to allow, but not require, companies to pay directors' defence costs as they are incurred, even if the action is brought by the company itself or is a derivative action.

Section 330 of the Companies Act 1985 currently restricts a company's power to make loans or quasi-loans to directors, or to enter into certain types of credit transactions with directors. The second new clause therefore inserts a new section—Section 337A—into the Companies Act 1985 which would permit companies to pay directors' defence costs, either in civil or criminal cases, as they are incurred. The director would, however, be required to repay the loan if he were convicted in criminal proceedings or judgment was given against him, except where, by means of a qualifying third party indemnity provision under new Sections 309A and 309B, the company chooses to forgive the loan in the case of civil proceedings brought by a third party. We accept that in some cases the director might be unable to repay the amount of the loan in full, but we share the view of most respondents to our consultation that this possibility will not in practice affect directors' behaviour, not least because of the reputational damage which the director will suffer.

Amendment No. 6, which amends Schedule 8 which lists repeals and revocations, is consequential upon the new clauses.

The Government's reforms address the two issues—exposure to third party liabilities and the cost of lengthy court proceedings—which appear at the moment to cause directors most concern. I think the reforms have been generally welcomed, but we are aware that some would like to go further by permitting a company to limit a directors' liability to the company itself. We understand the force of the arguments for such change, particularly in relation to the need to widen the pool of non-executives and to encourage directors to take informed and rational risks, but such a step would need to be considered very carefully.

It would in the first place raise difficult issues of principle. Directors' general duties are owed to the company. It is therefore important that companies can hold directors to account if they act in breach of these duties. If they cannot, shareholders will suffer and the general duties of directors will be diminished. It is therefore necessary to proceed cautiously.

Secondly, there are difficult practical issues which need to be properly addressed. The Companies Act could, for example, be amended so that companies could exempt directors from liability with prior shareholder consent. But we would need to reflect carefully about whether that would provide sufficient protection for minority shareholders. Alternatively, the Act could impose a statutory threshold, but it would in practice be very difficult to agree a threshold which both satisfactorily addressed the concerns of many first-time non-executive directors and retained the moral hazard for the very wealthiest executive directors.

My Lords, nine months have passed since the Bill's Second Reading on 8 January 2004, and I begin as I began then. Company law as a whole urgently needs an overhaul, as the Minister has been telling us, and the remit of this Bill is insufficient to achieve that. In these nine months the Bill has been subject to scrutiny in both Houses, as a result of which it has been polished and refined. I pay tribute to my colleague in the other place, Andrew Mitchell, for his efforts in this regard.

However, this Bill still deals only with a series of narrow issues that would surely have been better discussed as part of the full reform of both company law and, indeed, charity law. Despite constant consultation between the DTI and the Treasury, this promised major reform has yet to emerge. Therefore, this much awaited "major company law reform", which the Minister anticipated in his remarks, still throws a long shadow over this pretty slim Bill.

The preface to the paper Modernising Company Law perhaps best sums up the urgent need for reform. It states that company law has,

"failed to adapt to meet the changing role of small enterprises, IT and international markets.

"So the law needs to change. It needs to modernise and reform. It needs to be fit for the twenty-first century and beyond".

As we have remarked before, these words were written by Patricia Hewitt in July 2002 and, despite, as we see it, the now inadequately entitled Companies (Audit, Investigations and Community Enterprise) Bill we are still waiting for company law to be fully modernised.

Instead of beginning a comprehensive overhaul of company law the Bill is being used by the Government as a Christmas tree upon which they can hang bits and pieces of reform—a bauble here and a bit of tinsel there; whatever catches the Government's eye and might provide a good headline or sound bite. The reality is that company law reform is about not headlines or sound bites but hard graft—potentially with a lot of criticism and not much thanks. But it needs to be done and if the Government really understood the needs of business and commerce they would get on with it.

The addition of the Government's two new clauses in the other place further confirms this Christmas-tree approach to company law reform. I have previously mentioned that this Bill represents a clear case of carts before horses; this is another cart before the horse.

The cumbersome manner in which company law is being reformed is already contributing to delays and dissatisfaction. The introduction of the operating and financial review, which we discussed at length in Committee, was expected on 1 January 2005 but as a result of pressure is now to be introduced later in the year.

New subsection (4A) of Clause 13, entitled "Power to specify bodies who may issue reporting standards", was intended as a paving device. However, the implementation of this new review has been delayed. I suppose that there must be more pressing matters at hand. The Minister may have read the letter in the Financial Times of Friday 15 October entitled,

"A better way to reform company law".

The letter is signed by Mr Eric Anstee, chief executive of the Institute of Chartered Accountants in England and Wales, Mr Alan Blewitt, chief executive of the Association of Chartered Certified Accountants, Mr Pat Costello, chief executive of the Institute of Chartered Accountants in Ireland, Mr Steve Freer, chief executive of the Chartered Institute of Public Finance and Accountancy, Mr Ian Marrian, chief executive of the Institute of Chartered Accountants in Scotland, and Mr Charles Tilley, chief executive of the Chartered Institute of Management Accountants. The letter reads:

"A revised timetable for the introduction of the Operating Financial Review is to be welcomed. It should afford the Government the opportunity to deal with director and auditor liability reform to allow the OFR to be the bold and meaningful document that we are all seeking. Company law reform must take place in the round"—

"in the round" are the words used—

"if we are to improve the quality of financial and non-financial information available to investors and ensure UK capital markets remain fit for purpose".

When the Minister introduced the Bill on Second Reading, nearly a year ago, he said:

"The company is more popular than ever, and this Government are committed to reforming current companies legislation. We are taking forward the work of the independent Company Law Review in order to remove unnecessary regulation in the current law, to simplify the law, particularly as it affects smaller firms, and to make the law as a whole more flexible for the needs of the 21st century.".—[Official Report, 8/01/04; col. 258.]

Is it not extraordinary that, nine months later, the senior representatives of the chartered accountancy profession seem to think that the Government's policy is taking us backwards? Introducing a new mandatory review for listed companies to display strategic plans and environmental concerns may seem progressive, but without director and auditor liability reform, it is just another cart before the horse—which, of course, is exactly why the OFR has been delayed.

Turning specifically to the amendments from the other place, I am, as ever, grateful to the Minister for his careful introduction and explanation. As I understand it, new Clause 19, entitled,

"Relaxation of prohibition on provisions protecting directors etc. from liability",

permits companies to indemnify directors in respect of proceedings brought by third parties, covering both the legal and financial costs of any adverse judgment, except criminal penalties or those imposed by regulatory authorities. Those companies that choose to indemnify directors will—rightly—be required to disclose that in the directors' report and shareholders will be permitted to inspect any indemnification agreement.

The second amendment, new Clause 20, entitled,

"Funding of director's expenditure on defending proceedings",

entitles companies to pay directors' costs as they are incurred, even if the action is brought by the company itself. As the Minister pointed out, that prevents the possibility of a director becoming personally bankrupt before a case reaches a conclusion, as legal expenses will have to be paid for by the director only when and if a judgment is made against him.

We welcome the principle behind those clauses. As the Minister said, we all agree that the cause of Great Britain plc will be better served if men and women of quality and experience are encouraged to serve on the boards of companies. However, as I have said during the course of our debates on the Bill, my concern is that the Government are more preoccupied with form than effect. The consequence has been to pile box-ticking exercises on to boards of directors. For those who are non-executive, that requires them either to assume a considerable bureaucratic burden or to place a high degree of reliance on their executive co-directors.

The present statutory requirement that a director must fund the cost of any legal claim made against him is another disincentive to serve on a company, as the Minister made clear, and a rising disincentive in this increasingly litigious age. The change proposed in new Clause 20 to some extent redresses that imbalance. For justice to be fair, there needs to be some equality of arms. The present drafting of Section 310 of the Companies Act 1985 makes that almost impossible to achieve. On the one side stands a large company, or more likely a large insurance company; on the other a single director. One party has deep pockets and endless time; the other has personal resources only and a not unnatural desire to get on with his or her life. The ability of the company to help a director's personal cash flow, at least until the case is determined, is likely to give some reassurance to directors, especially non-executives.

However, I have a couple of specific points on which I would welcome the Minister's clarification. Further, there is one broad area of principle on which I want to probe the Government's thinking. The first point is an issue of clarification of the new clause contained in Amendment No. 1. The proposed subsection (6) contains a detailed definition of "associated company". I see no definition of subsidiary in the definition; maybe it is contained elsewhere in the archaeological layers of the Companies Acts. It would be helpful if it was made clear whether the definition of associated company relating to the new provision is a 51 per cent, 75 per cent or 100 per cent-owned subsidiary.

What about companies that are effectively subsidiaries in the sense that effective voting control resides with one company? For example, company A may own 49 per cent of company B, with the balance of 51 per cent of the shares owned among a multiplicity of smaller shareholders. Further, what about the implications of management control? To give another example, company A may own only 25 per cent of the shares of company B, but appoint a majority of its directors. When he comes to reply, perhaps the Minister could enlighten us as to how all that fits in to his scheme of things.

Secondly, I see no distinction in the definition between companies incorporated in the UK and overseas. The Minister will recall our debates in Committee on Clause 8, concerning auditors' rights to information. During those debates, although accepting his concern about extra-territoriality, we sought to persuade him of the need for a level playing field if directors and employees were not be confused about their legal duties and responsibilities. The Minister would not accept our arguments, although we repeated them on Report. The Minister said of Clause 8:

"I need first to distinguish between domestic subsidiaries and foreign subsidiaries. In respect of the former, we do not believe that the clause needs to make any special provision. We are trying to keep the powers of the FRRP as straightforward as possible … The case of overseas subsidiaries is somewhat different".—[Official Report, 17/03/04; col. GC87.]

If we cannot have a level playing field for Clause 8 because of extra-territoriality, why can we do so for subsection (6) of the first new clause? Surely, the principles that operate for those companies are exactly the same.

My second detailed point is briefer. New Clause 309B, also contained in the first amendment, is entitled,

"Qualifying third party indemnity provisions".

I draw the Minister's attention to subsection (4). I am clear about the implications of subsections (4)(a) and (b), but the implications of subsection (4)(c), especially paragraph (ii) and its reference to,

"honest and reasonable conduct",

is not so clear. When the Minister comes to reply, could he explain that clause, especially the implication of those words, in more detail? His answer may have a bearing on the more general point that I want to raise about the second new clause.

Turning to that more general point, as I understand it, the funding provided by a company to a director to conduct his or her defence is temporary. In a case where the court finds against the director, the funding will have to be repaid. As I read it, there is no test of reasonableness attached to the provisions. Win, and the director does not have to repay any funding from the company; lose, and he does. It is black or white; there is no third way, which I would have thought might appeal to the Government.

Is that fair? Let us consider an example. Company A and its directors are sued. Successive layers of the court system find in favour of company A and its directors, but the aggrieved party continues to appeal, taking the case to ever higher courts until it finally reaches your Lordships' House, acting in its judicial capacity, where judgment is given in favour of the plaintiff, overturning all the judgments of the lower courts. In such a case, the directors will presumably be asked to repay any money advanced by the company. However, given the sequence of events in my example—with successive court findings in their favour—the directors' belief in the correctness of their action was hardly unreasonable. Yet, as I read it, each of them will remain personally liable for their defence, even if we implement the new clauses in the form proposed by the Government.

Let me make it clear that I yield to no one in wanting to see the punishment of company directors who are found to have acted recklessly or without due care and attention. Such punishment should clearly include liability for personal defence costs. But where a director has acted reasonably or in good faith, the requirement to repay defence costs seems harsh. In effect, it impacts on the equality of arms issue that I raised earlier. I should be grateful if the noble Lord could outline whether the Government have thought about that and what conclusions they have reached.

We accept the strategic argument behind the introduction of the clauses but, before accepting them, we should like to hear the Minister's answer to the points that I have raised.

My Lords, during our debates on the issues surrounding this Bill, noble Lords on this side of the House have spent considerable time underscoring the desperate need for a general overhaul of company law. The noble Lord, Lord Hodgson, has spoken about that very eloquently and at length; I wish to associate myself with his remarks. An overhaul is long overdue and desperately needed. Corporate Britain can only benefit from a comprehensive review of the law that governs it to bring it into the 21st century. Having said that, I thank the Minister and congratulate him on fulfilling the commitment that he made to us in Committee, at which time the consultation process to which he referred was under way. At that time he said that he would come back with amendments if there was a consensus view.

The difficulty with dealing with director liability and auditor liability is that a simple solution is very tempting but enormously difficult to achieve. Those of us who sit on boards of directors would be very attracted to the possibility of saying, "We will have a limit on liability, let us put a cap on everything", yet I understand the difficulties involved. The amendments strike the right balance at this stage between the liability of a director acting on behalf of the company, which is what he should be doing most of the time, and the personal liability that he attracts if he does wrong. They reflect very well the results of consultation.

This is step one in the wholesale process of reforming the law of liability as it relates to boards of directors, officers and auditors. Although it is not before us today, the process that the Government have indicated they would like to see happen to resolve the very thorny issue of auditor liability—pursuing a track towards the notion of proportional liability—could also be very helpful in dealing with director liability. Nobody can argue with a premise that says that you are liable proportionately for the damage you do. A solution along those lines might be where we end up. Until we get there, I welcome these amendments; they have my full support.

My Lords, while I welcome this very small step forward, I agree very much with the remarks of my noble friend Lord Hodgson about the rate of progress that we are now making on company law reform. Given the rate of progress so far, it will be for a government after the next election to tackle these issues.

I seek a response from the Minister on one point in the immediate future: his point about the disincentives now to take on the liabilities of becoming a non-executive director. I have been involved as a director in trying to recruit quite a number of non-executives over the past two years. Based on my admittedly small sample and the anecdotal evidence of head-hunters, it seems a serious disincentive. This step will help, but the Minister will be aware that there have been other recommendations, including those from the Institute of Directors, about capping some of the liabilities in relation to earnings, salaries or whatever of non-executive directors—not in cases of breach of trust and so on, where I entirely accept the present position.

The Minister seemed to give some carrot in that he said that the Government would continue to review whether, even with these modest improvements, the present situation was inadequate in dealing with the disincentive point. I am not clear whether this is a smokescreen for in effect doing nothing, or whether there are clear practical steps that the Government would undertake to carry out such a review. If there are practical steps, I should be grateful if the Minister would indicate what they will be, so that we can be clear how the review is carried out.

My Lords, the noble Lord, Lord Hodgson, referred to the Bill as "a Christmas tree with halls". I must say that that shows a striking lack of understanding of what is happening out there in the real world. These two amendments address two issues which directors understand to be very real and, as consultation showed, which create problems in recruiting directors. The two issues are: exposure to third-party liabilities, particularly in the United States, and the cost of lengthy court proceedings. It seems entirely right in this case to deal with them now rather than to delay any further. It is not a reason for rushing through the company law Bill, which we will produce in draft form for consultation next year. It is much more sensible and practical to deal with the two issues separately now and then come to the main Bill later.

The noble Lord, Lord Hodgson, asked a number of fairly technical points. I shall deal first with the question of the definition of "associated company". The definition of "subsidiary" is contained in Section 736 of the Companies Act 1985 and is the same for all other purposes of that Act, except company accounts. There is nothing special about these new clauses in that respect. The definition of "subsidiary" in Section 736 includes overseas subsidiaries because in that section the word "company" includes any body corporate, including foreign ones. The reference to "honest and reasonable conduct" in new Clause 309B(4)(c)(ii) relates to the expression in Section 727 of the Companies Act 1985, which the courts have interpreted in a few cases. Essentially, it excludes dishonest or reckless conduct but includes honest mistakes.

The noble Lord, Lord MacGregor, asked about capping and the issue of further limits to directors' liabilities to the company. There are several reasons why we must proceed cautiously in this area. In the first place, any limit on the director's liability to the company raises difficult issues of principle. A director's general duties are owed to the company and it is therefore important that companies can hold directors to account if they act in breach of their duties.

Secondly, as I explained, difficult practical issues need to be addressed properly. The Companies Act could, for example, be amended to permit companies to exempt directors from liability with prior shareholders' consent, but would this provide sufficient protection for the minority shareholders? If not, the Act would need to impose a statutory threshold. In practice, however, it would be very difficult to agree a threshold which both satisfactorily addressed the concern of many first-time non-executive directors and retained the moral hazard for the very few wealthiest executive directors.

We must also ensure that we do not permit companies to exempt directors from liability in cases of deliberate wrongdoing. Some noble Lords might, for example, be willing to permit companies to cap directors' liability for negligence, but few, if any, would want to permit companies to cap liability where directors put their personal interests before their duty to the company. That is why we will consider the issue further in the context of our major reform of company law, which will implement the recommendation of the independent Company Law Review that there should be a statutory statement of directors' general duties to the company.

Finally, I turn to the point raised by the noble Lord, Lord Sharman, about the auditor's liability. As I am sure he knows, we have put in place a process to review that whole issue. I think that the noble Lord would agree that there are some very complex, technical issues about proportionality by contract; the main one being how in a situation which is, in a sense, cumulative negligence, proportionality is assessed. We have put in a process to try to get agreement to that. If we can, we will bring that forward with the company Bill.

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 3. This is the privilege amendment.

My Lords, I beg to move that the House do agree with the Commons in their Amendments Nos. 4 and 5. The Government introduced those two amendments on Report in the other place to address a small but significant shortcoming identified by the Opposition spokesman in Committee. They deal with information obtained by an individual accompanying an inspector or investigator on to premises.

The background is that an inspector or investigator, using the new power to enter and remain on premises contained in Clause 21, may be accompanied by one or more other people. For example, an investigator might be accompanied by a technical expert who can assist with the copying of information from a computer or in some cases an investigator might need an interpreter. It is possible that such an accompanying person might independently acquire information while on the premises.

However, as the Opposition pointed out in the other place, unless these amendments are agreed to, any information which such a person acquires, and the inspector or investigator does not, will not be statutorily protected in the same way as information obtained by an inspector or investigator. That was an oversight. The policy is that all information should be protected, no matter who might acquire it.

So new Clause 449 applies express protection for information obtained by an investigator with onward disclosure restricted to certain statutory gateways that allow disclosure in specified circumstances or to specified individuals. Amendment No. 4 amends new Clause 449 to extend that protection and the gateways to information obtained by an individual accompanying an investigator.

Information obtained by inspectors on a visit to premises is dealt with differently: the Secretary of State is expressly permitted to disclose such information to a specified person or for a specified purpose. She can authorise or require an inspector to do the same. The specified people and purposes are the same as for disclosure under Clause 449. Amendment No. 5 would ensure that information obtained by an individual accompanying an inspector is treated in the same way.

I trust that noble Lords accept these amendments, particularly given that they respond directly to an omission identified by the Opposition.

My Lords, the Minister will not be surprised that we support these amendments given their prominence by my colleague Andrew Mitchell in another place. We are grateful to the Government for having brought them forward.

Before we wave this area goodbye, perhaps I may take just one minute to emphasise a single point that still concerns us very much. The amendment relates to information gained under the provisions of Clauses 19, 20 and 21, as numbered in Bill No. 142. There are very important changes brought about by those clauses which, in our view, have considerable implications for civil liberties. We remain very concerned about the Government's proposal—line 24, page 25, Clause 21—to use the word "thinks" as opposed to the phrase "reasonably believes". It is the phrase "reasonably believes" that appears in the earlier Companies Acts.

We have discussed that at length, but all the legal advice that we have had before, during and after our debates emphasises the legal view that there is a clear legal difference between "thinks" and "reasonably believes". In summary, the first is a subjective test; the second is an objective one. Therefore, in our view, the Government here are stealthily—maybe they are not aware of it—taking more powers to themselves.

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 6 to which I have spoken with Amendment No. 1.

Moved, That the House do agree with the Commons in their Amendment No. 6.—(Lord Sainsbury of Turville.)

My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 7. This is the amendment to the Bill's Long Title, to reflect the inclusion in the Bill of the two new clauses on indemnification of directors, which we have already discussed. The Long Title had to be amended because the insertion of these new clauses in another place extended the scope of the Bill beyond the existing Title.

My Lords, I thank the Minister for his explanation. I have one quick question regarding the amendment. The Minister said in the other place that,

"in line with the … company law review, the new section does not extend to liabilities of officers other than directors".—[Official Report, Commons Standing Committee A, 14/9/04; col. 9.]

The Minister repeated that when he introduced new Clauses 1 and 2 a few minutes ago.

If, as the Minister said, the only officers to which this clause applies are directors, why does the Title of the Bill refer to,

"liabilities incurred by a company's officers",

and not liabilities incurred by a company's directors? I am sure that the noble Lord will have a quick and simple answer to that.

I notice that while the Long Title of the Bill has been amended to incorporate the Government's extra clauses concerning directors' liability, the Bill's Short Title of course has been left unamended. No doubt, it has been left unchanged to hide the embarrassment at the Christmas tree that has been created. Properly, of course, the Bill should now be renamed, the "Companies (Audit, Officers' Liability, Investigations and Community Enterprise) Bill". Of course, that Title would serve only to underline the inchoate nature of the provisions of the Bill as a hole.

My Lords, I think that the question raised by the noble Lord, Lord Hodgson, concerns the directors and whether it is therefore right to say that provision,

"may be made in respect of certain liabilities incurred by a company's officers".

The reason for that is that Clause 310 has been amended to remove other officers apart from directors and auditors. So it is a rather technical point, hut that is the explanation.

My Lords, before we leave this point, I thought that the Minister and his colleague in the other place said that this made no difference to any company's officers other than directors. The only people who are affected by the proposed new clauses are directors. The officers remain in the position that they were previously. So why do we have the word "officers" in the Long Title when we actually mean "directors"? As I understand it, those are the only people to whom the new provisions apply. The officers, other than directors, are quite unchanged. Therefore, why are we saying "officers" when we do not mean officers? What we actually mean is directors.

My Lords, whether you say "directors" to remove officers or "officers" to remove directors is a somewhat technical distinction. It is quite clear and is set out in the Title. Given that, I do not think that there will be any problem in understanding what this means.

My Lords, I am sorry to come back on this again. As the Minister says, this is a small point. However, clarity is important. If we use the word "officers", someone looking at the Long Title will believe that it is concerned with officers. However, it is not concerned with officers in relation to this point; it is concerned only with directors. Therefore in the interests of clarity, and while this may be only a small change, for those consulting the Act in years to come it would be clearer if it referred to liabilities incurred by a company's directors because it does not affect the position of liabilities incurred by a company's officers. The Minister has told us that.

My Lords, given the noble Lord's insistence on obscurity rather than clarity, let me clarify the reason. Officers other than directors are now wholly removed from the scope of Section 310. That is why that is referred to in the Long Title.

My Lords, with the leave of the House, I shall now repeat a Statement made earlier today in another place by my right honourable friend the Secretary of State for Defence. The Statement is as follows:

"I would like to make a further Statement about the deployment of UK forces in Iraq.

"On Monday I explained to the House that the UK military had received, and was evaluating, a request from the US military command in Iraq for assistance that would involve UK land forces operating outside the MND (South East) area in support of a combined Iraqi/US force.

"A reconnaissance team from MND (South East) deployed to the area in question earlier this week has now reported back to the Chiefs of Staff. The team provided information on a number of issues including logistics, the length of the potential operation, the likely tasks, activity levels in the area, the force levels required and the command and control arrangements. After careful evaluation, the Chiefs of Staff have advised me that UK forces are able to undertake the proposed operation, that there is a compelling military operational justification for doing so, and that it entails a militarily acceptable level of risk for UK forces. Based on this military advice, the Government have decided that we should accept the US request for assistance.

"I emphasise again that this was a military request, and has been considered and accepted on operational grounds after a thorough military evaluation by the Chiefs of Staff. As I said on Monday and as the Prime Minister said yesterday to the House, this deployment is a vital part of the process of creating the right conditions for the Iraqi elections to take place in January.

"We share with the Iraqi Interim Government and with our coalition partners a common goal of creating a secure and stable Iraq where men, women and children in towns like Fallujah can feel safe from foreign terrorists, from the kidnappers who murdered Ken Bigley and from other criminals. Crucially, Iraqi Prime Minister Allawi and the Interim Iraqi Government want to establish sufficient security for elections to take place in January.

"Recent successful operations by Iraqi security forces and coalition forces in Tal Afar, Samarra and the outskirts of Fallujah have been undertaken to restore areas under the control of militants and terrorists to the authority of the Iraqi Interim Government. As a direct result, the political process there is now moving ahead.

"We cannot consider the current UK area of responsibility in isolation. What goes on in the rest of Iraq affects southern Iraq and affects UK troops wherever they are based. We must therefore consider our contribution in the context of the overall security situation right across Iraq.

"This means that a UK armoured battlegroup consisting of the 1st Battalion the Black Watch and supporting units will deploy to an area within MNF (West) to relieve a US unit for other tasks. They will be deploying to a particular area with the necessary combat support services such as medics, signallers and engineers resulting in a total deployment of around 850 personnel. This deployment will be for a limited and specified period of time, lasting weeks rather than months.

"I cannot give the House further details about the location, duration or specifics of the mission. Honourable Members on all sides will understand that to do so would risk the operational security of the mission and potentially the safety of our forces. The speculation from many quarters so far has not been helpful. I should also emphasise that there are no plans to send a further 1,300 troops to Iraq as suggested this morning.

"There have been concerns about UK forces coming under US command and about their rules of engagement. The arrangements for this deployment are that the force will remain under the operational command of General Rollo, the UK General Officer Commanding MND (South East).

"On a day-to-day basis, the Black Watch will of course have to co-ordinate its activity with the US chain of command in the locality, but any changes in the mission or the tasking would have to be referred back to General Rollo. As with all UK operations, our forces will operate at all times under UK rules of engagement. These will provide proper protection for our forces, as they have throughout our operations in MND (South East).

"It is not unusual for UK and US forces to work alongside each other—they have successfully done so not only in Iraq with US forces often providing logistical support for our own forces and therefore reducing the number of troops and assets we need in theatre, but also in operations all over the world. Indeed, in Bosnia, about 22,000 US troops operated under UK command. As I said in my Statement on Monday, UK forces in Iraq work alongside forces from Italy, Denmark, Poland, the Netherlands, Japan and other countries on a daily basis. This is an effective and practical way of ensuring coherence both in our own area and with those that surround it. This is a practice with which UK forces are both content and comfortable.

"There has also been speculation as to why there is a need for this UK force to backfill for a US unit where there are around 130,000 US troops in Iraq. The armoured battlegroup that will deploy brings important qualities of extensive training, experience and hard-edge combat capability to replace a US armoured battlegroup of equivalent capability. It is not the case, as is often implied, that there are 130,000 US troops that could take on this task. In fact, under a third of US forces in Iraq have the requisite combat capability, and of those even fewer have the armoured capability that is needed. These specialised armoured forces are already highly committed across Iraq, a country about four-fifths the size of France. The Chiefs of Staff have further concluded therefore that the provision of a UK battlegroup to this new mission would be a significant contribution to and would materially increase the effect of the continuing operations to maintain pressure on the terrorists before the January elections.

"On Monday, honourable Members raised the question of whether this deployment would leave sufficient forces to deal with contingencies in our own area of responsibility in the south. The roulement of British forces currently under way includes an armoured infantry battlegroup of the 1st Battalion Scots Guards with their own Warrior armoured vehicles who will fulfil the divisional reserve role currently undertaken by the Black Watch. This will result in General Rollo temporarily having an extra armoured battlegroup under his command which will provide a very robust force capable of dealing with contingencies. It is also worth remembering that other UK forces in MND (South East) will continue to carry out their tasks in the professional and effective manner which has become so apparent to the people of Basra and the surrounding area, restoring power, water and basic facilities, and supporting the Iraqi authorities in ensuring a robust level of security.

"This deployment is limited in scope, time and space. It does not represent a permanent additional commitment of forces. The overall trend in the numbers of our deployment in Iraq remains down, from the peak of 46,000 during the war-fighting phase to around 8,500 today. That overall downward trend is expected to continue as we continue to train Iraqi security forces to take over from UK forces—as has happened, for example, in Al Amarah in Maysan Province.

"The Government remain totally committed in their support of the interim Iraqi Government and the need to hold free elections in January. We also remain committed to protecting innocent Iraqis, to dealing with terrorists, kidnappers and criminals, and to training and equipping Iraqi forces so that they can take our place in providing security and see that a democratic Government in Iraq take their rightful place in the international community—a Government who deliver prosperity and a secure future for the Iraqi people.

"That is something that should unite all sides of the House. It is right that the United Kingdom should contribute to those objectives. The deployment of the Black Watch will emphasise to the Iraqi people that the UK will continue to contribute to the coalition to see the task through".

My Lords, that concludes the Statement.

My Lords, I thank the Minister for repeating the Statement. We are relieved that the Government have ended the confusion of recent days and responded to many of the concerns and questions that were asked on all sides of the House on Monday. As I and my honourable friend the shadow Secretary of State for Defence made plain in our responses to that Statement, we support the coalition as it seeks to bring democracy, stability and freedom to Iraq, and to preserve her territorial integrity.

The Statement makes it clear that this deployment has the support of the Chiefs of Staff, following the reconnaissance reports that they will have received. Having heard that, and that the proposed mission is both feasible and fully within the capabilities of the Black Watch battle group, we support this deployment as being a necessary military contribution to the coalition's efforts to bring peace and stability to Iraq ahead of its elections. We are content to see that the Black Watch will be deployed with the necessary combat support services.

Will that battle group include a squadron of an armoured regiment with Challenger 2 tanks, possibly the Queen's Royal Lancers?

The Statement mentioned that the Scots Guards will be replacing the Black Watch. I understand that the Scots Guards have only just started moving from Germany. When is it envisaged that the battalion will be fully in place and ready to relieve the Black Watch? Have the Scots Guards been put on warning that they may be required in time to relieve the Black Watch in support of the combined Iraqi-US forces?

On Monday I asked questions about rules of engagement, and the Minister assured me that they are robust enough. But we remain very concerned. Will the Minister assure the House that troops who are about to face the enemy will not have their essential confidence undermined by the possibility of a commanding officer's legal judgments being subsequently overruled, as has recently been the case?

Bearing in mind the fact that, as the Prime Minister said yesterday, we are about to enter a period of increased activity in Iraq, will the Minister confirm that there is likely to be a surge requirement for extra troops to Iraq ahead of the Iraqi elections in January? Will he say whether any troops at present serving in Iraq will have to have their tour extended?

The whole House and the nation can be supremely confident that the Black Watch will carry out its task with all the fortitude, discipline and courage that we would expect from one of the finest regiments in the British Army. We wish them and the entire battle group the best of good fortune.

The Prime Minister created a good deal of confusion and uncertainty yesterday about the future of the Black Watch. Will the Minister confirm that wiser counsel might be prevailing and the Government may now be reconsidering their decision to cut four infantry battalions? Certainly, the Prime Minister appeared to offer the Black Watch a glimmer of hope.

My Lords, I thank the Minister for repeating the Statement. I wonder whether he can clear up some confusion. We are told in the Statement that there is no truth in reports this morning that there is to be a substantial increase in the number of British troops in Iraq—up to 1,300. I assume that if the Scots Guards are deployed, we are talking about 700 to 800, or possibly 900, extra before the Black Watch comes back. That is a significant increase in the number of troops deployed. Perhaps the Minister can explain what appears to be a discrepancy between different paragraphs of the Statement.

We on these Benches are unhappy about the deployment of British troops outside the British sector and about putting them under the overall command of the United States, even if not under American immediate operational command.

Our reasons for that are our unhappiness at American tactics, such as the apparent disregard for the scale of civilian casualties and the lack of training in their relations with an occupied civilian population. Britain is being dragged behind the United States in its mistaken approach to a "war" on terror, and the confusion between the very necessary and delicate business of attempting to reconstruct a more stable Iraq and the global war on terror, which we hear set out every day in President Bush's re-election campaign. We know that there is unhappiness about that in Washington, even within the American armed forces.

We are not worried about whether the rules of engagement of British troops are robust enough; we are concerned that those rules of engagement should encourage a degree of restraint that, in itself, promotes a sense of confidence with the occupied population. We understand that the reasons for this deployment are that the Americans are mounting a major attack on Fallujah, and we are anxious about the extent of the destruction that may be meted out on Fallujah, and whether that is not counterproductive in terms of rebuilding a democratic Iraq.

Will the Minister say when the Secretary of State for Defence last discussed allied strategy in Iraq with his counterpart in the United States? Can we be reassured again that the United Kingdom has some influence over American strategy?

I strongly agree with my Conservative opposite number that the matter raises questions about the numbers of infantry that the United Kingdom will need, and the Government's proposals to reduce those numbers. The Black Watch may find that this tour of duty is all over by Christmas, but clearly we are talking about an extended commitment in Iraq, and there is a parallel extended commitment in Afghanistan.

We also ask about the impact of this deployment on the very necessary training of Iraqi security forces, in which the Black Watch was engaged. The provision of fully trained Iraqi security forces is, after all, one of the prerequisites for a future stable Iraq from which British forces can justifiably withdraw.

Will the Government recognise the scale of public and parliamentary unease about the direction of American strategy towards Iraq and the willingness of Her Majesty's Government to follow that American lead? There is an apparent absence of British influence over American policy or strategy, suggesting that a significant change of policy and strategy on Iraq that involves British forces should be subject to parliamentary debate, not just reported to Parliament as a fait accompli.

My Lords, I am grateful to both noble Lords for their remarks. In particular, as I think I can distinguish on this occasion, I thank the noble Lord, Lord Astor, and his party, for the support that they give to the military disposition. It is what I would expect of the Conservative Party. I would once have expected it of the Liberal Democrats, but no longer. I thank the noble Lord, Lord Astor, very much for what he had to say.

The noble Lord will forgive me, I know, when I disagree with his comment that there has been confusion about this over the past few weeks and days. It is not true. A request was made, a reconnaissance took place and a decision has been taken. That is a proper and sensible way to continue. As to his point about what the Prime Minister said yesterday about the Black Watch, it does not seem to me to be confused in any sense at all

He knows that I will not go into details. He will understand why I cannot answer his question about when the Scots Guards will arrive, or his other detailed questions. However, I can reassure him on his very important point about the rules of engagement, which remain absolutely robust. They have been adequate for UK forces for some time now. I also remind the noble Lord that British troops serving abroad are at all times subject to United Kingdom law. I believe that deals with the matters raised by the noble Lord, Lord Astor of Hever.

I wish I could be as generous to the noble Lord, Lord Wallace, and the party that he represents. They have to make up their minds: are they in favour of moving Iraq forward to the elections in January? If they are not, I can understand their refusal to endorse this move despite the overwhelming military support for it. But if they are in favour of the elections in January—and they say adamantly that they are—how in all conscience can they oppose this proposal? Its clear purpose is to ensure that we can hold elections in Iraq in January, which is what the Iraqi Interim Authority wants. To oppose it seems to be saying that they do not want that to succeed.

They suggested in another place—although I noticed that the noble Lord did not refer to this today—that every military disposal of this kind should be subject to a vote in the House of Commons. That is an absolutely amazing concept. It shows just how far they are removed from serious thought about these issues. The fact is that the Liberal Democrats have been found out on Iraq.

Earlier this week my noble friend Lady Symons showed quite clearly the double standards on legality that there have been over the past number of years. Added to that is a complete refusal to accept what is screamingly obvious and absolutely clear—that if their advice had been taken by Her Majesty's Government last year Saddam Hussein would still be in power with the inviting prospect of his sons succeeding him. As the Foreign Secretary said the other day, the Liberal Democrats' attitude towards that issue is a truth that dare not speak its name.

It is no use mouthing a few words of support for our troops and then opposing a disposition of this kind; that leaves our troops with a very unhappy feeling. Let me refer the noble Lord to a letter in yesterday's Guardian, which states:

"I am startled by much of the reaction to the proposed redeployment of some UK troops. Are they involved in a separate war from the other members of the alliance, or are they there to assist the Iraqis in ejecting insurgent forces so that they can proceed peacefully towards establishing a democratic government? If it is the latter, there is no question that they should be deployed wherever they are most needed. The support and encouragement our soldiers need to help them to complete the task is pitifully lacking here at home".

I am afraid it is pitifully lacking on the Liberal Democrat Benches.

My Lords, I apologise for not being here at the beginning of the Minister's Statement. However, I did have the opportunity of hearing his right honourable friend deliver it in another place.

In the Statement he has sensibly clarified the references to 130,000 American troops, which was always extremely misleading. As the Statement makes clear, less than one-third are available for the kind of work that the Black Watch are being asked to undertake, and with even less armoured capability. That reinforces the statement made some time ago by the Chiefs of Staff in the United States when they asked Secretary Rumsfeld for greater forces, a request that was unfortunately declined.

The Scots Guards battle group is going to deploy. If they are required to go to this new deployment 350 miles north of the present area, presumably that means that we will still be without a reserve, which we have previously had. Can the Minister clarify what the position will then be? There is a great deal of easy, facile talk around at the moment that we have a temporary problem over Ramadan, a temporary problem ensuring that the elections run smoothly, and a ready assumption that everything will be quieter thereafter. In fact, the evidence is that insurgency is growing and is extremely serious.

In supporting what is obviously a necessary request at this time, my biggest criticism of the Government is that their duty here at home is to ensure that our forces undertaking this dangerous work have public support for what they are doing. It is a very important part of morale.

Let me describe two matters that will encourage public support. First, the public need to feel that real attention is being paid to the British point of view in the decision making that is taking place in Baghdad; that we are not merely the pillion passenger to an American policy dictated by Secretary Rumsfeld and the US military. Secondly—I have repeated this many times in the House—last night, for the first time on television, there was a good news item about the excellent work being done by TA officers on the electricity and water supplies in Basra. If good work is being done—and Ministers stand up and plead that they are doing it—the public are woefully ignorant of it. If our forces out there are doing good work, it is the Government's duty to make sure that everyone in this country is aware of it—not merely through Statements in this House from the Dispatch Box, which no one listens to, but through an effective public communications exercise to do our forces justice for what they are doing in Iraq.

My Lords, the noble Lord uses his great experience in asking his questions. As to his first question about the condition on the ground in the south- east if—and it is a very big if—the Scots Guards are needed elsewhere, I asked this question before coming to the House today and I am advised that the commanding officers are satisfied that if that happened our troops in the south-east would not be exposed.

I am surprised that the noble Lord does not answer the second question himself. He held very high office in the department in which I serve at the present time, and he will know from his days, as we know from ours, how difficult it is to get the great British media to publish, either in written form or on radio or television, the good news that comes from a place like Iraq. It is very easy for them to publish any had news there may be; it is very difficult to get them to publish any good news. We will continue to do our best to ensure that the good news comes across. Some obviously did last night.

My Lords, I was deeply disappointed to hear the Minister make party political points in terms of how we address the problem that we are all agreed about—that is, achieving both a peaceful and democratic Iraq and a peaceful and democratic Middle East.

I take the Minister's Statement at face value, in which case I am alarmed that the United States forces are so parlous that a small UK detachment is needed some 350 miles north and out of area. If this is the case—and given the convoluted command and control arrangements to which he referred—can the Minister tell us, if the Black Watch were to get into difficulties, would they get help from the United States forces or the United Kingdom forces?

My Lords, they would get help from coalition forces. I remind the noble Lord that we are in a coalition in the whole of Iraq.

The noble Lord accuses me of attacking his party on this issue. In return, I should like to ask the noble Lord whether or not he, himself, is in favour of this disposition.

My Lords, will my noble friend the Minister express his views on the comments of General McColl, the senior UK commander in Iraq, that it would not be "militarily responsible" to reject the request from the United States for troop redeployment?

My Lords, I did notice those important remarks. It is obviously important that politicians do not seek to hide behind the military in putting forward disposals of this kind. But in this particular case, the military, who have looked at this from a military point of view only, are absolutely unanimous in suggesting that on all counts this is a sensible thing to do. That is precisely why I asked the noble Lord, Lord Garden, with his great and distinguished experience in the Ministry of Defence some years ago, whether he supports this disposition.

My Lords, I, too, thank the Minister for his Statement. My first reaction is that we are talking about a tactical operation in a country, and it has taken four days to make a decision about a tactical deployment. My conclusion—and I would like the Minister to confirm that I am wrong—is that the Government are deeply worried about this deployment, otherwise the decision should have been made much more quickly. That is point one.

My second point concerns the very convoluted command and control arrangements. If you are to get military forces to react on the ground, in time, you have to have a simple, responsive chain of command. I would have hated the chain of command that the Minister described if I had been the operational commander on the ground.

The third lesson I would draw from that is the point made by the noble Lord, Lord Garden—I do not often agree with the Royal Air Force. It is quite clear that we do not have adequate forces on the ground in Iraq to control the situation.

My Lords, I am grateful to the noble and gallant Lord. Of course there is a worry about any deployment of this kind. The reason for any delay was not because of deep worry or concern about this particular deployment—we want to make sure that we get it right. We had a request from the Americans; as I told the House, a recce took place and a decision has been reached on military grounds.

I am sorry that the noble and gallant Lord is not happy about the way in which the chain of command that I described in the Statement will work. We are content, and I understand that the military are content, that that chain of command will work and has worked in the past.

We have no intention of adding a large number of troops to our contingent in Iraq at present. Obviously, if and when any decision of that kind is made, the Secretary of State will inform the House of Commons of that fact.

My Lords, I hope that the noble Lord will accept that I am very happy to support the comments he made in his Statement and the military imperative it describes. I declare an interest as chairman of the National Employer Advisory Board for the reserves of Britain's Armed Forces. How many members of those involved both in the Black Watch and the supporting arms are to be reserves? Are the necessary steps in hand to ensure that the employers of those reserves in the Black Watch and supporting arms are aware of any delays that might arise from the deployment of those people as to their return to the United Kingdom? That would be very helpful and encouraging to those who spare their people to play a part in such activities.

My Lords, I am grateful to the noble Lord. I cannot help him on the number of reserves there will be. He knows better than I do what a fantastic part the reserves have played in Iraq. Indeed, sitting next to him is one such reserve.

The reserves have done a fantastic job. The noble Lord was right to imply that there were difficulties at an early stage in terms of making sure that reserves can get back to their employment once they have finished their tour of duty. There were problems there; the Ministry has worked extremely hard to sort them out, with the help of the noble Lord and others.

My Lords, does my noble friend agree that under the late Harold Wilson, a request was made for British forces to be used in Vietnam and that that was turned down without any lasting damage to American-British relations? Does my noble friend also agree that the move which is envisaged is designed to, and will, advance the re-election campaign of President Bush? In my view, that is wholly undesirable.

My Lords, I am grateful to my noble friend. Let me reassure him that there was no political gesture linked to the US elections. This was a military request for assistance from the US military commander in theatre, and was considered in the context of the overall military effort in Iraq and our own capabilities. The advice of the chiefs of staff was that there was clear operational justification for accepting the request, and that it was within our capabilities. That was the basis on which the decision was made.

My noble friend talks about lasting damage to the relationship between the US and the UK. If we did not agree to this and act as good coalition partners, lasting damage would be done to the future of Iraq.

My Lords, the Minister has made a very serious Statement and, very properly, seeks the general agreement of the House. I am sure we all hope that this venture will be successful. But it would be a very sad day if that obliterated anxieties and misgivings that are widely felt outside this House if not in this Chamber.

I should like to press the Minister on one point, although I understand that he does not want to go into detail. Do the 850 members of the Black Watch represent between 2 and 3 per cent of the American forces of equivalent calibre? If that is so, do we really believe that the assault on Fallujah will turn on such a narrow calculation? Although no one in this Chamber would wish to say anything which would be distressing or harmful to the military operation, at least we are entitled to take account of the quite compelling radio broadcast by the noble Lord, Lord Healey, in the past 24 hours. He cast very serious doubts on the whole capability of this enterprise, not least because of the character of the American operation.

My Lords, of course the noble Lord is right in saying that there are anxieties about this step; there have been anxieties about other steps concerning Iraq and there will no doubt be anxieties in the future. The fact is, the Black Watch is exactly the sort of armoured battle group that the US request for the area in which it has asked its members to serve. The US battle group that is there now, of equivalent armour—equivalent effect—will move elsewhere in relation to the attempt to make sure that there can be free and fair elections, as much as is possible, in Iraq in January. I do not want to underplay the anxieties. I am not in a position to agree or disagree with the percentages given by the noble Lord, but we should not underrate the reputation which the Black Watch and other infantry battalions of that kind have, not just in this country but in the United States.

My Lords, if the Black Watch is to be home by Christmas, are any plans being formulated in the Ministry of Defence for a follow-up unit to take its place, or is the request from the Americans to have a British unit to fill the gap between now and Christmas?

My Lords, I am afraid that I am not prepared to go into the timing of this particular disposal and how long it might last. I can say that the Scots Guards are due, in any event, to go to Iraq in the comparatively near future. As I think I said in answer to an earlier question, if this particular mission was not completed by the time the Black Watch was due to come home, the Scots Guards would be in a position to take its place.

My Lords, that is an extraordinary statement to make given that we heard in the Statement, that:

"This deployment will be for a limited and specified period of time, lasting weeks rather than months".

My heart sank when I heard that because when governments say, "They will be home by Christmas" we all know what to expect. However, what is meant by a specified time if we cannot be told what is?

My Lords, specified time means that it is a specified time. A date is known, but it is not one, I am afraid, that I am prepared to share with the House. Anyone who has had anything to do with the Armed Forces will know it would be absurd to specify the dates.

My Lords, I remind the House that this war in Iraq was declared officially over by President Bush more than a year ago, but it is certainly going on and it appears to be escalating. In the Statement, reference is made to "militarily acceptable" risk to United Kingdom forces. What is that risk? Will the Minister give me some idea of how high that risk is? Will British forces be supporting an American attack on Fallujah which, if President Allawi is to be believed, will amount to collective punishment on the people of Fallujah because they refuse to hand over—they cannot apparently do it—so-called insurgents?

My Lords, the noble Lord asks what an acceptable level of risk is. Obviously, any operation involves a degree of risk. When planning an operation such as this, a commander will always look at the balance between the likely risks and benefits, going ahead only if the balance is right. In this case, the General Officer Commanding in MND (South East) judged that the military benefits of the operation strongly outweighed the risks. That is the message that the Statement is intended to give to the House.

As far as Fallujah is concerned, if Iraq is to move forward it is absolutely crucial that fair elections are held in that country shortly, in January. If there are to be fair elections in that country it is important that some of the towns where the murderous thugs live, practice and control must be taken over. I presume that the noble Lord is in favour of the elections.

My Lords, does the Minister agree that the one bit of good news in this announcement is that it is a clear tribute to the unequalled, hard-edged combat calibre and capability of the British Army? Secondly, will the Black Watch battle group be equipped—as they must essentially be if they are to work with the Americans—with the Bowman communications system? Is he satisfied that it is fully functional? Finally, is the British contribution to the coalition force to be entirely paid for by the British taxpayer, or will countries such as France and Germany, which have equal interest in the future of Iraq, contribute towards the large contribution that we are making militarily?

My Lords, the noble Lord knows the answer to the last question without me stating it. I cannot guarantee that Bowman will be used in its final form on this mission. The noble Lord knows, because we talked about this on Monday, that the ISD or in-service date for Bowman has passed, but a lot of work must be done before Bowman can be finally fitted for the Armed Forces. I can say that, as the noble Lord said the other day, communications for a mission of this kind are absolutely crucial and we will do our very best to ensure that communications both between us and the Americans and between British troops and headquarters back in Basra will be as good as they possibly can be.

moved Amendment No. 109A:

moved Amendment No. 128:

Given that this Bill could change every single law of the land at the stroke of a pen, my noble friend made an interesting point. What procedures or plans do the Government have to make people aware of the emergency regulations that will be made so that they do not accidentally contravene them?

I congratulate my noble friend on so quickly recovering her aplomb after being stuck in a lift. That would have kept me out of action for some hours after the event.

As to the point which she raises, I add only that in the scenarios that we discussed it would be very difficult indeed for the average citizen to know what the law was. Whereas now ignorance of the law is no defence because one has adequate time and machinery to discover it, when there is almost no time and probably no machinery either, ignorance of the law seems to me to be a good defence. My noble friend's amendment would mean that if what would otherwise be an offence was committed in ignorance, it would not under those circumstances be an offence. That seems to me a reasonable point to discuss.

Bearing in mind what the noble Baroness said on the previous amendment about a Minister acting reasonably, surely no regulation should create an offence such that a person was unable to anticipate that conduct which had been perfectly lawful before the regulation was made suddenly, without any notice, had become unlawful, and that he might put himself in jeopardy of committing some violation of it. I give an example. The driver of an emergency vehicle may find that its access is blocked by a parked car and there is a regulation which makes it an offence for any person to block the access of emergency vehicles to a given area. However, the driver who has left the car in that position did so as it was perfectly legitimate for him to do so under the previous regime. I assume that it would be a place where vehicles were normally parked. Let us assume that because of the emergency it has been made unlawful for anyone, say in the whole of the London Borough of Westminster, to park a vehicle even though parking was permitted in that particular place under the normal rules. If this regulation comes into force in the case of an emergency vehicle attempting to gain access and finding that its passage is blocked by someone whose car had been parked there, the driver or owner of the parked vehicle would suddenly be liable to have committed an offence when he could not possibly have known in advance that that regulation was coming into force.

As I say, bearing in mind what the noble Baroness said about Ministers not making unreasonable regulations and having to consider all the possibilities that those regulations would entail, does she not think that it is reasonable for a person to be exonerated from having committed the offence if it was not done knowingly?

It may be that I just cannot find it but, so far as I can gather, if there is an offence, there is a penalty. It is either hanging, drawing and quartering or a parking fine—it seems to vary between those two extremes. Will the noble Baroness help us as regards what penalties can be imposed on people for not knowing that the regulation was in place? That is important as I am certain that we should scrutinise those with considerable care before this Government, who are so renowned for their liberal treatment of people, should be allowed to get away with imposing extra penalties.

Perhaps I can quieten the noble Lord's beating heart if I set out how the provision will work. The Bill sets a maximum possible punishment for this breach at three months' imprisonment and/or a fine at level 5 on the standard scale. All offences must be tried before the appropriate courts of summary jurisdiction.

Where is that scheduled in the Bill?

If the noble Lord will give me a moment, I shall find it. I had it scribbled in my notes and I cannot immediately allude to it. However, I can explain how publication comes about. The noble Lord raised a very important point when he asked how people would know about the matter and how the provisions would be effected. I believe that the Committee will find the measure in Clause 23(4)(c), which states,

"create an offence which is punishable—

(i) with imprisonment for a period exceeding three months, or

(ii) with a fine exceeding level 5".

The content and implications of the regulations will be promulgated through the news, media, paid advertising in the press and departmental websites. The news media will cover the issue of the emergency powers as a story. It is likely that some media will cover this in more detail than others. Obviously, every effort will be made to let people know precisely what is happening and what needs to be done. The media, however, will be able to receive full background briefing on the powers and how they will be enforced so that their reports can be entirely accurate. News reports will be monitored to ensure that their coverage is accurate. Full details of the powers, which may be lengthy and complicated, will be published in the newspapers and on relevant websites. We will make every effort to ensure that people know what is happening.

Particular arrangements will need to be made to communicate with those whose first language is not English or who are deaf, blind or have learning difficulties, so conversion of the information into alternative formats and languages will inevitably take more time than the conventional methods but assistance will be sought from expert organisations, ethnic broadcasters and community leaders to expedite this. Tailored information may need to be targeted at specific groups.

I believe that the noble Lord, Lord Avebury, asked about the timing if something happened very quickly. Safeguards are in place in regard to that matter to prevent people being convicted of offences of which they could have no forewarning. The Statutory Instruments Act provides that in any proceedings against any person for an offence consisting of a contravention of regulations it is a defence to prove that the instrument had not been issued by HMSO at the date of the alleged contravention and that no reasonable step had been taken for the purpose of bringing the purport of the instrument to the notice of the public or of the persons likely to be affected by it. That is the inherent defence as regards that matter.

However, the Committee will appreciate that if an emergency is taking place and every step has been taken to publicise it—I refer to the situation where someone is told that there is an emergency and that an area has to be cleared but refuses wrongfully or improperly to move—it must be right that that matter can be dealt with appropriately.

Does the noble Baroness want to deal with this point before she goes on to others, or shall I wait until she has concluded?

I beg your Lordship's pardon—deal with which point?

The point about the communication of information. I want to refer this back to our previous debate. The noble Baroness rested the very important defence of the unknowing defender on the Statutory Instruments Act. That Act is susceptible to amendment by this Act unless it is protected, as other parts are, in the provisions of this part of the Act, which we shall come on to. However, until it is protected, that defence is uncertain.

I understand the noble Lord's concern but I do not agree with him, only because in order to amend an Act which is currently in being we would specifically have to say that this Act in some way overrides, amends or detracts from it. There is nothing in this Bill that purports to interfere with the statutory nature of that Act that I have just described. Obviously I shall be happy to look at it but, so far as I am aware, those principles will still prevail and apply to the Bill.