Joint Committee on Draft Civil Contingencies Bill First Report

5 Constitutional Matters

178. In this chapter we consider some of the constitutional issues which arise from such emergency powers legislation and draw attention to matters which both Houses may wish to consider when a real Bill is brought forward. In this we have been greatly assisted by the evidence received from the Constitution Committee[203] and the Delegated Powers and Regulatory Reform Committee.[204]

179. Despite the severe challenges which have been faced in the 20th and the 21st centuries, including emergent threats of international terrorism, rogue and failed states, environmental change and other concerns identified in the Consultation Document, it should remain a constant that laws dealing with crises, disasters and threats must be focused upon resilience and restoration. This objective applies to the principles of constitutionalism just as it applies to the lives of people affected or the physical environment.

180. The rule of law demands that the courts and Parliament are not impotent in response to the might of executive power in an emergency. One threat to judicial intervention, the impact of clause 25, has already been discussed in chapter 3 (from paragraph 144). It is important to ensure that in other respects an effective check is kept on how powers under Part 2 are constructed and executed. This scrutiny function is a matter not only for the courts but also for Parliament. The main controversies relating to democratic and legal accountability which ought to be taken into account when examining such legislation are as follows:

  • Pre-enforcement review
  • The mechanisms for Parliamentary review
  • Duration and expiry ("Sunset clauses")
  • The mechanisms for democratic accountability of the tiers of authority under the Bill
  • The mechanisms for legal review.

Possible constitutional issues

181. The list of possible constitutional issues raised by the draft Bill is extensive. They include:

i)  The extent to which it is necessary for Ministers to be given powers to amend any previous Acts of Parliament.

ii)  Whether it is desirable to give such extensive powers to Ministers in an enabling Bill without Parliament either approving or in some cases seeing the draft regulations containing all the actual detail which would be made under the Bill.

iii)  Whether a Royal proclamation (clause 18) or emergency declaration (clause 19) should be made subject to a substantive vote in Parliament rather than simply notification.[205] The Defence Committee noted that the draft Bill gives Parliament no role in approving that declaration.[206]

iv)  Whether provision should be made for expiry and renewal of the powers to ensure continuing parliamentary review of the powers.

v)   Whether Parliament should be able to amend secondary legislation which will be given the force of Acts of Parliament (primary legislation).

vi)  Whether Ministers should be required to give a human rights statement under section 19 of the Human Rights Act 1998 in respect of regulations which will have the force of Acts of Parliament.

vii)  Whether the various time limits for parliamentary consideration of regulations made under the draft Bill ensure sufficient parliamentary scrutiny.

viii)  Whether affirmative or negative parliamentary procedure should apply to regulations made under Parts 1 and 2 of the draft Bill.

ix)  Whether the new power for a Minister to make regulations without the normal and notional involvement of the Head of State requires additional safeguards.

x)  Whether it is necessary or desirable for the Government to be given sweeping powers in one Act to deal with emergencies or whether it would be better to have separate pieces of legislation covering different sectors of the economy and different types of emergency.

xi)  Whether a new statute on emergency powers should also draw in and update legislation on the use of the armed forces in such emergencies.

xii)  Whether officials in charge of emergency situations at a regional level will be subject to sufficient democratic accountability.

182. We have not received evidence on all of these points and so do not canvass them in detail, though we are aware that they will raise interest when the Bill is debated in both Houses. Our views on some of these issues are set out below. We have already dealt, in chapter 4, with the proposed constitutional novelty of treating regulations made under the Bill as Acts of Parliament for the purposes of the Human Rights Act 1998.

Power to amend all Acts of Parliament

183. The proposed power in clause 21(3)(j) to disapply or modify any Act of Parliament is very wide. In the wrong hands, it could be used to remove all past legislation which makes up the statutory patchwork of the British constitution. For these purposes, the fundamental parts of constitutional law could be taken to include the following statutes:

184. It has been suggested[207] that the list might also include the Police and Criminal Evidence Act 1984 (plus equivalents elsewhere), but that provision is far more related to legitimate emergency purposes.

185. When asked about this, the Minister argued that it is not possible to define a category of constitutional legislation which ought to be protected by amendment.[208] He did not specifically address the issue of whether certain named Acts of Parliament should be excluded from the possibility of amendment or repeal under the draft Bill, but later wrote to tell us that he would be seeking legal advice.[209]

186. We accept that there may be circumstances in which it is necessary for amendments to be made to existing Acts of Parliament in an emergency and the normal process of a new Bill will not be sufficiently quick. We also accept that to list all the statutes to which this might apply would be excessive. We therefore prefer the approach of excluding certain statutes from this power to modify or disapply. When the Bill is debated in each House there may be amendments proposing that other key Acts of Parliament be added to the list. The onus will then be on the Government to show why such Acts should be subject to amendment by regulation under the Bill.

187. We recommend that the Acts of Parliament listed in paragraph 183 above should appear on the face of the Bill as not being liable to modification or disapplication under clause 21(3)(j).

Parliamentary approval of declaration of emergency

188. The Defence Committee has pointed out that the draft Bill gives Parliament no role in endorsing the declaration of emergency. It is easy to argue the case for not requiring any specific parliamentary approval: historically such actions have been taken by the Crown and Government without the need for formal parliamentary approval; the circumstances of the emergency may make it impossible for Parliament to meet; and, in reality, no Government would be able to sustain such a declaration of emergency if it did not command a majority in the House of Commons.

189. On the other hand, specific parliamentary endorsement for such a declaration would give democratic legitimacy to a whole range of measures which could not be examined in detail, would give confidence to those carrying them out that they were properly authorised and would assure the courts that Ministers were not acting beyond their political authority. It would also overcome the problem that, theoretically, it would be possible under the Bill for an emergency to be declared and successive sets of regulations to be made every seven days without any meeting of Parliament. We return to this subject in paragraph 203 below in the context of a declaration of emergency made without the consent of the Privy Council under clause 19.

Regulations under Part 1

190. Clause 2 of the Bill allows a Minister to make regulations about the extent of the duties imposed on Category 1 Responders and the manner in which they are to be performed. Those regulations will be published with the Bill and subject to the negative procedure. Clause 7 however authorises a Minister to amend or issue new regulations orally or in writing if the urgency of the situation so demands. There is no requirement to inform Parliament, and we believe there should be.

191. Similarly, clause 12 requires a Minister to consult the National Assembly for Wales before making regulations under clause 2, or taking other actions specified in clauses 2,3,4,5,7,9 or 11. But clause 12(3) allows a Minister to ignore this requirement if the matter is urgent.

192. We recommend that, where because of urgency the Minister issues directions, in substitution for regulations, under clause 7(2) or regulations under clause 12(2) without consulting the National Assembly for Wales, such directions or regulations should expire after 21 days. This would allow the Minister time to make, if necessary, regulations which meet the normal requirements of scrutiny by Parliament and for consultation with the National Assembly for Wales.

Publication of emergency regulations

193. Those regulations to be issued under Part 1 are likely to be made available to potentially affected agencies and authorities, especially as their cooperation is needed in the process of implementation. But those under Part 2 may be kept secret. The Cabinet Office states that the regulations that would be possible under Part 2 of the Bill have "a wider scope than existing legislation".[210] As a result, Parliament is being asked to legislate without being told the possible consequences of that action. The lack of available information on the contingencies envisaged for forms of attack with weapons of mass destruction means that, if ever needed, there will be both an absence of considered debate by Parliament and a lack of preparedness on the part of agencies affected.[211] One might compare the position in the USA, where responsibilities for 12 Emergency Support Functions under the Federal Response Plan have been prepared and published.[212]

194. We understand that the reasons for not publishing the draft regulations under the Emergency Powers Act are as follows:[213]

    "…the draft regulations are subject to frequent change"

    "'standard' … regulations would not necessarily offer a clear indication of the content of future emergency regulations"

    "Wide access to draft emergency regulations could highlight both potential weaknesses or targets and likely counter-measures"

195. If the frequency with which the regulations are changed is said to be only once every two years, there seems little problem in keeping the current set of regulations in the public domain. The regulations dealing with industrial emergencies under emergency powers legislation have been more or less the same for many years. Publication in advance could allow a dialogue which ensures that any weaknesses are reduced, and it could ensure training and better enforcement when invocation comes. It would be wrong on constitutional grounds to spring upon citizens new catalogues of complex regulations on for example chemical and biological attack without due prior consideration and discussion.

196. We recommend that draft regulations under Part 2 and guidance to them be published from time to time. The drafts should be published not just for the purposes of Parliamentary deliberation on the legislation but in the interests of open government.

Effects of making regulations which have the legal status of Acts of Parliament

197. If regulations made under Part 2 of the Bill are in effect to have the force of primary legislation, there is a case for applying to them some of the procedures which apply to the parliamentary passage of Acts of Parliament. The requirement in section 19 of the Human Rights Act 1998 for a Minister to make a statement of compatibility in regard to primary legislation does not apply to secondary legislation. But in the case of the Civil Contingencies Bill, many regulations may be far wider in terms of their impact on rights than ordinary primary legislation. There is therefore a case for the section 19 requirement to be applied equally to regulations issued under the Civil Contingencies Bill.

198. Under clause 24, regulations lapse unless approved by Parliament within seven days of their being laid by the Secretary of State. But Parliament can then only accept or reject. Under the original Emergency Powers Act 1920, section 2(4), a regulation can be added to, altered or revoked by resolution, which offers a much fuller level of parliamentary scrutiny.[214] In the limited time available for parliamentary scrutiny of such regulations, it is quite possible that defects will emerge - or indeed that the Government will identify a need for further change. The alternative of withdrawal of the original regulation and the making of another might take longer. There is therefore a case for regulations made under Part 2 of the Bill to be subject to amendment in Parliament in the same way as applied to those under the Emergency Powers Act 1920. This may also require some amendment to section 27 and the Statutory Instruments Act 1946.[215]

199. We recommend that regulations made under Part 2 of the Bill should be subject to the same safeguards as primary legislation in that Ministers should be required to make a human rights statement under section 19 of the Human Rights Act 1998 and that the individual regulations should be subject to textual amendment in Parliament.

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:

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

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