Appendix 1: Memorandum from the House of Lords
Select Committee on the Constitution
Letter from the Lord Norton of Louth, Chairman
of the Select Committee on the Constitution
Thank you for your letter of 16th July inviting the
Constitution Committee to comment on the draft Civil Contingencies
Bill.
The draft bill clearly raises matters of constitutional
significance which fall within our remit, since the effect of
a declaration of emergency is to confer on the Government an exceptional
power to deal with the emergency by making regulations covering
matters on which power to legislate would in non-emergency situations
be withheld from the Government. As requested by your letter we
focus particularly on Part 2 of the Bill which proposes to repeal
the Emergency Powers Act 1920 (as amended in 1964) and replace
it with new primary legislation. We do not attempt to comment
on every detail of the draft bill (which may be more appropriate
for us to do when a substantive bill is introduced to Parliament)
but draw attention to the following broad issues:
1. the definition of 'emergency';
2. the geographical extent of an emergency;
3. the need for a royal proclamation and Orders in
Council;
4. the status of emergency regulations for the purposes
of the Human Rights Act;
5. Parliamentary scrutiny and approval of emergency
measures; and
6. the purposes for which emergency regulations may
be made.
The definition of 'emergency'
Our principal concern with the draft bill is with
the definition of 'emergency'. We note that the definition in
clause 17 of the draft bill has a much more elaborate structure
and a more extensive application than the definition in the Emergency
Powers Act 1920, which is primarily concerned with maintaining
the essentials of life for the community. In the draft bill, an
'emergency' in respect of all or part of the United Kingdom is
"an event or situation which presents a serious threat"
to:
a) the welfare of all or part of the population;
b) the environment;
c) political, administrative or economic stability;
or
d) security.
Each of these threats is then spelled out in more
detail. Thus a threat to the welfare of the population includes
matters that may cause loss of life, homelessness, damage to property,
disruption of supplies of food and other essential commodities,
disruption of systems of communication, disruption of transport,
and disruption of "medical, educational and other essential
services". Various forms of threat to the environment are
specified (including contamination of land, water or air; and
flooding). And "threats to political, administrative or economic
stability" include an event or situation that "causes
or may cause" disruption of (a) the activities of Her Majesty's
Government; (b) the performance of public functions (which are
defined as including all functions of Ministers, the devolved
authorities and local councils); or (c) the activities of banks
or other financial institutions.
We consider that there are likely to be situations
or events involving legitimate political activity and protest
or legitimate industrial action which will be caught by this very
broad definition. We also note that this definition of emergency
has already been criticised in reports by the House of Commons
Defence Committee (7th Report 2002-03, paras 62-64) and by the
Joint Committee on Human Rights (15th Report 2002-03, para. 3.11).
We therefore consider that the definition of 'emergency'
in the draft bill is unduly broad.
The geographical extent of an emergency
We note that it could be argued that a declaration
of emergency in respect of part of the United Kingdom or a region
of England would enable special powers to be invoked even though
an event or situation is not so serious as one threatening the
entire country. However, we also recognise the force of counter-arguments
that support the additional flexibility that the draft Bill presents
here compared with the 1920 Act. Restricting an emergency to (for
instance) an English region struck by a natural disaster when
other regions are not directly affected, seems to us to promote
proportionality and avoid an over-broad response to a particular
crisis.
The need for a royal proclamation and Orders
in Council
The 1920 Act requires a state of emergency to be
declared by means of a royal proclamation. The draft Bill (clause
19) envisages that there might be circumstances in which the effects
of delay while a proclamation was sought from the Queen personally
would be serious and significant avoidable harm would be caused.
In this event, a Secretary of State would be empowered to make
such a declaration. The constitutional responsibility for the
decision in either case would be borne by the Government as a
whole and there appear to be no grounds for supposing that the
Queen would have a discretion to exercise before acting on the
advice of her Ministers.
A similar question arises out of the provision for
promulgating emergency regulations once an emergency has been
declared. Clause 20 provides that such regulations shall be made
by the Queen in Council, except where 'serious delay' in responding
to the emergency would arise while a meeting of the Queen in Council
is arranged. In this event, the regulations may under clause 20(1)(b)
be made by the Secretary of State. Again, the constitutional responsibility
for the regulations so made would be borne by the Government as
a whole, and 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.
The status of emergency regulations for the
purposes of the Human Rights Act
The draft Bill provides in clause 25 that an instrument
containing emergency regulations shall be treated as if it were
an Act of Parliament for the purposes of the Human Rights Act
1998. The effect of this is that if it were established by a court
that an emergency regulation could not be read to comply with
Convention rights under the Human Rights Act, s 3, the only remedy
under that Act that the court could give would (assuming it was
a superior court) be to declare that the regulation was incompatible
with the Convention (under the HRA, s 4). Thus the regulation
could not be quashed or set aside for non-compliance with the
Convention, as would otherwise be possible in the case
of secondary legislation.
We are not satisfied that the Government has demonstrated
a compelling need for this departure from the structure for the
protection of Convention rights created by the 1998 Act, and we
consider that this approach would run the risk of creating an
undesirable precedent.
Parliamentary scrutiny and approval of emergency
measures
In the 1920 Act, provision is made for the urgent
recall of Parliament in the event of a declaration of a state
of emergency while Parliament is not sitting. The emergency regulations
made may remain in force only if approved by each House within
seven days. In broad terms, clause 24 of the draft Bill provides
for a comparable degree of parliamentary scrutiny. There are,
however, two changes from the 1920 Act in the extent of Parliamentary
scrutiny.
First, under the 1920 Act, emergency regulations
"shall have effect as if enacted in this Act, but may be
added to, altered, or revoked by resolution of both Houses
of Parliament" (s 2(4)). The italicised words appear to give
the two Houses a power to amend the regulations as laid. The draft
Bill, however, provides that the regulations shall lapse seven
days after the date of laying unless during this period each House
approves the regulations (clause 24(7)). This formulation provides
for no power to amend the regulations as made.
Second, the 1920 Act requires a new declaration and
new regulations to be re-made where a declaration of emergency
continued for more than the statutory month, and this would require
a further resolution of each House to approve the new regulations.
Clause 23(4) of the draft Bill appears to remove this latter requirement.
We draw attention to these two aspects of the
draft bill as deviating from the existing provisions for Parliamentary
scrutiny.
The purposes for which emergency regulations
may be made.
Clause 21 of the draft bill sets out in considerable
detail the provisions which may be made by emergency regulations.
They may include "any provision which the person making them
thinks necessary" for purposes that range from "(a)
protecting human life, health or safety" to "(k) protecting
or restoring activities of Her Majesty's Government". The
regulations may also "disapply or modify any enactment or
any provision made under or by any enactment" (clause 21(3)(j))
and "may make provision of any kind that could be made by
Act of Parliament". The drafting then continues with the
words: "or by the exercise of the Royal Prerogative"
(clause 21(3)). We find it difficult to see what could be done
under the Royal Prerogative that could not be done by Act of Parliament.
This far-ranging statement of powers is, indeed,
preceded by the provision that regulations may make provision
"only if and in so far as the person making the regulations
thinks it necessary for the purpose of preventing, controlling
or mitigating a serious aspect or serious effect of the emergency
specified" (clause 21(1)). Where that is the case, the regulations
"may make any provision which the person making the regulations
thinks necessary" for the purpose just set out. Nonetheless,
we consider that the extent of the purposes for which regulations
may be made reflects the breadth of the definition of 'emergency'
contained in the draft bill; and that this will need to be re-examined
if a narrower definition of 'emergency' is adopted.
The 1920 Act provides some express limitations on
what may be done by regulations. Among these limitations is an
exclusion of any form of compulsory military service or industrial
conscription, and an exclusion of making it an offence for any
person to take part in a strike or peacefully to persuade others
to take part in a strike. Clause 21(4)(a) continues the exclusion
for military or industrial conscription and clause 21(4)(b) provides
that regulations may not "prohibit, or enable the prohibition
of, a strike or other industrial action". We draw attention
to this new formulation which seems narrower than the protection
for industrial action given by the 1920 Act.
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