Joint Committee On Human Rights Fifteenth Report

Draft Bills

3. Draft Civil Contingencies Bill
Date Presented

Reference Number


Date Consultation ends

Previous Reports

19 June 2003

Cm 5843

Cabinet Office

31 October 2003


3.1 This Draft Bill was published in June 2003 with explanatory notes, regulatory impact assessments, and a consultation document.[10] It is the subject of pre-legislative scrutiny by a Joint Committee of both Houses. Here, we simply draw attention to the human rights issues which seem to us to arise.

3.2 The Draft Bill is in three Parts. Of these, only Parts 1 and 2 contain provisions of substantive significance.

Part 1: Local arrangements for civil protection

3.3 Part 1 (clauses 1 to 16) would apply only in England and Wales. It would impose obligations, or authorise a Minister to impose obligations, on local bodies to prepare plans for dealing with a wide range of civil emergencies (defined in clause 1). There would also be obligations to give advice to businesses, and to take preventative and remedial measures in relation to emergencies, exchanging information between agencies for this purpose.

3.4 In our view, the provisions of Part 1 are likely to enable public authorities to act more effectively to protect the human rights of people in their areas in an emergency. We do not consider that they give rise to a significant threat of a violation of human rights.

Part 2: Emergency powers

3.5 Part 2 of the Bill (clauses 17 to 30) would apply to the whole of the United Kingdom. It would confer extensive powers to respond to emergencies.

The meaning of 'emergency'

3.6 For the purpose of Part 2, an emergency is defined as—

… an event or situation which presents a serious threat to—

(a) the welfare of all or part of the population of the United Kingdom or of a Part or region,

(b) the environment of the United Kingdom or of a Part or region,

(c) the political, administrative or economic stability of the United Kingdom or of a Part or region, or

(d) the security of the United Kingdom or of a Part or region.[11]

3.7 The Bill offers a partial definition of the nature of these threats. Each of the four threats listed above is separately defined. An event or situation presents a threat to welfare—

… if, in particular, it involves, causes or may cause—

(a) loss or human life,

(b) human illness or injury,

(c) homelessness,

(d) damage to property,

(e) disruption of a supply of food, water, energy, fuel or other essential commodity,

(f) disruption of an electronic or other system of communication,

(g) disruption of facilities for transport, or

(h) disruption of medical, educational or other essential services.[12]

3.8 An event or situation would present a threat to the environment—

… if, in particular, it involves, causes or may cause—

(a) contamination of land, water or air with—

(i) harmful biological, chemical or radio-active matter, or

(ii) fuel oils,

(b) flooding, or

(c) disruption or destruction of plant life or animal life.[13]

3.9 An event or situation would present a threat to political, administrative or economic stability:

… if, in particular, it causes or may cause disruption of—

(a) the activities of Her Majesty's Government,

(b) the performance of public functions,[14] or

(c) the activities or banks or other financial institutions.[15]

3.10 An event or situation may be a particular threat to security if it amounts to war or armed conflict, or terrorism within the very broad meaning given to that term by section 1 of the Terrorism Act 2000.[16]

3.11 It follows that a vast range of events or situations may give rise to a threat within the meaning of Part 2 of the draft Bill. To fall within Part 2, a threat would need to be "serious". If that test is satisfied, the powers could be deployed in response to strikes or works to rule (particularly in medical, educational or other essential services), political protests, computer hacking, a campaign against banking practices, interference with the statutory functions of any person or body, an outbreak of communicable disease, or protests against genetically modified crops, among many other events.

Official declaration of the emergency

3.12 Clauses 20 and 21 of the Draft Bill confer power to make regulations to deal with the emergency. First, however, there must be a formal declaration of the emergency. It would be possible to do this in either of two ways.

3.13 The normal method, under clause 18, would be for Her Majesty, by proclamation, to declare herself satisfied that an emergency has occurred, is occurring or is about to occur, and that it is necessary to make regulations under clause 21 for the purpose of preventing, controlling or mitigating an aspect or effect of the emergency. The proclamation would have to state the nature of the emergency and the Parts or regions of the United Kingdom in which the regulations may have effect.

3.14 If the Secretary of State is satisfied that it would not be possible to arrange for a proclamation without serious delay, clause 19 provides that he or she may by order make a declaration of equivalent effect to a proclamation under clause 18.

3.15 The Bill contains no requirement for Her Majesty or the Secretary of State to have reasonable grounds for the conclusion.

3.16 A proclamation or declaration would lapse at the end of 30 days beginning with the date on which it is made, but it could be renewed by a further proclamation or declaration.[17]

3.17 The Speaker of the House of Commons and the Lord Chancellor (or, presumably, whoever in due course takes responsibility for acting as Speaker of the House of Lords) would have to be notified of any proclamation or declaration as soon as reasonably practicable, and if Parliament stands prorogued at the time it would have to be summoned to meet.[18] However, Parliament would have no control over the decision to make a proclamation or declaration under clause 18 or clause 19.

The power to make regulations

3.18 Following a proclamation or declaration, clause 20 provides for regulations to be made by Order in Council or, if the Secretary of State is satisfied that it would not be possible to arrange for an Order in Council without serious delay, by the Secretary of State. In either case, the regulations are to be made by statutory instrument.[19] It would therefore be necessary to lay them before each House of Parliament in accordance with the requirements of the Statutory Instruments Act 1946 and clause 24(6) of the Draft Bill. There would be no requirement for them to be laid before the two Houses before they come into force, but the regulations would lapse if not approved by resolution of each House within seven days of the date of laying.[20]

3.19 Under clause 21(1), the regulations would be able make any provision which the person making them thinks necessary for the purpose of preventing, controlling or mitigating a serious aspect or serious effect of the emergency specified in the proclamation or declaration.[21] Subject to that limitation, the regulations would be able to do anything that could be done by Act of Parliament or under the Royal Prerogative,[22] except:

a)  require a person, or enable a person to be required, to provide military or industrial service;

b)  prohibit, or enable the prohibition of, a strike or other industrial action;

c)  create any criminal offence other than one of failing to comply with the regulations, or with a direction or order given or made under the regulations, or obstructing a person in the performance of a function under or by virtue of the regulations;

d)  create an offence punishable with imprisonment for more than three months, or a fine exceeding the statutory maximum or level 5 on the standard scale, or without trial before a magistrates' court, the Crown Court, the district court or the sheriff;

e)  make provision which the person making the regulations believes is made by, or could be made by virtue of, a subsisting legislative provision, unless he or she also believes that the use of that subsisting provision would be insufficient to achieve the purpose or would occasion a serious delay; or

f)  make provision in relation to anything in, or done in, a Part or region of the United Kingdom not specified in the proclamation or declaration of the emergency.[23]

Human rights implications

3.20 The Government tentatively proposes that an instrument containing regulations made under clause 21 would "be treated as if it were an Act of Parliament" for the purposes of the Human Rights Act 1998.[24] In the Consultation Document published alongside the Draft Bill, the Government recognises that this would be a departure from normal practice in the protection of human rights against incompatible statutory instruments. As a result, the Government "believes that the case for its inclusion in the final Bill is by no means certain".[25] We offer the following comments by way of a contribution to the consultation process.

3.21 The effect of treating an instrument containing regulations as an Act of Parliament for the purposes of the Human Rights Act 1998 would be to make such an instrument primary legislation for those purposes. It is generally impossible for a court or tribunal in the United Kingdom to hold primary legislation to be invalid, or anything done in reliance on it to be unlawful, by reason only of an incompatibility with any of the Convention rights which became part of national law by virtue of the Human Rights Act.[26]

3.22 In theory, it would be possible for a court to hold a provision in such an instrument to be invalid if it breaches general principles of administrative law, being outside the scope of the delegated legislative power, or irrational, or made without complying with procedural preconditions. In judicial review proceedings, it would be possible for a court strike down regulations on the first of those grounds if they purported to create a criminal offence of a type excluded from the scope of clause 21. Alternatively, a regulation made under clauses 20 and 21 might be struck down on the last of those grounds if, for example, they had been made without a proclamation or declaration of an emergency having been made under clauses 18 and 19 covering the area of the United Kingdom to which they relate. However, the scope of the power to make regulations is so wide as to make it virtually impossible for any regulation to fall outside the scope of the delegated legislative power, and there is little likelihood of a court holding irrational a regulation made by a Minister in response to a properly declared emergency.

3.23 The limits placed by the Draft Bill on the effectiveness of judicial review as a control over unlawful or arbitrary law-making or executive action are matters of general constitutional significance. Our concern relates specifically to the impact on human rights. We recognise that exceptional measures may be called for in an emergency. Nevertheless, we have to ask whether there would be adequate protection for human rights, and particularly Convention rights under the ECHR and the Human Rights Act 1998, in the face of regulations which would be valid and effective notwithstanding any incompatibility with a Convention right, and immune to judicial review on the ground of such an incompatibility.

3.24 We know of no precedent in any Act passed since the Human Rights Act 1998 was passed for a provision deeming subordinate legislation to be an Act of Parliament for the purposes of the Human Rights Act. Section 21 of the 1998 Act deemed certain pieces of subordinate legislation, including commencement orders and any provision which amends primary legislation, to be primary legislation. Legislation made since then has fallen to be classified as primary or subordinate in accordance with the terms of section 21. It is clear that clauses 20 and 21 of the Bill would permit subordinate legislation to have the effect of primary legislation for the purposes of the Human Rights Act even the application of section 21 of the Act would lead to its being regarded as subordinate.

3.25 We also note that the Defence Committee of the House of Commons recently reported on the draft Bill. In that report the committee concluded, in respect of the clause 25, that—

… this new provision should not be included in the bill unless the Government can demonstrate a clear and compelling need for the additional powers which it provides.[27]

We agree.

3.26 We strongly disapprove of any attempt to extend the range of instruments which have to be treated as primary legislation so as to make them exempt from the need to comply with Convention rights. It provides a way of allowing the executive to legislate, before seeking parliamentary approval, in ways which are known or believed to be incompatible with Convention rights, while denying victims of violations the right to obtain an effective remedy from a court or tribunal. In our view, regardless of the context, the effect of this legislative technique is objectionable on human rights grounds.

3.27 Moving from that general point to more particular considerations, we have to consider what practical effect the provision would have on the protection available for particular rights. Essentially the available protection is of three kinds.

3.28 First, it would remain possible for a victim of a violation of a Convention right, who had been unable to obtain a remedy before a court or tribunal in the United Kingdom, to apply to the European Court of Human Rights for a remedy. This would be likely to be a long drawn out process, as the victim would first have to exhaust all national remedies and then wait his or her turn for the case to be heard in Strasbourg.

3.29 Secondly, a court which is unable to read and give effect to the regulations in a manner compatible with Convention rights would be able to make a declaration of incompatibility under section 4 of the Human Rights Act 1998. This would not affect the validity or effectiveness of the regulations. As a remedy, therefore, it is of little value to the victim of a violation.

3.30 Thirdly, clause 21(4) of the Draft Bill would prohibit the making of certain types of regulations. Of particular importance for Convention rights are the following.

a)  No regulation would be able to require a person, or enable a person to be required, to provide military or industrial service.[28] This would safeguard the right under ECHR Article 4 to be free of forced labour.

b)  No regulation would be able to prohibit, or to enable the prohibition of, a strike or other industrial action.[29] This would safeguard the right to strike so far as it is an incident of the right to form and join a trade union for the protection of one's interests, under ECHR Article 11.

c)  No regulation would be able to establish a special court or tribunal to try offences.[30] This would safeguard the right to a fair and public hearing before an independent and impartial tribunal in the determination of criminal charges, under ECHR Article 6.1.

3.31 While these are worthwhile safeguards, they do not protect people against suffering interference with other Convention rights, without being able to obtain effective legal remedies. For example, there would be no legal protection in national courts or tribunals against an interference by the regulations with the right to life (ECHR Article 2), the right to be free of inhuman or degrading treatment (Article 3), the right to freedom from detention without trial (Article 5), the right to respect for private and family life and the home (Article 8), the right to freedom of expression (Article 10), freedom of peaceful assembly (Article 11, as to which the Draft Bill expressly contemplates interference in clause 21(3)(f)), or the right to the peaceful enjoyment of possessions (Article 1 of Protocol No. 1, in relation to which clause 21(3)(b) and (c) contemplate regulations authorising the requisition, confiscation or destruction of property, and the destruction of animal or plant life, with or without compensation).

3.32 Nothing in the Draft Bill, the Explanatory Notes attached to it, or the Consultation Document published alongside it, explains how compatibility of regulations with these rights would be reliably secured.[31] The Consultation Document asserts that the Draft Bill is compatible with the ECHR. It continues—

During serious emergencies, the balance between individual rights and the need for action to mitigate the emergency can be difficult to achieve. That is why a procedure already exists to allow the Government to derogate from the Convention, and to make immediate adjustments to the Human Rights Act to reflect the derogation, in the event of a serious emergency.[32]

3.33 We accept that it might be difficult to settle on the right balance between individual rights and the public interest when an emergency occurs. Nevertheless, even in an emergency we cannot approve of an approach to legislating (particularly granting delegated legislative powers) which would deprive people of important safeguards for their fundamental rights, and even remove the legal necessity for the legislator to give proper consideration to those rights when making delegated legislation. The special status of an Act of Parliament would attach (for Human Rights Act purposes) to any Statutory Instrument made under clause 21 regardless of the circumstances and of the Convention right or rights affected by it. There are some Convention rights from which it is not permitted to derogate. These include the right to life (ECHR Article 2), freedom from torture and inhuman or degrading treatment (Article 3), and the right not to suffer criminal penalties for conduct which did not constitute a crime at the time of its commission (Article 7).[33] A legislative provision which would permit delegated legislation to be made authorising interference with a non-derogable right would, in our view, be difficult to justify.

3.34 It is true that section 3(2) of the Human Rights Act 1998 itself preserves the freedom of Parliament to legislate in a manner incompatible with Convention rights. In this way, the legislative sovereignty of Parliament is maintained. But it is a very different matter to confer power on a Minister of the Crown to legislate in a manner incompatible with Convention rights. It would come close to substituting the sovereignty of the Crown for the sovereignty of Parliament, without even the requirement that Parliament should first have considered and approved the terms of the incompatible regulations to be made.

3.35 We conclude that the provisions of Part 2 of the Draft Bill would, if enacted, give rise to a significant risk that regulations could be made which would violate, or authorise a violation of, Convention rights, without any judicial remedy being available for a victim of the violation. As the Bill makes no provision for any other effective remedy before a national authority, it would also be likely to lead to a violation of the right to an effective remedy before a national authority for any violation of a Convention right, under ECHR Article 13 (which does not form part of national law, but binds the United Kingdom in international law and is enforceable before the European Court of Human Rights).

10   Cm. 5843 (London: TSO, 2003). Back

11   Cl. 17(1). Back

12   Cl. 17(2). Back

13   Cl. 17(3). Back

14   "Public functions" are defined in clause 17(6). Back

15   Cl. 17(4). Back

16   Cl. 17(5). Back

17   Cl. 23. Back

18   Cl. 24. Back

19   Cl. 27. Back

20   Cl. 24(7). Back

21   Cl. 21(1) refers only to a proclamation under clause 18, but would presumably be extended to cover a declaration under clause 19 as well. Back

22   Cl. 21(3). The statutory power to take action which could otherwise be taken under the Royal Prerogative would appear to mean that the Royal Prerogative would be superseded by the statutory powers for the period during which the proclamation or declaration is in force. Back

23   Cl. 21(4). Back

24   Cl. 25. Back

25   Consultation Document, ch. 5, para. 36, p. 30. Back

26   Human Rights Act 1998, ss. 3(2)(b) and 6(2)(b). Back

27   Seventh Report from the Defence Committee, Session 2002-03, Draft Civil Contingencies Bill, HC 557, para 68. Back

28   Cl. 21(4)(a). Back

29   Cl. 21(4)(b). Back

30   Cl. 21(4)(d)(iii). Back

31   Consultation Document, ch. 5, para. 30, p. 30. Back

32   ibid., para. 31, p. 30. Back

33   See ECHR Article 15. Back

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