Joint Committee on Draft Civil Contingencies Bill Minutes of Evidence


Memorandum from JUSTICE

INTRODUCTION

  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"[53].

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"[54] is too broad, capable of including a wide range of events and circumstances that pose no discernable threat to public safety or security.

  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".[55] The lexical priority of the right to life supports the view that—in times of emergency—extreme measures may be justified to protect it.

  6.  We note that this analysis is consistent with the earlier definition of "emergency" under the Emergency Powers Act, [56]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, [57]New Zealand, [58]and South Africa. [59]

  7.  We recognise that it would be unwise to specify in advance all the types of emergencies and threats that may arise. [60]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 welfare. [61]Even 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 other system",[62] or "disruption of facilities for transport".[63] 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 emergency powers.

  10.  Similarly, the Bill defines "emergency" to include serious threats to:

    (i)  the environment of a place; [64]

    (ii)  the political, administrative or economic stability of a place; [65]or

    (iii)  the security of a place. [66]

  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 life".[67] 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 that disrupt:

    (i)  the activities of Her Majesty's Government; [68]

    (ii)  the performance of public functions; [69]or

    (iii)  the activities of banks or other financial institutions. [70]

  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 Bill, [71]which 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".[72]

  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 well-being.

Questions 2-3

  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".[73] 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 extent) [74]are 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 emergency".

  20.  Maintaining the proportionality of any emergency measures to the harm addressed is also a key feature of emergency powers legislation elsewhere. [75]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 York: [76]

    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. [77]

Questions 5-10

  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 your answer.

  23.  As a general rule, special legislation applying to less than the whole of the UK should be avoided. Fairness and consistency in treatment—treating like cases alike—is a central feature of the rule of law. [78]Subjecting residents and citizens in different parts of the UK to different laws and obligations is an obvious departure from this fundamental principle.

  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 unrest. [79]While 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), [80]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 of emergency.

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 point.

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. [81]

  32.  Moreover, it is consistent with the practice in other jurisdictions enjoying the constitutional protection of human rights. The courts in the US, [82]Canada[83] and South Africa[84] 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. [85]

Questions 18-23

  34.  JUSTICE has no comment concerning this part of the Bill.

September 2003



53   Olmstead vs United States, 277 US 438 (1928). Back

54   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

55   Para 37, Petty v United Kingdom (29 April 2002). Back

56   Section 1(i) of the Emergency Powers Act 1920 (as amended) includes "to deprive a community . . . of the essentials of life". Back

57   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

58   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

59   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

60   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

61   Sections 1(1)(a) and 17(1)(a). Back

62   Sections 1(2)(f) and 17(2)(f). Back

63   Sections 1(2)(g) and 17(2)(g). Back

64   Section 1(1)(b) and 17(1)(b). Back

65   Section 1(1)(c) and 17(1)(c). Back

66   Section 1(1)(d) and 17(1)(d). Back

67   Sections 1(3)(c) and 17(3)(c). Back

68   Sections 1(4)(a) and 17(4)(a). Back

69   Sections 1(4)(b) and 17(4)(b). Back

70   Sections 1(4)(c) and 17(4)(c). Back

71   Sections 1(5)(b) and 17(5)(b). Back

72   Section 1(2)(e). Back

73   Para 62, Select Committee on Defence, Seventh Report. Back

74   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 measures". Back

75   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

76   Executive Law, Article 2B, State and Local Natural and Man-made Disaster Preparedness, section 29-a(2)(e). Back

77   See also our response to Q17 below. Back

78   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

79   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), PassimBack

80   Chapter 1, para 4. Back

81   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

82   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

83   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

84   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 or authorise

a. indemnifying the state, or any person, in respect of any unlawful act;

b. any derogation from this section; or

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

85   Joint Committee on Human Rights, Fifteenth Report, para 3.35. Back


 
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