Joint Committee on Draft Civil Contingencies Bill Minutes of Evidence


Examination of Witnesses (Questions 200-219)

MS SHAMI CHAKRABARTI AND DR ERIC METCALFE

16 SEPTEMBER 2003

  Q200  Lord Archer of Sandwell: Would you regard that as something which could properly fall within this Bill?

  Dr Metcalfe: If it gave rise to a serious threat to public safety. We do not rule out that different kinds of events, such as economic instability, could give rise to threats to physical safety and public well being. The way that the Act is drafted, though, does not require any kind of a nexus with a threat to public safety of any kind.

  Ms Chakrabarti: In addition to the breath of the scenarios and stability of various kinds one of our concern is that the seriousness trigger in this Bill as drafted is there is a serious threat to stability rather than being drawn upon serious consequences. That is another area where I hope that this Committee may look for some improvement in the preparation of this Bill, it really is very broadly drawn, both in the breadth of circumstances and the nature of the threat and so the life of the national is not the thing that needs to be under threat at all.

  Q201  Lord Archer of Sandwell: You could argue if there were total shut down of all communications so that no one could give instructions to anybody else that could endanger safety?

  Ms Chakrabarti: Absolutely. I would suggest the kind of breakdown in communication to which you refer might well be covered under the 1920 Act in its present form because the kind of complete breakdown in communication very quickly leads to the impossibility of emergency services and fuel and food, et cetera, working. I think communication by itself does not necessarily threaten the life of the nation but it will very quickly on the scale that you describe feed in to the kind of scenarios that one imagines.

  Q202  Lord Lucas of Crudwell and Dingwall: Could I ask you to write us after this meeting with the specific textual changes you would like to see in the Bill particularly covering matters you have just been discussing of the definition of emergency and perhaps the question of whether different definitions are required for parts one and two and other matters you might feel able to cover in this way are how the concept of necessity could be incorporated in this draft Bill and how you would redefine the powers to make it proportionate to a possible range of harm and how the triple lock might be instituted. I would find it helpful if you could reduce that to specific proposed changes, it is much easier to take the Bill team to task.

  Ms Chakrabarti: Indeed.

  Q203  Baroness Ramsay of Cartvale: Could you suggest an alternative process to that in the draft Bill for making regulations at a time when the Queen is not available? Do you think it appropriate to provide for the exclusion of the Head of State from the process of declaring a state of emergency or should there be provision for the declaration to be  made by an appropriate constitutional representative of the Head of State, for example the Council of State or the Privy Council? In other words, do you think it is wise to allow a single Secretary of State to take it upon him or herself to declare an emergency or do you see that there should be some alternative arrangement?

  Dr Metcalfe: In our response we expressed scepticism over this provision not because we doubt the wisdom of the principle, were there a need—the Head of State was somehow incapacitated or unavailable—of providing an emergency bypass, but because we did not see any evidence in the consultation paper or elsewhere to suggest that this has ever been a serious problem. That is not to suggest there is in fact no such evidence: perhaps there have actually been incidents in the past where the Head of State was not available and perhaps there have been occasions when they felt urgency was required and felt themselves frustrated by the procedures. However there was no material in the consultation paper that suggested this was a real problem. Against that, we took the view that if there is no need for the provision then you should be very careful about inserting it because otherwise the tendency in times of emergency will be to rely on that kind of clause out of administrative convenience, that is to say that the Secretary of State faced with a crisis will say, "there is enough evidence here to suggest that if I wait five minutes and go to the Queen that will cause a problem". In a way that becomes a slippery slope. At the same time let me say again in principle if there were evidence that suggested that such a procedure were appropriate we would support that. We did favour some kind of additional safeguard to prevent the decision being taken by a single Secretary of State. We note that the current procedure that it has to go to a politically neutral Head of State at least affords the safeguard that you have to explain the matter, build a consensus within the Cabinet, and then get the approval of a politically neutral figure. Those are important safeguards that you should be very careful to do away with.

  Ms Chakrabarti: I have little to add. We put some detail in our response to the Cabinet Office, which I think the Committee has. To go back to basic principles we would agree because a state of exception is being declared and because the consequence of that state of exception is to suspend normal constitutional arrangements for taking primary legislation through Parliament it is incredibly important that every safeguard possible is adopted in the legislation and very stringent tests are used. Parliament should be convened immediately in a scenario like this and if something is to be done before that then, fine, the executive acts. There is no need to make points about whether it is the Queen or the Cabinet, we are a constitutional Monarchy and that is the arrangement. If it is not possible to go to the Head of State then again one is seeking in the first instance the maximum Cabinet agreement possible. The real point that we want to make is that the period of days before Parliament needs to address its mind to these matters should be as short as possible. It does seem at the moment rather too generous a period for the Executive.

  Q204  Lord Lucas of Crudwell and Dingwall: Am I right in thinking in the way that the Bill is drafted at the moment once a state of emergency is declared the Secretary of State can effectively tear up the whole of the rest of the constitution and any bits in this Bill he does not like and create a republic with himself as head of it? There really are no safeguards at all against that sort of action. He has absolute legislative power.

  Dr Metcalfe: In principle he could amend the statute.

  Ms Chakrabarti: He could amend this statute, that is the most colourful scenario and no doubt there could be interesting legal argument about that. Yes, that is one interpretation of this draft legislation and that is the most dramatic scenario. Even short of that there are some pretty serious potential consequences for citizens and for Parliament under this Bill.

  Q205  Lord Bradshaw: Would you favour the Bill being amended so that even if such powers were taken by the Secretary of State or Secretaries of State that there was an absolute requirement for Parliament to be convened at say seven days or 14 days notice with the expiry powers to follow on that and a new permanent resolution required. Is that what you are seeking? Assuming that Parliament cannot be recalled tomorrow if it is in recess and somebody flies an aeroplane into a tower, how long do you think that Parliament should be given, how long should we allow for Parliament to be recalled and an affirmative resolution to be required?

  Ms Chakrabati: In the first instance one would want the initiation of primary legislation. Even if there is period, and we would argue for the shortest number of days possible, where this emergency legislation is provided by way of regulation instead of primary legislation I see no reason why Parliament should not when it does assemble consider this legislation as draft primary legislation. Let us not forget that it is possible for Parliament to consider emergency primary legislation very quickly indeed. I believe the Prevention of Terrorism Act 1974 passed in 48 hours. I think Eric has examples of emergency primary legislation passing even quicker than that.

  Lord Bradshaw: I am suggesting when Parliament is not in session.

  Ms Chakrabarti: Some kind of regulation needs to be provided.

  Q206  Lord Bradshaw: There has to be a bridging period, how long should that bridging period be?

  Ms Chakrabarti: The shortest number of days possible.

  Q207  Chairman: At any rate within seven days.

  Ms Chakrabarti: That seems to us like a long time.

  Q208  Lord Roper: Five days is provided under Section 24.

  Ms Chakrabarti: There is not even under the current scheme the requirement, the requisite that it is for some reason impossible to present the subsequent debate by way of primary, legislative debate. It seems to be always taken as read because there is an emergency enduring regulations will be necessary. Of course it must not be forgotten that there is nothing in this bill to prevent rolling regulations to be issued.

  Lord Bradshaw: The witnesses want Parliament to be recalled at the earlier possible time to give affirmative approval to the Act. I understand that.

  Q209  Chairman: How quickly do you think the Government could derogate from the ECHR under Article 15?

  Ms Chakrabarti: There is no time requirement in Article 15 of the Convention. How quickly may one write a document, a letter, send a fax, there is no time requirement at all.

  Dr Metcalfe: The only requirement that Article 15 directs is to keep the Secretary General of The Council of Europe fully informed. That does not even provide that he has to be forewarned, he only has to be notified once the derogation has been made.

  Ms Chakrabarti: If a communications problem arises that does not prevent the derogation taking affect.

  Dr Metcalfe: It would not invalidate the derogation.

  Q210  Chairman: In what circumstances might the Government need the power under Clause 21(3)(j) to disapply or modify any enactment or a provision made under or by virtue of any enactment?

  Ms Chakrabarti: It feels slightly invidious for those of us on this side of the argument to be dreaming up Government's nightmare scenarios for it. We would comment on the broad possibilities that are offered to the Executive under this draft legislation, which include the creation of criminal offences, and so on and so forth and of course the point I think Dr Metcalfe or one of the members made about the possibility of modifying this enactment itself, which is the most colourful and concerning constitutional scenario.

  Dr Metcalfe: Ideally we would like to safeguard the Human Rights Act for instance and the core constitutional legislation but the language of the section makes clear that if you can chip away at it by amending various different parts, then given the lack of any provision for entrenchment of constitutional legislation under the Westminster system, then really the power stands. I think Ms Chakrabarti has correctly stated that we do not want to be drawn into identifying possible situations. Alexander Hamilton in the Federalist Papers made the comment that "there ought to be a capacity to provide for future contingencies as they happen. As these are unlimitable in their nature so it is impossible to limit that capacity." In principle therefore, it makes sense to have a broad amending power. I think it is very difficult to be drawn on what particular instances might the Government need to exercise it. The answer is that we simply do not know. A better safeguard is to include requirements of proportionality and necessity to make sure that any power that is exercised is exercised properly and can be properly scrutinised afterwards.

  Ms Chakrabarti: In a nutshell the tenor of the general criticism that the definition of an emergency is too broad, the risk that is required to trigger it is too speculative, Parliament need be called too late and when called with too little oversight. Following on in the light of the latest question, too much may be done by way of this secondary legislation.

  Q211  Lord Archer of Sandwell: First, may we clarify a question which has arisen for this Committee when were you not here, even with Clause 25 in the legislation it would still be possible, would it not, to challenge an action which purported to be done under regulations on the ground that it did not comply with the regulations.

  Dr Metcalfe: You mean a claim of ultra vires?

  Q212  Lord Archer of Sandwell: This is precisely the distinction I am making, they are not saying they were ultra vires they are saying that the action did not comply with the conditions specified in the regulation. Do you follow the distinction?

  Ms Chakrabarti: Action taken purportedly under regulations was unlawful action because it went broader than the regulation of course.

  Q213  Lord Archer of Sandwell: I think we are all agreed on that. The Government's case of course is that if Parliament were not in session and you could not recall it immediately you might have a hiatus if the Government were to strike down regulations as ultra vires when there is nothing in place at all. That is what they are saying, is it not?

  Ms Chakrabarti: To address Lord Archer's point, at the moment under this draft Bill there is possibly challenge of emergency action on the following basis, one, as pointed out that the action did not comply with the regulations; two, that the regulations did not comply with the power to make them under the statute and three that the action and/or the regulations did not comply with the Human Rights Act. Because the Bill is drafted to give this secondary legislation the status of primary statute the worst the judiciary can do under a Human Rights Act challenge would be to say that there was a declaration of incompatibility and the legality and the on-going validity of incompatible regulations did not affect their continuation. That is a constitutional affront to these Houses of Parliament because the reason for the declaration of incompatibility in the Human Rights Act is to preserve parliamentary sovereignty from the overreach of the courts, that was the constitutional compromise contained in the Human Rights Act. The declaration of incompatibility device was not designed to allow executive acts, such as secondary legislation, even if subject to the kind of scrutiny that goes on with affirmative procedure as opposed to primary legislation scrutiny, was not designed to protect the Executive in the same way as was it was designed to protect Parliament. To follow on from answers given earlier by Eric Metcalfe, there really is no need for such a development because there is nothing in our constitutional or legal history to suggest that our courts are anything other than deferential to the Executive and indeed to Parliament in times of national emergency or fear of national emergency.

  Q214  Lord Archer of Sandwell: We follow that you say that. Let us consider the worst case scenario, there is a challenge to regulation made in this way and the present Clause 25 is not part of the legislation, let us assume that, then the court could say these regulations are ultra vires and no action can be taken under them. It may not be possible to rectify that situation for a little time.

  Ms Chakrabarti: That is theoretically possible but there are some other parts of the picture, if I might put it that way.

  Q215  Lord Archer of Sandwell: That is what I was asking you to do that.

  Ms Chakrabarti: That is a theoretical possibility but going back to this trust between different limbs of the constitution, which is ultimately is important because that is the way that our unwritten constitution works, it is not easy at all for people like us because we are the trouble makers who try and litigate these things sometimes, certainly my organisation. It is really not very easy to get emergency interim relief against the Government and certainly not in scenario like this well imbedded in jurisprudence. There are tests such as the balance of convenience which would weigh very heavily in favour of the Home Secretary or Prime Minister in a scenario like this. Secondly, if it is possible to rush to court, if it is possible to run to court in this scenario I would repeat the submission that it must be possible to run to Parliament and as quickly as it is possible to run to court to get this catastrophic finding that the regulations are incompatible with human rights and unlawful if must be possible to run to Parliament and get the endorsement of Parliament for this exceptional measure whether or not it complies with human rights. That is the scheme of the Human Rights Act and that is what is so satisfactory in an emergency from the point of view, of the Government about the Human Rights Act because it does preserve parliamentary sovereignty. There can be no suggestion in reality that it would be realistic that the courts would wish to or be able to strike down in any serious and enduring way these regulations before Parliament had a chance to give them primary legislative effect.

  Q216  Lord Archer of Sandwell: There have been a number of occasions over the past ten years where the courts have surprised us.

  Ms Chakrabarti: Indeed. Unfortunately from my point of view not in this type of context. Also even in the scenario that Lord Archer paints the Government would be represented and could apply for a stay pending appeal, and so on.

  Q217  Lord Archer of Sandwell: I am only wondering whether there was any other way you could suggest to address the Government's nightmares on this. You say they are extremely unlikely but you could have a situation where you can get to court more likely than you can get to Parliament and unexpectedly the court strike down the regulation, is there any other suggestion you can make other than the way it has been done in Clause 25?

  Ms Chakrabarti: To go back to our general submissions on what the scheme for emergency legislation should be. Even if Parliament had yet to fully consider this emergency scheme, whatever it is, and give it primary legislative effect once the draft Bill, and I put it like that because the draft regulations could equally be a draft Bill, having been introduced under our constitution the courts will not entertain jurisdiction of that matter until Parliament has considered it. So it is yet another way in which the courts are not going to frustrate the role of the Executive or of Parliament in this emergency situation. It is completely unnecessary to modify the very carefully crafted scheme of the Human Rights Act in this way.

  Dr Metcalfe: I think it would be worth emphasising that particular point. The greater provision the Bill gives for parliamentary scrutiny would have a corresponding effect on the extent to which the judiciary would be prepared to interfere in finding that particular regulations were incompatible. This is because the recognition that Parliament is in a position to do something is a consideration that the court will have in its mind with regard to its determining own competence. I am not sure if this is helpful in relation to the question that you raised earlier as to when a court finds a piece of regulation is incompatible, but I think it is instructive to consider the current approach of the courts in granting emergency relief and the approach of the court, for instance, in relation to the Section 55 cases which took place at the beginning of the year. In those cases, Mr Justice Collins found there was a possible technical breach in the way that Section 55 was being applied and he granted a stay pending appeal so that the Government's administration was not wholly thrown into chaos. I think it is important to emphasis the tools or materials that the court has at its disposal. A declaration is a discretionary remedy and the court is not obliged to strike down regulations where it recognises that what would happen otherwise would frustrate the Government's emergency relief efforts. Finally to reiterate a point made at the outset, we should not under-estimate the classic balance of convenience test which the court applies in these circumstances. If the Government is coming to court for, say, emergency flood relief, the court will have regard to the balance of convenience and I question whether any UK court or High Court judge would ever strike down regulations that gave the Government the power if needed to address a state of emergency. Let's bear in mind that the UK courts were able to deliberate on the Defence of the Realm regulations during World War I and emergency regulations during World War II, and in our response we have given citations of cases of courts deciding challenges to emergency regulations when the bombs were dropping on London, so I think it is perhaps spurious to suggest that the courts are somehow a hindrance now.

  Ms Chakrabarti: And, Chairman, ultimately the Committee's own point is the killer point for the Government's nightmare scenario because if it is concerned by the Human Rights Act compatibility of these regulations the answer is not to give them primary legislative effect, the answer is to derogate under Article 15 of the Convention, which it may do, Chairman, as you pointed out, in a heart beat. That is the correct constitutional approach that has been provided for and safeguarded under the Human Rights Act, which is a very carefully drafted scheme, and that is the ultimate trump card for the Government, in a heart beat. There is no need for the Government to attempt to pass legislation that treats secondary legislation as if it were a primary statute of these Houses of Parliament.

  Q218  Mr Allan: It is interesting to explore that a little further. We had the Scottish Parliament and Welsh Assembly represented this morning and they made it clear that as far as the way in which they are set up constitutionally is concerned, they follow the other model, which is to say that they cannot pass legislation that is incompatible with the Human Rights Act. You are saying that we have a different model here where parliamentary sovereignty means at the end of the day if Parliament wishes to it can knowingly seek to put forward legislation incompatible with the Human Rights Act. You made it clear that you are uncomfortable with the concept of the Executive knowingly putting forward regulations and seeking the cover of this Bill so it cannot be struck down as incompatible with the Human Rights Act. Can you see circumstances in the context of emergencies that Parliament would wish to put forward regulations that are knowingly incompatible with the Human Rights Act or do you  as organisations think that whatever the circumstances we should always have to be compliant with the Human Rights Act?

  Ms Chakrabarti: Human rights lawyers like myself are often accused by the Government and others of being arrogant and of being disrespectful of Parliament and in particular democratically elected politicians. That accusation is made and maybe sometimes it justified but it is not going to be justified in this case because ultimately the nature of democracy and the nature of the rule of law does mean there may be moments—and it is for Parliament to judge those moments, and not me, Chairman—where Parliament decides to declare a state of exception and say, for whatever reason, that even human rights must be jettisoned for the moment. What I would say about that is that organisations like mine and sympathisers with our belief system in this House and outside it will have that debate when that moment comes and we will generate that debate in the first court of human rights, which is these Houses of Parliament, but that debate must be had and it must be had openly and honestly and Parliament is entitled under the carefully crafted Human Rights Act scheme to say, "We are unsure whether this legislation will meet Human Rights Act grounds but we are going to do it anyway." That is something I am prepared to accept under the constitutional scheme created by the Human Rights Act. What I find much harder to accept is that the Executive should be able to do that  at its own whim without that kind of parliamentary debate.

  Dr Metcalfe: I would like to support those comments. Perhaps not enough emphasis is paid to the concept of the legislature as a human rights institution in its own right. I think it is important for Ms Chakrabarti to emphasise that at this point. Concerning the suggestion that Parliament can take a decision to pass legislation that is incompatible on its face with the Human Rights Act in times of emergency, I think it has to be correct that Parliament has the final say in how best to protect human rights. We made the point initially in our response that the core of emergency powers legislation is the protection of the right to life, which is recognised in most human rights jurisprudence as being the most fundamental of human rights, and if the people's representatives consider that this is the issue to which they should give priority then I think that it is appropriate for the courts to defer to that but it is not appropriate for that decision to be taken by the Executive. It has to be a decision that is taken by Parliament.

  Mr Allan: Thank you.

  Q219  Lord Lucas of Crudwell and Dingwall: Would it make much difference if regulations under the draft Bill and treated as primary legislation (those that were required to be treated as primary legislation) were accompanied by a statement of compatibility under section 19 of the Human Rights Act?

  Dr Metcalfe: A statement of compatibility is no guarantee and there has been at least one challenge to legislation that was subsequently been found to be in breach that had a statement of compatibility attached to it. The statement of compatibility process is a constitutional device. In the first instance it is something for Parliament to decide upon when it debates the matter. When introducing legislation, the Lord Chancellor or relevant minister says to the House that in the Executive's opinion this piece of legislation is compatible, and it is for the House to deliberate on that particular issue. There has been discussion amongst members of the senior judiciary as to the weight that is to be given to the statement of compatibility. Some senior judges think that you can give it very little weight, some others disagree. I do not think you can place a great deal of faith in the assurances of government that a piece of legislation is compatible.

  Ms Chakrabarti: I agree. The only real constitutional value of this statement of compatibility as made by the Minister in charge of a Bill is if it triggers full parliamentary debate. That is its value, it is not a certificate that the Home Secretary or Prime Minister can sign to say, "This is okay", and then pass secondary legislation with little or some parliamentary involvement. Its benefit is where it triggers debate in Parliament, "Why Home Secretary, why Prime Minister, do you think it is compatible in the context of X or Y or Z", and that is only going to have full value when people like us help empower parliamentarians with a human rights scheme not as a legalistic instrument but as something valuable in policy scrutiny and only where Parliament gets the full opportunity of scrutiny, and that only comes with a draft Bill.


 
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