Examination of Witnesses (Questions 187-199)|
16 SEPTEMBER 2003
Q187 Chairman: Good afternoon, thank
you for coming. Sorry to keep you waiting. Our session this afternoon
is being televised. If you would like briefly to introduce yourselves
for the record?
Ms Chakrabarti: Thank you, Chairman.
My name is Shami Chakrabarti, I am the Director of Liberty, formally
known, and perhaps more commonly known, to some as the National
Council for Civil Liberties which, as you know, has been working
on civil liberties and human rights generally and indeed in the
context of emergency measures and anti-terror law specifically
since the 1930s.
Dr Metcalfe: My name is Eric Metcalfe,
I am the Director of Human Rights Policy at Justice, which is
the British section of the International Commission of Jurists.
Chairman: Thank you very much.
Q188 David Wright: Can I also extend
the Committee's welcome. I want to cover a bit of background to
begin with, could you give some examples of where civil liberties
have been affected in previous emergencies, apart from cases in
Northern Ireland. Some of the highlights.
Ms Chakrabarti: If I may say so
there is an example that emerged in a public debate just last
week. Members of this Committee may be aware of the use of Section
44 of the Terrorism Act 2000 under which an authorisation has
been made and confirmed, made by the Metropolitan Police and confirmed
by the Home Secretary. The test in that statute is expedient to
the prevention of acts of terrorism and searches by police officers,
stop and search powers are activated on the part of police officers
without suspicion. That is an emergency measure of a fashion and
of course my organisation has concerns that the authorisation
has been made inappropriately and that peaceful protestors have
been impeded under that inappropriate and we say unlawful authorisation.
I make that point by way of introduction because it is a graphic
illustration, perhaps, of the dangers of passing fairly broad
brush emergency legislation, the legislation being fairly loose
in its drafting on the understandable basis of trust in the Executive,
the trust being that of course these powers will never be used
inappropriately, they are there for very serious circumstances.
The point I would make about that example is that one does not
need to suggest bad faith or conspiracy or even a deliberate attempt
to undermine civil liberties, there is just always danger in passing
extraordinary powers. There is the danger that perhaps more by
cock-up than by conspiracy these powers may be inappropriately
used, let alone the possibility, Chairman, that powers passed
over the years may sit on the statute book for many years to come
to be potentially used appropriately, inappropriately or indeed
abused by future administrations. That was a specific illustrative
example. There have been many other examples over the years internationally
and in this jurisdiction of emergency measures being passed. Members
of the Committee will be aware that by reference to the Anti-terrorism
Crime and Security Act 2001 and the derogation from the Convention
on Human Rights that the Government entered into to pass that
law we are already living under a state of emergency in this country.
It is under that state of emergency, which the Home Secretary
Mr Blunkett in October 2001 referred to as a technical state of
emergency for the purposes of derogating from the Convention,
that to my knowledge eight people are currently interned without
trial in Belmarsh and other high security institutions. My organisation
has said much about that and I will not dwell on it. Over the
years emergency-type measures have been used in the context of
the Northern Ireland situation. As members will be aware there
have been serious allegations of ill-treatment of prisoners, including
interrogation circumstances in Northern Ireland. There has been
exceptional detentions powers, not just internment powers, emergency
arrest powers, special trial provisions, Diplock courts, and so
on, special exceptional powers in the context of the treatment
of prisoners, interferences with normal free expression rights,
for example in term of parade commissions or indeed the censorship
of terrorists or certain organisations, and one will remember
this from the 1980s in the context of certain Northern Irish groups.
Perhaps leaving Northern Ireland I have mentioned the Terrorism
Act 2000, whose genesis came in acts that were temporary measures,
where the father of the Terrorism Act and the grandfather thereof
were temporary measures that have become permanent in the Terrorism
Act 2000. Another point to make to this Committee is there is
always a danger with exceptional measures that they become permanent
and less exceptional. Of course there are umpteen examples of
emergency provisions round the world, states of emergency in Commonwealth
countries, India, South Africa and post 11 September special measures
in the United States and else where. If the Committee would like
more detail we can submit that later.
Chairman: That would be fine, thank you.
Q189 David Wright: You used the phrase
"extraordinary legislation" would you describe as an
organisation the contents of this Bill as extraordinary in that
Ms Chakrabarti: Chairman, I think
the point I would make about this Bill is that very often our
organisations and our community of human rights lawyers and those
citizens interested in civil liberties are faced with specific
measures to deal with specific or rather more general emergency
situations. The difference with the present Civil Contingencies
Bill is that it is not our role to actually address a specific
state of emergency. As I said the irony is that we are notionally
already living under one. We are not addressing specific measures
aimed at a threat. We are discussing a framework in a Civil Contingencies
Bill that is to be activated in the event of future events, so
it is not actually to say that X or Y measure is or is not proportionate
in the context of A, a threat and B, human rights considerations.
Ironically it is our role today to draw the Committee's attention
to the importance of defending not civil liberties and human rights
but parliamentary sovereignty in the context of future possible
emergency scenarios as they may arise or as they may be described.
My point today is not to say that X or Y measure is or is not
justified in X or Y situation but to pose questions that perhaps
the Committee may take up with Government officials and ministers
as to why in such a breadth of imagined scenario it is necessary
for the Executive to legislate without full parliamentary legislative
oversight and scrutiny.
Dr Metcalfe: Can I just say at
the outset that our organisations are in complete agreement, we
share the analysis of Ms Chakrabarti and Liberty in general in
relation to the effect of previous emergencies on civil liberties.
If I can give one specific example, it is an example that has
been probably been raised before you,the first major instance
of use of the emergency powers under the previous Emergency Powers
Act 1920that was the General Strike of 1926. Just to give
you an illustration of the kind of powers that come into force
by way of the previous 1920 Act: A state of emergency was proclaimed
on 30 April 1926 and emergency regulations were made on the same
day. The regulations affected a broad range of areas but those
particularly addressing civil liberties were freedom of expression,
by which Regulation 21 forbade any act likely to cause mutiny,
sedition or disaffection among military police and disaffection
among the general public. Regulation 22 gave powers to forbid
assembly or process that would cause undue demands on police or
promote disaffection among the public in general. Police powers
also included arrest without warrant, search and seizure without
warrant where persons were suspected of endangering public safety.
To give you an idea of our concern about the historical use of
emergency powers, bear in mind that the General Strike of 1926
lasted nine days. The emergency regulations that were brought
into force on 30 April lasted eight months. This is one instance.
I am sure that members of the Committee are aware of previous
instances, such as the 1948 and 1949 Dockside Strikes, the 1955
Rail Strike, the 1966 Seamen's strike, the strikes in 1972 and
1973. These were all instances where the Emergency Powers Act
of 1920 was invoked. In each case you had sweeping regulations
that were passed in relation to, amongst other things, human rights.
The extent of the regulation in general out lasted the actual
specific emergency that was being addressed. I think if there
is a lesson from history in this case, it is that emergency powers
need to be strictly scrutinised in respect of their proportionality,
and that is one thing I would like to address you on today.
Q190 David Wright: Okay. In terms
of challenging emergency regulations are you aware of any circumstances
where they have been successfully challenged in the courts? Do
you feel that the process that is available following this Act
if it becomes law is there to actually challenge regulation in
court, what is your general feel on that?
Dr Metcalfe: Our view is that
the present procedure whereby people can challenge regulations
made under the emergency powers framework is correct. You asked,
have there been any instances of a successful challenge? My answer
is, not that I am aware. That is not to say there have not been
challenges madethere have been a number of challenges made.
In 1916 you had challenges to the Defence of the Realm Act and
the regulations made thereunder, you had challenges in the interwar
period, and so forth. The courts have been traditionally differential
towards the Executive in times of public emergency, that is in
general the approach that courts have taken. That is true not
just of the UK but other comparable jurisdictions, the United
States as well. You will find a general attitude in common law
jurisdictions that courts in times of emergency will give proper
deference to the role of the Executive in making the regulations,
but that does not displace the essential role of the court in
being able to scrutinise those regulations. There has been little
historical problem posed by people being able to challenge emergency
regulations in court because the general practice of the court
has been to give due regard to the importance of the Executive
being free to take emergency measures.
Ms Chakrabarti: If I might enter
a slight caveat on Dr Metcalfe's response. There have been many
challenges to all sorts of special legislation, if I might put
it that way, over the years and of course Eric is right not many
successful challenges. One important one to mention might be the
successful challenge in 1987 to extend the detention of terrorist
suspects in the context of terrorism in Northern Ireland, the
case of Brogan v United Kingdom in the Court of Human Rights,
where the finding was that questioning for four days without judicial
authorisation was a problem. Of course the United Kingdom responded
by way of a derogation. There are one or two other examples of
the Court of Human Rights interceding in that way. Generally,
of course Eric is right and I think it is a very important point
that he makes in the context of this particular Bill, and perhaps
we will come to this later, when the Committee considers whether
it is right that regulations made by the Executive under the Civil
Contingencies Bill should be treated as primary legislation for
the purposes of the Human Rights Act to oust the bite of judicial
scrutiny. No doubt the Government will be concerned that in an
exceptional situation there might be some unwarranted and insensitive
interference, if I might put it that way, from the courts. I think
the very important point that Justice and Eric Metcalfe makes
is that the courts are really not a problem, the courts in this
country have been well used to dealing with the context of terrorism
and to being very sensitive and from the point of view of our
organisations over-deferential to the UK Government at times.
There is really no real concern. There is no problem with the
courts not being sensitive to the problems of fighting terrorism
so there should not be an approach by the Executive or Parliament
in this case of trying to limit or oust judicial scrutiny by the
courts. Of course finally, even though there has been the deference
over the years it must be remembered that the Human Rights Act
is a modern phenomenon and there is yet to be any serious litigation
domestically of anti-terror laws since the advent of the Human
Right Act. There is of course a case pending that will go to the
House of Lords possibly this Autumn on the legality of the present
derogation from Article 15 in the context of foreign nationals
in the United Kingdom, but not British citizens in the United
Dr Metcalfe: When I said I was
not aware of any challenge to emergency regulations I was speaking
only in relation to the Emergency Powers Act of 1920. In relation
to derogations in terms of public emergency under the European
Convention there have been challenges and Brogan was a successful
challenge. This is more of historical interest than anything else
but there was a successful challenge in 1918 to the Defence of
the Realms regulations, where the Shipping Controller tried to
requisition not just the ships but also the personnel of the China
Mutual Steam Navigation Company and this was challenged successfully.
Q191 Lord Archer of Sandwell: Can
I first make a declaration of interest, I am a member of Justice
and of Liberty, if we may we return to Clause 25 a little later,
I just wanted to clarify one point of fact, the example which
you gave about the challenge in 1988 that was a successful challenge
in Europe, was it not, it was not a successful challenge before
the English courts, is that right?
Ms Chakrabarti: That is completely
correct, Lord Archer.
Q192 Lord Roper: That is because
the European Convention was not incorporated in UK law at the
Ms Chakrabarti: Indeed.
Q193 David Wright: Finally, do you
accept the value of having a permanent legislative code covering
civil contingencies? Is the Bill legislative overkill? Given that
emergencies seem to be inevitable, whether from terrorism, foot
and mouth disease, floods or otherwise is there a better way of
preparing for them in legislative terms than be a permanent legislation?
Dr Metcalfe: It is important to
stress we have no objection in principle to a Bill or code addressing
civil emergencies. We think in fact it is very valuable to have
clearly codified principles in relation to the exercise of emergency
powers. It is far better for the emergency powers framework to
be made clear in advance rather than emergency legislation to
be produced on an ad hoc basis. The comment with regard
to legislative overkill refers to the content of this specific
Bill, that the specific powers that the draft Bill contains are
seen as too broad, it is not to suggest there is not legislative
need for a permanent emergency powers framework. The criticism
in relation to this Bill relate to the specific powers that it
contains, if that is helpful.
Ms Chakrabarti: Just to follow
on from that, the problem of emergencies is need to declare a
state of exception. Of course I must agree with Eric that it is
better that even exceptional circumstances be governed within
the rule of law than that illegality is resorted to because there
is a panic about whatever measure. That being said if the question
that was put was in terms of the inevitability of emergencies
one would hope that inevitable situations, even if they are difficult
to anticipate, ought to be anticipated by sensible policy makers
and governors so that they can be dealt with under the normal
framework of rule of law without the need for special provisions.
More seriously under this Bill the concern is about the breadth
of the scope of an emergency and secondly, and perhaps most importantly,
the framework provided is one which allows the Executive too much
leeway without adequate parliamentary oversight. I would suggest
that whilst, of course, there should be a framework for coping
with emergency situations as far as possible and as quickly as
possible the framework within our constitution should be about
recalling parliament and giving adequate and full primary, legislative
scrutiny to these measures that are deemed exceptional and quite
Q194 Mr Llwyd: Parts one and two
of the Bill while they are obviously linked serve two entirely
different objectives, do you think it would be more practicable
to introduce them at separate Bills?
Ms Chakrabarti: Today we are obviously
far more concerned with substance that we are about the form of
the bills, so we concerned about the content of certain measures
rather than whether they happen to be put together in a single
bill. The only point we would make about putting parts one and
two of this Bill together would be concern that that might in
practical terms detract from adequate parliamentary scrutiny of
the measures that concern us in particular in part two, so that
would be the only practical consideration that would affect our
judgment of whether it was a good or a bad thing that this Bill
was dealt with in this way. The really important thing is that
we have these constitutional concerns in part two. We would hope
that they can be given adequate parliamentary scrutiny and if
Parliament is not given sufficient comfort and there is not sufficient
movement on the breath of an emergency and the urgency with which
Parliament would be recalled and the role of Parliament, then
Parliament should not be bought off by any concerns about all
of the good measures and practical and good governance measures
in part one.
Dr Metcalfe: We agree with that
Q195 Mr Llwyd: In your view is there
any reason why the draft Bill should not in fact cover military
assistance to the civil power instead of retaining a separate
Emergency Powers Act 1964?
Dr Metcalfe: Drawing on the previous
answer, again we are less concerned with form than with substance.
We note it is rather clear the Emergency Powers Act 1964 in large
part follows the language of the 1920 test, with some changes.
Both refer to the test of "the essentials of life".
In general, we think it is desirable to include all such rules
in a single statute where they form part of the emergency framework.
There are particular considerations relating to the use of the
military in civil emergencies but in principle we would see it
as desirable to address the same kinds of issues in a single piece
of legislation. If the framework of an Act can be put forward
in one or at most two pieces of legislation, we have no particular
problem with that.
Ms Chakrabarti: I have nothing
Q196 Mr Llwyd: Do you think that
basic emergency regulations, which presumably already exist in
draft form, should form parts of this Bill while it continues
to provide for other regulations to be introduced in light of
circumstances as they change?
Ms Chakrabarti: In a nutshell
as much as possible should be planned in advance and as much as
possible should be in primary legislation so that Parliament can
have adequate jurisdiction over it. That is the position in a
nutshell, and perhaps to be developed later. This ultimate constitutional
point about parliamentary sovereignty and safeguards, which from
a human rights perspective is important too because it is about
Parliament being the first, if not the last, Court of Human Rights,
extends into the discussion about whether it is right that things
that are on their face secondary legislation, regulations which
do not have the full sanction of Parliament should be given primary
legislative status, and the utterance of the Executive are treated
as statutes for the purposes of the Human Rights Act.
Mr Llwyd: Thank you.
Q197 Chairman: Can you think of any
circumstances where an emergency would arise involving a threat
to the political, economic or economic stability of the country
but which did not satisfy any of the other three criteria in Section
1 of the draft Bill (human welfare, environment or security)?
Is this extension of the powers in the 1920 Act justifiable in
Ms Chakrabarti: This is always
a difficult one for us on our side of the argument because we
rather prefer the Government spokesman to dream up the nightmare
scenarios. What we would say about the 1920 definition as opposed
to the very broad definition that is now offered is that the basic
means of existence have not altered that much. I know that the
Government spokesman will come to this committee and to Parliament
and talk about the need for modernisation and the way that life
has changed there will be much force in that, we have the internet
and all sorts of other sophisticated means of communication, and
so on. Ultimately a public emergency of the kind that requires
the suspension of our normal constitutional processes of full
parliamentary scrutiny and taking bills before Parliament should
only be activated in narrow and very, very extreme situations.
It seems to us that if political or economic instability is to
generate that kind of emergency it is going to trigger a threat
to the basic means of existence. That does not mean there is not
room for any improvement on the 1920 definition, I think we might
concede that one of the problems with the 1920 definition is nothing
to do with modernisation but interestingly, the 1920 definition
never actually covered a situation where the threat to existence
is direct, a bomb that is a threat to a large number of people.
The 1920 trigger was only activated where that threat was via
threats to locomotion and food and fuel, and so on. There may
be room for slight improvement on the 1920 definition, but not
the extended broad definition of public emergency that is offered
in this Bill, which does not cut to the heart of the kind of emergency,
the basic threats to existence for significant numbers of people
should be the only scenario that is sufficient for ousting parliamentary
Dr Metcalfe: I would like to amplify
those comments to say that including threats to political, economic
or administrative stability, which I believe is the language of
the draft Bill, seems unnecessary, an unnecessary proliferation
of categories which tend to draw the notion of an emergency away
from the core idea that the language of the 1920 legislation roughly
captures, which is a threat to public safety and physical security.
We are not defending the language of the 1920 Act as perfect but
the core concept is one of ensuring public safety and physical
well being. We are concerned at the inclusion of additional categories,
particularly the notion of stability because stability is a very
broad and unhelpfully vague term. A great deal of instability
occurs in everyday life without causing an emergency of any particular
kind. In short answer to the first part of question seven the
answer is no.
Q198 Lord Roper: Can I just pursue
that point, you are quite right a great deal of instability occurs
but this is the political, administrative or economic stability
of a place in England or Wales, that is rather restricting the
sort of stability they are talking about, is it not?
Dr Metcalfe: If you are suggesting
the geographical restriction is
Q199 Lord Roper: Instability occurs
in various ways, the political, administrative or economic stability
means the normal processes of politics, administration or economics
are not going ahead.
Dr Metcalfe: It depends what you
would characterise as normal processes. In an initial response
we discussed the notion of stability in the some detail and we
considered some kind of instances, for instance a garbage strike
which lasted two weeks is arguably an instability of an administrative
kind, perhaps that is enough.
Ms Chakrabarti: Eric makes the