Part 2: Emergency powers
3.5 Part 2 of the Bill (clauses 17 to 30) would apply
to the whole of the United Kingdom. It would confer extensive
powers to respond to emergencies.
The meaning of 'emergency'
3.6 For the purpose of Part 2, an emergency is defined
as—
… an event or situation which presents a serious
threat to—
(a) the welfare of all or part of the population
of the United Kingdom or of a Part or region,
(b) the environment of the United Kingdom or of a
Part or region,
(c) the political, administrative or economic stability
of the United Kingdom or of a Part or region, or
(d) the security of the United Kingdom or of a Part
or region.[11]
3.7 The Bill offers a partial definition of the nature
of these threats. Each of the four threats listed above is separately
defined. An event or situation presents a threat to welfare—
… if, in particular, it involves, causes or
may cause—
(a) loss or human life,
(b) human illness or injury,
(c) homelessness,
(d) damage to property,
(e) disruption of a supply of food, water, energy,
fuel or other essential commodity,
(f) disruption of an electronic or other system of
communication,
(g) disruption of facilities for transport, or
(h) disruption of medical, educational or other essential
services.[12]
3.8 An event or situation would present a threat
to the environment—
… if, in particular, it involves, causes or
may cause—
(a) contamination of land, water or air with—
(i) harmful biological, chemical or radio-active
matter, or
(ii) fuel oils,
(b) flooding, or
(c) disruption or destruction of plant life or animal
life.[13]
3.9 An event or situation would present a threat
to political, administrative or economic stability:
… if, in particular, it causes or may cause
disruption of—
(a) the activities of Her Majesty's Government,
(b) the performance of public functions,[14]
or
(c) the activities or banks or other financial institutions.[15]
3.10 An event or situation may be a particular threat
to security if it amounts to war or armed conflict, or terrorism
within the very broad meaning given to that term by section 1
of the Terrorism Act 2000.[16]
3.11 It follows that a vast range of events or situations
may give rise to a threat within the meaning of Part 2 of the
draft Bill. To fall within Part 2, a threat would need to be "serious".
If that test is satisfied, the powers could be deployed in response
to strikes or works to rule (particularly in medical, educational
or other essential services), political protests, computer hacking,
a campaign against banking practices, interference with the statutory
functions of any person or body, an outbreak of communicable disease,
or protests against genetically modified crops, among many other
events.
Official declaration of the emergency
3.12 Clauses 20 and 21 of the Draft Bill confer power
to make regulations to deal with the emergency. First, however,
there must be a formal declaration of the emergency. It would
be possible to do this in either of two ways.
3.13 The normal method, under clause 18, would be
for Her Majesty, by proclamation, to declare herself satisfied
that an emergency has occurred, is occurring or is about to occur,
and that it is necessary to make regulations under clause 21 for
the purpose of preventing, controlling or mitigating an aspect
or effect of the emergency. The proclamation would have to state
the nature of the emergency and the Parts or regions of the United
Kingdom in which the regulations may have effect.
3.14 If the Secretary of State is satisfied that
it would not be possible to arrange for a proclamation without
serious delay, clause 19 provides that he or she may by order
make a declaration of equivalent effect to a proclamation under
clause 18.
3.15 The Bill contains no requirement for Her Majesty
or the Secretary of State to have reasonable grounds for the conclusion.
3.16 A proclamation or declaration would lapse at
the end of 30 days beginning with the date on which it is made,
but it could be renewed by a further proclamation or declaration.[17]
3.17 The Speaker of the House of Commons and the
Lord Chancellor (or, presumably, whoever in due course takes responsibility
for acting as Speaker of the House of Lords) would have to be
notified of any proclamation or declaration as soon as reasonably
practicable, and if Parliament stands prorogued at the time it
would have to be summoned to meet.[18]
However, Parliament would have no control over the decision to
make a proclamation or declaration under clause 18 or clause 19.
The power to make regulations
3.18 Following a proclamation or declaration, clause
20 provides for regulations to be made by Order in Council or,
if the Secretary of State is satisfied that it would not be possible
to arrange for an Order in Council without serious delay, by the
Secretary of State. In either case, the regulations are to be
made by statutory instrument.[19]
It would therefore be necessary to lay them before each House
of Parliament in accordance with the requirements of the Statutory
Instruments Act 1946 and clause 24(6) of the Draft Bill. There
would be no requirement for them to be laid before the two Houses
before they come into force, but the regulations would lapse if
not approved by resolution of each House within seven days of
the date of laying.[20]
3.19 Under clause 21(1), the regulations would be
able make any provision which the person making them thinks necessary
for the purpose of preventing, controlling or mitigating a serious
aspect or serious effect of the emergency specified in the proclamation
or declaration.[21]
Subject to that limitation, the regulations would be able to do
anything that could be done by Act of Parliament or under the
Royal Prerogative,[22]
except:
a) require a person, or enable a person to be
required, to provide military or industrial service;
b) prohibit, or enable the prohibition of, a
strike or other industrial action;
c) create any criminal offence other than one
of failing to comply with the regulations, or with a direction
or order given or made under the regulations, or obstructing a
person in the performance of a function under or by virtue of
the regulations;
d) create an offence punishable with imprisonment
for more than three months, or a fine exceeding the statutory
maximum or level 5 on the standard scale, or without trial before
a magistrates' court, the Crown Court, the district court or the
sheriff;
e) make provision which the person making the
regulations believes is made by, or could be made by virtue of,
a subsisting legislative provision, unless he or she also believes
that the use of that subsisting provision would be insufficient
to achieve the purpose or would occasion a serious delay; or
f) make provision in relation to anything in,
or done in, a Part or region of the United Kingdom not specified
in the proclamation or declaration of the emergency.[23]
Human rights implications
3.20 The Government tentatively proposes that an
instrument containing regulations made under clause 21 would "be
treated as if it were an Act of Parliament" for the purposes
of the Human Rights Act 1998.[24]
In the Consultation Document published alongside the Draft Bill,
the Government recognises that this would be a departure from
normal practice in the protection of human rights against incompatible
statutory instruments. As a result, the Government "believes
that the case for its inclusion in the final Bill is by no means
certain".[25]
We offer the following comments by way of a contribution to the
consultation process.
3.21 The effect of treating an instrument containing
regulations as an Act of Parliament for the purposes of the Human
Rights Act 1998 would be to make such an instrument primary legislation
for those purposes. It is generally impossible for a court or
tribunal in the United Kingdom to hold primary legislation to
be invalid, or anything done in reliance on it to be unlawful,
by reason only of an incompatibility with any of the Convention
rights which became part of national law by virtue of the Human
Rights Act.[26]
3.22 In theory, it would be possible for a court
to hold a provision in such an instrument to be invalid if it
breaches general principles of administrative law, being outside
the scope of the delegated legislative power, or irrational, or
made without complying with procedural preconditions. In judicial
review proceedings, it would be possible for a court strike down
regulations on the first of those grounds if they purported to
create a criminal offence of a type excluded from the scope of
clause 21. Alternatively, a regulation made under clauses 20 and
21 might be struck down on the last of those grounds if, for example,
they had been made without a proclamation or declaration of an
emergency having been made under clauses 18 and 19 covering the
area of the United Kingdom to which they relate. However, the
scope of the power to make regulations is so wide as to make it
virtually impossible for any regulation to fall outside the scope
of the delegated legislative power, and there is little likelihood
of a court holding irrational a regulation made by a Minister
in response to a properly declared emergency.
3.23 The limits placed by the Draft Bill on the effectiveness
of judicial review as a control over unlawful or arbitrary law-making
or executive action are matters of general constitutional significance.
Our concern relates specifically to the impact on human rights.
We recognise that exceptional measures may be called for in an
emergency. Nevertheless, we have to ask whether there would be
adequate protection for human rights, and particularly Convention
rights under the ECHR and the Human Rights Act 1998, in the face
of regulations which would be valid and effective notwithstanding
any incompatibility with a Convention right, and immune to judicial
review on the ground of such an incompatibility.
3.24 We know of no precedent in any Act passed since
the Human Rights Act 1998 was passed for a provision deeming subordinate
legislation to be an Act of Parliament for the purposes of the
Human Rights Act. Section 21 of the 1998 Act deemed certain pieces
of subordinate legislation, including commencement orders and
any provision which amends primary legislation, to be primary
legislation. Legislation made since then has fallen to be classified
as primary or subordinate in accordance with the terms of section
21. It is clear that clauses 20 and 21 of the Bill would permit
subordinate legislation to have the effect of primary legislation
for the purposes of the Human Rights Act even the application
of section 21 of the Act would lead to its being regarded as subordinate.
3.25 We also note that the Defence Committee of the
House of Commons recently reported on the draft Bill. In that
report the committee concluded, in respect of the clause 25, that—
… this new provision should not be included
in the bill unless the Government can demonstrate a clear and
compelling need for the additional powers which it provides.[27]
We agree.
3.26 We strongly disapprove of any
attempt to extend the range of instruments which have to be treated
as primary legislation so as to make them exempt from the need
to comply with Convention rights. It provides a way of allowing
the executive to legislate, before seeking parliamentary approval,
in ways which are known or believed to be incompatible with Convention
rights, while denying victims of violations the right to obtain
an effective remedy from a court or tribunal. In our view, regardless
of the context, the effect of this legislative technique is objectionable
on human rights grounds.
3.27 Moving from that general point to more particular
considerations, we have to consider what practical effect the
provision would have on the protection available for particular
rights. Essentially the available protection is of three kinds.
3.28 First, it would remain possible for a victim
of a violation of a Convention right, who had been unable to obtain
a remedy before a court or tribunal in the United Kingdom, to
apply to the European Court of Human Rights for a remedy. This
would be likely to be a long drawn out process, as the victim
would first have to exhaust all national remedies and then wait
his or her turn for the case to be heard in Strasbourg.
3.29 Secondly, a court which is unable to read and
give effect to the regulations in a manner compatible with Convention
rights would be able to make a declaration of incompatibility
under section 4 of the Human Rights Act 1998. This would not affect
the validity or effectiveness of the regulations. As a remedy,
therefore, it is of little value to the victim of a violation.
3.30 Thirdly, clause 21(4) of the Draft Bill would
prohibit the making of certain types of regulations. Of particular
importance for Convention rights are the following.
a) No regulation would be able to require a person,
or enable a person to be required, to provide military or industrial
service.[28]
This would safeguard the right under ECHR Article 4 to be free
of forced labour.
b) No regulation would be able to prohibit, or
to enable the prohibition of, a strike or other industrial action.[29]
This would safeguard the right to strike so far as it is an incident
of the right to form and join a trade union for the protection
of one's interests, under ECHR Article 11.
c) No regulation would be able to establish a
special court or tribunal to try offences.[30]
This would safeguard the right to a fair and public hearing before
an independent and impartial tribunal in the determination of
criminal charges, under ECHR Article 6.1.
3.31 While these are worthwhile safeguards, they
do not protect people against suffering interference with other
Convention rights, without being able to obtain effective legal
remedies. For example, there would be no legal protection in national
courts or tribunals against an interference by the regulations
with the right to life (ECHR Article 2), the right to be free
of inhuman or degrading treatment (Article 3), the right to freedom
from detention without trial (Article 5), the right to respect
for private and family life and the home (Article 8), the right
to freedom of expression (Article 10), freedom of peaceful assembly
(Article 11, as to which the Draft Bill expressly contemplates
interference in clause 21(3)(f)), or the right to the peaceful
enjoyment of possessions (Article 1 of Protocol No. 1, in relation
to which clause 21(3)(b) and (c) contemplate regulations authorising
the requisition, confiscation or destruction of property, and
the destruction of animal or plant life, with or without compensation).
3.32 Nothing in the Draft Bill, the Explanatory Notes
attached to it, or the Consultation Document published alongside
it, explains how compatibility of regulations with these rights
would be reliably secured.[31]
The Consultation Document asserts that the Draft Bill is compatible
with the ECHR. It continues—
During serious emergencies, the balance between individual
rights and the need for action to mitigate the emergency can be
difficult to achieve. That is why a procedure already exists to
allow the Government to derogate from the Convention, and to make
immediate adjustments to the Human Rights Act to reflect the derogation,
in the event of a serious emergency.[32]
3.33 We accept that it might be difficult to settle
on the right balance between individual rights and the public
interest when an emergency occurs. Nevertheless, even in an emergency
we cannot approve of an approach to legislating (particularly
granting delegated legislative powers) which would deprive people
of important safeguards for their fundamental rights, and even
remove the legal necessity for the legislator to give proper consideration
to those rights when making delegated legislation. The special
status of an Act of Parliament would attach (for Human Rights
Act purposes) to any Statutory Instrument made under clause 21
regardless of the circumstances and of the Convention right or
rights affected by it. There are some Convention rights from which
it is not permitted to derogate. These include the right to life
(ECHR Article 2), freedom from torture and inhuman or degrading
treatment (Article 3), and the right not to suffer criminal penalties
for conduct which did not constitute a crime at the time of its
commission (Article 7).[33]
A legislative provision which would permit delegated legislation
to be made authorising interference with a non-derogable right
would, in our view, be difficult to justify.
3.34 It is true that section 3(2) of the Human Rights
Act 1998 itself preserves the freedom of Parliament to legislate
in a manner incompatible with Convention rights. In this way,
the legislative sovereignty of Parliament is maintained. But it
is a very different matter to confer power on a Minister of the
Crown to legislate in a manner incompatible with Convention rights.
It would come close to substituting the sovereignty of the Crown
for the sovereignty of Parliament, without even the requirement
that Parliament should first have considered and approved the
terms of the incompatible regulations to be made.
3.35 We conclude that the provisions
of Part 2 of the Draft Bill would, if enacted, give rise to a
significant risk that regulations could be made which would violate,
or authorise a violation of, Convention rights, without any judicial
remedy being available for a victim of the violation. As the Bill
makes no provision for any other effective remedy before a national
authority, it would also be likely to lead to a violation of the
right to an effective remedy before a national authority for any
violation of a Convention right, under ECHR Article 13 (which
does not form part of national law, but binds the United Kingdom
in international law and is enforceable before the European Court
of Human Rights).
10 
