House of Lords - Constitution Committee

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

Memorandum by Professor Clive Walker, School of Law, University of Leeds

INTRODUCTION

1. This paper responds to the call for evidence from the House of Lords Constitution Committee in connection with its inquiry on "Emergency legislation".

2. The Committee has three circumstances in mind.

— In relation to primary legislation, where bills receive an expedited passage through Parliament.

— Circumstances where the Government introduce substantial new provisions to a bill at a late stage in a bill's passage through Parliament and seek to justify the timing of such amendments on grounds of urgency.

— In relation to delegated legislation, the Committee seeks views on the ministerial order-making powers contained in Part 2 of the Civil Contingencies Act 2004 designed to allow urgent law-making to deal with emergency situations.

3. Discussion in my paper will centre on anti-terrorism laws and also the Civil Contingencies Act 2004. For further details and arguments on these issues, see principally:

The Anti-Terrorism Legislation

The Civil Contingencies Act 2004: Risk, Resilience and the Law in the United Kingdom

EXPEDITED PASSAGE OF PRIMARY LEGISLATION

3. The anti-terrorism legislation is replete with examples of bills which received an expedited passage through Parliament.

4. The Prevention of Terrorism (Temporary Provisions) Act 1974 was passed in the space of three days after the Birmingham pub bombings by the Provisional IRA. The conception of the Bill was announced on 25 November 1974, when the Home Secretary, Roy Jenkins, warned that, "The powers … are Draconian. In combination they are unprecedented in peacetime. I believe these are fully justified to meet the clear and present danger."[93] In response, Parliament was fanatically enthusiastic and had passed the Bill by 29 November, virtually without amendment or dissent.[94]

5. A more recent example was the Criminal Justice (Terrorism and Conspiracy) Act 1998. The legislation responded to the challenge to the "Good Friday" Belfast Agreement, as perpetrated by the Real IRA, the Republican dissident group responsible for the Omagh bombing on 15 August 1998. The legislative process entailed not only parliamentary passage within a remarkably short space of time (two days) but also the extraordinary recall of both Houses of Parliament during the summer recess.[95]

6. The following lessons may be drawn from such episodes. The first is that they produce lasting impact. The circumstances may be depicted as an "emergency", and the legislation may be entitled "emergency provisions" or "temporary provisions" and may even contain a sunset or renewal clause. But the lesson of experience is that such legislation may endure. The Prevention of Terrorism Acts continued until 2001, when the Terrorism Act 2000 came into force. Of course, that current legislation reproduces much of the earlier legislation. The Omagh legislation likewise was incorporated within the Terrorism Act 2000, but its anti-terrorism part has now expired with the passage of the Justice and Security (Northern Ireland) Act 2007.

7. The second lesson is that the appearance of legislation being drawn up in emergency circumstances is highly misleading. The legislation is revealed and passed in emergency circumstances, but it has almost certainly been drafted in non-emergency circumstances. To take the example of the Prevention of Terrorism Act of 1974, the picture thus portrayed, of a Bill drawn up and passed with astonishing alacrity in response to a single horrific incident, is misleading in two respects.

8. First, the 1974 Act should not be viewed solely as a response to the Birmingham bombings, since numerous terrorist attacks had previously occurred. Repeated bombings had been carried out in England by the IRA since February 1972. In the first 10 months of l974, there were 99 further incidents, producing 17 deaths and 145 other casualties. Indeed, in November 1974 alone, there had already been 11 attacks with four dead and 35 injured. With this background in mind, the Home Office has since admitted that it drew up contingency plans during 1973, including a draft Bill to proscribe the IRA, exclude suspects and restrict movement from Ireland.[96] Indeed, the Government would rightly have been condemned if it had ignored the continuing mayhem and had not considered counter-measures. What was objectionable was not this stage of preparedness but the secrecy in which it was undertaken and the cynicism with which it was revealed only when the vigilance of Parliament was at its lowest ebb.

9. The second respect in which the Prevention of Terrorism Act was a measured, rather than a panic, response, concerns the existence of close precedents for such legislation. The designs produced by the Home Office were almost certainly based on three sources. The model for proscription and the six-monthly renewal period was the special anti-terrorist legislation then in force in Northern Ireland, the Northern Ireland (Emergency Provisions) Act 1973. The second precursor was the Prevention of Violence (Temporary Provisions) Act l939, which had reacted to an earlier I.R.A. campaign in Britain and contained the ideas of exclusion and special police powers. Finally, controls in the l974 Act on travellers from Ireland were simply adaptations from the Immigration Act l971.

10. It may be concluded that the appearance given in l974, of a Bill being conjured out of thin air, does not conform to reality, as preparations were well in hand for such legislation. Unfortunately, the Home Office did not perform this task very efficiently, and, given the total absence of forewarning or time for debate, neither Parliament nor interested bodies were able to remedy its deficiencies. As a result, various faults may be attributed to the process of parturition of the Act, many which persist today. First, measures were included which not only failed to prevent terrorism but probably hindered that objective, such as exclusion orders. Conversely, devices which might have been more pertinent, such as electronic surveillance, were not even mentioned. Another defect was that the Act had to be limited to Irish terrorism, since there was no time to devise a more comprehensive statute to take account of other sources. Finally, there was no concerted effort to include any "limiting principles" (described below). Indeed, the Draconian nature of the Act was flaunted as one of its chief virtues.

11. The same points about secret preparations on the basis of evident precedents can be made regarding other episodes of "emergency" legislation including the 1998 Act. It is rare for there to be no indication of a looming problem, and it is even rarer for the problem never in previous times to have been considered or even to have been the subject of legislation, whether in the United Kingdom, or in comparable jurisdictions. The 1998 Act provides an illustration of the latter, whereby a large part of the content was all too predictably borrowed from the Irish Republic's Offences against the State Acts 1939-85.

12. Two recommendations are suggested in response to the problems indicated above. The first recommendation is the need to set out standing "limiting principles" (referred to above in para.10). These limiting principles do not need to be enacted, though some are already explicit in the Human Rights Act 1998. The point is for Parliament to assert its authority and to make clear what standards the legislature expects of the executive. These limiting principles should act as a parliamentary check-list against which future legislation can be judged in a more systematic and rational way than at present. The check-list of "limiting principles" is as follows.

13. "Policy relevance and impact": Legislation should meet demands of efficacy and efficiency, according to set strategies. If no strategies can be explained, that would of itself be a reason for rejection. If strategies are forthcoming, the legislation must show rational connection and potential advancement. In the anti-terrorism field, the relevant strategy is CONTEST, but it is astonishing how little this carefully crafted document is referred to in government papers or Parliamentary scrutiny.

14. "Rights audit": The rights of individuals must be respected according to traditions of the domestic jurisdictions and the demands of international law. For these purposes, the Human Rights Act 1998 can be taken to provide a ready reckoner of standards, though it should be realised that the European Convention on Human Rights is the lowest common denominator of rights in Europe, and United Kingdom citizens should expect higher standards of treatment by their state than might be possible in less mature democracies. It is also the case that the European Convention does not reflect some deeply entrenched common law traditions, such as trial by jury. Another point is that there must be regard to other international instruments such as the UN International Covenant on Civil and Political Rights which can vary in a few respects. Thus, compliance with the Human Rights Act 1998 is necessary but not sufficient in auditing rights. Two further caveats should be entered concerning the Human Rights Act 1998.

15. The first caveat is that the mechanisms for checking the use of truly emergency laws, pursuant to Article 15, is too weak. By section 14, a designated derogation can be made by an affirmative order under section 20 which can then subsist under section 16 for five years. This is extraordinarily lax in comparison to the standards expected by the European Court of Human Rights. The procedures should be amended so as to ensure that renewal should take place every six months, and that before renewal there should be an independent expert review and report on the necessity for further derogation and its basis and extent. No doubt, such a more regular review might have picked up the difficulties with discrimination endemic in the derogation notice of November 2001 which became the subject of adverse judgment in the House of Lords Appellate Committee in 2004[97] and, along similar lines, in the European Court of Human Rights in February 2009.[98] One might have more sympathy with the government's apparent discomfort over both judgments if more active steps had been taken to ensure legality.

16. The second caveat is that the discussions about rights tend nowadays to talk vaguely about "balance". Far more profit would be gained from basing discussions around "proportionality" and to understand that term in precise terms as embodying the following standards

— that the legislative objective is sufficiently important to justify limiting a fundamental right;

— that the measures designed to meet the legislative objective are rationally connected to it;

— that the means used to impair the right or freedom are no more than is necessary to accomplish the objective;

— and that a proper balance is considered between the gains for the policy purpose and the incursion into individual rights.

It should further be understood (but is frequently ignored) that these standards vary according to rights affected. For absolute rights (such as article 3), there can be no balance or compromise. For fundamental rights to liberty and due process (articles 5 and 6), any limits must operate in very limited circumstances for the sake of the rights of others and not for wider societal goals. For provisional rights (articles 8 to 11), these may be proportionately balanced not only against rights but against wider societal interests. For derogation under article 15, any measure should be "strictly required".

17. The next limiting principle is "accountability" which includes attributes such as information provision, open and independent debate and an ability to participate in decision making. These should be applied to mechanisms in the proposed emergency legislation for Parliamentary scrutiny and future application of relevant legislation, as well as its periodic review. For example, is any independent scrutiny mechanism to be established? How will the views of those particular constituencies (such as particular ethnic minorities) likely to be most affected be gathered? Are the courts able to receive a full range of complaints?

18. The final limiting principle is "constitutional governance", meaning the subjection of governmental action to norms, whether legal or extra legal (such as codes). Any such codes should be readily accessible and Parliament should check that Ministerial promises are kept. A recent example where they were not kept concerns the failure to produce a specific code under section 34 of the Justice and Security (Northern Ireland) Act 2007.[99] That Act embodies neither adequate independent nor Parliamentary oversight, so the Minister can bury such promises. "Constitutional governance" also requires that the emergency laws reflect the overall purpose of the restoration of fundamental features of constitutional life.

19. Moving from "limiting principles", the second, and obvious step which might be taken to scrutinise more effectively emergency legislation would be to demand from the executive the drafts of legislation well before they are launched in circumstances too fraught to allow proper scrutiny. These considerations of constitutional governance point towards the need for special powers considered fully in advance of an emergency. A good example relates to the Civil Contingencies Act 2004, Part II. Part II allows for regulations to be issued in emergencies. Despite freedom of information requests, the government has refused to release any draft of the range of planned regulatory codes, each dealing with a different form of emergency.

20. The advantage of prior discussion is that the measures can be scrutinised by Parliament far more effectively against the limiting principles already adduced. Interested and expert third parties can also add their points. Ministers will say that the disadvantage is that these draft legislative codes are "sensitive" and it will give warning to our enemies to tell them what our reaction will be. There may be at least three lines of response. The first is to say that any loss by way of forewarning will be more than compensated by better designed and more effective laws. The second is that there is little danger to security. Laws are general in their nature, and our enemies will remain unsure as to how precisely the laws will be applied to them. The third response, reflecting the point in para.9 about precedents, is that the broad lines are entirely predictable in any event.

LATE URGENT AMENDMENTS TO PRIMARY LEGISLATION

22. The late amendment to primary legislation dealing with emergency is again a repeated occurrence. The Committee's example of the addition of Part V of the Counter-Terrorism Act 2008, allowing the enforcement of the Financial Action Task Force's directives, is indeed an excellent example. The tacking-on of extraneous, non-emergency measures, by no means all as urgent additions, was also a feature of the Anti-terrorism, Crime and Security Act 2001. A recent illustration of the difficulties caused concerns the freezing of Icelandic banking funds under the Anti-terrorism, Crime and Security Act 2001, section 4.[100] Whilst the order was legal, nonetheless, the order constitutes a dangerous use of the legislation that was all but inevitable due to the failure to address concerns raised at the time of enactment and in a subsequent review regarding its scope.[101]

23. Reflecting further upon the Committee's example of Part V of the Counter-Terrorism Act 2008, exactly why Schedule 7 was rushed through in this way, unless simply to avoid close scrutiny, remains obscure. The government called in aid an FATF statement on 16 October 2008 which warned of the involvement of Iran in terrorism financing and of Uzbekistan in money laundering.[102] However, neither danger was wholly novel, other FATF missives have been ignored,[103] and other regulatory powers already existed to ensure restraints.[104] Nor have other countries acted with such urgency.

24. The remedies for such abuse of the legislative system include explicit reference to the limiting principles already adduced. Another remedy might include clearer standing orders as to the "admissibility" of amendments. The current parliamentary rules on the elimination of amendments deemed to be "out of order" are obscure and contained in diverse rulings from the chair.[105] To aid enforcement, a clearer statement about inadmissibility would be helpful in cases where the legislative processes are foreshortened. A new rule on admissibility could be combined with a grant of extra emergency parliamentary time in the case of a rejection of a government amendment. Thus, where a Minister's amendment is rejected, there would be the opportunity to table immediately primary legislation. The tabling of such legislation would still be advantageous since it would ensure that there is distinct debate and that debate is held at all Parliamentary stages.

MINISTERIAL ORDER-MAKING POWERS IN THE CIVIL CONTINGENCIES ACT 2004, PART II

25. A review of these powers is offered at length in chapter 5 and 6 of Walker, C. and Broderick, J., The Civil Contingencies Act 2004: Risk, Resilience and the Law in the United Kingdom (Oxford University Press, Oxford, 2006). For detailed arguments and references, please refer to that work. The regulation-making powers are of awesome scope, but the Government claims that sensible limits are imposed by reference to the concept of a "Triple Lock"—that restraints will be imposed on the triggering definitions by reference to seriousness, necessity, and geographical proportionality. The effectiveness of the application of these concepts, and whether they are as "transparent and robust"[106] as claimed, may be doubted. Amongst the problems in Part II, as currently drafted are as follows.

26. As regards issuance, the following points arise.

— The Triple Lock demand of "seriousness" is not adequately reflected in section 19, and the various legs of the Triple Lock are not drawn together so that they are readily visible and emphasised. Instead, they are found principally in sections 19 (seriousness) and sections 21 and 23 (necessity and geographic proportionality); the Government claimed to consolidate would distort the drafting.

107

108

— The actual power to make emergencies regulations is set out in section 20(1). This formula is framed subjectively. While review by the courts and Parliament is not thereby debarred, it is likely that a less rigorous standard of proof is demanded.

109

110

— More explicit preconditions to section 20(1) about which the Her Majesty in Council must be satisfied are set out in section 21. The first condition (section 21(2)) is that an "emergency" has occurred, is occurring or is about to occur. The emergency is as defined by section 19, which includes the concept of seriousness as part of the Triple Lock. There is no temporal cut off point for either dealing with the aftermath of emergencies which have occurred or anticipating emergencies which are in the future.

— In addition to the three conditions of the Triple Lock, it would have been very helpful to impose statutory duties to disclose the evidence and intelligence which convinced the Minister to intervene. There is no such duty in the Act beyond the assertive statement in section 20(5).

— An unresolved issue is whether the conditions in section 21 apply as a trigger to the totality of regulation-making powers in section 22 (set out below) or whether the conditions must be satisfied for every exercise of each regulation-making power.

27. As regards the scope and limits of emergency regulations, the following concerns arise.

— There is no express power of detention without trial, as was equally the position under the Emergency Powers Act 1920. Especially in the light of debates under the Counter-Terrorism Bill 2007-08, the position should be clarified, as it was under the rejected clause in that Bill. Such a serious incursion into liberty, and even powers of summary arrest, should have been expressly expressed and regulated on the face of the Act if it is to remain a live possibility.

— The full scheme of regional coordination is not revealed in Part II, and there is, as a result, a lack of clarity as well as a total absence of accountability to the localities affected. Accountability to Parliament is also weakened and should have been enhanced by requiring under section 24(4) periodic reports on the work of the regional tier, designate or real.

CONCLUSION

28. Little confidence can be expressed regarding future Parliamentary performance in either expressing, and still less enforcing, limiting principles or the other suggestions made for reform in this paper. Whilst some select committees (especially the Joint Committee on Human Rights) have performed admirably, the Parliamentary debates about emergency laws are often marked by disinterest, ignorance, and confusion. Debates around 42 days detention are very much the exception rather than the rule. It is to be hoped that the Constitution Committee and the reaction to its report can prove to be mistaken this gloomy prediction.

February 2009

93 Hansard (HC) Vol.882 col.35 (25 November 1974), Roy Jenkins. Back

94 See further Walker, C.P., The Prevention of Terrorism in British Law (2nd ed., Manchester University Press, Manchester, 1992) chap.4. Back

95 See further Walker, C.P., "The bombs in Omagh and their aftermath: the Criminal Justice (Terrorism and Conspiracy Act 1998)" (1999) 62 Modern Law Review 879; Campbell, C., "Two steps backwards" [1999] Criminal Law Review 941; Kent, K.D., "Basic rights and anti-terrorism legislation" (2000) 33 Vanderbilt Journal of Transnational Law 221. Back

96 Hansard (HC) Vol. 1 col. 360 (18 March 1981), Alex Lyons; Hansard (HL) Vol. 504 col. 22 (13 February 1989), Lord Harris. Back

97 A v Secretary of State for the Home Department [2004] UKHL 56. See Walker, C., "Prisoners of 'war all the time'" [2005] European Human Rights Law Review 50. Back

98 A and others v United Kingdom, App. no.3455/05, 19 February 2009. Back

99 Hansard (HL) vol.689 col.1058 (20 February 2007) Lord Rooker. Back

100 See Landsbanki Freezing Order 2008 SI 2008/2668, as amended by SI 2008/2766. It was approved at HC Vol.481, col.868, (28 October, 2008) after debate in the HC Delegated Legislation Committee HC Vol.481 (27 October 2008) and at HL Vol.704, col.1546, (28 October, 2008). Back

101 See further Lennon, G.L., and Walker, C., "Hot money in a cold climate" [2009] Public Law 37. Back

102 Hansard HL vol.705, col.577 (11 November 2008) Lord Myners. Back

103 Hansard HL vol.705, col.587 (11 November 2008) Baroness Miller. Back