Joint Committee on Draft Civil Contingencies Bill Minutes of Evidence

Further letter from Douglas Alexander MP, Minister of State, Cabinet Office


  As my evidence session was cut short, you have asked that we address in writing some of the outstanding issues that the Committee had hoped to raise. I am of course happy to do that and answers to your specific questions are attached.

  Lord Lucas asked for clarification on the work we have underway to put further safeguards into Part 2 of the Bill. We have work in train to review the latitude available under the Bill to amend "constitutional enactments" using emergency regulations. As I said during the session, our provisional view is that such amendment would not generally be possible. We are taking further advice on the legal position and that will take a little time to emerge—you will appreciate that this issue may have wider ramifications than simply the draft Civil Contingencies Bill.

  Lord Archer raised the issue of consultation with the Council on Tribunals (Q291 in the transcript). We have not yet consulted with the Council on our proposals, but in light of your comments I will be doing so. I would thank the Committee for bringing this matter to our attention. Lord Archer also asked me to consider the issue of statutory duties, tort, and the case Mead v Haringey Borough Council. I have asked the Bill Team to take this point up with departmental legal advisers.

  I enclose detailed responses to the other outstanding issues. I hope that they provide further useful evidence for the Committee's deliberations.

  If this material, or any you have received previously, prompts further interest I would be happy to provide additional information if that would be helpful.

31 October 2003

The Bill envisages an emergency being declared if there is a threat to "political, administrative or economic stability". Can you define "stability"? Can you give examples of likely threats necessitating a proclamation of emergency?

  The inclusion of Political, Economic and Administrative Stability is indicative of our desire to draw up a definition that reflects the full range of emergencies we might face in the future—an inherently unpredictable element. This comprehensive approach was endorsed by consultation.

  This and other elements of the definition will be limited once we have a threshold in place.

Under the Bill, emergency powers can be triggered by a threat to "another essential commodity" (clause 17(2)(e) and "other essential services" (clause (17(2)(h). Can you define "essential"? Can you give us some example of the kind of commodities and services you think that this may include in the future? Who would decide what should be included in this list?

  The use of "essential" in the draft Bill should be taken to have its usual meaning—necessary.

  It is difficult to predict what will be essential in the future, just as there are essential commodities today which would not have been judged to be so in the past. The 1920 Act was reflective of its time—for example there is no reference to computers or electronic communications. Ultimately, the inclusion of this language is intended to "future-proof" the legislation.

Given that the UK is already technically in a declared state of emergency, is it inevitable that if this legislation was passed, Ministers would be obliged to declare a state of emergency under it?

  It is important to distinguish between a formal derogation from the European Convention of Human Rights and a declaration of emergency under the Bill. They are completely distinct.

  The former is about derogating from the UK's human rights obligations set out in international law. Obviously, because the UK has implemented the Convention via the Human Rights Act this has an impact in domestic law also. But it is very different from declaring an emergency under the Bill. A declaration of emergency would be made where an emergency had occured, existing powers to deal with that emergecny were inadequate and it was necessary to exercise emergency powers.

  Just as derogating from the Convention does not oblige the UK to use Emergency Powers, the exercise of emergency powers does not in itself require the UK to derogate from the Convention. In the majority of cases, it will be perfectly possible to exercise emergency powers and deal with an emergecny without derogating formally from the Convention.

Additional notes

  1.  The United Kingdom has derogated from Article 5 of the European Convention on Human Rights (right to liberty) to enable it to detain non-UK nationals who have no right to remain in the United Kingdom but who cannot be returned to their country of nationality. In most cases, return will not be possible because there is a risk that, if returned, they would be exposed to torture or inhuman or degrading treatment in breach of Article 3 of the Convention. Detention is only possible if the Secretary of State believes that the person's presence in the United Kingdom is a risk to national security, and suspects that the person is a terrorist.

  2.  There is an appeal mechanism available to the individuals.

  3.  The power to detain is contained in the Anti-Terrorism, Crime and Security Act 2001.

  4.  The UK's derogation has been the subject of legal challenge. The Court of Appeal rejected this challenge. The Court concluded that "Although the convention required an actual or imminent emergency before a contracting state might lawfully derogate from the protections afforded by art 5, there was ample material on which the Secretary of State could conclude that an emergency of the requisite quality existed."

  5.  Eleven people were detained under this power when it was first enacted. A number of these have left the UK voluntarily.

Why does the Bill not include any definition of the "trigger" points at which a local emergency can be deemed to have escalated to the point where proclamation of a regional or national emergency might be considered?

  It has been the Government's policy throughout that some form of trigger should be included in the definition of emergency, though our intention was to build this into regulations and guidance. It is apparent from the consultation responses, however, that it would be helpful to set out the threshold more clearly on the face of the Bill.

  Nevertheless, we do not expect the trigger to assume an escalation through local emergency to regional and then national. For example, a major terrorist attack could immediately be a national emergency. And in almost every case, local, regional and national efforts could run simultaneously.

The new duties of local authorities and others are to be specified in regulations as yet unpublished. How can you expect interested parties to comment on this enabling bill without sight of the draft regulations?

  As was set out in the letter from Douglas Alexander to Dr Lewis Moonie of 15 October, we are aware that there is considerable interest in the content of the regulations and guidance that will accompany Part 1 of the Bill. We want us to be as open about the development of the regulations, as we have sought to be about the development of the Bill itself and we intend to have draft regulations ready for the Bill's introduction. We also expect to run a public consultation on the regulations and guidance following Royal Assent but before commencement.

  We did not publish draft regulations alongside the draft Bill because we needed to address important questions of structure and content before developing the detail of regulations. For example we wanted to establish whether the balance of regulation making powers and our approach to the definition of emergency were right. We also needed to be sure that our construction of civil protection around the functions of an organisation was sensible, and if the range of broad activities that we said should make up the civil protection duty was correct. It was also important to establish whether there was support for local resilience forums and the arrangements for civil protection in Wales and London and which local responders would need to be included in Categories 1 and 2.

  Work on the regulations is progressing well but we do not want to rush in with premature drafts at this stage. Our general approach is to capture in regulations what is regarded as good practice now, rather than extending local civil protection into new areas, and to use the regulations and guidance to support local responders where they feel they need it.

Why has the Government not sought to update legislation on related areas eg Emergency Powers Act 1964 section 2? What does the Government intend to be the relationship between this Bill and residual prerogative powers?

  Section 2 of the 1964 Emergency Powers Act relates to deployment of the armed forces. We have made it clear that the focus of this Bill is the civil response to emergencies.

  There is no need to change the legal framework that applies to the support that the armed forces provide during emergencies. The current framework is very effective.

  Legally and constitutionally, use of the Armed Forces is a matter for the Royal Prerogative. This aspect of the Prerogative is vested in the Defence Council and in particular in the Chairman of the Defence Council (the Secretary of State for Defence). The Secretary of State for Defence can, in turn, delegate this authority to other Defence Ministers. This is a long established framework that is understood by all and works well.

Will the regulations contain specific guidance on the response requirements, in terms of trained personnel, equipment and capability at local, regional and national levels?

  Regulations under Part 1 will set out clear expectations of local responders including generic capabilities, having arrangements in place to warn and inform the public, the need to train and exercise, the importance of having properly trained staff. But there will still be local discretion over how this is delivered.

  The regulations are being drawn up in close consultation with practitioner organisations. We are seeking to reach agreement with them about where they feel regulation is necessary, and where it is right to allow local flexibility.

  The regulations are likely to require:

    —  Generic capabilities to respond to a wide range of emergencies;

    —  Protocols to ensure co-ordinated arrangements across responder bodies for warning and informing the public;

    —  Organisations to maintain trained staff to deal with emergencies, much as they do now;

    —  Organisations to test their capability by way of exercises.

  Guidance under Part 1, which (unlike the regulations) is not binding on responders, will give an indication of best practice.

  But local responders will decide, based on their own risk assessment and local needs, and having regard to any such guidance:

    —  Equipment they require;

    —  What specific plans to maintain;

    —  What training to deliver.

Do you think there should be a restriction on the power to make regulations on detention without trial?"

  Emergencies might necessitate the use of powers to restrict the movement of people, often for their own protection or the protection of others—for example, infectious diseases and other public health matters, high threat of terrorist attack on particular sorts of gathering. The power to make regualtions providing for restrictions on movement will be constrained by the Human Rights Act, in particular, article 5 of the European Convention on Human Rights (right to liberty and security).

  In additon, the "necessity" requirement in the triple lock would ensure that the Government would use existing powers wherever possible. For example, the Anti-Terrorism, Crime and Security Act 2001 provides for detention of non-UK nationals who have no right to remain in the United Kingdom but who cannot be returned to their country of nationality if the Secretary of State believes that the person's presence in the United Kingdom is a risk to national security, and suspects that the person is a terrorist. This is an example of the Government doing things through primary legislation rather than simply relying on emergency powers.

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