Memorandum by Professor Clive Walker,
School of Law, University of Leeds
1. This paper responds to the call for evidence
from the House of Lords Constitution Committee in connection with
its inquiry on "Emergency legislation".
2. The Committee has three circumstances
In relation to primary legislation, where
bills receive an expedited passage through Parliament.
Circumstances where the Government introduce
substantial new provisions to a bill at a late stage in a bill's
passage through Parliament and seek to justify the timing of such
amendments on grounds of urgency.
In relation to delegated legislation,
the Committee seeks views on the ministerial order-making powers
contained in Part 2 of the Civil Contingencies Act 2004 designed
to allow urgent law-making to deal with emergency situations.
3. Discussion in my paper will centre on
anti-terrorism laws and also the Civil Contingencies Act 2004.
For further details and arguments on these issues, see principally:
Walker, C., The Anti-Terrorism Legislation
(Oxford University Press, Oxford, 2002).
Walker, C. and Broderick, J., The
Civil Contingencies Act 2004: Risk, Resilience and the Law in
the United Kingdom (Oxford University Press, Oxford, 2006).
3. The anti-terrorism legislation is replete
with examples of bills which received an expedited passage through
4. The Prevention of Terrorism (Temporary
Provisions) Act 1974 was passed in the space of three days
after the Birmingham pub bombings by the Provisional IRA. The
conception of the Bill was announced on 25 November 1974,
when the Home Secretary, Roy Jenkins, warned that, "The powers
Draconian. In combination they are unprecedented in peacetime.
I believe these are fully justified to meet the clear and present
In response, Parliament was fanatically enthusiastic and had passed
the Bill by 29 November, virtually without amendment or dissent.
5. A more recent example was the Criminal
Justice (Terrorism and Conspiracy) Act 1998. The legislation responded
to the challenge to the "Good Friday" Belfast Agreement,
as perpetrated by the Real IRA, the Republican dissident group
responsible for the Omagh bombing on 15 August 1998. The
legislative process entailed not only parliamentary passage within
a remarkably short space of time (two days) but also the extraordinary
recall of both Houses of Parliament during the summer recess.
6. The following lessons may be drawn from
such episodes. The first is that they produce lasting impact.
The circumstances may be depicted as an "emergency",
and the legislation may be entitled "emergency provisions"
or "temporary provisions" and may even contain a sunset
or renewal clause. But the lesson of experience is that such legislation
may endure. The Prevention of Terrorism Acts continued until 2001,
when the Terrorism Act 2000 came into force. Of course, that
current legislation reproduces much of the earlier legislation.
The Omagh legislation likewise was incorporated within the Terrorism
Act 2000, but its anti-terrorism part has now expired with the
passage of the Justice and Security (Northern Ireland) Act 2007.
7. The second lesson is that the appearance
of legislation being drawn up in emergency circumstances is highly
misleading. The legislation is revealed and passed in emergency
circumstances, but it has almost certainly been drafted in non-emergency
circumstances. To take the example of the Prevention of Terrorism
Act of 1974, the picture thus portrayed, of a Bill drawn up and
passed with astonishing alacrity in response to a single horrific
incident, is misleading in two respects.
8. First, the 1974 Act should not be
viewed solely as a response to the Birmingham bombings, since
numerous terrorist attacks had previously occurred. Repeated bombings
had been carried out in England by the IRA since February 1972.
In the first 10 months of l974, there were 99 further
incidents, producing 17 deaths and 145 other casualties.
Indeed, in November 1974 alone, there had already been 11 attacks
with four dead and 35 injured. With this background in mind,
the Home Office has since admitted that it drew up contingency
plans during 1973, including a draft Bill to proscribe the IRA,
exclude suspects and restrict movement from Ireland.
Indeed, the Government would rightly have been condemned if it
had ignored the continuing mayhem and had not considered counter-measures.
What was objectionable was not this stage of preparedness but
the secrecy in which it was undertaken and the cynicism with which
it was revealed only when the vigilance of Parliament was at its
9. The second respect in which the Prevention
of Terrorism Act was a measured, rather than a panic, response,
concerns the existence of close precedents for such legislation.
The designs produced by the Home Office were almost certainly
based on three sources. The model for proscription and the six-monthly
renewal period was the special anti-terrorist legislation then
in force in Northern Ireland, the Northern Ireland (Emergency
Provisions) Act 1973. The second precursor was the Prevention
of Violence (Temporary Provisions) Act l939, which had reacted
to an earlier I.R.A. campaign in Britain and contained the ideas
of exclusion and special police powers. Finally, controls in the
l974 Act on travellers from Ireland were simply adaptations
from the Immigration Act l971.
10. It may be concluded that the appearance
given in l974, of a Bill being conjured out of thin air, does
not conform to reality, as preparations were well in hand for
such legislation. Unfortunately, the Home Office did not perform
this task very efficiently, and, given the total absence of forewarning
or time for debate, neither Parliament nor interested bodies were
able to remedy its deficiencies. As a result, various faults may
be attributed to the process of parturition of the Act, many which
persist today. First, measures were included which not only failed
to prevent terrorism but probably hindered that objective, such
as exclusion orders. Conversely, devices which might have been
more pertinent, such as electronic surveillance, were not even
mentioned. Another defect was that the Act had to be limited to
Irish terrorism, since there was no time to devise a more comprehensive
statute to take account of other sources. Finally, there was no
concerted effort to include any "limiting principles"
(described below). Indeed, the Draconian nature of the Act was
flaunted as one of its chief virtues.
11. The same points about secret preparations
on the basis of evident precedents can be made regarding other
episodes of "emergency" legislation including the 1998 Act.
It is rare for there to be no indication of a looming problem,
and it is even rarer for the problem never in previous times to
have been considered or even to have been the subject of legislation,
whether in the United Kingdom, or in comparable jurisdictions.
The 1998 Act provides an illustration of the latter, whereby
a large part of the content was all too predictably borrowed from
the Irish Republic's Offences against the State Acts 1939-85.
12. Two recommendations are suggested in
response to the problems indicated above. The first recommendation
is the need to set out standing "limiting principles"
(referred to above in para.10). These limiting principles do not
need to be enacted, though some are already explicit in the Human
Rights Act 1998. The point is for Parliament to assert its authority
and to make clear what standards the legislature expects of the
executive. These limiting principles should act as a parliamentary
check-list against which future legislation can be judged in a
more systematic and rational way than at present. The check-list
of "limiting principles" is as follows.
13. "Policy relevance and impact":
Legislation should meet demands of efficacy and efficiency, according
to set strategies. If no strategies can be explained, that would
of itself be a reason for rejection. If strategies are forthcoming,
the legislation must show rational connection and potential advancement.
In the anti-terrorism field, the relevant strategy is CONTEST,
but it is astonishing how little this carefully crafted document
is referred to in government papers or Parliamentary scrutiny.
14. "Rights audit": The rights
of individuals must be respected according to traditions of the
domestic jurisdictions and the demands of international law. For
these purposes, the Human Rights Act 1998 can be taken to
provide a ready reckoner of standards, though it should be realised
that the European Convention on Human Rights is the lowest common
denominator of rights in Europe, and United Kingdom citizens should
expect higher standards of treatment by their state than might
be possible in less mature democracies. It is also the case that
the European Convention does not reflect some deeply entrenched
common law traditions, such as trial by jury. Another point is
that there must be regard to other international instruments such
as the UN International Covenant on Civil and Political Rights
which can vary in a few respects. Thus, compliance with the Human
Rights Act 1998 is necessary but not sufficient in auditing
rights. Two further caveats should be entered concerning the Human
Rights Act 1998.
15. The first caveat is that the mechanisms
for checking the use of truly emergency laws, pursuant to Article
15, is too weak. By section 14, a designated derogation can be
made by an affirmative order under section 20 which can then
subsist under section 16 for five years. This is extraordinarily
lax in comparison to the standards expected by the European Court
of Human Rights. The procedures should be amended so as to ensure
that renewal should take place every six months, and that before
renewal there should be an independent expert review and report
on the necessity for further derogation and its basis and extent.
No doubt, such a more regular review might have picked up the
difficulties with discrimination endemic in the derogation notice
of November 2001 which became the subject of adverse judgment
in the House of Lords Appellate Committee in 2004
and, along similar lines, in the European Court of Human Rights
in February 2009.
One might have more sympathy with the government's apparent discomfort
over both judgments if more active steps had been taken to ensure
16. The second caveat is that the discussions
about rights tend nowadays to talk vaguely about "balance".
Far more profit would be gained from basing discussions around
"proportionality" and to understand that term in precise
terms as embodying the following standards
that the legislative objective is sufficiently
important to justify limiting a fundamental right;
that the measures designed to meet the
legislative objective are rationally connected to it;
that the means used to impair the right
or freedom are no more than is necessary to accomplish the objective;
and that a proper balance is considered
between the gains for the policy purpose and the incursion into
It should further be understood (but is frequently
ignored) that these standards vary according to rights affected.
For absolute rights (such as article 3), there can be no balance
or compromise. For fundamental rights to liberty and due process
(articles 5 and 6), any limits must operate in very limited
circumstances for the sake of the rights of others and not for
wider societal goals. For provisional rights (articles 8 to
11), these may be proportionately balanced not only against rights
but against wider societal interests. For derogation under article
15, any measure should be "strictly required".
17. The next limiting principle is "accountability"
which includes attributes such as information provision, open
and independent debate and an ability to participate in decision
making. These should be applied to mechanisms in the proposed
emergency legislation for Parliamentary scrutiny and future application
of relevant legislation, as well as its periodic review. For example,
is any independent scrutiny mechanism to be established? How will
the views of those particular constituencies (such as particular
ethnic minorities) likely to be most affected be gathered? Are
the courts able to receive a full range of complaints?
18. The final limiting principle is "constitutional
governance", meaning the subjection of governmental action
to norms, whether legal or extra legal (such as codes). Any such
codes should be readily accessible and Parliament should check
that Ministerial promises are kept. A recent example where they
were not kept concerns the failure to produce a specific code
under section 34 of the Justice and Security (Northern Ireland)
That Act embodies neither adequate independent nor Parliamentary
oversight, so the Minister can bury such promises. "Constitutional
governance" also requires that the emergency laws reflect
the overall purpose of the restoration of fundamental features
of constitutional life.
19. Moving from "limiting principles",
the second, and obvious step which might be taken to scrutinise
more effectively emergency legislation would be to demand from
the executive the drafts of legislation well before they are launched
in circumstances too fraught to allow proper scrutiny. These considerations
of constitutional governance point towards the need for special
powers considered fully in advance of an emergency. A good example
relates to the Civil Contingencies Act 2004, Part II. Part II
allows for regulations to be issued in emergencies. Despite freedom
of information requests, the government has refused to release
any draft of the range of planned regulatory codes, each dealing
with a different form of emergency.
20. The advantage of prior discussion is
that the measures can be scrutinised by Parliament far more effectively
against the limiting principles already adduced. Interested and
expert third parties can also add their points. Ministers will
say that the disadvantage is that these draft legislative codes
are "sensitive" and it will give warning to our enemies
to tell them what our reaction will be. There may be at least
three lines of response. The first is to say that any loss by
way of forewarning will be more than compensated by better designed
and more effective laws. The second is that there is little danger
to security. Laws are general in their nature, and our enemies
will remain unsure as to how precisely the laws will be applied
to them. The third response, reflecting the point in para.9 about
precedents, is that the broad lines are entirely predictable in
22. The late amendment to primary legislation
dealing with emergency is again a repeated occurrence. The Committee's
example of the addition of Part V of the Counter-Terrorism Act
2008, allowing the enforcement of the Financial Action Task Force's
directives, is indeed an excellent example. The tacking-on of
extraneous, non-emergency measures, by no means all as urgent
additions, was also a feature of the Anti-terrorism, Crime and
Security Act 2001. A recent illustration of the difficulties caused
concerns the freezing of Icelandic banking funds under the Anti-terrorism,
Crime and Security Act 2001, section 4.
Whilst the order was legal, nonetheless, the order constitutes
a dangerous use of the legislation that was all but inevitable
due to the failure to address concerns raised at the time of enactment
and in a subsequent review regarding its scope.
23. Reflecting further upon the Committee's
example of Part V of the Counter-Terrorism Act 2008, exactly why
Schedule 7 was rushed through in this way, unless simply
to avoid close scrutiny, remains obscure. The government called
in aid an FATF statement on 16 October 2008 which warned
of the involvement of Iran in terrorism financing and of Uzbekistan
in money laundering.
However, neither danger was wholly novel, other FATF missives
have been ignored,
and other regulatory powers already existed to ensure restraints.
Nor have other countries acted with such urgency.
24. The remedies for such abuse of the legislative
system include explicit reference to the limiting principles already
adduced. Another remedy might include clearer standing orders
as to the "admissibility" of amendments. The current
parliamentary rules on the elimination of amendments deemed to
be "out of order" are obscure and contained in diverse
rulings from the chair.
To aid enforcement, a clearer statement about inadmissibility
would be helpful in cases where the legislative processes are
foreshortened. A new rule on admissibility could be combined with
a grant of extra emergency parliamentary time in the case of a
rejection of a government amendment. Thus, where a Minister's
amendment is rejected, there would be the opportunity to table
immediately primary legislation. The tabling of such legislation
would still be advantageous since it would ensure that there is
distinct debate and that debate is held at all Parliamentary stages.
2004, PART II
25. A review of these powers is offered
at length in chapter 5 and 6 of Walker, C. and Broderick,
J., The Civil Contingencies Act 2004: Risk, Resilience and
the Law in the United Kingdom (Oxford University Press, Oxford,
2006). For detailed arguments and references, please refer to
that work. The regulation-making powers are of awesome scope,
but the Government claims that sensible limits are imposed by
reference to the concept of a "Triple Lock"that
restraints will be imposed on the triggering definitions by reference
to seriousness, necessity, and geographical proportionality. The
effectiveness of the application of these concepts, and whether
they are as "transparent and robust"
as claimed, may be doubted. Amongst the problems in Part II, as
currently drafted are as follows.
26. As regards issuance, the following points
The Triple Lock demand of "seriousness"
is not adequately reflected in section 19, and the various legs
of the Triple Lock are not drawn together so that they are readily
visible and emphasised. Instead, they are found principally in
sections 19 (seriousness) and sections 21 and 23 (necessity
and geographic proportionality); the Government claimed to consolidate
would distort the drafting.
Further general problems
are that there is no express requirement of objectivity in any
of the teststhe Minister is allowed to use powers on the
basis of satisfaction without the qualification of reasonableness.
The condition of necessity is left unexplained, except in section
21(5) and (6) where emergency regulations overlap with "normal"
powers or, perhaps more significantly, with more focused powers
which deal with crisis, such as terrorism legislation.
Next, proportionality is not sufficiently
explained aside from in geographical terms. The term is baldly
stated when an emergency is declared (section 20(5(b)) and when
the regulations are issued (section 23(1)(b)), but there is no
requirement when the regulations are applied.
The actual power to make emergencies
regulations is set out in section 20(1). This formula is framed
subjectively. While review by the courts and Parliament is not
thereby debarred, it is likely that a less rigorous standard of
proof is demanded.
In an emergency, section 20(2) allows
a "senior" Minister of the Crown to issue emergency
regulations. The definition of "senior" Minister of
the Crown means (a) the First Lord of the Treasury (the Prime
Minister), (b) any of Her Majesty's Principal Secretaries of State,
and (c) the Commissioners of Her Majesty's Treasury
(section 21(3)). The latter are a curious and inappropriate choice.
More explicit preconditions to section
20(1) about which the Her Majesty in Council must be satisfied
are set out in section 21. The first condition (section 21(2))
is that an "emergency" has occurred, is occurring or
is about to occur. The emergency is as defined by section 19,
which includes the concept of seriousness as part of the Triple
Lock. There is no temporal cut off point for either dealing with
the aftermath of emergencies which have occurred or anticipating
emergencies which are in the future.
In addition to the three conditions of
the Triple Lock, it would have been very helpful to impose statutory
duties to disclose the evidence and intelligence which convinced
the Minister to intervene. There is no such duty in the Act beyond
the assertive statement in section 20(5).
An unresolved issue is whether the conditions
in section 21 apply as a trigger to the totality of regulation-making
powers in section 22 (set out below) or whether the conditions
must be satisfied for every exercise of each regulation-making
27. As regards the scope and limits of emergency
regulations, the following concerns arise.
There is no express power of detention
without trial, as was equally the position under the Emergency
Powers Act 1920. Especially in the light of debates under the
Counter-Terrorism Bill 2007-08, the position should be clarified,
as it was under the rejected clause in that Bill. Such a serious
incursion into liberty, and even powers of summary arrest, should
have been expressly expressed and regulated on the face of the
Act if it is to remain a live possibility.
The 2004 Act is now arguably more
favourable to strikers than the Emergency Powers 1920 Act
since it covers industrial action other than a strike (which should
be interpreted as involving the taking part in it, as well as
the calling of it)
and covers prohibitions of a civil as well as criminal nature.
But the Government declined to clarify the position regarding
peaceful picketing by adding a specific regulation-making power
under section 22(3) and removing picketing from the ambit of section
22(3)(f) so that the matter could be specifically signalled.
Next, by section 23(5), emergency regulations
may not amend Part II of the Act or any part of the Human Rights
Act 1998. But why not list as sacrosanct a host of other "constitutional"
legislation? There is danger to the constitutional fabric from
the regulation-making power in what became section 22(3)(j)to
"disapply or modify an enactment or a provision made under
or by virtue of an enactment". In response the Joint Committee
on the Draft Civil Contingencies Bill commented that:
"In the wrong hands, this could be used to remove all past
legislation which makes up the statutory patchwork of the British
constitution. We believe that the Bill should list a number of
fundamental parts of constitutional law that should be exempt
from modification or disapplication." Likewise the House
of Lords Select Committee on Delegated Powers and Regulatory Reform
questioned the power to override constitutional rights.
The full scheme of regional coordination
is not revealed in Part II, and there is, as a result, a lack
of clarity as well as a total absence of accountability to the
localities affected. Accountability to Parliament is also weakened
and should have been enhanced by requiring under section 24(4)
periodic reports on the work of the regional tier, designate or
Parliamentary scrutiny is designed to
bite at a number of stages under section 27. But none of these
forms of oversight affects the powers of Ministers to make new
regulations or affects anything done by virtue of regulations
before they lapse, cease to have effect or are amended (subsection
(4)). A proposal for an "Emergency Powers" Select Committee
was made during the parliamentary passage
but to no avail. The Government preferred recourse to collaboration
with representatives of key parties on Privy Council terms "to
build consensus across the political spectrum", as the Minister
of State for the Cabinet Office put it, rather than the less closed
or managed setting of a select committee.
One hopes that one or other select committee will both review
the implementation of the legislation under Part I and also will
dissect each and every invocation of Part II. But there is no
certainty that this will happen.
There was considerable disagreement during
the Parliamentary process about the possibilities of expert and
sustained independent inquiry in the event of Part II being invoked.
The matter was settled at the last hour by a concession that:
within one year of the end of the point at which the
emergency regulations fall, a senior Privy Counsellor appointed
by the Government will review the operation of the Act in that
instance. That process would be repeated for each and every emergency
during which the Act was used. That review will be published and
available to Parliamentand there will be a debate on the
review." The Government assured that a single "independent"
Privy Councillor will lead the review, assisted by a review team.
It is regrettable that the review and the appointment of the reviewer
are not based on statute and that the reviewer is afforded no
statutory powers to gather evidence.
28. Little confidence can be expressed regarding
future Parliamentary performance in either expressing, and still
less enforcing, limiting principles or the other suggestions made
for reform in this paper. Whilst some select committees (especially
the Joint Committee on Human Rights) have performed admirably,
the Parliamentary debates about emergency laws are often marked
by disinterest, ignorance, and confusion. Debates around 42 days
detention are very much the exception rather than the rule. It
is to be hoped that the Constitution Committee and the reaction
to its report can prove to be mistaken this gloomy prediction.
93 Hansard (HC) Vol.882 col.35 (25 November
1974), Roy Jenkins. Back
See further Walker, C.P., The Prevention of Terrorism in British
Law (2nd ed., Manchester University Press, Manchester, 1992) chap.4. Back
See further Walker, C.P., "The bombs in Omagh and their aftermath:
the Criminal Justice (Terrorism and Conspiracy Act 1998)"
(1999) 62 Modern Law Review 879; Campbell, C., "Two
steps backwards"  Criminal Law Review 941; Kent, K.D.,
"Basic rights and anti-terrorism legislation" (2000)
33 Vanderbilt Journal of Transnational Law 221. Back
Hansard (HC) Vol. 1 col. 360 (18 March 1981), Alex
Lyons; Hansard (HL) Vol. 504 col. 22 (13 February
1989), Lord Harris. Back
A v Secretary of State for the Home Department  UKHL 56.
See Walker, C., "Prisoners of 'war all the time'" 
European Human Rights Law Review 50. Back
A and others v United Kingdom, App. no.3455/05, 19 February
Hansard (HL) vol.689 col.1058 (20 February 2007)
Lord Rooker. Back
See Landsbanki Freezing Order 2008 SI 2008/2668, as amended
by SI 2008/2766. It was approved at HC Vol.481, col.868, (28 October,
2008) after debate in the HC Delegated Legislation Committee HC
Vol.481 (27 October 2008) and at HL Vol.704, col.1546,
(28 October, 2008). Back
See further Lennon, G.L., and Walker, C., "Hot money in a
cold climate"  Public Law 37. Back
Hansard HL vol.705, col.577 (11 November 2008) Lord
Hansard HL vol.705, col.587 (11 November 2008) Baroness
The Money Laundering Regulations 2007, SI2007/2157, were claimed
to be too limited (ibid. col.578), but no mention was made of
the Export Control Act 2002 or sectoral regulatory powers. Back
See Blackburn, R, and Kennon, A., Griffith and Ryle on Parliament
(2nd ed., Sweet & Maxwell, London, 2003) para.6.135. Back
Cabinet Office, The Government's Response to the Report of the
Joint Committee on the Draft Civil Contingencies Bill (Incorporating
the Government's Response to the Report of the House of Commons
Defence Committee on the Draft Civil Contingencies Bill) (Cm.
6078, London, 2004) para.3. Back
See Joint Committee on the Draft Civil Contingencies Bill, Draft
Civil Contingencies Bill (2002-03 HC 1074, HL 184) para.38. Back
Compare: Anti-terrorism, Crime and Security Act 2001, sections
17 and 19; Regulation of Investigatory Powers Act 2000 sections
5, 22, 23, 28, 29, 32, 49, 51, 55 and 73-5. Back
By the Interpretation Act 1978 Schedule 1, "'Secretary
of State' means one of Her Majesty's Principal Secretaries of
State." Under-Secretaries are therefore not authorised, nor
does the term include the Prime Minister or the Chancellor of
the Exchequer. Back
Under the Treasury Instruments (Signature) Act 1849, action must
be taken by at least two Commissioners. The 2004 Act must
comply as it does not specify that "any" commissioner
can act, unlike under (b). Back
But Emergency Regulations were altered in late 1973 to adopt
the wider forms of protection: see Morris, G.S., "The Emergency
Powers Act 1920"  Public Law 317 at p.324. Back
Smith v Wood (1927) 43 TLR 178. Back
Draft Civil Contingencies Bill (2002-03 HC 1074) para.13. Back
Twenty-Fifth Report (2003-04 HL 144) para.23. Back
Hansard (HC) Standing Committee F col. 298 (10 February 2004)
and Hansard (HC) vol. 421 col. 1388 (24 May 2004). Back
Ibid col. 299, Douglas Alexander. See also Hansard (HC) vol.421 col.
1392 (24 May 2004), Fiona Mactaggart. Back
Hansard (HL) vol. 666 col. 1655 (18 November 2004), Lord Bassam. Back
Hansard (HC) vol. 426 col. 1515 (18 November 2004), Ruth Kelly. Back