Joint Committee on Draft Civil Contingencies Bill Written Evidence

Memorandum from Professor C A Gearty; LSE and Matrix Chambers

  1.  It is right that there should be laws dealing with the response of the authorities in the event of a major emergency, or series of emergencies across the country. It is probably also the case that the current legislative framework set out in the Emergency Powers Acts 1920 and 1964 (as amended) can be improved upon. New legislation in this area may, therefore, not be inappropriate.

  2.  An emergency is by definition an exceptional situation: not just any departure from the norm, but a dramatic one. Such an event might be composed of a nuclear or biological weapons' attack on a major metropolitan area, or a general strike, or some massive assault on the transport or information infrastructure. These would all clearly be emergencies and should be recognised as such at all levels of our society.

  3.  Laws like the one before this committee are inevitably engaged in a guessing game. They are planning, not reacting. The linguistic formulae used in such measures as this Bill to capture the essence of some future (and by definition unknowable) emergency are certain to be a little imprecise at best, vague and general at worst.

  4.  The Bill before the Committee includes an extraordinarily wide definition of what constitutes an emergency. Submissions from other interested persons and organisations will no doubt make this point in elaborate detail. The situations that would unlock emergency powers set out in this Bill go far beyond the sort of exceptional situation set out above. If the definition is left as presently drafted in clause 17, the authorities will have the power to declare an emergency on the basis of a factual situation, or a potential factual situation, far less serious than any of those set out in paragraph (2) above, and also far less serious than the word "emergency" in its popular usage would suggest.

  5.  This disconnection between what the word "emergency" sounds as though it covers (some extreme, catastrophic or near-catastrophic event) and what it would actually cover as a matter of law (a far wider range of situations, shading into the ordinary) is greatly to be deplored. It gives the government temptingly wide powers capable of being unlocked on altogether too low a threshold. This division between the popular and the technical/legislative meaning of a word recalls the way in which terrorism law covers a far wider range of situations than the word "terrorism" in its popular usage would suggest. It is strongly advised that UK emergency law should not go down the same road.

  6.  Such a broad approach as is to be found in this Bill is to be expected from the executive branch. It does not want to have its hands tied. It has total confidence in itself to make the right judgments in the future as to whether and to what extent an emergency situation should be recognised. It sees no reason for its actions under any such measure being unduly hindered by Parliament or the courts; indeed it sees the involvement of such bodies, especially the judges, as essentially counter-productive. This is a natural—though it is not a thoughtful or disciplined—way for members of the executive branch to think.

  7.  Under our constitutional arrangements, there are three branches of government, not one. Subject to the vagaries of litigation, the third of these—the courts—may have the chance to have its say at some future point, when the Bill is not only in force, but has been put into effect in a way which has given rise to a dispute.

  8.  The branch that matters now is the legislative branch. Its interests are not the same as those of the executive. While recognising that part of its job is to promulgate government proposals as law, it also has the vital task of ensuring that the executive branch is held to account. Parliament cannot and should not assume that the executive is always right now and will always act impeccably in the future. Faced with a proposal such as this Bill, with its empowerment of the executive branch well into the future, Parliament must seek to hold not just the government of the present, but all the governments of the future to account. Even if a Member of Parliament trusts this government, that does not mean that he or she trusts all the governments to come, into the indefinite future.

  9.  It is suggested that the right way for the Committee to proceed is rigorously to test the proposals set out in the Bill by reference to three general principles, drawn from Britain's constitutional tradition, and in particular its commitment to effective law-making, civil liberties and respect for human rights:


    The principle of necessity: do we really need this expansion of the law? Is the matter not well catered for elsewhere? Could not the ordinary law cope with what is being described? If the measure is needed, how much of it is absolutely required, and how much can be left to one side.


    The principle of proportionality: given there is a problem that needs attention, is the way the Bill goes about dealing with it productive of consequences which are wholly disproportionate in their impact on other societal values, eg our civil liberties and our respect for human rights? If so, might not the mischief aimed at be addressed in less damaging ways. (This is particularly difficult—but exactly for this reason hugely important—principle to apply to hypothetical situations, where the mischief lies in the mind rather than on the ground, available for all to see: it would hardly be proportionate to move to a permanent emergency situation on the basis of an imprecise fear of a future attack even if the fear was genuine.)


    The principle of legality: given that powers are needed and are proportionately designed, they should be subject to challenge before the judicial branch in the ordinary way. Of course for practical reasons such challenges will often be after the impugned conduct has occurred, as is usually the case in litigation, but the opportunity for such proceedings must not be denied. There is no evidence whatsoever that the judicial branch has in this country ever done other than take what the executive branch would regard as a wholly responsible attitude in the context of national security and emergency powers.

  10.  This measure is not some sort of tidying-up of antiquated law as some might believe. As drafted, it presents Parliament with a fundamental challenge to our framework of law. It requires us to ask the question, "what is an emergency?" and then to agree the concessions that we would feel compelled to make were an emergency to occur or credibly to beckon. This Bill comes close to suggesting in clause 17 that the normal day-to-day events that impact on Britain in this global age are themselves sufficient to warrant the descriptive label of an emergency. In the hands of the drafters of this Bill, the ordinary becomes the exceptional, the serious challenges of everyday life being seen not as (merely) serious challenges but as evidence of an emergency situation, requiring emergency powers. It goes without saying that the implications of degrading the language of emergency is this way are extreme.

  11.  The broad approach to the meaning of an emergency taken in the Bill should not be viewed in isolation from other developments that have occurred in our legal system and political culture in recent years.

  12.  Viewing the subject first from an historical perspective, the tendency has been for laws introduced as emergency laws gradually to cross-over into ordinary law and to produce a change in what was understood by being "ordinary". Thus, while it is perfectly true that the emergency regulations promulgated during the First World War were eventually dispensed with, much of the content of such regulations found later expression, in legislation like the Police Act 1919, the Incitement to Disaffection Act 1934, the Public Order Act 1936, and in cases like Elias v Pasmore (1934) 2 KB 164, Duncan v Jones (1936) 1 KB 218 and Thomas v Sawkins (1935) 2 KB 249. The same has occurred with our terrorism legislation, with temporary and emergency legislation first enacted in 1974 having become a permanent power of the law in a greatly expanded form in the Terrorism Act 2000. The same process may be underway with regard to the Anti-Terrorism, Crime and Security Act 2001.

  13.  Our idea of what is the norm therefore changes from generation to generation. This Bill so expands the meaning of what is an "emergency" that it risks making a further major push in the direction of guiding us to the false understanding that we must now all learn to live in a situation of permanent emergency, with the consequent erosion of our democratic and civil liberties culture that this necessarily entails having passively to be submitted to.

1 September 2003

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