Memorandum from Ian Leigh, Professor of
Law, University of Durham
Thank you for your letter of 17 July. I wish
to raise in a brief form some concerns about the Human Rights
implications of the Bill.
I have two specific issues that I wish to addressthe
powers available under Order in Council or regulations laid under
the Bill and the issue of review of these powers for compatibility
with the European Convention on Human Rights.
There is no doubt a case for modernising the
power to make emergency regulations for the purposes specified
in Clause 21(2). However, my concern is that once CL 21(2) is
invoked it provides a gateway into the range of powers under CL
21(3) with too little continuing regard to the initial "triggering"
It is true that some limits are set by CL21(1)setting
an initial threshold of seriousnessand by CL21(4). However,
in view of the limitations of judicial review under the Wednesbury
doctrine (which will be the standard to be applied in considering
whether CL 21(1) is satisfied) and the broad range of CL 21(3),
these safeguards are inadequate.
Of particular concern is CL 21(3)(j) which allows
for regulations to "disapply or modify" an enactment.
"Enactments" at risk could include the Human Rights
Act 1998, Police and Criminal Evidence Act 1984, Public Order
Act 1986, Regulation of Investigatory Powers Act 2000, the Terrorism
Act 2000 and the Anti-Terrorism Crime and Security Act 2001. In
all these cases, however, and many others, Parliament has already
balanced civil liberties and community interests and, frequently,
made particular arrangements for serious and urgent situations.
It should not be open to the Government to set these balanced
schemes aside by regulations under CL 21. A minor safeguard is
provided under CL 21(4)(e) for subsisting legislative provisions,
but the standard at which the person making the regulations can
invoke CL 21 notwithstanding is too low. Either specific Acts
dealing with emergencies should be exempted under CL 21 or CI
21(4) should be strengthened.
More generally, some effort could be made to
relate the powers available under CI 21(3) to the specific purposes
in CL 21(2). Not all CL 21(2) purposes are equally serious. It
would be commonly accepted, for example, that "protecting
or restoring an electronic or other system of communication"
or prevent disruption to plant life (CL 21(2)(e) and (j) respectively)
are less serious. However, all these purposes trigger the full
range of CL 21(3) powers, notwithstanding. A better approach would
be to band the CL 21(2) purposes and the available powers under
regulations according to the degree of seriousness.
Finally, CL 21(3) refers to any provisions that
could be made by Royal Prerogative. Since it does, the Act should
make clear that the powers it confers are intended to supplant
the prerogative powers. There is an unfortunate history of earlier
administrations sometimes attempting to circumvent statutory limitations
by invoking overlapping prerogative powers and the courts have
not acted as decisively as they might to prevent it. This avenue
should not be left open.
Clause 25 sets a most unfortunate precedent
and should be resisted. The effect is to prevent the courts from
declaring regulations made under CL 21 from being invalid on human
rights grounds. The justification offered from this is that it
would cause uncertainty. However, policy arguments about the effects
of legal challenge should be addressed as part of any possible
legal challenge itself, rather than in this way.
The ECHR itself deals with emergencies and will
need to be taken into account in any event. Limits exist on the
suspension of rights, even in times of emergency, under the European
Convention on Human Rights under Article 15.
Article 15Derogation in time of emergency
1. In time of war or other public emergency
threatening the life of the nation any High Contracting Party
may take measures derogating from its obligations under this Convention
to the extent strictly required by the exigencies of the situation,
provided that such measures are not inconsistent with its other
obligations under international law.
2. No derogation from Article 2, except
in respect of deaths resulting from lawful acts of war, or from
Articles 3,4 (paragraph 1) and 7 shall be made under this provision.
3. Any High Contracting Party availing itself
of this right of derogation shall keep the Secretary General of
the Council of Europe fully informed of the measures which it
has taken and the reasons therefore. It shall also inform the
Secretary General of the Council of Europe when such measures
have ceased to operate and the provisions of the Convention are
again being fully executed.
Consequently, some fundamental rights (notably,
the right to life under Article 2 and Article 3 protection from
torture, inhuman and degrading treatment) are non-derogable and
procedural requirements for the registration of a state of emergency
exist under Article 15. The European Court of Human Rights will
be able to review the legality of the state of emergency in order
to check that the necessary pre-conditions are met (see, for example,
Ireland v UK (1978) 2 EHRR 25; Lawless v
Ireland (1961) 1 EHRR 15; Aksov v Turkey (1996) 23 EHRR
In the light of this, there is a powerful case
for domestic courts to have the same facility. Arguably, the power
merely to interpret regulations in a Convention-friendly way and
where this cannot be done to issue a Declaration of Incompatibility
under s.4 of the Human Rights Act 1998 is inadequate and may not
constitute an effective remedy as required under Article 13 of
the ECHR (this point has yet to be tested at Strasbourg). In countries
with a written constitution one would expect the parameters of
emergency powers to be laid in the constitution and for review
by the Constitutional Court to extend to this.
I hope these comments are useful.
18 August 2003