Memorandum from JUSTICE
1. JUSTICE is an all-party, law reform and
human rights organisation, whose purpose is to advance justice,
human rights and the rule of law. It is the British section of
the International Commission of Jurists.
2. JUSTICE welcomes the Government's consultation
on this Bill. There are few issues more important in a democracy
committed to the rule of law than the provision of emergency powers.
On the one hand, it is essential that the state has the means
to ensure public safety in times of emergency. On the other hand,
the well-demonstrated ability of emergency powers to abridge human
rights means that their grant must be given the utmost scrutiny.
As Brandeis J noted in a famous dissent, "[e]xperience should
teach us to be most on our guard to protect liberty when the government's
purposes are beneficent".
Q1. Is the definition of emergency the right
one? If not, in what ways should it be tightened or expanded to
exclude certain classes of event or situation?
3. No. The definition of "emergency"
is too broad, capable of including a wide range of events and
circumstances that pose no discernable threat to public safety
4. It being well-accepted that times of
emergency may warrant extreme measures that may inter alia
engage fundamental human rights, it follows that the definition
of "emergency" itself must be restricted to only those
kinds of threats that may warrant such measures. In our view,
these are events and circumstances that give rise to a serious
threat to public safety and physical well-being.
5. Limiting the definition of "emergency"
to serious threats to public safety and physical well-being is
consistent with the notion of the state as guarantor of fundamental
rights. At the core of the notion of public safety is the right
to life, "without which", noted the European Court of
Human Rights, "enjoyment of any of the other rights and freedoms
in the Convention is rendered nugatory".
The lexical priority of the right to life supports the view thatin
times of emergencyextreme measures may be justified to
6. We note that this analysis is consistent
with the earlier definition of "emergency" under the
Emergency Powers Act, which
required a clear nexus with events "calculated . . . to deprive
the community . . . of the essentials of life"in other
words resources necessary to ensure the physical well-being of
the public. It is also consistent with the definition of "emergency"
in other common law jurisdications, eg Canada, New
South Africa. 
7. We recognise that it would be unwise
to specify in advance all the types of emergencies and threats
that may arise. As
such, we do not rule out that a severe economic disturbance or
environmental disaster may give rise to circumstances justifying
the grant of emergency powers. But any such event must show a
sufficient causal nexus with a serious threat to public safety
and physical well-being.
8. By contrast, the definition in the draft
Bill includes, but is not limited to, serious threats to human
the definition of "human welfare" has been extended
to include events and circumstances that do not themselves pose
any threat to public safety to physical well-being.
9. Accordingly, something can pose a threat
to "human welfare" within the meaning of draft Bill
even if it only threatens "disruption of an electronic or
or "disruption of facilities for transport".
In other words, a fuel shortage or an email virus causing serious
disruption but which posed no broader threat to human welfare
or physical well-being would count as an "emergency"
under the draft Bill. In our view, such events fall outside the
threshold of seriousness necessary to justify the exercise of
10. Similarly, the Bill defines "emergency"
to include serious threats to:
(i) the environment of a place; 
(ii) the political, administrative or economic
stability of a place; or
(iii) the security of a place. 
11. As before, there is no necessary connection
under the first two of these categories with threats to public
safety or physical well-being. And, as we note below, a threat
to "security" could include serious disruption of email
that does not itself pose further risk.
12. As such, a serious threat to the environment
may include "disruption or destruction of plant life or animal
Giving the language of this clause its natural and ordinary meaning,
emergency powers under the Bill could plausibly be triggered by
a virulent strain of Dutch Elm Disease.
13. Similarly, a threat to "political,
administrative or economic stability" may include events
(i) the activities of Her Majesty's Government;
(ii) the performance of public functions;
(iii) the activities of banks or other financial
14. We are concerned at the sheer breadth
of such a definition. The range of activities that could plausibly
count as "activities of government" or the "performance
of public functions" is incredibly wide, as too is the category
of events that may cause disruption to them. For example, a computer
breakdown, an absence of trained staff or even a paper shortage
may easily cause significant disruption to the working of a government
department; a strike by garbage collectors would count as disruption
of public functions; the closure of a mine or factory triggering
significant local unemployment could sensibly be described as
economic disruption. Again, while we do not rule out that some
of these events may give rise to serious disturbance, we argue
that the notion of "emergency" triggering the use of
emergency powers should be limited to those events that pose a
serious threat to public safety.
15. We note a similar problem arising from
the definition of "threats to security" in the draft
includes threats of "terrorism" within the meaning of
section 1 of the Terrorism Act 2000. Uncontroversially, section
1 of the Terrorism Act defines "terrorism" as threats
or acts involving serious violence against a person, serious damage
to property, endangering a person's life or poses a serious risk
to the health or safety of the public. However, it also incorrectly
includes acts "designed seriously to interfere with or seriously
to disrupt an electronic system".
16. Note that the serious disruption of
an electronic system would count as a terrorist act within the
meaning of section 1(2) even where it poses no serious risk to
any individual person, public health or safety in general, or
serious damage to property. Again, we would reject any notion
of an "emergency" based on a "threat to security"
that did not also pose a threat to public safety and physical
17. JUSTICE has no comment concerning this
part of the Bill.
Q4. Do you agree that the Bill gives the
Government the right balance of regulation making powers to meet
its aims of consistency and flexibility? If not, please explain
how the powers should be expanded or constrained.
18. The Government's regulation-making powers
should be constrained by requirements of strict necessity and
proportionality. As the Select Committee on Defence noted, "Parliament
should not give Ministers powers in excess of what they need".
We also share the Committee's concern that the "triple lock"
criteria referred to in the consultation paper (seriousness, the
need for special legislative measures, and relevant geographical
not reflected in the language of the Bill.
19. We note that strict necessity is
a central requirement of emergency powers legislation in other
common law jurisdictions, eg:
(a) Section 4(c) of the New Zealand Civil
Defence Emergency Management Act 2002 stipulates that an "emergency"
involves a situation that, inter alia, "cannot be
dealt with by emergency services, or otherwise requires a significant
and coordinated response under this Act". Section 66 further
requires that a Minister cannot declare a state of emergency unless
"the emergency is, or is likely to be, of such extent, magnitude,
or severity that the civil defence emergency management necessary
or desirable in respect of it is, or is likely to be, beyond the
resources of the Civil Defence Emergency Management Groups whose
areas may be affected by the emergency".
(b) Section 37(1)(b) of the South African
Constitution directs that a state of emergency may only be declared
when "the declaration is necessary to restore peace and order".
(c) Section 6 of the Canadian Emergencies
Act 1988 requires that, in order to declare a public welfare
emergency under the Act, the Head of State must have "reasonable
grounds" for the existence of an emergency that "necessitates
the taking of special temporary measures for dealing with the
20. Maintaining the proportionality of
any emergency measures to the harm addressed is also a key feature
of emergency powers legislation elsewhere. In
particular, we refer to the section 29-a (2)(e) of Article 2B
of the New York State Executive Law governing the exercise of
emergency suspending powers by the Governor of the State of New
any such suspension order shall provide for the
minimum deviation from the requirements of the statute,
local law, ordinance, order, rule or regulation suspended consistent
with the disaster action deemed necessary.
21. We note that, following the tragic events
of 11 September 2001, there has been no suggestion that the emergency
legislation of the State of New York was in any way inadequate
to the task. As such, we doubt that the UK could ever have sufficient
cause to depart from the wisdom of such legislation. Specifically,
we believe the Bill should contain a requirement such as the above,
clearly establishing the scope of the vires for any regulation.
Accordingly, any regulations found to be disproportionate could
be subject to striking-down as ultra vires. 
22. JUSTICE has no comment concerning this
part of the Bill.
Q11. Do you agree with the principle of applying
special legislative measures on a regional basis? Please explain
23. As a general rule, special legislation
applying to less than the whole of the UK should be avoided. Fairness
and consistency in treatmenttreating like cases alikeis
a central feature of the rule of law. Subjecting
residents and citizens in different parts of the UK to different
laws and obligations is an obvious departure from this fundamental
24. However, given that the measures in
question are emergency measures and as such already represent
a departure from normal principles of legality, we consider that
special legislative measures on a regional basis would be a proportionate
response sufficient to justify the exception from the general
rule. If there is to be deviation from the general rule of law
in the UK, then it is appropriate that it should be as tightly
geographically constrained as possible.
Q12. Do you agree that the current emergency
powers framework needs to be replaced? If you do not think it
should be replaced, please explain why.
25. We note that the existing emergency
powers legislation, the Emergency Powers Act 1920, has been used
only 12 times since its enactment and only in response to industrial
the government's consultation paper refers to adverse public comment
concerning the co-ordinated response to various recent events
(the foot and mouth disease outbreak in 2001, and extensive flooding
and the fuel crisis in 2000), it
provides no evidence to suggest that the current emergency powers
framework was inadequate to meet these or other challenges.
26. At the same time, we believe that the
current consultation on the emergency powers framework affords
an excellent opportunity to argue for an improved framework incorporating
sufficient guarantees for human rights. In particular, we would
invite the government to consider the model of section 37 of the
South African Constitution, which establishes a clear procedure
for making and reviewing derogations to human rights in times
Q13. Do you agree that the circumstances
in which special legislative measures may be taken should be widened
from limited threats to public welfare to include threats to the
environment, to the political, administrative and economic stability
of the UK and to threats to its security resulting from war or
terrorism? If not, how would you like to see the circumstances
narrowed or extended?
27. No. See our answer to Q1 above.
Q14. Do you agree that the use of special
legislative measures should be possible on a sub-UK basis? If
not, please explain.
28. Yes. See our answer to Q11 above.
Q15. Do you agree that authority to declare
that special legislative measures are necessary should remain
with The Queen as Head of State, acting on the advice of Ministers?
If not, with whom should it sit?
29. Yes. We agree that the Head of State
acting on the advice of Ministers is the appropriate person to
declare the need for special legislative measures.
Q16. Do you agree that in the event the process
of making a Royal Proclamation would cause a delay which might
result in significant damage or harm, a Secretary of State should
be able to make the declaration in the place of The Queen as Head
of State, acting on the advice of Ministers? If not, is delay
acceptable or is there another alternative mechanism?
30. No. In a democracy, it is appropriate
that the decision to invoke emergency powers should be attended
by certain safeguards against arbitrariness. The process of making
a Royal Proclamation involves such safeguards (ie a consensus
among Ministers, review by a politically neutral Head of State).
A procedure that would allow a Secretary of State to by-pass these
safeguards should be provided only where there is a compelling
case to show that the current procedure is liable to delay that
could reasonably result in significant damage or harm. In the
absence of any such evidence in the government's consultation
paper, we are not convinced that legislation is necessary on this
Q17. Do you agree that emergency regulations
should be treated as primary legislation for the purposes of the
Human Rights Act? If not, please explain why.
31. No. We see no basis for the government's
apparent scepticism that the courts are ill-equipped to decide
on the vires or the proportionality of emergency regulations.
The UK courts have often decided on emergency measures, including
those made in the midst of war. 
32. Moreover, it is consistent with the
practice in other jurisdictions enjoying the constitutional protection
of human rights. The courts in the US, Canada
and South Africa
have made clear their competence to determine the validity of
exercise of emergency powers. In our view, the UK courts are no
less competent for such a task.
33. We concur, moreover, with the view of
the Joint Committee on Human Rights that creating emergency legislation
as primary legislation would most likely lead to a violation of
the right to an effective remedy before a national authority for
breach of a Convention right. 
34. JUSTICE has no comment concerning this
part of the Bill.
53 Olmstead vs United States, 277 US 438 (1928). Back
While "emergency" is actually defined twice in the
draft Bill-in Sections 1 and 17-for the purposes of our response
we will treat them as a single definition. The differences in
the scope of the definitions, as between Parts I and II of the
draft Bill, are not relevant to the issues we discuss. Back
Para 37, Petty v United Kingdom (29 April 2002). Back
Section 1(i) of the Emergency Powers Act 1920 (as amended) includes
"to deprive a community . . . of the essentials of life". Back
The Emergencies Act 1985 (Canada) provides definitions of several
different kinds of emergency: section 5 ("public welfare
emergency"); section 16 ("public order emergency");
section 27 ("international emergency"); and section
37 ("war emergency"). The common core of each definition
is the threat of physical harm: some or other event "that
results or may result in a danger to life or property, social
disruption, or a breakdown in the flow of essential goods, services
or resources, so serious as to be a national emergency" (section
5), "threats to the security of Canada", including "espionage",
"sabotage", and the "threat or use of acts of serious
violence against persons or property" (section 16), "the
real or imminent use of serious force or violence" (section
27), and "war or other armed conflict" (section 37). Back
Section 4 of the Civil Defence Emergency Management Act 2002
(New Zealand) defines "emergency" as a situation that
(a) "is the result of any happening, natural or otherwise
. . . and (b) causes or may cause loss of life or injury or illness
or distress or in any way endangers the safety of the public or
property in New Zealand" [emphasis added]. Back
Section 37(1) of the Constitution of the Republic of South Africa
1996 (Chapter 2, the Bill of Rights) provides materially as follows:
A state of emergency may be declared
only in terms of an Act of Parliament, and only when:
(a) the life of the nation is threatened
by war, invasion, general insurrection, disorder, natural disaster
or other public emergency; and
(b) the declaration is necessary to
restore peace and order Back
See eg Alexander Hamilton, "[t]here ought to be a CAPACITY
to provide for future contingencies as they may happen; and as
these are illimitable in their nature, so it is impossible safely
to limit that capacity" [emphasis in original] The Federalist
Papers, No. 34 (Penguin, 1987, p 227). Back
Sections 1(1)(a) and 17(1)(a). Back
Sections 1(2)(f) and 17(2)(f). Back
Sections 1(2)(g) and 17(2)(g). Back
Section 1(1)(b) and 17(1)(b). Back
Section 1(1)(c) and 17(1)(c). Back
Section 1(1)(d) and 17(1)(d). Back
Sections 1(3)(c) and 17(3)(c). Back
Sections 1(4)(a) and 17(4)(a). Back
Sections 1(4)(b) and 17(4)(b). Back
Sections 1(4)(c) and 17(4)(c). Back
Sections 1(5)(b) and 17(5)(b). Back
Section 1(2)(e). Back
Para 62, Select Committee on Defence, Seventh Report. Back
See Draft Civil Contingencies Bill: Consultation Document
(Cabinet Office, June 2003) Chapter 5, paras 19-20: "Emergency
Powers allow the making of Emergency Regulations and should only
ever be used if there is a genuine need to take such special legislative
Cf Article 15 of the European Convention on Human Rights which
allows derogations from certain Convention rights, "to the
extent strictly required by the exigencies of the situation";
Article 27(1) of the Inter-American Convention on Human Rights,
which provides that "[i]n time of war, public danger, or
other emergency that threatens the independence or security of
a State Party, it may take measures derogating from its obligations
under the present Convention to the extent and for the period
of time strictly required by the exigencies of the situation". Back
Executive Law, Article 2B, State and Local Natural and Man-made
Disaster Preparedness, section 29-a(2)(e). Back
See also our response to Q17 below. Back
See eg Dworkin, Law's Empire (Hart: 1986) pp 217-218:
"The legislature should be guided by the legislative principle
of integrity, and that explains why it must not enact checkerboard
statutes just out of a concern for fairness. But checkerboard
statutes are a flagrant and easily avoidable violation of integrity;
it does not follow that the legislature must never, in any circumstances,
make the law more inconsistent in principle than it already is". Back
Para 60, Select Committee on Defence, Seventh Report. More generally,
see Ewing and Gearty, The Struggle for Civil Liberties, Political
Freedom and the Rule of Law in Britain 1914-45 (Oxford, 2000),
Chapter 1, para 4. Back
See eg Ex Parte Norman (1916) 114 LT 232 (application
for certiorari challenging the validity of regulation 51A of the
Defence of the Realm Regulations 1914); Norman v Matthews
(1916) 32 TLR 303 (DC). Back
The US Supreme Court has long established its competence to review
the exercise of emergency powers by the Executive. See Note, "The
Exercise of Emergency Powers", 85 Harvard Law Review 1284-1326
(April, 1972). Back
See eg Re Anti-Inflation Act Reference (1976): the Canadian
Supreme Court showed that it was prepared to review the making
of federal legislation under emergency powers, and determined
that the legislation must be "necessary" to address
the emergency. Back
Section 37(3) of the South African constitution provides as follows:
(3) Any competent court may decide
on the validity of
a. a declaration of a state of emergency;
b. any extension of a declaration of
a state of emergency; or
c. any legislation enacted, or other
action taken, in consequence of a declaration of a state of emergency.
(4) Any legislation enacted in consequence
of a declaration of a state of emergency may derogate from the
Bill of Rights only to the extent that
a. the derogation is strictly required
by the emergency; and
b. the legislation
i. is consistent with the Republic's
obligations under international law applicable to states of emergency;
ii. conforms to subsection (5); and
iii. is published in the national Government
Gazette as soon as reasonably possible after being enacted.
(5) No Act of Parliament that authorises
a declaration of a state of emergency, and no legislation enacted
or other action taken in consequence of a declaration, may permit
a. indemnifying the state, or any person,
in respect of any unlawful act;
b. any derogation from this section;
c. any derogation from a section mentioned
in column 1 of the Table of Non-Derogable Rights, to the extent
indicated opposite that section in column 3 of the Table. Back
Joint Committee on Human Rights, Fifteenth Report, para 3.35. Back