Fast-track Legislation: Constitutional Implications and Safeguards - Constitution Committee Contents

Memorandum by Brice Dickson, Professor of International and Comparative Law


  1.  This submission focuses on legislation which is enacted in haste after a terrorist incident or related matter. Examples of this phenomenon occurring are:

    — the Prevention of Terrorism (Temporary Provisions) Act 1974, a response to the Guildford and Birmingham pub bombs in October and November 1974;

    — the Criminal Justice (Terrorism and Conspiracy) Act 1998, a response to the bomb in Omagh, Northern Ireland, in August 1998;

    — the Anti-terrorism, Crime and Security Act 2001, a response to the events in the USA on 11 September 2001; and

    — the Prevention of Terrorism Act 2005, a response to the Law Lords' denunciation of indefinite detention provisions of the Anti-terrorism, Crime and Security Act 2001 in December 2004.

  2.  There are five main dangers which arise from such emergency legislation:

    a) members of the two Houses of Parliament do not have enough time to consider and to debate the legislation, so provisions may enter into force which turn out to be inappropriate;

    b) people outside of Parliament who may have an interest in the subject-matter of the legislation do not have enough time to consider the content of the legislation after it has been published as a Bill, so valuable points that they may have been able to make may go unheard;

    c) unless the provisions are strictly time limited they may become a semi-permanent feature of the law and be resorted to in situations for which they were never designed;

    d) members of the public may feel that the government is engaging in a knee-jerk reaction so as to be seen to be "doing something" about the incident that has just occurred, even though existing laws may be adequate to deal with that incident;

    e) the passing of the legislation may lead the government, and others, to believe that all that needs to be done to deal with the problem has been done, when in fact various measures over and above law-making may be called for in order to make the recurrence of the terrorism much less likely.

  3.  There is some evidence that the legislation passed since the 1970s to deal with Irish republican terrorism led to all of the above dangers being realised. When the PTA was first enacted in 1974, no attention seems to have been given to the requirements of the European Convention on Human Rights: in 1988 the European Court of Human Rights held that the Act's authorisation of police detention of terrorist suspects for seven days without the need to bring them before a judge or magistrate was in breach of Article 5(3) of the Convention. The measures enacted in 1974, although timetabled to lapse after six months unless expressly renewed, were in fact constantly renewed in one form or another year after year, even though the Act still had "Temporary Provisions" in its short title. Many of the provisions remain in force to this day, having been transposed into the (permanent) Terrorism Act 2000.

  4.  Although the PTAs were subjected to sunset clauses, these turned out to be inadequate safeguards against the perpetuation of bad laws. The time made available for debating proposed renewal orders was very short, for many years Parliamentarians were presented with very little evidence indicating how the Act had been implemented up to then, and when, eventually, the government appointed an independent reviewer of the emergency legislation whose reports would help to fill the information gap these reports did not address a key question—could the aims of the emergency legislation be just as easily fulfilled through use of non-emergency laws? The reviewer's reports, moreover, were often available to Parliamentarians only a few days before the relevant renewal debates, and were often inaccessible to non-Parliamentarians. In Northern Ireland several provisions of the emergency legislation were kept in place long after their sell-by date.[1]

  5.  The proliferation of "emergency" anti-terrorist legislation has made it difficult at times to know the exact state of the law. Versions of consolidated amended legislation have not been made available, even on-line, making it hard for both law enforcers and defence lawyers, let alone commentators and advisers, to appreciate what is or is not within the law at any particular time. While this is not a problem confined to emergency legislation its effects are much more serious in the context of anti-terrorist legislation because people's civil liberties are at stake.

  6.  Today all Bills have to be accompanied by a ministerial statement explaining whether, in the Minister's view, the Bill's provisions are or are not compatible with the Convention rights protected by the Human Rights Act 1998. But, although these statements (issued under section 19 of the 1998 Act) are fuller than they used to be, they still do not provide comprehensive reasoning justifying the government's position. A good example of this was the government's failure to justify the proposed extension of the pre-charge maximum detention period to 90 days in 2006.

  7.  At the moment there is no legal mechanism to stop emergency legislation being used for purposes for which it was never intended. Thus, the Labour Party was able to use the legislation to prevent Mr Walter Wolfgang (82) from re-entering its annual conference in September 2005 after he was evicted for heckling a speech by the then Foreign Secretary, Jack Straw. Anti-terrorism legislation was also used by the UK government in October 2008 to freeze the estimated £4 billion of British financial assets in the failed Icelandic bank, Landsbanki.

  8.  On the whole, legislation which is pushed through Parliament in an emergency tends to be bad legislation because it is ill-considered. If time is short for full Parliamentary debates on such legislation a compensating mechanism should be devised to allow a joint committee of both Houses to consider the draft legislation immediately and in detail. Some emergency legislation has been drafted years before and kept in reserve for when it might be needed.[2] In those cases there is even less reason for springing the provisions on Parliamentarians and not giving them proper time to debate the measure.

  This evidence is submitted on an individual basis

23 February 2009

1   See Brice Dickson, "Northern Ireland's Emergency Laws-The Wrong Medicine?" [1992] Public Law 592. Back

2   See David Bonner, "Responding to Crisis: Legislating against Terrorism" (2006) 122 Law Quarterly Review 602. Back

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