Joint Committee on Draft Civil Contingencies Bill Written Evidence

Memorandum from K D Ewing, Professor of Public Law, King's College, London


  1.  Part 2 of the Draft Civil Contingencies Bill represents an important departure from the traditional British way of dealing with emergencies. This has been based on a combination of ad hoc powers to deal with circumstances as they arise, and standing powers to deal with emergency situations of a more foreseeable nature. The Emergency Powers (Defence) Act 1939 and the Prevention of Terrorism (Temporary Provisions) Act 1974 are examples of the former. The Emergency Powers Act 1920 is an example of the latter. [32]Under the Draft Bill the need for Parliament ever to approve ad hoc powers in the future will be greatly diminished.

  2.  Part 2 of the Draft Bill gives rise to a number of concerns which are pursued in this submission. These relate to:

    —  the scope and scale of the proposed powers, including their consequences for lawful industrial action;

    —  the limited and diluted role of Parliament in supervising the circumstances in which the powers may be used; and

    —  the diluted role of the Human Rights Act and the limited scope for judicial scrutiny of emergency regulations.

  It will be for the Joint Committee to decide whether the political case for such powers has been made out. But the onlooker will be struck by the fact that it has not been necessary to use standing emergency powers since 1974, and by the fact that it has never been necessary to use them for purposes other than trade disputes.


  3.  Under the guise of "modernisation", it is proposed in Part 2 of the Draft Bill to replace the Emergency Powers Act 1920 with a new framework for dealing with emergencies. The Emergency Powers Act 1920—introduced to deal with industrial action though capable of being used for other purposes[33]—permits a proclamation of emergency to be issued in very limited circumstances: in response to action "of such a nature and on so extensive a scale as to be calculated, by interfering with the supply and distribution of food, water, fuel, or light, or with the means of locomotion, to deprive the community, or any substantial portion of the community, of the essentials of life" (s 1(1)).

  4.  The Draft Bill will permit a proclamation to be issued for many other reasons, on the much less rigorous standard of a "serious threat", for example to the welfare of all or part of the population (clause 17(1)). But these reasons are sometimes obscure in view of the spectacularly imprecise language in the Draft Bill. The point is illustrated most vividly by clause 17 which defines an emergency for the purposes of the Draft Bill. Clause 17(2)(e) provides that an event or situation constitutes a threat to the welfare of the population (and so may be an emergency if it is "serious") if, for example, "it involves, causes or may cause" "disruption of a supply of food, water, energy, fuel, or another essential commodity".

  5.  Given the consequences of a proclamation of emergency (in terms of the power to make regulations effectively suspending civil liberties) rather more precision than this is called for. What is an "essential commodity?" Who decides? The same need for greater precision is true of clause 17(2)(h) which provides that an event may cause a threat to the welfare of the population (and so may trigger an emergency) if it causes the "disruption of medical, educational or other essential services". Quite apart from the need to clarify what is an essential service here too, there may also be a need to explain why education is an essential service which requires the support of emergency powers.


  6.  Because of the definition of an emergency in clause 17, the Draft Bill will apply to a bewildering range of industrial action which could easily be construed as constituting a "serious threat" to what are not always emergency situations. A teachers' strike would under this definition constitute a serious threat to the welfare of all or part of the population of the United Kingdom. A strike by benefit staff or tax collectors would be a threat to "political stability" (another ground for the proclamation of an emergency) because it causes the "disruption of . . . the performance of public functions". The same may be true of a strike by postal workers. A strike by rail workers would be "a threat to welfare" if it causes "disruption of facilities for transport", even though it does not deprive the community of the essentials of life, as required by the 1920 Act.

  7.  The only issue in the Draft Bill is whether the threat would be "serious". But here the word "serious" is used to qualify the threat to a service or activity, rather than a situation or event which might objectively be thought to be serious. So a long term strike by nursery teachers would be such a disruption of the educational service as to be serious, even though few people outside the Cabinet Office might regard it as an emergency as that term would normally be understood. An air of unreality and a complete lack of proportionality thus inform the definition of an emergency. Yet the list of industrial action which would fall within clause 17 could be multiplied, and would include, for example, a strike by local government officers or those in the private sector performing a local government function.

  8.  The other concern in relation to industrial action is clause 21(4)(b) of the Draft Bill which provides that regulations may not "prohibit, or enable the prohibition of, a strike or other industrial action". This is narrower than the corresponding provisions of the 1920 Act, section 2(1). The latter provides that no regulations are to make it an offence "to take part in a strike, or peacefully to persuade any person or persons to take part in a strike". Under the new formula it will thus not be possible to prohibit a strike. But will it be possible to make it unlawful for specific groups of workers to take part in it? [34]If the answer is in the affirmative, it means that, for what may be the first time since 1875, a peacetime government in the United Kingdom will have taken the power to make participation in a strike or other industrial action a criminal offence. The offence could be punished by up to three months' imprisonment.


  9.  An important feature of Part 2 of the Draft Bill is the minimal role proposed for Parliament in an "emergency". This reflects the position in the Emergency Powers Act 1920, but the question is now much more urgent given the wide and imprecise nature of the powers which the government proposes to take under the Draft Bill, and given the greatly extended circumstances in which these powers may be used. Under the Draft Bill, Parliament must be informed of a proclamation of emergency after it has been made. But Parliament is not required to approve the proclamation by resolution. There is not even a guarantee that the matter will be debated in either House. This has given rise to problems in the past, as governments have wearied of parliamentary scrutiny under the 1920 Act. [35]

  10.  It is the extension of the circumstances in which emergency powers may be used which serves particularly to highlight the inadequacy of the 1920 model as a basis for a "modernised" statute. The Draft Bill will cover all emergencies, including those such as war which in the past gave rise to the taking of ad hoc rather than the use of standing powers. This is important because the taking of powers on an ad hoc basis maximises the opportunity for parliamentary scrutiny, and helps to focus public attention and public debate on the matter. Although emergency legislation can be passed at great speed, it still needs to be justified by the government to the House. The process of enacting the legislation ensures that the powers taken by the government are subject to at least some scrutiny, while an opportunity is provided for the matter to be considered on the floor of the House and in committee. Ad hoc legislation requires governments to justify both the reasons for taking emergency powers and the powers proposed to be taken. [36]

  11.  Bringing so many anticipated emergencies (including war and natural disasters) within the standing emergency powers means that this traditional form of scrutiny will be lost. The approval of Parliament will not be required before emergency powers are taken under the Draft Bill, though it is true that Parliament may have to approve the emergency regulations made to deal with the emergency. The Joint Committee will no doubt wish to consider whether this forms an adequate basis for accountability particularly in light of the fact that the regulations can be made, and—following another precedent in the 1920 Act—can operate for up to seven days without parliamentary approval (clause 24(7)). It is thus possible that serious restraints on individual liberty will be introduced without the prior need for parliamentary approval. Quite how these regulations in these circumstances can possibly be subject to effective scrutiny by either the Joint Committee on Statutory Instruments or the Human Rights Committee is very unclear.


  12.  The proposed power to make regulations after the proclamation of an emergency is an extensive one which includes the power to confiscate or destroy property (with or without compensation), prohibit freedom of movement, and "prohibit, or enable the prohibition of, assemblies". Rather enigmatically it also includes the power to "prohibit, or enable the prohibition of, other specified activities" (clause 21(3)). Breach of the regulations is to be an offence, with maximum penalties set out in clause 21(4). But there are some questions about the scope of the power to make regulations which need to be answered. For example the powers of the police is a matter left hanging in the air. The government appears to intend that it be left to the regulations to determine which of the offences made by emergency regulations is an arrestable offence, and in what circumstances the police will be able to enter, search and seize property without a warrant. Is this appropriate?

  13.  There is also the power to "prohibit" and "require" movement "to or from a specified place" (clause 21(3)(d)(e)). Will this authorise detention without trial and the house arrest of specified individuals? It should thus be clear that the making of these regulations needs to be subject to the most careful Parliamentary scrutiny. Yet in this respect the Draft Bill appears to diminish the already limited powers of Parliament under the 1920 Act. Under the 1920 Act the regulations lapse with the proclamation of emergency after one month. If there is a continuing need for emergency regulations, there must first be a fresh proclamation and new regulations must then be issued which in turn must be approved by Parliament. This requirement of regular approval is a valuable device which compels the government periodically to assess the need for all the emergency regulations, and to account to Parliament for its judgement that the regulations continue to be needed.

  14.  It is uncertain whether this procedure has been carried forward into the Draft Bill. Admittedly a proclamation under the Draft Bill will last for only 30 days and will have to be renewed thereafter if the emergency continues. But it is unclear whether a fresh proclamation under the Draft Bill will require the issuing of fresh regulations, and whether the continued operation of the emergency regulations will need fresh Parliamentary approval. This is because the regulations in force at the time the new proclamation is made "shall continue in force as if made by virtue of the new proclamation" (clause 23(4)). The very strong implication is that they will continue in force without the need to be approved by Parliament. This ought to be clarified. But at first sight it does appear that Parliament thus loses the formal power to scrutinise the government's claim that the regulations as issued continue to be needed even though the nature of the emergency may have changed.


  15.  Given the extent of executive power in the Draft Bill, the Joint Committee will want to be satisfied that the government's proposed diluted impact of the Human Rights Act is justified. The Draft Bill treats an instrument containing regulations made under the Draft Bill as if it were primary legislation (clause 25). This means that these instruments, and the regulations that they may contain, cannot be challenged by the courts under the Human Rights Act 1998. This is true no matter how far these instruments may violate Convention rights. All that a court will be able to do is issue a declaration of incompatibility. But the government will be able to ignore any such declaration. This is because a declaration of incompatibility does not affect the continuing validity of the instrument in question (Human Rights Act 1998, section 4). Not everyone will be satisfied that this is an appropriate reconciliation of emergency powers and human rights.

  16.  The government's case for withdrawing the Human Rights Act 1998 is based on a fear that the regulations may be held up by injunctions in the courts. But the courts in this country have been extremely compliant in emergencies in the past, and the government would be hard pressed to give an example where in such circumstances the liberty of the individual was shown disproportionate concern. [37]It is true that the position of the courts is transformed by the Human Rights Act. But the government may need to explain why a regulation in breach of Convention rights should not be held up by the courts, and why it is desirable that the government should be free to violate Convention rights with impunity. It is important to note that Convention rights are heavily qualified and would allow for some dilution of standards when there is a genuine emergency. Article 11 for example allows restraints on the right to freedom of assembly where these are "necessary in a democratic society" in the interests of "national security or public safety". It is not clear why the government feels that provisions of this kind fail to provide the flexibility that it might need in an emergency. Nor is it clear what steps the government has in mind to take in regulations that would fall foul of the Human Rights Act.

  17.  In view of the way in which emergency powers are being used in other parts of the world at the present time, it is in order to insist on the highest standards of judicial vigilance of emergency powers in this country. A matter of particular concern in view of current international developments is the power in the Draft Bill for the making of regulations to "confer jurisdiction on a court or tribunal (which may include a tribunal established by the regulations)" (clause 21(3)(1)). This would presumably include a power to confer criminal jurisdiction and sentencing on military tribunals. [38]The government should be pressed hard to explain what it has in mind here, and to explain why any such regulation should not be subject to judicial scrutiny to ensure that it complies with the right to a fair trial in article 6 of the ECHR. It is perhaps difficult to comprehend or anticipate any abuse of these powers. But five years ago it would have been equally difficult to contemplate a regime such as that now applying in Guantanamo Bay being operated by a country with such a proud constitutional respect for personal liberty as the United States of America.


  18.  There are thus a number of concerns with the Draft Bill. These relate to the wide and indeterminate power of the government and the absence of any notion of proportionality about the circumstances in which a proclamation may be issued. A major issue connected with these powers relates to their impact on lawful industrial action, and the possibility that almost all significant industrial action involving public services could fall within the definition of an emergency. It is hardly enough that the only effective restraint on the use or mis-use of these powers is the common sense and sound judgement of the government of the day.

  19.  Related to this are the diluted procedures for scrutiny which the Draft Bill contains. The Draft Bill thus magnifies the concerns that were raised in 1920 when the Emergency Powers Bill was introduced. According to Lord Buckmaster, what is now the 1920 Act left too much to "the uncontrolled opinion of the Government", and failed to provide "any definite protection against an unreasonable or excessive use of powers".[39] The first regulations produced under the authority of the 1920 Act were greeted by The Times as "extraordinarily complex and drastic",[40] though it also conceded that the government of the day would have no difficulty in defending them.

  20.  The central question for the Joint Committee is thus a simple one. What is Parliament for in an apparent emergency? The Draft Civil Contingencies Bill provides a welcome opportunity for that question to be re-examined, and for the dignity of Parliament to be reasserted. Is Parliament to continue to be simply a body to which the executive reports and from which it seeks and secures blanket approval for bulk regulations? Or is Parliament to be a body which has the unqualified right to approve a proclamation, and a right properly to scrutinise emergency regulations which may have far-reaching implications for individual liberty? [41]

29 August 2003

32   For a good account of the Act, see G S Morris, "The Emergency Powers Act 1920" [1980]PL317. Also G S Morris, Strikes in Essential Services (Mansell, 1986). Back

33   A W Bradley and K D Ewing, Constitutional and Administrative Law (13th ed, Longman, 2002). p 611. The 1920 Act could have been used during the fuel protest in 2000-01 if the circumstances so required. Back

34   See Smith v Wood (1927) 43 TLR 179; pit safety men protected from prosecution during general strike. Could regulations under the Draft Bill make such action by key groups unlawful? Back

35   See K D Ewing and C A Gearty. The Struggle for Civil Liberties: Political Freedom and the Rule of Law in Britain 1914-45 (Oxford University Press, 2000), ch 4. Back

36   It is true that in times of emergency Parliament as a whole is rarely at its best, with the opposition and the government closing ranks. But as Sir Ivor Jennings points out in relation to the experience of the second world war, a number of backbenchers will normally keep the government on its toes: see W I Jennings, Law and the Constitution (3rd ed, University of London Press. 1942). Back

37   The criticism of the courts is usually that they place far too little attention to individual liberty in emergencies: see R v Halliday [1917] AC 260 and Liversidge v Anderson [1942] 206. Back

38   Clause 21(4) provides that emergency regulations may not create an offence which is punishable without trial before the ordinary courts. But clause 21(3) would not appear to prevent jurisdiction for dealing with existing offences being transferred to other tribunals, including those tribunals specially created by emergency regulations themselves. Back

39   H L Debs, 28 October 1920, col 110. Back

40   The Times, 5 April 1921. Back

41   There is now also the devolution dimension. There is no provision for the Scottish Parliament, Northern Ireland Assembly or National Assembly for Wales to be given notice of a proclamation. All that is being proposed is that the Scottish Ministers, the First Minister and deputy First Minister (in the case of Northern Ireland) and the National Assembly (in the case of Wales) should be consulted, but only about the regulations. Back

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