Joint Committee on Draft Civil Contingencies Bill Minutes of Evidence

Examination of Witnesses (Questions 220-235)



  Q220  Lord Lucas of Crudwell and Dingwall: Dr Metcalfe, you mention that it is possible for a court to make use of remedial orders subject to a stay pending appeal. Why should we not impose that on all such remedial orders in cases of legislation under Parliament and regulation under part II of this Bill, in other words make that process compulsory so that the Government could not be faced with an immediate full stop but with a pretty good warning that it should get its regulations in order or get parliamentary approval to do something else.

  Dr Metcalfe: There are two points in response to that. The first is that those powers to make a stay derive from the courts' inherent jurisdiction. As such, their exercise is primarily in the discretion of the courts and Parliament should be very careful before it makes directions concerning that discretion. (It is of course within Parliament's competence to do so) but Parliament should be very careful before it interferes in the courts' powers to make orders. I think however that there is a second problem which is if we are concerned about delay and interference then there is also the possibility of whether requiring an automatic stay would cause a problem. It may be a particular court's judgment that the appeal process may cause further delay and frustration and the balancing consideration should be taken by the court at the time because the court is arguably best placed with the evidence available to weigh the different consequences. I know that proponents of a different view may say that the courts are not best placed for that. My view would be in the first instance that the court's role is to weigh the evidence that is presented before it. It is not clear to me why the court's discretion should be constrained in that case.

  Ms Chakrabarti: From 1920 to the present day our courts have done nothing that goes anywhere near earning the kind of constitutional distrust from Parliament or the Executive that warrants that kind of constraint. I just put it like that.

  Q221  Lord Lucas of Crudwell and Dingwall: And why do you feel that the safeguards that are in the Bill—the need for parliamentary approval within seven days and the prospect of subsequent litigation in individual cases—are not sufficient protection? They may suffer some temporary inconvenience but at the end of the day things are set right, surely?

  Dr Metcalfe: It depends what you mean by the nature of temporary inconvenience. You could pack a lot of different circumstances into that particular situation. For myself I feel certain that if a High Court judge felt it sufficiently important to strike down emergency legislation immediately and felt there was no other option, for instance, but to refuse a stay pending appeal that would be because he or she felt that the situation was so incredibly dire that it justified it. I do not want to speculate on possible circumstances that could arise because it gets into the realm of imagination of the possible ways in which human rights can be infringed in a future state of emergency. Let's imagine that government regulations in some way engaged Article 3 or Article 2 and caused inhuman or degrading treatment to individuals or threatened their life or livelihood, for myself I cannot quite imagine how it would arise but I certainly would not want to prevent the High Court from being able to address it properly.

  Ms Chakrabarti: I agree with Eric, of course, I do not want to paint these nightmare scenarios and I repeat the point made earlier that we are talking about constitutional matters that will be around for a long time so it is not to impute any intention to the present Government or present Opposition or likely Government but we are talking about suspending the normal constitutional arrangements and allowing for the infringement of human rights. One has to say seven days is a long time if you are being tortured. Seven days is too long to wait for Parliament or indeed for judicial remedy.

  Q222  Mr Llwyd: There is a point that arises, Dr Metcalfe you referred to threat to livelihood—

  Dr Metcalfe: I was conscious as I spoke that I should have just said threat to life. Threat to livelihood is perhaps less severe and it was an error of speech.

  Mr Llwyd: I was going to follow it but I will not now.

  Q223  Lord Roper: That leads on to the question as to which of these civil liberties are the most vulnerable under the draft Bill. Are there any grounds on which you think the Government would want to breach the right which it cannot derogate under ECHR (the right to life, clauses against torture, and retrospective criminal offences)? There are of course in 21(4) a number of rights protected in the draft Bill preventing the introduction of conscription, preventing the prohibition of strikes and indeed ensuring in 21(14) the opportunity for a fair trial. What rights do you really feel might be at serious risk?

  Dr Metcalfe: If I might take the last part of your question first, I think it is interesting that you make reference to the protective rights. That alludes to the previous 1920 legislation in which we found the right to strike was protected under that legislation, although interestingly enough history shows they still found ways to interfere with the right to strike nonetheless. I do not think that it is necessary for the government to intend to infringe non-derogable rights to pose a threat in the first place. The fact that the Government does not intend to breach someone's rights does not prevent it from doing so. If you want to look at a very recent incident, the application of section 55 of the 2002 Nationality, Immigration and Asylum Act was in technical breach of Article 3. I do not want to impute to anybody who was involved in the drafting of that legislation that they intended to breach Article 3. Nonetheless, the consequence was that the court found there was a threat to Article 3. I do not think it is necessary for the government to have the intention to breach non-derogable rights in order for them to breach them. Which civil liberties do I think are most vulnerable under the draft Bill? I can only speak historically—due process, the right to liberty, the rights to freedom of assembly and freedom of expression have been particularly at threat. That perhaps reflects the way in which the 1920 Act has been used which has always been in relation to industrial action. Again if we are to take the general caution that we should not try and limit what may arise in the future by reference to what has happened in the past, I would not want to suggest that any particular right is going to be more at risk in the future; I simply do not know and it would be foolish of me to speculate.

  Q224  Lord Roper: Just pursuing that for a moment, would it be possible to put in some provisions ruling out detention without trial so that it could only be enforced by subsequent primary legislation? Would that be a way of dealing with the point that you raised?

  Dr Metcalfe: I certainly agree that there should be recognition of the non-derogable rights. That would be an important protection to have.

  Ms Chakrabarti: It is interesting that these provisions are largely replicated from the 1920 legislation but ultimately, again without imagining particular scenarios or imputing certain intentions to the Government of the day or the future, the real problem is the delayed and limited role of both Parliament and the courts. Our problem concerns the breadth of the regulatory power and the delayed and inadequate role of Parliament, and it is also the limiting of the jurisdiction of the courts by saying that these regulations have primary legislative effect. As much as one might posit additional protected categories of action that should be included in the 1920 list, the better safeguard is to add to the Bill provisions that Parliament must absolutely be recalled as soon as possible and measures should be presented as primary legislation and that secondary legislation is just that and does not have the protected status in Human Rights Act terms of primary legislation.

  Q225  Lord Roper: I have one more question on a slightly different point but perhaps before coming to this you make a great deal of this distinction between primary legislation and regulations but you do know the speed with which primary legislation is enacted in emergency situations which does bring Bismarck to mind, that if one is interested in the output one should not look at the process too closely.

  Ms Chakrabarti: Indeed, Chairman, Lord Roper makes a very good point and again people like us are always complaining about the speed with which primary legislation is passed but there are other benefits that come with primary legislation that do  not come with secondary legislation, with affirmative procedure, such as the ability to amend rather just accept or reject. It is a very difficult thing, I imagine Chairman, to be presented as a parliamentarian with emergency legislation, "Yes, emergency regulation or emergency legislation is necessary and some of it is deeply unattractive and unnecessary but I do not want to vote against the whole scheme because this is an emergency". In a rushed debate in Parliament on a Bill at least that conundrum can be addressed for parliamentarians.

  Q226  Lord Roper: Do you think there is any reason why the draft Bill should not contain explicit provision for compensation for emergency action against property?

  Ms Chakrabarti: No, there is no reason.

  Dr Metcalfe: It is possible, and I do not really want to make too much of this point, that one consideration (possibly it has been made by the emergency services) that may weigh against it is if it were to inhibit necessary emergency action. If someone in a time of emergency felt that they needed to destroy a factory in order to save lives, but we are not well-placed to comment on this. That would be for the emergency services to comment on, I think.

  Q227  Mr Llwyd: One further question, I think quite rightly both of you raised the question of perhaps sidelining Parliament in this, if I can put it very crudely. The regulation-making power clause 21 is subject to section 26, consultation with devolved administrations. Do either of you or perhaps both of you share my concern that under 26(4) the Secretary of State may disapply the requirement to consult if he thinks it necessary by reason of urgency, since in my small mind emergencies are always urgent, are they not?

  Ms Chakrabarti: Chairman, I do not think we could put the point any better. One does with this kind of legislation enter the world of Alice in Wonderland. What is an emergency? We believe we are already living under a technical state of emergency for the purposes of internment, and have been since December 2001. Now we are presented with a Bill that talks about emergencies but some being more urgent than others. This is the intricate and fantastical world of emergency legislation.

  Dr Metcalfe: I agree with your analysis. If it is emergency framework legislation then it should lay  down processes to be followed in times of emergency. Again, we are sceptical about the extent to which some processes would need to be disapplied in times of emergency. We are certainly sceptical whether there is any evidence that the requirement to consult and the requirement to subject to parliamentary scrutiny has caused problems in the past.

  Q228  Lord Lucas of Crudwell and Dingwall: You have come back several times to the need for Parliament to be able to bite on these regulations when they come through. I myself do not see that we are going to be able to tackle it under primary legislation, it is too big a step, and in effect compressing the timescale of primary legislation into two days so I think we are going to have to look to be quite innovative. The sort of change that comes to me that we might be able to effect as part and parcel of the regulation would be to pass a rider that the Government would have to come back with new regulations within a period of time that dealt with a particular problem, in other words passing them for future effect. If you have any thoughts on how that sort of thing might work, which might not interfere with the flow of things but might give us and others an opportunity to apply to the government to make changes at some time in the future, could you give us your thoughts on that?

  Dr Metcalfe: Certainly we would be very happy to. I think the role of "sunset" clauses is very valuable in most emergency legislation. You may be right that, in view of the time-frame it may initially cause compression and therefore gaps in scrutiny, but bear in mind that many states of emergency have obtained for long periods of time. The regulations that were passed in relation to the General Strike came in to force on the first day but they remained in force for eight months. If you cannot get it right the first time round, one hopes that when it comes back before Parliament one would be able to amend the mistakes of the first time.

  Q229  Chairman: We are nearly done. If the Bill lists some exceptions on clause 21(4) on human rights grounds, is there any reason why it should not also list the absolute rights under the ECHR from which there can be no derogation?

  Ms Chakrabarti: No, we are in agreement with the sentiment of the question.

  Dr Metcalfe: Yes, we agree.

  Q230  Chairman: It was not intended to be quite so rhetorical. Fair enough. Are any of the following provisions in the draft emergency regulations particularly significant? Power of arrest without warrant, paragraph 44?

  Dr Metcalfe: We do not have any special comment. Power of arrest without warrant has been a particularly notorious instance of emergency regulations under the 1920 Act and it is particularly vulnerable to abuse because basically you place into the hands of each individual police officer the power to detain where he has a generalised suspicion, so obviously that is a very broad power. Beyond that we do not have any particular comment.

  Q231  Chairman: Offences against the regulations with a penalty of up to three months' imprisonment, paragraph 45?

  Ms Chakrabarti: Of course this is a very broad provision which opens up possibilities for regulations creating all kinds of criminal offences. I note the limitation on the penalty but nonetheless it is a very serious matter and, as we know, the criminal law is now run to as the sanction of first resort for all sorts of regulatory and public policy matters. It is just too broad even to address properly.

  Q232  Lord Archer of Sandwell: Could we just follow that up. We are dealing with an emergency, are we not, so presumably it could be a serious matter if regulations were infringed? I follow that not all regulations would be so serious but can you not trust the court to employ a penalty that is proportionate to that specific offence?

  Ms Chakrabarti: Indeed, Lord Archer. All of these comments that we make tie back to an holistic scheme where we would like the definition of "emergency" to be more limited, there to be greater scrutiny and the courts to have full jurisdiction, including their human rights compatibility, and then these matters become less concerning.

  Q233  Chairman: Other things, sabotage, any comment?

  Dr Metcalfe: No.

  Ms Chakrabarti: I think my last answer is the one that I would offer in relation to all these specific examples.

  Q234  Chairman: Movement close to designated premises or interference with armed forces or police?

  Dr Metcalfe: I think again the same general objections apply.

  Q235  Chairman: Okay. Is there anything that you would like to add by way of valedictory comment?

  Ms Chakrabarti: Just that we are very grateful to have been called, it is a privilege and a responsibility. We hope that because of what makes this Bill special there may be room for some real improvement. This is not a scenario where we object to a particular policy in a particular emergency situation. This is a constitutional instrument and we do hope that with the Committee's involvement there may be room for some real improvement for which we would all be very grateful.

  Dr Metcalfe: I would only echo those comments and say we are very grateful for the opportunity to address the Committee on this important issue. I think in general, not just speaking about the United Kingdom but if you look during the 20th Century, the provision of emergency powers legislation is one of the most fundamental issues in a democracy and to the concept of the rule of law because the procedures put in place (and for their suspension) have at all times to be governed by the concepts of legality and fundamental human rights. Again I would like to thank you for the opportunity to speak on this issue.

  Chairman: Not at all. Thank you for coming this afternoon.

previous page contents

House of Lords home page Parliament home page House of Commons home page search page enquiries index

© Parliamentary copyright 2003
Prepared 28 November 2003