A: To modernise the framework for handling civil emergencies in the Civil Defence and Emergency Powers Acts.

A: The Bill empowers it to make 'emergency regulations' where this might 'prevent, control or mitigate' some 'aspect or effect' of an 'emergency'.²

An 'emergency' is defined in terms of perceived threats to human welfare, the environment or the security of the UK.

Threats to 'human welfare' are widely but not definitively listed, and might concern:

• human life, health, safety or housing.
• other essentials of life (e.g. food, water, energy and fuel).
• disruption to transport, the finance system or communications networks,
• damage to property.

However:

• An 'emergency' need not actually exist in the UK
• Anything within the remit of 'threatened emergencies' is covered
• Arbitrary 'events or situations' meeting a perception can be used as a trigger for action
• These 'events or situations' can be abroad or in the UK.
• The term 'security' is undefined. (Its use in EU circles covers economic stability and diplomatic activities as well as military and intelligence matters).
• There are references to 'terrorism', but the Government has already craftily re-interpreted the definition of 'terrorism' in the Terrorism Act, 2000 to include bans on protests in the Greater London area that were unrelated to an objective threat.³

The pretext for action is that existing legislation will not be sufficient. Overall, this is very loose!

Q. What type of regulations can Government Ministers make?

A: The Bill provides for emergency regulations that may do anything that could be done by an Act of Parliament or use of the Royal Prerogative. They can be made either by Privy Council or by individual senior Government Ministers, in the case of 'urgency'.⁴

[Note: This feature essentially considers regulations that might be made by Ministers outside the structure of Parliamentary procedure].

Ministers are empowered to make virtually whatever regulations they want; the categories in the Bill are just some 'examples'. In fact, the Government can "disapply or modify" (i.e. repeal, amend or suspend) virtually any 'enactment' (Act of Parliament) - even constitutional legislation such as the Bill of Rights and the Magna Carta!⁵

Regulations may confer powers to any 'specified individual' as well as key officials.

A: The more drastic possibilities include:⁶

• Confiscation of property, with or without compensation
• Destruction of property, animals or plants; with or without compensation
• Deployment of the armed forces
• Forced movement, to or from a place
• Forcing a person to act, without remuneration or compensation
• Prohibiting assembly
• Prohibiting travel, or virtually any other activity.

A: Possibilities not mentioned could include:

• Imposing taxation or compulsory ID cards
• Restricting the freedom of the press
• Banning a critical organisation
• Neutralising the House of Lords as a brake on Government power to act, or even
• Handing over powers to a foreign power or armed force.

A: A law text book⁷ lists Royal Prerogative powers to include:

• Dissolution of Parliament; appointment of a new government and PM
• Appointment of judges and magistrates
• Concluding an international Treaty
• Recognising the legitimacy of a foreign State
• Acting where there are any gaps in statutory 'emergency powers'
• Under Act of State rules, Crown servant immunity from court action can be given for 'torts' (in England) and 'crimes committed outside its jurisdiction'
• Pardoning a convicted person.

A: Only the proposed [Civil Contingencies] Act itself and 'procedures for criminal proceedings' would be protected.⁸

(Note: However we should note that the Government wants to introduce an EU Constitution that would allow our civil and criminal procedures to be set by the EU without a national veto).

A: The Bill amazingly preserves the 'right to strike' and related actions, which might stop emergency services from being effective in a true 'civil emergency' such as a flood.⁹

Military conscription is prohibited (although under the stratospheric powers, individuals could be made to perform military-type activities without military status or uniform!).

A: Although in a perceived 'emergency' regulations can be made in a manner that totally side-steps an elected Parliament, Ministers would need to lay them before Parliament 'as soon as practicable'. There is a procedure for recalling both Houses, and regulations would lapse if not passed by both Houses within 7 days.¹⁰

However - even if regulations lapse or are cancelled, Ministers can make fresh ones.

It has also been noted that in the case of 'part justified, part excessive' regulations, Parliament would be procedurally delayed in amending them. There could be grounds for not terminating a regulation so as not to lose its justified component.

Q. What about safeguards for constitutional and civil liberties legislation?

A: When Parliament's Joint Committee reported on the original Bill in November 2003, they were alarmed that:

"In the wrong hands, it could be used to undermine or even remove legislation underpinning the British Constitution and infringe human rights".¹¹

They proposed a list of important legislation that should be protected against suspension or amendment.

That the Government has refused to consider this is telling.¹² To say that it has no intention of amending Constitutional legislation is not enough - if powers are there in the Bill, it can safely be assumed that they are there to be used!

Some commentators feel that the Human Rights Act, 1998 should be safeguarded - however the 'safeguards' it carries from the European Convention on Human Rights,1950 (ECHR) can be worthless as the Government can specifically opt out ("derogate") from them.

It did this after "9/11" in 2001, when it enabled indefinite detention without trial. None of the other 43 signatories to the ECHR felt the need to opt out.¹³

A: There is no safeguard that persons to whom powers are given (in Parts 1 and 2 of the Bill) - or persons to whom they are delegated - must be answerable to the Crown.

Powers can be given to "any specified person" - not just recognised officials.¹⁴

A: It has also been claimed that action taken must be 'proportional' to the 'emergency' in question, but the small print would seem to allow a trivial pretext (e.g. minor flooding) to invoke the use of sweeping powers.¹⁵

Just as a regulation can compel or restrict virtually anything, failing to comply with an order made under it (including from a delegated person) will become an offence. The Bill effectively allows arbitrary offences bearing prison sentences of up to 3 months to be created. ¹⁶

Although offences created by regulations are to be 'triable only by a magistrates court or a sheriff's court in Scotland', there is provision for a Minister to set up courts and tribunals with jurisdiction over the regulations.

(Note: The Government has been noted for proposals that trample on traditional legal safeguards such as:

• restricting the right to trial by jury;
• allowing hearsay to be used as 'evidence', and
• allowing British citizens to be extradited using the European Arrest Warrant for 'offences' that are not a crime in the UK and without the necessity to produce any evidence.

Also, in August 2004, it was announced that the Police are to be given the right to arrest for any presumed offence, no matter how small).

A: Judicial review is not explicitly mentioned in the current Bill, however the Government's intention perceived in the original (2003) Bill was to rule this out!¹⁷ This would have truly been power without accountability.

However, in discussing the use of Royal Prerogative, a law text book¹⁸ warns: "For instance it appeared that certain powers were not amenable to review: these included treaty-making; defence; honours; the dissolution of Parliament, and the appointment of ministers"

The pretext of national security appears to create another no-go area (cf. The 'GCHQ' case in 1984/5). In the case of McEldowney v Forde [1971] AC632, an emergency regulation passed for 'preserving the peace and maintaining order' was challenged as ultra vires - 'going too far'. The conviction for breaching it was upheld, in spite of the lack of any public order disturbance.

Prerogative power may be subject to common-law limitation or demands - such as to pay compensation for losses (cf. Attorney General v De Keyser's Royal Hotel Ltd [1920] AC508). [A separate concern is whether common law rights will be subsumed by attempts to harmonise civil and criminal law under the proposed EU Constitution].

Writing on this wider topic of judicial review, Phil Harris¹⁹ noted that 'principles of legality' are not easy to ascertain. He also quoted Lord Woolf (1992) on the rising number of applications and the burden on the court system.

A: These include controls on arbitrary action by Government representatives:

• 'Necessity' and 'Reasonableness' of actions
• Fair compensation for expenditure or losses
• Qualification of transport affected as being 'vital'
• Restrictions on powers given just to 'specified persons'
• Restrictions on industrial action in an emergency
• Protection of the Human Rights Act, 1998
• Protection of the Parliament Acts
• Protection of Parliamentary functioning
• Protection of the Regency Acts (covering monarch's powers on the use of emergency powers).

However other safeguards desperately need to be added.

A: Gareth Crossman of Liberty called it "The most powerful piece of peacetime legislation ever proposed in the UK. It seeks to grant the Government unprecedented powers...".²¹

'Statewatch' editor, Tony Bunyan claimed that it "paves the road to an authoritarian state".²²

Speaking in Parliament²³, Lord Lucas likened it to Hitler's 'Enabling Act'.

"... Are we opening up our system to the equivalent of what happened in Germany in 1933, when it became possible for an extreme party legitimately to hijack a democracy and turn it into something totalitarian? "

A: Yes. On 18.10.99, the department with responsibility for civil protection, the Cabinet Office announced on its website that the Government was introducing 'a European dimension' to policy-making at all levels of government.

In its communication on "Reinforcing the Civil Protection Capacity of the EU,²⁴ the European Commission notes an EU Action Programme was agreed in 1997. At present, Member States can request support in the event of a disaster, but the decision is theirs and they will pay for any assistance received.

In its above communication, the Commission pushes for actions on an EU level - avoiding national self-sufficiency; joint training exercises, common procedures, equipment and even EU insignia on uniforms in the name of "solidarity". An aim is to enable common deployment of "civil, military and legal means... on the territory of the EU"

The draft EU Constitution²⁵ includes 'civil protection' as an area for the EU to take 'supporting, complementary or coordinating action', without a remit to harmonise national laws. It would appear that there is a national veto on defence-related matters, but a New Labour government squeamish about being 'isolated in Europe' might not use it.

The draft calls for the EU to "mobilise all instruments at its disposal... to prevent the terrorist threat... and protect democratic institutions and the civilian population...". Although it is still for a Member State to request assistance in the event of a disaster, the intention is firmly to build up a central capability, including "military resources made available by Member States".

REFERENCES

Direct quotes are signified by double quotes, " ", abridged speech or concepts by single quotes, ' ',

'This feature is a discussion paper based on the authors' views, and provided in the public interest. Whereas every care has been taken to provide a balanced approach, no liability is assumed for any use to which it is put'. It may be freely reproduced for the purpose of stimulating debate.