Further letter from Douglas Alexander
MP, Minister of State, Cabinet Office
FROM 16 OCTOBER
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 emergeyou will appreciate that this
issue may have wider ramifications than simply the draft Civil
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
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
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
futurean 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 meaningnecessary.
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 timefor 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
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.
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
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
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
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
But local responders will decide, based on their
own risk assessment and local needs, and having regard to any
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 othersfor 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