Joint Committee on Draft Civil Contingencies Bill First Report

Appendix 3: Memorandum from the House of Lords Select Committee on Delegated Powers and Regulatory Reform

Letter from Lord Dahrendorf, Chairman of the House of Lords Select Committee on Delegated Powers and Regulatory Reform


On 16 July, Dr Lewis Moonie MP, Chairman of the Joint Committee considering the draft Civil Contingencies Bill, wrote to Lord Dahrendorf, inviting this Committee to consider the delegated powers in the draft bill. We welcome the opportunity to contribute to the pre-legislative scrutiny of this important bill, and this Memorandum sets out the Committee's views.

We have not, unfortunately, had the benefit of a delegated powers memorandum by the Cabinet Office. As a result, some of the concerns we raise may be satisfied by further explanation (additional to that provided by the Explanatory Notes which accompany the bill and the consultation document of June 2003). Other concerns of the Committee are more fundamental. At this stage, we seek only to identify some of the issues to which we think the attention of the Joint Committee should be drawn, whilst reserving the right to comment again on the bill when it has been introduced and in the light of a delegated powers memorandum.

Part 1

There are a number of delegated powers to make orders and regulations in Part 1 of the bill. We shall refer in particular to those in clauses 1(7), 2(2), 4(2) and 6. We shall also comment on a power, in clause 7, to give directions in cases of urgency.

Clause 1(7)

Clause 1 provides a wide definition of "emergency" for the purposes of Part 1 of the bill. Clause 1(1) states that an emergency is an event or situation which presents a serious threat to any of the four categories set out in clause 1(1) (a) to (d). Clause 1(7) enables a Minister of the Crown to provide by regulations that particular situations or events, or types of situation or event, present a threat within one of those four categories. The regulations cannot override clause 1(2) (which gives an exhaustive list of events or situations presenting a threat to human welfare), though they may be more particular than clause 1(2). It is possible to deduce from clause 1(9) and from the draft Explanatory Notes that one likely use of this power is to relate certain types of event to certain types of "Category 1 Responders".

Although the delegation may not be inappropriate, we question the application of the negative procedure provided for under clause 13(3). In the absence of any explanation to the contrary, we would expect the affirmative procedure to apply here, since whether or not something is an emergency is highly significant for most of the other provisions in Part 1.

Clauses 2(2) and 4(2)

Clause 2(2) sets out the duties of those listed in Part 1 of Schedule 1 (local authorities, emergency services, etc. - "Category 1 Responders"). The extent of those duties is apparent in broad terms, but clause 2(2) enables regulations, subject to negative procedure, to prescribe the precise extent of the duty and how it is to be performed. Clause 2(3) lists some of the items which the regulations may contain (and in some cases duties can be imposed on those listed in Part 2 of Schedule 1 as well as on those listed in Part 1 of Schedule 1). The list of items in clause 2(3) is wide-ranging. We note, in particular, that under clause 2(3)(n) provision may be made which operates wholly by reference to the discretion of any specified person or body, and that clause 2(3)(o) enables the regulations to take precedence over statutory provisions in an Act. Were the last two provisions to be included in a bill as introduced, we would invite the Government to provide a full explanation of the need for these provisions and suggest to the House that, given the width of the powers under clause 2(2), they should be subject to affirmative, rather than negative, procedure.

Clause 4(1) requires local authorities to advise and assist the public in connection with arrangements for the continuance of commercial activity in an emergency. Clause 4(2) is the equivalent for clause 4(1) of clause 2(2) for clause 2(1) and similar considerations apply.

Clause 6

Clause 6 enables a Minister of the Crown to make regulations, subject to negative procedure, requiring or permitting disclosure of information between persons and bodies listed in Part 1 or 2 of Schedule 1. This is in addition to the powers at clause 2(3)(h) (limited to the duty under clause 2(1)) and 5(3)(d) (limited to duties under the section 5 order). Clause 6(2) limits the subject-matter of the regulations to functions which relate to an emergency. But there is no limit on the provision of "sensitive information". We note however that the June 2003 consultation paper, at Chapter 3, paragraph 26, refers to "appropriate safeguards" in this area. These safeguards do not appear in the draft bill itself. We assume therefore that the Government intends to include them in the regulations. The provision of such safeguards would be a relevant factor to our consideration of the appropriateness of the delegation under clause 6; and if clause 6 were to be included in the bill as introduced, we would invite the Government to provide a full explanation of those safeguards along with further explanation of the meaning of "sensitive information".

Clause 7

Clause 7 enables a Minister to do, by oral or written directions, anything which he could do by regulations under clause 2(2), 4(2) or 6(1) or by order under clause 5, where there is urgent need and insufficient time to make the regulations or order.

This is a power of very considerable significance and we would expect a convincing justification for its inclusion. The bill (as it stands) provides for regulations under clauses 2(2), 4(2) and 6(1) to be subject to negative procedure, and instruments subject to that procedure can be, and often are, made in very short timescales. But even assuming that a power to give directions were appropriate, we question the need for that power to extend to oral directions. We expect the Government to provide convincing examples of situations where it would be possible to give directions only orally; and to consider requiring that all directions under clause 7 be put in writing at some stage even if it were not possible to communicate the directions in writing at the same time as orally.

Part 2

Clauses 20 and 21

Under clause 20, the power to make regulations is conferred on Her Majesty acting by Order in Council, and also on the Secretary of State where an Order in Council could not be made without serious delay. Clause 21 sets out the nature and width of the power to make regulations. It is a very wide power indeed. Clause 21(3) provides that the regulations may make provision of any kind that could be made by Act of Parliament or exercise of the Royal Prerogative, and gives a non-exhaustive list of provisions which might be included. If this were not a draft bill to make emergency provision, we would strongly question the appropriateness of a number of aspects of the power (such as, for example, sub-delegation by directions or orders (whether written or oral) ((3)(a)(ii)), confiscation of property without compensation ((3)(b)), destruction of property, etc. without compensation ((3)(c)), prohibition of movement ((3)(d) and (e)), and prohibition of assembly ((3)(f))).

The power in clause 21 might be exercised in a manner incompatible with the Convention Rights mentioned in section 1 of the Human Rights Act 1998. Clause 25 of the draft bill, by providing that regulations under clause 21 are to be treated as an Act of Parliament for the purposes of the 1998 Act, limits the effectiveness of remedies available in cases where those Convention Rights are infringed.[292] The extent to which there is an effective remedy is a factor which the Committee would regard as relevant in considering the appropriateness of the powers in clause 21.

Parliamentary scrutiny and renewal of regulations

The arrangements for Parliamentary scrutiny are based on those for regulations under the Emergency Powers Act 1920. The Secretary of State must lay the regulations before Parliament as soon as practicable after making. The regulations lapse 7 days after laying unless approved by each House. This procedure for making the regulations seems satisfactory.

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.

8 October 2003

292   See the 15th Report, Session 2002-03, HL Paper 149, HC 1005, of the Joint Committee on Human Rights where, at paragraphs 3.20 to 3.35, the human rights implications of the draft Civil Contingencies Bill are described in detail. Back

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