Human rights
67. Clause 25 of the draft bill provides that emergency
regulations under Clause 21 shall be treated as primary legislation
for the purposes of the Human Rights Act. This means that the
regulations could not be suspended or struck down by a court if
they were challenged on human rights grounds. Under the Human
Rights Act secondary legislation is subject to injunction and
can be quashed. Primary legislation can be challenged, but if
a court upholds that challenge it may only make a declaration
that the legislation is incompatible with the claimant's rights
under the European Convention on Human Rights.
68. The Government recognises that this is a controversial
provision and admits that "the case for its inclusion in
the final Bill is by no means certain."[58]
We discuss below the parliamentary procedures to which the emergency
regulations are subject. In effect this provision gives Ministers
the power to deprive people of protection for their human rights.
The Government argues that "it is not desirable for any emergency
regulations to be held up by injunctions, especially where delay
may prevent effective resolution of an emergency which threatens
the safety of the community."[59]
The proposition that the alternative is "not desirable"
seems to us to be a insufficient argument for undermining the
protection of people's human rights. A procedure already exists
under which many of the rights protected by the Human Rights Act
may be suspended in the event of a public emergency which threatens
the life of the nation.[60]
We therefore conclude that this new provision should not be
included in the bill unless the Government can demonstrate a clear
and compelling need for the additional powers which it provides.
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