Joint Committee on Draft Civil Contingencies Bill Written Evidence

Memorandum from David Bonner, Senior Lecturer in Law, University of Leicester

  Thank you for your kind letter of 17 July 2003 inviting me to submit written evidence on the Bill, and for the accompanying documents. I am very pleased to be able to do so. I have confined my evidence to Part 2 of the Bill, which deals with Emergency Powers and aims to replace the current provision in the Emergency Powers Act 1920 and its Northern Ireland equivalent, both as amended by legislation in 1964. I do so in the main because the pertinent research I have done on emergency powers, other than anti-terrorist powers, has been on that area rather than on the permanent framework for civil contingencies planning. I have not returned to the "essential suppliers and services" emergencies in any depth since 1985, when my monograph, Emergency Powers in Peacetime (London: Sweet and Maxwell, 1985), was published. That is mainly because the powers in the EPA 1920 and its Northern Ireland equivalent have not been deployed since 1974, despite the fact that possible occasions for their use were the miners' strike in 1984-95 and the more recent fuel protests. That monograph, well-reviewed when published, has in consequence of that non-deployment and changes in anti-terrorist powers, gone out of print. Accordingly I enclose photocopies of the relevant chapters to aid the Committee's work, and, in my evidence accompanying this letter, I make cross-reference as appropriate to those pages. I also enclose a disk with a Microsoft Word electronic copy of that evidence and have e-mailed the file and this letter to the address indicated in Press Notice 1 on the work of the Committee.

  Insofar as material on the wider anti-terrorist context may be of some small contextual relevance to the work of the Committee—the definition of emergency in the Bill embraces "terrorism" as a threat to security—I have taken the liberty of enclosing a recent article on aspects of the Anti-Terrorism, Crime and Security Act 2001.

  I very much hope that my material and evidence proves of assistance to the Committee in the discharge of its tasks. I have endeavoured to focus on the matters highlighted in your letter; the legal and constitutional issues and "the significance of any changes from previous emergency legislation and any uncertainties about how the new powers might be used in practice". In doing so, I have tried to make very specific and detailed reference to the terms of the Bill.



  1.  I write as the author of Emergency Powers in Peacetime (London: Sweet and Maxwell, 1985) (hereinafter EPP), as someone who has researched and written abut the scope of, controls on, and use of, the emergency powers to maintain essential supplies and services contained in the legislation that Part 2 of the Bill proposes to replace and which clauses 29, 31 and Schedule 2 propose to repeal: the Emergency Powers Act 1920, the Emergency Powers Act (Northern Ireland) 1926, as amended respectively by the Emergency Powers Act 1964 and the Emergency Powers (Amendment) Act (Northern Ireland) 1964. None of those powers has been used since 1974. Their use to date has been confined to industrial disputes. Ideally, the evidence proffered here should be read in conjunction with chapters one, two and (especially) five of EPP. [1]This evidence cross-refers as appropriate to that material, the better to bring out (a) the very significant extension and enhancement of executive power envisaged by Part 2 of the Bill, and (b) some diminution of Parliamentary scrutiny powers as compared with the British regime of emergency powers it proposes to replace. Both aspects require close scrutiny by Parliament. The latter aspect requires significant rectification to ensure that the limits of the powers proposed to be granted are respected, and to ensure adequate democratic accountability in respect of the terms and use of rule making powers the product of which the scheme treats, for several purposes, [2]as equivalent to primary legislation. The wording of the Bill needs some attention, the better to afford adequate scope for proper legal accountability in terms of judicial review of the validity of emergency regulation and of executive action taken under them.

  2.  It is appropriate to modernise, so as the better to cope with threats to vital interests such as supplies and services essential to maintain life and a safe environment, emergency powers which were enacted in times of crisis in the 1920s to deal with threats to the supply of water, food, fuel or transport from industrial disputes involving strike and disruptive action by Trades Unions, acting singly or in concert, and their members, and related civil unrest, thought, in the light of events in Russia, possibly to be merely the tip of a revolutionary iceberg. [3]It is preferable and constitutionally proper to do so by considering in this very careful fashion of close scrutiny of a Draft Bill—away from the distorting heat of actual or incipient crisis—the reserve powers that should permanently be on the statute book ready for rapid invocation by Proclamation, rather than speedily to enact measures thought necessary at a time of crisis. [4]So far as consonant with security, it would be appropriate (for that self-same reason of enabling cool, mature reflection on the rules) for those considering the Bill also to have sight of draft regulation of the type envisaged as likely to be brought forward during the types of emergency envisaged by the Bill. Those introduced when proclamations under the EPA 1920 were in force could provide a baseline model. That could not, of course, preclude government bringing other regulations forward when the new powers are invoked, but such a process would enrich Parliamentary scrutiny of the rule-making powers and the non-exhaustive examples the Bill affords of the potential use of what are enhanced and extensive powers of legislation by the government of the day.

  3.  The ability of most States in the world to invoke emergency powers is governed by the terms of a written, higher law constitution. [5]In the United Kingdom (given the uncertainties and confusions of prerogative power) governmental ability to do so must come from or through an Act of Parliament. Lacking a regime of overriding principles in which the legislature must operate, Parliament must embody the terms and restrictions thought necessary in the Act itself. In doing so it should respect a number of key principles:

    —  necessity (it must be shown that there is a clear need for emergency powers to deal with a grave threat to vital interests that cannot be met by existing powers, and resort to them must not be prolonged further than is absolutely necessary);

    —  proportionality (the powers taken must not go beyond those required by the exigencies of the situation);

    —  measures taken must have a democratic aim and be subject to effective and periodic Parliamentary control of their invocation, use and continuation;

    —  measures and actions taken must respect the rule of law and human rights obligations, and, of necessity, be subject to a measure of review by an independent judiciary;

    —  the introduction and exercise of each measure should be accompanied by adequate safeguards against its abuse, if necessary, by the provision of special remedies, procedures and institutions to check abuse. [6]

  4.  The remainder of this paper considers in turn: the definition of emergency; the process of invocation, and extent of Parliamentary control, of rule-making powers; the substantive limits on the rules that may be made; matters of democratic and judicial control and accountability; and compatibility with the Human Rights Act (HRA) and European Convention on Human Rights (ECHR).

The definition of emergency

  5.  Government desires the very widest provision to enable a rapid but necessary and proportionate response to danger. [7]But, as Gillian Morris warns, too extensive provision (she cited damage to the economy) has the potential to "enable the executive to assume emergency powers on a permanent basis." [8]Achieving the vital balance between granting enough power, on the one hand, and, on the other, preventing permanent emergency rule and other dangers associated with the dilemma posed by emergency powers, [9]by supplementing political with legal limitations and procedures, is no easy task, but is the vital one that this Committee and Parliament must perform.

  6.  Disruption of supplies and services regarded as essential to the community, whether caused by war, civil commotion, industrial action, natural or man-made disaster, constitutes one area in which State Constitutions sanction resort to emergency powers. So would war, insurrection or terrorist attack. [10]The definition of emergency in clause 17 is very significantly wider than that in current legislation. The Committee and Parliament must perforce consider very carefully what are the "essentials of life" that should be protected by ability to resort to emergency powers. There is scope for much disagreement on that key question. For example, it needs very carefully to be considered how far under the head "welfare" one should go beyond protecting the essentials for maintaining life. Is "education" of the same weight as life, food, fuel, and medical services? What is envisaged, given the breadth of the list in clause 17(2), by the term in sub-paragraph (h) of "other essential services"? In particular, it should be noted that clauses 17(2)-(4) do not purport to provide exhaustive definitions of the broader terms in clause 17(1). To avoid being too open-ended a delegation of power to the executive, making them so should seriously be considered. For example, the "political, administrative or economic stability" head [clause 17(1)(c), (4), (6)] is very wide indeed. Under the "security" head [clause 17(1)(d), (5)(b)], it is clearly prudent to be able to invoke emergency powers to deal with war or armed conflict and, after September 11, terrorist attack. But the terms of the Bill go wider than that, being linked to the definition of terrorism under section 1 of the Terrorism Act 2000 which has itself been criticised as overbroad, albeit that the EC Framework Decision on Combating Terrorism[11] now embraces its essence. Moreover, these specifics are merely particular examples of a threat to security.

  7.  It is sensible and appropriate to enable invocation of emergency powers on a sub-UK basis, and to confine the use of the rule-making powers proportionately to one or more of the "countries" making up the United Kingdom or to one or more regions [clauses 17(1), 18(2), 19(2), 21(4)]. This is consonant with the scope given by the European Court of Human Rights to the public emergency derogation provision in Article 15 ECHR and powers in a range of other states. [12]

The Process of Invocation of, and extent of Parliamentary control of, emergency powers

  8.  The formality involved in invoking rule-making powers by Royal proclamation is eminently suitable for this grave step. Given the range of threats contemplated, it also seems sensible for a Secretary of State to be able to act in those likely to be rare cases of urgency where using the proclamation mechanism may endanger national safety. The better to stress the gravity of invocation, the current formulation in the EPA 1920 of declaring a state of emergency (arguably politically an inhibiting factor itself) ought to be retained. Paragraph 24 in Chapter 5 of the Consultation Document is not convincing on the need for change.

  9.  Consideration ought to be given (cf the wording of the Home Secretary's powers of detention under the Anti-terrorism, Crime and Security Act 2001 (ATCSA), sections 21-23) to framing the powers in clauses 18 and 19 in non-subjective terms (eg has reasonable grounds to believe that an emergency has occurred, etc.). Clauses 18(2) and 19(2) should be expanded beyond matters of its "nature" and "geographical extent" so as to require, in accordance with principles of "necessity" and "proportionality", reasons to be given which show the actuality or imminence of the emergency, why it is thought that existing powers are inadequate to deal with the threat. [13]This has to be done as regards the necessity for individual regulations (clause 21(4)(c)), but adding this requirement at the earlier stage might concentrate the mind of the decision-maker and provide material to promote democratic and legal accountability in respect of what is a grave step to take.

  10.  Accountability to Parliament is envisaged through the provision in clause 25 that the Speaker and the Lord Chancellor must as soon as is reasonably practicable be notified, and, if Parliament is prorogued or either House stands adjourned, Parliament must be summoned (or arrangements be made for the relevant House) to meet within five days of the proclamation or Secretary of State's declaration of emergency. As with the current British legislation, [14]there is no formal requirement that Parliament approve the Proclamation, the matter of debate or challenge to it in Parliament being left to the rules of each House and the mechanisms they afford. Doubtless the necessary debate on the regulations, which must be laid before Parliament, affords an opportunity also to consider the necessity for the Proclamation/Declaration (clause 24(6), (7)). Consideration ought to be given, however, to providing in the Bill a separate opportunity for parliamentary scrutiny of the need for a proclamation/declaration of emergency, at the very least where there is a delay in laying regulations.

  11.  Clause 25(7) and (8) provide that the regulations laid lapse unless approved by both Houses within seven days, without prejudice to the ability to make new regulations and seek parliamentary approval for them. Paragraph 28 of Chapter 5 of the Consultation Document is somewhat economical with the truth in describing the process as unchanged in that Parliamentary power over the regulations laid is diminished to "accept or reject" whereas under section 2(4) of the Emergency Powers Act 1920, the regulations can by resolution of both Houses of Parliament be added to, altered or revoked. That this power of parliamentary amendment of regulations is both unusual and largely unused[15] may be thought beside the point. Since the instrument containing the regulations is to be treated as an Act of Parliament for the purposes of the HRA 1998 (see clause 25) and the regulations are to be capable of modifying any enactment (clause 21(3)(j)), such an enhanced parliamentary power over them may be thought more suitable than the position envisaged in paragraph 51 of the Explanatory Notes—a full parliamentary discussion leading to the Government withdrawing offending regulations and relying a new set which meets the concerns shown in that discussion. The balance between the needs for effective scrutiny and parliamentary accountability, on the one hand, and, on the other, for a prompt legal response to the exigencies of the emergency are, it is submitted, better met by enabling parliamentary amendment (perhaps by either House?) of the text of regulations (which, after all, are already operating pending the debate). This would require affording a shorter debate than on Bills but enabling one longer than the usual maximum 90 minutes on regulations.

  12.  Clause 23 (duration) at first sight appears to replicate current provision—a proclamation/declaration of emergency, unless renewed, lasts 30 days. The making of a new proclamation/declaration would set in train the requirement to inform the Speaker and Lord Chancellor contained in clause 24. Under the current regime, however, a new proclamation would be accompanied by a new set of Emergency Regulations, thus necessitating a parliamentary debate to approve them within seven days. Clause 23 of the Bill, on the other hand, while not precluding the making of new Regulations (sub-clause (3)), which would have to be debated and approved, envisages that the existing Regulations (unless revoked) can continue in force in so far as they are of a sort that could have been made under the new Proclamation. One can see sensible administrative reasons for this, but, where that happens, there seems to be no provision for prompt parliamentary approval of their continuance. The principle of democratic accountability requires that there should. This "loophole" should be closed.

Substantive Limits on the Powers to make Emergency Regulations

  13.  The substantive limits in clause 21(4) on the otherwise extensive rule-making powers set out in that clause, echo some of those in current British legislation, [16]omit another, and add three more. Those carried forward (with modifications) from current legislation, firstly, prohibit rules requiring military or industrial conscription, [17]secondly, prevent regulations from prohibiting a strike or other industrial action, [18]and, thirdly, prevent the creation of offences punishable without trial before the ordinary courts for a criminal offence and limit the custodial punishment which may be imposed to a maximum of three months imprisonment and punishment through fine to one not exceeding the statutory maximum or level five on the standard scale. [19]This third limitation is different to that in current legislation that enabled only the creation of offences punishable summarily (the Bill envisages the possibility of trial on indictment, something of benefit to an accused). Current legislation also precludes the making of rules altering existing procedure in criminal cases, a limit not in the Bill that ought to be retained. The Bill does, however, limit the offences, which can be created to ones of (i) failing to comply with a provision of the regulations, (ii) failing to comply with an order or direction given or made under the regulations, and (iii) obstructing someone in the performance of a function under or by virtue of the regulations. [20]Since both current legislation and the Bill deal only with setting limits to "punishment", neither as such clearly and unambiguously prohibit the making of a regulation providing for internment or detention without trial, since preventative detention for the public good might well not be characterised by government as punishment but merely preventive action and, in extreme circumstances at least is relatable to the very broad terms of the rule-making powers in existing legislation and in the Bill. [21]While no such regulations have ever been made under the EPA 1920 or Northern Ireland equivalent, then given the extension of the range of circumstances in which a proclamation of emergency can be made (eg into the terrorism context), the Bill should be amended to preclude the possibility of resort to interment without trial by this backdoor method, rather than relying on governmental assurances of lack of intention to use the rule-making powers in such a manner. [22]If government desires such powers to meet extreme contingencies they should be contained in a separate Act clearly defining the circumstances in which resort might by proclamation be had to such a regime (only where an Article 15 ECHR emergency derogation is possible) and the appropriate safeguards of appeal to and review by a suitable judicial body (SIAC afford a possible mode), legislation that is subject to periodic parliamentary review informed by a report from an experienced reviewer (cf the ATCSA regime).

  14.  The other two new limits are welcome. The first is on geographical limitation; the regulations can apply only to the areas covered by the proclamation/declaration of emergency [clause 21(4)(f)]. The second requires government to demonstrate (and a written reasoned case should be a statutory requisite) that, where a subsisting legislative provision could otherwise cover the case, that there is a necessity for special provision because the subsisting provision is in fact insufficient to meet the purpose required by the rule-maker or would occasion a serious delay (one which might result in serious damage of a kind that would or might be prevented or controlled through regulations [clause 21(4)(c)].

  15.  Limits on rule-making powers are valuable only if enforceable, whether politically (democratic accountability) or legally (accountability to the courts—the rule of law concept). While the policy intent is clear—rules are not to be made contravening the limitations in clause 21(4)—the wording of the current Bill is worrying in a number of respects. First, clause 21(4) is said to be "without prejudice to the generality of subsection (1)(a)". This is inappropriate wording, not found in the current EPA 1920, to have in a sub-clause setting out to limit a very broad rule-making power set out in clause 21(1) and amplified in 21(2) and (3). It should be deleted. Secondly, clause 21(3) envisages that regulations "may make provision of any kind that could be made by Act of Parliament". Since Parliament is sovereign and can, subject to the ECA 1972, make whatever provision it likes, that language detracts from the intent that clause 21(4) sets substantive limits, a detraction the more worrying in that clause 21(4)(j) enables the making of regulations to "disapply or modify an enactment or a provision made under or by virtue of any enactment". It may well be that the courts would interpret all this as subject to the limitations set out in clause 21(4) (the delegate rule-maker cannot increase his powers beyond those delegated and cannot override express restrictions in Acts). [23]To make it abundantly clear that those limitations and the ones on duration, parliamentary scrutiny and consultation are overriding (as would seem to be the policy intent in the Consultation Document and the Explanatory Notes, it would be preferable that clauses 21(1), (2) and (3) should begin "subject to sections 21(4), 23, 25 and 26" and clause 21(3)(j) should add at the end, "other than Part 2 of this Act".

Matters of democratic and legal accountability

  16.  The Regulations must be made by way of statutory instrument and, very properly, as such attract the publication requirements set out in the Statutory Instruments Act 1946, publicity being one form of control on delegated legislation and a vital part of the rule of law. "Contraceptive" controls on the scope of rule-making in terms of the drafting of rule-making powers in the Bill, have already been addressed (see paragraphs 8, 9). The "ante-natal control" provided by consultation requires examination. [24]

  17.  Consultation requirements in emergency legislation are rare, and there are none in the EPA 1920 or its Northern Ireland equivalent. But being required and not undertaken renders likely judicial invalidation of the product on procedural grounds. Where undertaken it must comply with common law rules designed to ensure that it is proper and adequate. The Bill requires consultation only with the devolved administrations in respect of regulations applicable in their geographical areas (clause 26). The Secretary of State may disapply such a requirement to consult if he thinks it necessary by reason of urgency (clause 26(4)(a)). Consideration should be given to framing that power objectively. Clause 26(4)(b) gives concern in that as drafted it precludes invalidation for any failure to consult. The policy intent was for such preclusion to have effect only where consultation as dispensed with on grounds of urgency (ie where the power in clause 26(4)(a) was exercised). [25]The paragraph should be amended to give effect to that narrower intent, to read, "(b) where that power is exercised, that particular failure to consult shall not affect the validity of regulations".

  18.  Comments have already been made on the scope of parliamentary control of the regulations envisaged by the Bill and suggestions made on increasing scrutiny by each House (see paragraphs 10-12, above). Such scrutiny will doubtless be informed as to technical and procedural matters, and that of conformity with the parent Act, by the work of the Joint Select Committee on Statutory Instruments. One would expect the Joint Committee on Human Rights to supply comment on the human rights' aspects of the measures. Consideration should be given to continuing the work of this Committee on the Bill (or another Joint Committee carried forward those on the HRA and ATCSA) as an ongoing monitoring body considering the use made by government of these powers and the work of the Regional and Emergency Co-ordinators established under clause 22. [26]Other regimes of emergency powers (eg ATCSA and the Prevention of Terrorism Acts 1974-1989) have provided for debate on annual renewal of their provisions by Parliament, and, in the case of ATCSA and the PTA 1984, have also deployed "sunset" clauses, where the legislation expires on a particular date, requiring, if the powers are to be retained, the enactment of the same or new provisions. Consideration should be given as to whether some such devices might be helpful with this Part of the Bill (eg renewal debates every five or ten years, and "sunset" after 30 years). Close scrutiny in Parliament is vital since the terms of this Part of the Bill are such as to attenuate legal accountability through judicial review.

  19.  Judicial review, whether of the validity of a proclamation/declaration of emergency, of the regulations, or of actions taken under them, has not as such been excluded by a direct ouster clause. But the contexts, and the subjective wording, of the powers in this Part of the Bill, are likely to render it limited in scope. It would be enhanced if the powers were framed, as suggested earlier, in objective terms. A good degree of judicial deference to executive opinion and specialist knowledge can be expected as a reflection of separation of powers notions and the limitations of the judicial process, [27]but it is inappropriate with powers so vast and grave as envisaged to seek to neuter the courts. They are unlikely to second-guess the government on the existence of an emergency. It is important, however, that they should be available at least to enforce the limits on rule-making powers set out in clause 21(4), and suggestions have already been made on suitable rewording of clause 21 to put that beyond any doubt and to insert further limits found in the current legislation (see paragraph 13, above). The courts also have a crucial role in securing adherence of the executive and legislature to the Convention rights set out in the HRA.

Compatibility with the HRA/ECHR

  20.  It might be thought that the invocation of emergency powers would by definition also require the government to enter a notice of derogation under Article 15 ECHR and the consequent steps to make that effective under the HRA. This is not in fact the case. Many of the potential restrictions on Convention rights which emergency regulations might effect (eg powers of entry, search and seizure, or surveillance of communications, or limitations on expression and assembly, or requisition of property) would fall to be adjudged against limitation clauses attached to particular ECHR articles (to correspond to the illustrative examples, above: Article 8 [respect for private life, home and correspondence], Arts 10 [expression] and 11 [peaceful assembly and association] or Article 1 of Protocol One [right to peaceful enjoyment of one's possessions and protection against deprivation of property]). [28]In most circumstances, a notice of derogation invoking Article 15 ECHR would be necessary only if the regulations would otherwise be incompatible with Articles 5 [liberty and security of person] or 6 [fair trial]. [29]But, if such derogation were necessary, it cannot readily be assumed that all the circumstances falling within the clause 17 definition in the Bill would necessarily meet the test of "public emergency" laid down by the European Court of Human Rights. [30]The Secretary of State should closely be questioned on the reasons behind the accompanying HRA section 19 declaration of compatibility.

  21.  Under the HRA, the courts, taking into account the jurisprudence of the ECHR organs (especially the Court of Human Rights), must where possible interpret primary and secondary legislation so as to conform with Convention rights. If they are unable to do so, they can make a declaration that offending primary legislation is incompatible with Convention rights, leaving it to the executive/legislature partnership to consider whether to amend the legislation through the usual legislative process or, where urgent, through the "fast-track" procedure. In most circumstances, offending secondary legislation (eg regulations) can be invalidated if incompatible. Regulations under the EPA 1920 while made by Order in Council, rank as subordinate legislation for the purposes of the HRA. [31]Clause 25 of the Bill, stating that regulations made under it are to be regarded as Acts of Parliament for HRA purposes, thus changes the current position. Accordingly, with the Bill as currently framed, courts cannot invalidate the regulations on human rights grounds. That is clearly controversial; giving them an exemption not afforded the vast majority of rules made under statutory authority, including those of the Scottish and Northern Ireland Parliaments. That step should be resisted, and the Consultation Document indicates that government is not necessarily wedded to that clause. But if the clause is retained, that diminution in judicial power further emphasises the need for enhanced democratic accountability as suggested above, and for not attenuating judicial review of executive action or of the validity of regulations for non-compliance with the limits set by the parent Act.

  22.  However, the courts are able to review executive action under the regulations on grounds of illegality, procedural impropriety, irrationality and compliance with the Convention rights. So the exercise of discretionary power can be impugned not only on grounds of "unreasonableness" but also, where a Convention right or a EC law right is in issue, on grounds of proportionality. These are important safeguards, but must be seen as ones supplementing rather than providing an alternative to the enhanced parliamentary scrutiny, the need for which has been stressed throughout this paper, given the very extensive powers that the government seeks to be granted by this Part of this Bill.

26 August 2003

1   A photocopy of this material has been supplied to aid the Committee. It should be noted that the other emergency powers in Chapter 5 of EPP to deal with drought and energy supplies, there to provide context for the EPA 1920 and 1964, have undergone alteration and relocation since the book was published. This evidence does not deal with those changes. Back

2   See clauses 21(3), 25. Back

3   See EPP, pp 25-27, 39-40; K Jeffery and P Hennessy, States of Emergency: British Governments and Strikebreaking since 1919 (London, RKP, 1983), pp 50-57; G Morris, A Study of the Protection of Public and Essential Services in Labour Disputes (unpublished PhD thesis, University of Cambridge, 1978), pp 114-139. Back

4   Cf C Walker, The Prevention of Terrorism in British Law, second ed, (Manchester, Manchester University Press, 1992), pp 16-20. Back

5   See EPP, pp 2-6. Back

6   See further EPP, pp 20-22 and sources cited there. See also Inquiry into Legislation Against Terrorism, by the Rt Hon Lord Lloyd of Berwick, Cm3420 (1996), paragraph 3.1; Gearty and Kimbell, Terrorism and the Rule of Law, (King's College, London, 1994), cited there. Back

7   See Consultation Document, Chapter 5, paragraphs 12-20. Back

8   G Morris, "The Emergency Powers Act 1920" [1979] Public Law 317, at page 322. Back

9   See EPP, pp 14-20. Back

10   See EPP, chapter 1 and chapter 5 (pp 211-213). Back

11   OJ 2002 L164/3. Back

12   See EPP, pp 1-7, 226-227, 270, 273. Back

13   This reflects the definition of public emergency given by the European Commission of Human Rights in The First Greek Case [1969] 12 Yearbook of the European Convention on Human Rights, Vol bis, at p 72. Back

14   See EPP, pp 42-43.  Back

15   See EPP, pp 45-46. Back

16   See EPP, pp 67, 234-236. Back

17   EPA 1920, section 2(1) proviso; Bill, clause 21(4)(a). Back

18   EPA 1920, section 2(1) proviso; Bill, clause 21(4)(b). The Bill goes wider in that the EPA 1920 only prohibited the criminalisation of participation in, or peacefully persuading others to participate in a strike. The Bill covers other industrial action and a precluding "prohibition" goes wider than preclusion by rendering conduct criminal. Back

19   EPA 1920, s.2(3); Bill, clause 21(4)(d). Back

20   Clause 21(4)(c) read with 21(3)(i). Back

21   EPA 1920, section 2(1); Bill, clause 21(1), read with 21(2) and 21(3). Back

22   For a cautionary tale on the value of such assurances, see D Thompson, "The Committee of 100 and the Official Secrets Act, 1911" [1963] Public Law 201. Back

23   On "Henry VIII clauses" (power for regulations to vary enactments) and on the phrase "have effect as if enacted in this Act", see the authorities cited in Wade and Forsyth, Administrative Law, eighth ed, (Oxford, OUP, 2000), pp 843-846, 869. Back

24   "Contraceptive" and "ante-natal" in this context are terms used by the late Professor De Smith in his works on Constitutional and Administrative Law. Back

25   Explanatory Notes, paragraph 54. Back

26   Consideration might properly be given to setting out their qualifications and powers in a Schedule to the Bill, or at least to procuring during debate, in either House or in Standing Committee, some more detailed exposition of their role. Back

27   Consider here the approaches in Secretary of State for the Home Department v Rehman [2002] 1 All ER 122 and in A and Others v Secretary of State for the Home Department [2003] 1 All ER 816. See further on deference, N Blake and R Husain, Immigration, Asylum and Human Rights, (Oxford, OUP, 2003), paragraphs 5.198-5.208 Back

28   See further EPP, pp 91-93. Back

29   M O'Boyle, D Harris and C Warbrick, Law of the European Convention on Human Rights, (London, Butterworths, 1995), page 496. Back

30   See Morris, n. 8 above, at page 321. Back

31   HRA, s.21(1). Back

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