Joint Committee on Draft Civil Contingencies Bill First Report

Appendix 1: Memorandum from the House of Lords Select Committee on the Constitution

Letter from the Lord Norton of Louth, Chairman of the Select Committee on the Constitution

Thank you for your letter of 16th July inviting the Constitution Committee to comment on the draft Civil Contingencies Bill.

The draft bill clearly raises matters of constitutional significance which fall within our remit, since the effect of a declaration of emergency is to confer on the Government an exceptional power to deal with the emergency by making regulations covering matters on which power to legislate would in non-emergency situations be withheld from the Government. As requested by your letter we focus particularly on Part 2 of the Bill which proposes to repeal the Emergency Powers Act 1920 (as amended in 1964) and replace it with new primary legislation. We do not attempt to comment on every detail of the draft bill (which may be more appropriate for us to do when a substantive bill is introduced to Parliament) but draw attention to the following broad issues:

1. the definition of 'emergency';

2. the geographical extent of an emergency;

3. the need for a royal proclamation and Orders in Council;

4. the status of emergency regulations for the purposes of the Human Rights Act;

5. Parliamentary scrutiny and approval of emergency measures; and

6. the purposes for which emergency regulations may be made.

The definition of 'emergency'

Our principal concern with the draft bill is with the definition of 'emergency'. We note that the definition in clause 17 of the draft bill has a much more elaborate structure and a more extensive application than the definition in the Emergency Powers Act 1920, which is primarily concerned with maintaining the essentials of life for the community. In the draft bill, an 'emergency' in respect of all or part of the United Kingdom is "an event or situation which presents a serious threat" to:

a)  the welfare of all or part of the population;

b)  the environment;

c)  political, administrative or economic stability; or

d)  security.

Each of these threats is then spelled out in more detail. Thus a threat to the welfare of the population includes matters that may cause loss of life, homelessness, damage to property, disruption of supplies of food and other essential commodities, disruption of systems of communication, disruption of transport, and disruption of "medical, educational and other essential services". Various forms of threat to the environment are specified (including contamination of land, water or air; and flooding). And "threats to political, administrative or economic stability" include an event or situation that "causes or may cause" disruption of (a) the activities of Her Majesty's Government; (b) the performance of public functions (which are defined as including all functions of Ministers, the devolved authorities and local councils); or (c) the activities of banks or other financial institutions.

We consider that there are likely to be situations or events involving legitimate political activity and protest or legitimate industrial action which will be caught by this very broad definition. We also note that this definition of emergency has already been criticised in reports by the House of Commons Defence Committee (7th Report 2002-03, paras 62-64) and by the Joint Committee on Human Rights (15th Report 2002-03, para. 3.11).

We therefore consider that the definition of 'emergency' in the draft bill is unduly broad.

The geographical extent of an emergency

We note that it could be argued that a declaration of emergency in respect of part of the United Kingdom or a region of England would enable special powers to be invoked even though an event or situation is not so serious as one threatening the entire country. However, we also recognise the force of counter-arguments that support the additional flexibility that the draft Bill presents here compared with the 1920 Act. Restricting an emergency to (for instance) an English region struck by a natural disaster when other regions are not directly affected, seems to us to promote proportionality and avoid an over-broad response to a particular crisis.

The need for a royal proclamation and Orders in Council

The 1920 Act requires a state of emergency to be declared by means of a royal proclamation. The draft Bill (clause 19) envisages that there might be circumstances in which the effects of delay while a proclamation was sought from the Queen personally would be serious and significant avoidable harm would be caused. In this event, a Secretary of State would be empowered to make such a declaration. The constitutional responsibility for the decision in either case would be borne by the Government as a whole and there appear to be no grounds for supposing that the Queen would have a discretion to exercise before acting on the advice of her Ministers.

A similar question arises out of the provision for promulgating emergency regulations once an emergency has been declared. Clause 20 provides that such regulations shall be made by the Queen in Council, except where 'serious delay' in responding to the emergency would arise while a meeting of the Queen in Council is arranged. In this event, the regulations may under clause 20(1)(b) be made by the Secretary of State. Again, the constitutional responsibility for the regulations so made would be borne by the Government as a whole, and in law there would appear to be no difference between regulations made by Order in Council (a purely formal procedure) and regulations made by the Secretary of State. In each case, the regulations would be, or would be made by, statutory instruments and would be subject to the Statutory Instruments Act 1946.

The status of emergency regulations for the purposes of the Human Rights Act

The draft Bill provides in clause 25 that an instrument containing emergency regulations shall be treated as if it were an Act of Parliament for the purposes of the Human Rights Act 1998. The effect of this is that if it were established by a court that an emergency regulation could not be read to comply with Convention rights under the Human Rights Act, s 3, the only remedy under that Act that the court could give would (assuming it was a superior court) be to declare that the regulation was incompatible with the Convention (under the HRA, s 4). Thus the regulation could not be quashed or set aside for non-compliance with the Convention, as would otherwise be possible in the case of secondary legislation.

We are not satisfied that the Government has demonstrated a compelling need for this departure from the structure for the protection of Convention rights created by the 1998 Act, and we consider that this approach would run the risk of creating an undesirable precedent.

Parliamentary scrutiny and approval of emergency measures

In the 1920 Act, provision is made for the urgent recall of Parliament in the event of a declaration of a state of emergency while Parliament is not sitting. The emergency regulations made may remain in force only if approved by each House within seven days. In broad terms, clause 24 of the draft Bill provides for a comparable degree of parliamentary scrutiny. There are, however, two changes from the 1920 Act in the extent of Parliamentary scrutiny.

First, under the 1920 Act, emergency regulations "shall have effect as if enacted in this Act, but may be added to, altered, or revoked by resolution of both Houses of Parliament" (s 2(4)). The italicised words appear to give the two Houses a power to amend the regulations as laid. The draft Bill, however, provides that the regulations shall lapse seven days after the date of laying unless during this period each House approves the regulations (clause 24(7)). This formulation provides for no power to amend the regulations as made.

Second, the 1920 Act requires a new declaration and new regulations to be re-made where a declaration of emergency continued for more than the statutory month, and this would require a further resolution of each House to approve the new regulations. Clause 23(4) of the draft Bill appears to remove this latter requirement.

We draw attention to these two aspects of the draft bill as deviating from the existing provisions for Parliamentary scrutiny.

The purposes for which emergency regulations may be made.

Clause 21 of the draft bill sets out in considerable detail the provisions which may be made by emergency regulations. They may include "any provision which the person making them thinks necessary" for purposes that range from "(a) protecting human life, health or safety" to "(k) protecting or restoring activities of Her Majesty's Government". The regulations may also "disapply or modify any enactment or any provision made under or by any enactment" (clause 21(3)(j)) and "may make provision of any kind that could be made by Act of Parliament". The drafting then continues with the words: "or by the exercise of the Royal Prerogative" (clause 21(3)). We find it difficult to see what could be done under the Royal Prerogative that could not be done by Act of Parliament.

This far-ranging statement of powers is, indeed, preceded by the provision that regulations may make provision "only if and in so far as the person making the regulations thinks it necessary for the purpose of preventing, controlling or mitigating a serious aspect or serious effect of the emergency specified" (clause 21(1)). Where that is the case, the regulations "may make any provision which the person making the regulations thinks necessary" for the purpose just set out. Nonetheless, we consider that the extent of the purposes for which regulations may be made reflects the breadth of the definition of 'emergency' contained in the draft bill; and that this will need to be re-examined if a narrower definition of 'emergency' is adopted.

The 1920 Act provides some express limitations on what may be done by regulations. Among these limitations is an exclusion of any form of compulsory military service or industrial conscription, and an exclusion of making it an offence for any person to take part in a strike or peacefully to persuade others to take part in a strike. Clause 21(4)(a) continues the exclusion for military or industrial conscription and clause 21(4)(b) provides that regulations may not "prohibit, or enable the prohibition of, a strike or other industrial action". We draw attention to this new formulation which seems narrower than the protection for industrial action given by the 1920 Act.

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