Expiry and renewal
200. One feature of some past emergency legislation
is that it lapses after a set time unless renewed. Thus the Prevention
of Terrorism Acts 1974-1989 were subject to an annual debate in
Parliament prior to a decision on renewal. Parts of the Anti-terrorism,
Crime and Security Act 2001 are subject to an expiry clause and
renewal (section 29). Disciplinary powers for the armed forces
have for a long time been enacted in an Armed Forces Act which
lapses after five years and is replaced by a new Act, passed after
scrutiny by a Select Committee. One witness put the case for these
powers in Part 2 to be subject to renewal every five or ten years
and to expire completely after 30 years.[216]
We understand that this could be achieved by including in the
Bill a provision that the powers will lapse after five years unless
renewed for a further five years by an order made under the affirmative
procedure - which would provide an opportunity for a Select Committee
to review the operation of the Act and recommend any changes before
the powers are renewed.
201. We recommend that the powers
in Part 2 should expire every five years from Royal Assent unless
renewed beforehand by an order subject to the affirmative procedure
and laid by a Secretary of State following a report by a Select
Committee on the operation of the Act.
202. On the specific issue of renewal of regulations
made under the Bill, we endorse the evidence we have received
from the Delegated Powers and Regulatory Reform Committee:
"Under clause 23(1) and (2) proclamations
or orders declaring the emergency lapse after 30 days. Any regulations
lapse with the proclamation or order, though a new proclamation
or order can be made, and new regulations can be made under it.
But clause 23(4) provides an exception. Where, before the lapse
of a proclamation or order, a fresh one is made about the same
emergency (so that there is no break in continuity), the regulations
made under the first proclamation or order continue in force (and
do not lapse). If this provision remains in the bill, we will
consider whether there should be a time limit for regulations
which continue under clause 23(4), whereby the regulations would
lapse unless specifically renewed".[217]
The exclusion of the Crown under
clause 19
203. An unusual feature of the draft Bill is that
the normal procedure for making secondary legislation through
the Privy Council and with the participation of the Monarch can
be avoided if necessary. If the Secretary of State is satisfied
that it would not be possible to arrange for a proclamation of
emergency without delay, then a declaration may be made on his
or her own authority. The question arises whether this provision
is necessary and whether, if it is, it creates serious risks to
the constitution which ought to be further guarded against.
204. As regards necessity, it should be noted that
the Crown is itself a very resilient institution. The resilience
of the office of the Crown is vital to the operation of Part 2
of the Civil Contingencies Bill. The Crown is relied upon to deal
with:
- the proclamations of emergencies
(cl.18)
- the making of Orders in Council (clause 20)
- the requiring of the meeting of Parliament (clause
24)
- and the appointment of Secretaries of State and
Ministers of the Crown (passim).
205. It follows that it is important to ensure that
in any proclaimed or declared emergency, the existence of the
Crown in person is assured and that the exercise of Crown powers
remains feasible. However, in the light of the rules of succession
and regency,[218] the
Crown would appear to enjoy a high degree of resilience. It should
be understood to be a very rare possibility for clause 19 to be
invoked.[219] In addition,
it should be noted that the sanction of the Privy Council is purely
formal and the reality is that accountability rests with the Government
in either scenario.[220]
206. It is some time since judicial review was prevented
by adopting subjective wording for the grant of powers.[221]
But the subjective wording in clauses 18 and 19 is striking. A
requirement of reasonableness would give a signal that there must
be proof of objective and provable evidence of an emergency and
of the necessity for regulations (and, in the case of the Secretary
of State, of the dangers of delay).[222]
The Constitution Committee has pointed out that:
"in law there would appear to be no difference
between regulations made by Order in Council (a purely formal
procedure) and regulations made by the Secretary of State. In
each case, the regulations would be, or would be made by, statutory
instruments and would be subject to the Statutory Instruments
Act 1946".[223]
207. We refer in paragraphs 188 and 189 to the desirability
of the proclamation of an emergency being subject to endorsement
by Parliament at the earliest opportunity. This measure of democratic
legitimacy would help to overcome several of the difficulties
with the Bill - including the apparent exclusion of both the courts
and the Crown. We attach importance to this because we believe
that in an emergency regulations made in the customary way by
Order in Council will carry greater public credibility than those
made in an unusual way.
208. In relation to the ability
of a Secretary of State to declare an emergency on his or her
own, we consider there should be two additional safeguards:
- the wording
of clause
19 should be altered by adding the condition of reasonableness
to the finding of satisfaction of the Secretary of State.
- A declaration under clause 19
should be subject to confirmation by Parliament within seven days,
as under clause 24.
203 Memorandum from the House of Lords Select Committee
on the Constitution, Appendix 1. Back
204
Memorandum from the House of Lords Select Committee on Delegated
Powers and Regulatory Reform, Appendix 3. Back
205
Memorandum from D Bonner, Ev 178, para10. Back
206
Seventh Report 2003-03 HC 557, para 73. Back
207
Memorandum from Prof Ian Leigh, Ev 231. Back
208
Q 253, Mr Alexander (Minister of State, Cabinet Office). Back
209
Further Letter from Douglas Alexander MP, Minister of State, Cabinet
Office, Ev 124. Back
210
Questions for the Bill Team, Appendix 9, question 22. Back
211
See New Zealand Law Commission, Report No. 22, Final Report on
Emergencies, (Wellington, 1991) para 6.79. Back
212
The relevant legislation is the Robert T. Stafford Disaster Relief
and Emergency Assistance Act (42 USC s.5121). Back
213
Questions for the Bill Team, Appendix 9, question 23. Back
214
Memorandum from D Bonner, Ev 178, para11; See also Memorandum
from the House of Lords Select Committee on the Constitution,
Appendix 1, para 13. Back
215
Memorandum from G Morris, Ev 241, p.2. Back
216
Memorandum from David Bonner, Ev 178, para 18. Back
217
Memorandum from the House of Lords Select Committee on Delegated
Powers and Regulatory Reform, Appendix 3. Back
218
Note by Professor Clive Walker, Specialist Adviser to the Committee
- The Resilience of the Crown, Appendix 6. Back
219
Some say that there is no conceivable need: Memorandum from Oxfordshire
County Council, Ev 254, paras. 59-60. Back
220
Memorandum from House of Lords Select Committee on the Constitution,
Appendix 1, para 9. Back
221
See Nakkuda Ali v MF de S Jayaratne [1951] AC 66; Attorney-General
of Saint Christopher, Nevis and Anguilla v Reynolds [1980] AC
637. Back
222
Memorandum from D Bonner, Ev 178, para 9. Back
223
Memorandum from the House of Lords Select Committee on the Constitution,
Appendix 1. Back