|Civil Contingencies Bill - continued||House of Commons|
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Clause 24: Establishment of Tribunal
50. Subsection (1) provides that emergency regulations which establish a tribunal may not be made unless a senior Minister of the Crown has consulted the Council on Tribunals. Subsection (2) makes provision for urgent cases or where the Council has consented to the establishment of the Tribunal. Subsection (3) requires the Council to make a report to the Minister and provides that such regulations may not be made before the report is received. Subsection (4) provides that regulations may be made before the report from the Council has been received in urgent cases. Subsection (5) requires the Minister to lay a copy of the Council's report before Parliament, together with a statement explaining the extent to which the regulations have given effect to the recommendations of the Council and why any departure from any recommendation in the report has been made.
Clause 25: Duration
51. Subsection (1) provides that emergency regulations lapse 30 days after the date on which they are made unless the regulations themselves provide for lapse at an earlier date. This does not prevent new regulations being made.
Clause 26: Parliamentary scrutiny
52. Subsection (1) provides that emergency regulations must be laid before Parliament as soon as reasonably practicable and lapse at the end of seven days thereafter unless each House of Parliament passes a resolution approving them.
53. Subsections (2) and (3) enable Parliament, by resolution of both Houses, to provide that the emergency regulations shall cease to have effect or have effect subject to an amendment. Provision is made as to when any such resolution will take effect.
Clause 27: Parliamentary scrutiny: prorogation and adjournment
54. Clause 27 provides that if Parliament stands prorogued or either House stands adjourned, Parliament shall be summoned by way of proclamation or arrangements shall be made for the House to meet.
Clause 28: Consultation with the devolved administrations
55. Subsections (1) to (3) require a senior Minister of the Crown to consult the relevant devolved administration before emergency regulations are made which relate to Scotland, Wales or Northern Ireland. Subsection (4) provides that such consultation is not required if it is necessary by reason of urgency to make regulations before consultation has taken place.
Clause 31 and Schedules 2 and 3: Minor and consequential amendments and repeals
56. Clause 31 introduces Schedules 2 and 3 to the Bill.
57. Schedule 2 to the Bill contains repeals and amendments which are consequential on the Bill, including the repeal of the Civil Defence Act 1948, the Civil Defence Act (Northern Ireland) 1950 and the Civil Defence in Peacetime Act 1986. The amendments include renaming metropolitan county fire and civil defence authorities as metropolitan county fire and rescue authorities. Schedule 2 also contains repeals and amendments which are consequential on Part 2 of the Bill, including the repeal of the Emergency Powers Act 1920 and the Emergency Powers Act (Northern Ireland) 1926. In addition, Schedule 2 contains a minor amendment to the Energy Act 1976. This amendment clarifies the territorial application of that Act.
58. Schedule 3 to the Bill deals with repeals and revocations of legislation.
FINANCIAL AND PUBLIC SERVICE MANPOWER EFFECTS OF THE BILL
59. Although overall the draft Bill's provisions have negligible expenditure impact on Government departments and negligible impact on public sector manpower, it is sensible to consider the two principal Parts of the Bill separately.
60. Part 1 of the Bill places obligations on a wide range of organisations. But in large measure, this part of the Bill codifies existing practice rather than adding significant new burdens. It is essentially organisational in nature.
61. There is negligible impact on the resources of those government departments and agencies affected. The Environment Agency and the Maritime and Coastguard Agency (which is part of the Secretary of State) already undertake significant work in the field of civil protection and this will continue under the Bill. The same is true of the emergency services and the NHS, which are funded both for general activity related to emergencies (for example provision of an ambulance service) and for specific programmes (for example, the investments over the last two years in equipment, training and staffing to support enhanced planning and response in the field of Chemical, Biological, Radiological and Nuclear emergencies).
62. Local authorities currently receive a contribution of around £19 million from central government towards the cost of planning civil protection, and this will be transferred into the Revenue Support Grant to support the costs of the Bill. Local authorities currently maintain small civil protection teams and this same level of activity is likely to continue. In Scotland funding for emergency planning for local authorities is already included in the Revenue Support Grant.
63. The only public sector bodies in Category 2 are Transport for London and the Highways Agency and, in Scotland, Scottish Water and the Common Service Agency in Scotland. Again, they already make significant investment in civil protection work and the Bill essentially codifies this.
64. The final decisions about public sector manpower effects will depend on the content of the final regulations under Part 1. The current estimates are based upon the regulations published alongside the Bill at introduction but are subject to any change in the regulation making powers contained in Part 1.
65. There are no public service manpower effects from Part 2 of the Bill. This reflects the purpose and operation of Part 2 - it is a mechanism for making emergency regulations rather than provision for any ongoing activity. If emergency regulations were made, however, these could have a considerable (though probably temporary) impact on public service manpower. This would depend entirely on the content of the regulations, and indeed the use to which any emergency powers were put. As such, it is not possible to make any meaningful estimate of potential costs at this stage.
SUMMARY OF THE REGULATORY APPRAISAL
66. Regulatory Impact Assessments for each part of the Bill can be found at www.ukresilience.info/ccbill/index.htm. The revised Full Regulatory Impact Assessment details the impact which this legislation will have on business, as well as the impact on the public sector. It confirms the position set out in the Partial RIA, published at the time of the draft Bill, that any additional costs, which are estimated to be small, are offset by the benefits that this legislation would confer by enhancing local resilience. All of the organisations being given a duty under the legislation, already undertake civil protection work. Additional costs will therefore be minimal.
67. Small businesses will be shielded from extra costs because the proposals do not affect them. They will, however, benefit from the improved co-ordination arrangements in their area.
68. The draft Bill's provisions have negligible expenditure provisions for Government departments and negligible impact on public sector manpower.
EUROPEAN CONVENTION ON HUMAN RIGHTS
69. Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act). The statement has to be made before second reading. On 5 January 2004, the Minister for the Cabinet Office and Chancellor of the Duchy of Lancaster made the following statement -
Assessment of compatibility of Part 1 of the Bill with the Convention rights
70. The duties imposed on Category 1 responders under clauses 2(1) and 4(1) do not give rise to any significant ECHR issues.
71. Secondary legislation can be made under Part 1 (clauses 2, 4, 5 and 6) requiring Category 1 and 2 responders to provide information to each other in certain circumstances. It is possible, although unlikely, that such information would relate to the private life of an individual and that the sharing of information would engage Article 8 (right to private life). The powers to make regulations requiring the provision of information are to be conferred on a Minister of the Crown and, for certain purposes in Scotland, the Scottish Ministers. In each case, the maker of the regulations will be subject to the Human Rights Act and will exercise his (or their) powers in conformity with the Convention rights.
Assessment of compatibility of Part 2 of the Bill with the Convention rights
72. Part 2 of the Bill confers a broad power on Her Majesty (or in certain limited cases, a senior Minister of the Crown) to make regulations if She is satisfied that an emergency has occurred, is occurring or is about to occur. The exercise of this power could give rise to significant ECHR issues. For example, the regulations may provide for the requisition, confiscation or destruction of property, with or without compensation (clause 21(3)(b)). Any regulations of this nature would give rise to issues under Article 1 of Protocol 1 of the ECHR (right to property). Regulations may prohibit the movement of people from or to a specified place (clause 21(3)(d)). Such regulations would give rise to issues under Article 5 (right to liberty) and possibly Article 11 (freedom of assembly and association). Regulations can be made which require a person or body to act in performance of a function (clause 21(3)(k)). This could give rise to issues under Article 4.2 (prohibition on forced labour).
73. The making of regulations under Part 2 of the Bill will be subject to the constraints contained in the Human Rights Act. In particular, were Her Majesty (or a senior Minister of the Crown) to make regulations which were incompatible with a Convention right, She would commit an unlawful act under section 6 of that Act. Such an act could be challenged in the courts in the usual way.
74. In addition, Part 2 contains a number of additional safeguards to ensure that regulations are not made in contravention of the Convention rights. First, clause 20(3) expressly provides that regulations may not be made unless it is necessary to make provision for the purpose of preventing, controlling or mitigating an aspect of the emergency. Clause 22(1)(b) provides that provision may only be included in regulations in so far as the person making the regulations considers that the effect of the provision is in due proportion to the emergency. These provisions reflect the position under the ECHR and the caselaw of the European Court of Human Rights that, where interference with a particular Convention right is permitted, the interference must be necessary in a democratic society and proportionate to the end being sought to be achieved.
75. In addition, clause 22 contains a number of specific limitations on the provisions which may be included in emergency regulations. A number of these limitations reinforce the Convention rights. Clause 22(3)(a) provides that regulations may not require a person, or enable a person to be required, to provide military service. This will ensure in part that rights under Article 4.2 (prohibition on forced labour) are not infringed. Clause 22(3)(b) provides that regulations may not prohibit, or enable the prohibition of, participation in or any activity in connection with a strike or other industrial action. This would safeguard the right to strike, in so far as it is an incident of the right to form and join a trade union for the protection of one's interests under Article 11 (freedom of assembly). Under clause 22(4)(b), regulations may not create a criminal offence which is punishable without trial before a magistrates' court or the sheriff. Clause 22(4)(d) provides that no alteration may be made to procedure in relation to criminal proceedings. These provisions will contribute to the safeguarding of rights under Article 6 (right to a fair trial).
76. It has been suggested that the limits on the exercise of the power imposed by the Human Rights Act are illusory on the basis that the regulations could disapply the substantive provisions of the Human Rights Act. Clause 21(3)(j) enables regulations to "disapply or modify an enactment or a provision made under or by virtue of an enactment". This argument does not appear to be persuasive. Having taken Parliamentary Counsel's advice on how the normal principles of the construction of delegated powers would apply to this particular provision, it is not possible to envisage circumstances in which this power would lawfully enable regulations to make a substantive amendment to a "constitutional enactment", such as the Human Rights Act.
77. Clauses 33 to 35 (commencement, extent and short title) will come into force on Royal Assent. The other provisions of the Bill will come into force in accordance with provision made by a Minister of the Crown or (in Scotland) by the Scottish Ministers by order.
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