Examination of Witnesses (Questions 220-235)|
16 SEPTEMBER 2003
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 Billthe
need for parliamentary approval within seven days and the prospect
of subsequent litigation in individual casesare 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
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 historicallydue 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
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
Q231 Chairman: Offences against the
regulations with a penalty of up to three months' imprisonment,
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,
Dr Metcalfe: No.
Ms Chakrabarti: I think my last
answer is the one that I would offer in relation to all these
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