Joint Committee on Draft Civil Contingencies Bill Minutes of Evidence


Examination of Witnesses (Questions 187-199)

MS SHAMI CHAKRABARTI AND DR ERIC METCALFE

16 SEPTEMBER 2003

  Q187  Chairman: Good afternoon, thank you for coming. Sorry to keep you waiting. Our session this afternoon is being televised. If you would like briefly to introduce yourselves for the record?

  Ms Chakrabarti: Thank you, Chairman. My name is Shami Chakrabarti, I am the Director of Liberty, formally known, and perhaps more commonly known, to some as the National Council for Civil Liberties which, as you know, has been working on civil liberties and human rights generally and indeed in the context of emergency measures and anti-terror law specifically since the 1930s.

  Dr Metcalfe: My name is Eric Metcalfe, I am the Director of Human Rights Policy at Justice, which is the British section of the International Commission of Jurists.

  Chairman: Thank you very much.

  Q188  David Wright: Can I also extend the Committee's welcome. I want to cover a bit of background to begin with, could you give some examples of where civil liberties have been affected in previous emergencies, apart from cases in Northern Ireland. Some of the highlights.

  Ms Chakrabarti: If I may say so there is an example that emerged in a public debate just last week. Members of this Committee may be aware of the use of Section 44 of the Terrorism Act 2000 under which an authorisation has been made and confirmed, made by the Metropolitan Police and confirmed by the Home Secretary. The test in that statute is expedient to the prevention of acts of terrorism and searches by police officers, stop and search powers are activated on the part of police officers without suspicion. That is an emergency measure of a fashion and of course my organisation has concerns that the authorisation has been made inappropriately and that peaceful protestors have been impeded under that inappropriate and we say unlawful authorisation. I make that point by way of introduction because it is a graphic illustration, perhaps, of the dangers of passing fairly broad brush emergency legislation, the legislation being fairly loose in its drafting on the understandable basis of trust in the Executive, the trust being that of course these powers will never be used inappropriately, they are there for very serious circumstances. The point I would make about that example is that one does not need to suggest bad faith or conspiracy or even a deliberate attempt to undermine civil liberties, there is just always danger in passing extraordinary powers. There is the danger that perhaps more by cock-up than by conspiracy these powers may be inappropriately used, let alone the possibility, Chairman, that powers passed over the years may sit on the statute book for many years to come to be potentially used appropriately, inappropriately or indeed abused by future administrations. That was a specific illustrative example. There have been many other examples over the years internationally and in this jurisdiction of emergency measures being passed. Members of the Committee will be aware that by reference to the Anti-terrorism Crime and Security Act 2001 and the derogation from the Convention on Human Rights that the Government entered into to pass that law we are already living under a state of emergency in this country. It is under that state of emergency, which the Home Secretary Mr Blunkett in October 2001 referred to as a technical state of emergency for the purposes of derogating from the Convention, that to my knowledge eight people are currently interned without trial in Belmarsh and other high security institutions. My organisation has said much about that and I will not dwell on it. Over the years emergency-type measures have been used in the context of the Northern Ireland situation. As members will be aware there have been serious allegations of ill-treatment of prisoners, including interrogation circumstances in Northern Ireland. There has been exceptional detentions powers, not just internment powers, emergency arrest powers, special trial provisions, Diplock courts, and so on, special exceptional powers in the context of the treatment of prisoners, interferences with normal free expression rights, for example in term of parade commissions or indeed the censorship of terrorists or certain organisations, and one will remember this from the 1980s in the context of certain Northern Irish groups. Perhaps leaving Northern Ireland I have mentioned the Terrorism Act 2000, whose genesis came in acts that were temporary measures, where the father of the Terrorism Act and the grandfather thereof were temporary measures that have become permanent in the Terrorism Act 2000. Another point to make to this Committee is there is always a danger with exceptional measures that they become permanent and less exceptional. Of course there are umpteen examples of emergency provisions round the world, states of emergency in Commonwealth countries, India, South Africa and post 11 September special measures in the United States and else where. If the Committee would like more detail we can submit that later.

  Chairman: That would be fine, thank you.

  Q189  David Wright: You used the phrase "extraordinary legislation" would you describe as an organisation the contents of this Bill as extraordinary in that sense?

  Ms Chakrabarti: Chairman, I think the point I would make about this Bill is that very often our organisations and our community of human rights lawyers and those citizens interested in civil liberties are faced with specific measures to deal with specific or rather more general emergency situations. The difference with the present Civil Contingencies Bill is that it is not our role to actually address a specific state of emergency. As I said the irony is that we are notionally already living under one. We are not addressing specific measures aimed at a threat. We are discussing a framework in a Civil Contingencies Bill that is to be activated in the event of future events, so it is not actually to say that X or Y measure is or is not proportionate in the context of A, a threat and B, human rights considerations. Ironically it is our role today to draw the Committee's attention to the importance of defending not civil liberties and human rights but parliamentary sovereignty in the context of future possible emergency scenarios as they may arise or as they may be described. My point today is not to say that X or Y measure is or is not justified in X or Y situation but to pose questions that perhaps the Committee may take up with Government officials and ministers as to why in such a breadth of imagined scenario it is necessary for the Executive to legislate without full parliamentary legislative oversight and scrutiny.

  Dr Metcalfe: Can I just say at the outset that our organisations are in complete agreement, we share the analysis of Ms Chakrabarti and Liberty in general in relation to the effect of previous emergencies on civil liberties. If I can give one specific example, it is an example that has been probably been raised before you,—the first major instance of use of the emergency powers under the previous Emergency Powers Act 1920—that was the General Strike of 1926. Just to give you an illustration of the kind of powers that come into force by way of the previous 1920 Act: A state of emergency was proclaimed on 30 April 1926 and emergency regulations were made on the same day. The regulations affected a broad range of areas but those particularly addressing civil liberties were freedom of expression, by which Regulation 21 forbade any act likely to cause mutiny, sedition or disaffection among military police and disaffection among the general public. Regulation 22 gave powers to forbid assembly or process that would cause undue demands on police or promote disaffection among the public in general. Police powers also included arrest without warrant, search and seizure without warrant where persons were suspected of endangering public safety. To give you an idea of our concern about the historical use of emergency powers, bear in mind that the General Strike of 1926 lasted nine days. The emergency regulations that were brought into force on 30 April lasted eight months. This is one instance. I am sure that members of the Committee are aware of previous instances, such as the 1948 and 1949 Dockside Strikes, the 1955 Rail Strike, the 1966 Seamen's strike, the strikes in 1972 and 1973. These were all instances where the Emergency Powers Act of 1920 was invoked. In each case you had sweeping regulations that were passed in relation to, amongst other things, human rights. The extent of the regulation in general out lasted the actual specific emergency that was being addressed. I think if there is a lesson from history in this case, it is that emergency powers need to be strictly scrutinised in respect of their proportionality, and that is one thing I would like to address you on today.

  Q190  David Wright: Okay. In terms of challenging emergency regulations are you aware of any circumstances where they have been successfully challenged in the courts? Do you feel that the process that is available following this Act if it becomes law is there to actually challenge regulation in court, what is your general feel on that?

  Dr Metcalfe: Our view is that the present procedure whereby people can challenge regulations made under the emergency powers framework is correct. You asked, have there been any instances of a successful challenge? My answer is, not that I am aware. That is not to say there have not been challenges made—there have been a number of challenges made. In 1916 you had challenges to the Defence of the Realm Act and the regulations made thereunder, you had challenges in the interwar period, and so forth. The courts have been traditionally differential towards the Executive in times of public emergency, that is in general the approach that courts have taken. That is true not just of the UK but other comparable jurisdictions, the United States as well. You will find a general attitude in common law jurisdictions that courts in times of emergency will give proper deference to the role of the Executive in making the regulations, but that does not displace the essential role of the court in being able to scrutinise those regulations. There has been little historical problem posed by people being able to challenge emergency regulations in court because the general practice of the court has been to give due regard to the importance of the Executive being free to take emergency measures.

  Ms Chakrabarti: If I might enter a slight caveat on Dr Metcalfe's response. There have been many challenges to all sorts of special legislation, if I might put it that way, over the years and of course Eric is right not many successful challenges. One important one to mention might be the successful challenge in 1987 to extend the detention of terrorist suspects in the context of terrorism in Northern Ireland, the case of Brogan v United Kingdom in the Court of Human Rights, where the finding was that questioning for four days without judicial authorisation was a problem. Of course the United Kingdom responded by way of a derogation. There are one or two other examples of the Court of Human Rights interceding in that way. Generally, of course Eric is right and I think it is a very important point that he makes in the context of this particular Bill, and perhaps we will come to this later, when the Committee considers whether it is right that regulations made by the Executive under the Civil Contingencies Bill should be treated as primary legislation for the purposes of the Human Rights Act to oust the bite of judicial scrutiny. No doubt the Government will be concerned that in an exceptional situation there might be some unwarranted and insensitive interference, if I might put it that way, from the courts. I think the very important point that Justice and Eric Metcalfe makes is that the courts are really not a problem, the courts in this country have been well used to dealing with the context of terrorism and to being very sensitive and from the point of view of our organisations over-deferential to the UK Government at times. There is really no real concern. There is no problem with the courts not being sensitive to the problems of fighting terrorism so there should not be an approach by the Executive or Parliament in this case of trying to limit or oust judicial scrutiny by the courts. Of course finally, even though there has been the deference over the years it must be remembered that the Human Rights Act is a modern phenomenon and there is yet to be any serious litigation domestically of anti-terror laws since the advent of the Human Right Act. There is of course a case pending that will go to the House of Lords possibly this Autumn on the legality of the present derogation from Article 15 in the context of foreign nationals in the United Kingdom, but not British citizens in the United Kingdom.

  Dr Metcalfe: When I said I was not aware of any challenge to emergency regulations I was speaking only in relation to the Emergency Powers Act of 1920. In relation to derogations in terms of public emergency under the European Convention there have been challenges and Brogan was a successful challenge. This is more of historical interest than anything else but there was a successful challenge in 1918 to the Defence of the Realms regulations, where the Shipping Controller tried to requisition not just the ships but also the personnel of the China Mutual Steam Navigation Company and this was challenged successfully.

  Q191  Lord Archer of Sandwell: Can I first make a declaration of interest, I am a member of Justice and of Liberty, if we may we return to Clause 25 a little later, I just wanted to clarify one point of fact, the example which you gave about the challenge in 1988 that was a successful challenge in Europe, was it not, it was not a successful challenge before the English courts, is that right?

  Ms Chakrabarti: That is completely correct, Lord Archer.

  Q192  Lord Roper: That is because the European Convention was not incorporated in UK law at the time?

  Ms Chakrabarti: Indeed.

  Q193  David Wright: Finally, do you accept the value of having a permanent legislative code covering civil contingencies? Is the Bill legislative overkill? Given that emergencies seem to be inevitable, whether from terrorism, foot and mouth disease, floods or otherwise is there a better way of preparing for them in legislative terms than be a permanent legislation?

  Dr Metcalfe: It is important to stress we have no objection in principle to a Bill or code addressing civil emergencies. We think in fact it is very valuable to have clearly codified principles in relation to the exercise of emergency powers. It is far better for the emergency powers framework to be made clear in advance rather than emergency legislation to be produced on an ad hoc basis. The comment with regard to legislative overkill refers to the content of this specific Bill, that the specific powers that the draft Bill contains are seen as too broad, it is not to suggest there is not legislative need for a permanent emergency powers framework. The criticism in relation to this Bill relate to the specific powers that it contains, if that is helpful.

  Ms Chakrabarti: Just to follow on from that, the problem of emergencies is need to declare a state of exception. Of course I must agree with Eric that it is better that even exceptional circumstances be governed within the rule of law than that illegality is resorted to because there is a panic about whatever measure. That being said if the question that was put was in terms of the inevitability of emergencies one would hope that inevitable situations, even if they are difficult to anticipate, ought to be anticipated by sensible policy makers and governors so that they can be dealt with under the normal framework of rule of law without the need for special provisions. More seriously under this Bill the concern is about the breadth of the scope of an emergency and secondly, and perhaps most importantly, the framework provided is one which allows the Executive too much leeway without adequate parliamentary oversight. I would suggest that whilst, of course, there should be a framework for coping with emergency situations as far as possible and as quickly as possible the framework within our constitution should be about recalling parliament and giving adequate and full primary, legislative scrutiny to these measures that are deemed exceptional and quite often draconian.

  Q194  Mr Llwyd: Parts one and two of the Bill while they are obviously linked serve two entirely different objectives, do you think it would be more practicable to introduce them at separate Bills?

  Ms Chakrabarti: Today we are obviously far more concerned with substance that we are about the form of the bills, so we concerned about the content of certain measures rather than whether they happen to be put together in a single bill. The only point we would make about putting parts one and two of this Bill together would be concern that that might in practical terms detract from adequate parliamentary scrutiny of the measures that concern us in particular in part two, so that would be the only practical consideration that would affect our judgment of whether it was a good or a bad thing that this Bill was dealt with in this way. The really important thing is that we have these constitutional concerns in part two. We would hope that they can be given adequate parliamentary scrutiny and if Parliament is not given sufficient comfort and there is not sufficient movement on the breath of an emergency and the urgency with which Parliament would be recalled and the role of Parliament, then Parliament should not be bought off by any concerns about all of the good measures and practical and good governance measures in part one.

  Dr Metcalfe: We agree with that response.

  Q195  Mr Llwyd: In your view is there any reason why the draft Bill should not in fact cover military assistance to the civil power instead of retaining a separate Emergency Powers Act 1964?

  Dr Metcalfe: Drawing on the previous answer, again we are less concerned with form than with substance. We note it is rather clear the Emergency Powers Act 1964 in large part follows the language of the 1920 test, with some changes. Both refer to the test of "the essentials of life". In general, we think it is desirable to include all such rules in a single statute where they form part of the emergency framework. There are particular considerations relating to the use of the military in civil emergencies but in principle we would see it as desirable to address the same kinds of issues in a single piece of legislation. If the framework of an Act can be put forward in one or at most two pieces of legislation, we have no particular problem with that.

  Ms Chakrabarti: I have nothing to add.

  Q196  Mr Llwyd: Do you think that basic emergency regulations, which presumably already exist in draft form, should form parts of this Bill while it continues to provide for other regulations to be introduced in light of circumstances as they change?

  Ms Chakrabarti: In a nutshell as much as possible should be planned in advance and as much as possible should be in primary legislation so that Parliament can have adequate jurisdiction over it. That is the position in a nutshell, and perhaps to be developed later. This ultimate constitutional point about parliamentary sovereignty and safeguards, which from a human rights perspective is important too because it is about Parliament being the first, if not the last, Court of Human Rights, extends into the discussion about whether it is right that things that are on their face secondary legislation, regulations which do not have the full sanction of Parliament should be given primary legislative status, and the utterance of the Executive are treated as statutes for the purposes of the Human Rights Act.

  Mr Llwyd: Thank you.

  Q197  Chairman: Can you think of any circumstances where an emergency would arise involving a threat to the political, economic or economic stability of the country but which did not satisfy any of the other three criteria in Section 1 of the draft Bill (human welfare, environment or security)? Is this extension of the powers in the 1920 Act justifiable in modern circumstances?

  Ms Chakrabarti: This is always a difficult one for us on our side of the argument because we rather prefer the Government spokesman to dream up the nightmare scenarios. What we would say about the 1920 definition as opposed to the very broad definition that is now offered is that the basic means of existence have not altered that much. I know that the Government spokesman will come to this committee and to Parliament and talk about the need for modernisation and the way that life has changed there will be much force in that, we have the internet and all sorts of other sophisticated means of communication, and so on. Ultimately a public emergency of the kind that requires the suspension of our normal constitutional processes of full parliamentary scrutiny and taking bills before Parliament should only be activated in narrow and very, very extreme situations. It seems to us that if political or economic instability is to generate that kind of emergency it is going to trigger a threat to the basic means of existence. That does not mean there is not room for any improvement on the 1920 definition, I think we might concede that one of the problems with the 1920 definition is nothing to do with modernisation but interestingly, the 1920 definition never actually covered a situation where the threat to existence is direct, a bomb that is a threat to a large number of people. The 1920 trigger was only activated where that threat was via threats to locomotion and food and fuel, and so on. There may be room for slight improvement on the 1920 definition, but not the extended broad definition of public emergency that is offered in this Bill, which does not cut to the heart of the kind of emergency, the basic threats to existence for significant numbers of people should be the only scenario that is sufficient for ousting parliamentary jurisdiction.

  Dr Metcalfe: I would like to amplify those comments to say that including threats to political, economic or administrative stability, which I believe is the language of the draft Bill, seems unnecessary, an unnecessary proliferation of categories which tend to draw the notion of an emergency away from the core idea that the language of the 1920 legislation roughly captures, which is a threat to public safety and physical security. We are not defending the language of the 1920 Act as perfect but the core concept is one of ensuring public safety and physical well being. We are concerned at the inclusion of additional categories, particularly the notion of stability because stability is a very broad and unhelpfully vague term. A great deal of instability occurs in everyday life without causing an emergency of any particular kind. In short answer to the first part of question seven the answer is no.

  Q198  Lord Roper: Can I just pursue that point, you are quite right a great deal of instability occurs but this is the political, administrative or economic stability of a place in England or Wales, that is rather restricting the sort of stability they are talking about, is it not?

  Dr Metcalfe: If you are suggesting the geographical restriction is—

  Q199  Lord Roper: Instability occurs in various ways, the political, administrative or economic stability means the normal processes of politics, administration or economics are not going ahead.

  Dr Metcalfe: It depends what you would characterise as normal processes. In an initial response we discussed the notion of stability in the some detail and we considered some kind of instances, for instance a garbage strike which lasted two weeks is arguably an instability of an administrative kind, perhaps that is enough.

  Ms Chakrabarti: Eric makes the point.


 
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