Memorandum from Professor C A Gearty;
LSE and Matrix Chambers
1. It is right that there should be laws
dealing with the response of the authorities in the event of a
major emergency, or series of emergencies across the country.
It is probably also the case that the current legislative framework
set out in the Emergency Powers Acts 1920 and 1964 (as amended)
can be improved upon. New legislation in this area may, therefore,
not be inappropriate.
2. An emergency is by definition an exceptional
situation: not just any departure from the norm, but a dramatic
one. Such an event might be composed of a nuclear or biological
weapons' attack on a major metropolitan area, or a general strike,
or some massive assault on the transport or information infrastructure.
These would all clearly be emergencies and should be recognised
as such at all levels of our society.
3. Laws like the one before this committee
are inevitably engaged in a guessing game. They are planning,
not reacting. The linguistic formulae used in such measures as
this Bill to capture the essence of some future (and by definition
unknowable) emergency are certain to be a little imprecise at
best, vague and general at worst.
4. The Bill before the Committee includes
an extraordinarily wide definition of what constitutes an emergency.
Submissions from other interested persons and organisations will
no doubt make this point in elaborate detail. The situations that
would unlock emergency powers set out in this Bill go far beyond
the sort of exceptional situation set out above. If the definition
is left as presently drafted in clause 17, the authorities will
have the power to declare an emergency on the basis of a factual
situation, or a potential factual situation, far less serious
than any of those set out in paragraph (2) above, and also far
less serious than the word "emergency" in its popular
usage would suggest.
5. This disconnection between what the word
"emergency" sounds as though it covers (some extreme,
catastrophic or near-catastrophic event) and what it would actually
cover as a matter of law (a far wider range of situations, shading
into the ordinary) is greatly to be deplored. It gives the government
temptingly wide powers capable of being unlocked on altogether
too low a threshold. This division between the popular and the
technical/legislative meaning of a word recalls the way in which
terrorism law covers a far wider range of situations than the
word "terrorism" in its popular usage would suggest.
It is strongly advised that UK emergency law should not go down
the same road.
6. Such a broad approach as is to be found
in this Bill is to be expected from the executive branch. It does
not want to have its hands tied. It has total confidence in itself
to make the right judgments in the future as to whether and to
what extent an emergency situation should be recognised. It sees
no reason for its actions under any such measure being unduly
hindered by Parliament or the courts; indeed it sees the involvement
of such bodies, especially the judges, as essentially counter-productive.
This is a naturalthough it is not a thoughtful or disciplinedway
for members of the executive branch to think.
7. Under our constitutional arrangements,
there are three branches of government, not one. Subject to the
vagaries of litigation, the third of thesethe courtsmay
have the chance to have its say at some future point, when the
Bill is not only in force, but has been put into effect in a way
which has given rise to a dispute.
8. The branch that matters now is the legislative
branch. Its interests are not the same as those of the executive.
While recognising that part of its job is to promulgate government
proposals as law, it also has the vital task of ensuring that
the executive branch is held to account. Parliament cannot and
should not assume that the executive is always right now and will
always act impeccably in the future. Faced with a proposal such
as this Bill, with its empowerment of the executive branch well
into the future, Parliament must seek to hold not just the government
of the present, but all the governments of the future to account.
Even if a Member of Parliament trusts this government, that does
not mean that he or she trusts all the governments to come, into
the indefinite future.
9. It is suggested that the right way for
the Committee to proceed is rigorously to test the proposals set
out in the Bill by reference to three general principles, drawn
from Britain's constitutional tradition, and in particular its
commitment to effective law-making, civil liberties and respect
for human rights:
The principle of necessity: do we really need this
expansion of the law? Is the matter not well catered for elsewhere?
Could not the ordinary law cope with what is being described?
If the measure is needed, how much of it is absolutely required,
and how much can be left to one side.
The principle of proportionality: given there is
a problem that needs attention, is the way the Bill goes about
dealing with it productive of consequences which are wholly disproportionate
in their impact on other societal values, eg our civil liberties
and our respect for human rights? If so, might not the mischief
aimed at be addressed in less damaging ways. (This is particularly
difficultbut exactly for this reason hugely importantprinciple
to apply to hypothetical situations, where the mischief lies in
the mind rather than on the ground, available for all to see:
it would hardly be proportionate to move to a permanent emergency
situation on the basis of an imprecise fear of a future attack
even if the fear was genuine.)
The principle of legality: given that powers are
needed and are proportionately designed, they should be subject
to challenge before the judicial branch in the ordinary way. Of
course for practical reasons such challenges will often be after
the impugned conduct has occurred, as is usually the case in litigation,
but the opportunity for such proceedings must not be denied. There
is no evidence whatsoever that the judicial branch has in this
country ever done other than take what the executive branch would
regard as a wholly responsible attitude in the context of national
security and emergency powers.
10. This measure is not some sort of tidying-up
of antiquated law as some might believe. As drafted, it presents
Parliament with a fundamental challenge to our framework of law.
It requires us to ask the question, "what is an emergency?"
and then to agree the concessions that we would feel compelled
to make were an emergency to occur or credibly to beckon. This
Bill comes close to suggesting in clause 17 that the normal day-to-day
events that impact on Britain in this global age are themselves
sufficient to warrant the descriptive label of an emergency. In
the hands of the drafters of this Bill, the ordinary becomes the
exceptional, the serious challenges of everyday life being seen
not as (merely) serious challenges but as evidence of an emergency
situation, requiring emergency powers. It goes without saying
that the implications of degrading the language of emergency is
this way are extreme.
11. The broad approach to the meaning of
an emergency taken in the Bill should not be viewed in isolation
from other developments that have occurred in our legal system
and political culture in recent years.
12. Viewing the subject first from an historical
perspective, the tendency has been for laws introduced as emergency
laws gradually to cross-over into ordinary law and to produce
a change in what was understood by being "ordinary".
Thus, while it is perfectly true that the emergency regulations
promulgated during the First World War were eventually dispensed
with, much of the content of such regulations found later expression,
in legislation like the Police Act 1919, the Incitement to Disaffection
Act 1934, the Public Order Act 1936, and in cases like Elias v
Pasmore (1934) 2 KB 164, Duncan v Jones (1936) 1 KB 218 and Thomas
v Sawkins (1935) 2 KB 249. The same has occurred with our terrorism
legislation, with temporary and emergency legislation first enacted
in 1974 having become a permanent power of the law in a greatly
expanded form in the Terrorism Act 2000. The same process may
be underway with regard to the Anti-Terrorism, Crime and Security
13. Our idea of what is the norm therefore
changes from generation to generation. This Bill so expands the
meaning of what is an "emergency" that it risks making
a further major push in the direction of guiding us to the false
understanding that we must now all learn to live in a situation
of permanent emergency, with the consequent erosion of our democratic
and civil liberties culture that this necessarily entails having
passively to be submitted to.
1 September 2003