Examination of Witnesses (Questions 200-219)|
16 SEPTEMBER 2003
Q200 Lord Archer of Sandwell: Would
you regard that as something which could properly fall within
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
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 needthe Head
of State was somehow incapacitated or unavailableof 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
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
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
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
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
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
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
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
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
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 momentsand
it is for Parliament to judge those moments, and not me, Chairmanwhere
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.