Memorandum by Brice Dickson, Professor
of International and Comparative Law
EMERGENCY LEGISLATION
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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