13 September 2004

 

 

The Civil Contingencies Bill

Re: Part 2 of the Bill

 

OPINION

 

 

  1. In my opinion this Bill, if enacted, is a danger to freedom and is contrary to the principles which, in our country, underlie the relationship between those who are governed and those who govern them.

  2. Hitherto in peace time, even when faced with ferocious violence and threats of violence from the IRA and others, we have managed without conferring on government powers of such authoritarian extravagance as are proposed in Part 2 of this Bill.

  3. Part 2 of the Bill is concerned with "emergency powers". In an "emergency" the Government may by Orders in Council make "emergency regulations".

  4. An "emergency" is an event or situation which threatens serious damage to –

      1. human welfare in the UK or in a Part or region,

      2. the environment of the UK or a Part or region, or

      3. the security of the UK or a Part or region.

    See s.19(1).

  5. An event or situation threatens damage to human welfare if it involves, causes or may cause –

      1. loss of human life;

      2. human illness or injury;

      3. homelessness;

      4. damage to property;

      5. disruption of a supply of money, food, water, energy or fuel.

      6. disruption of an electronic or other system of communication;

      7. disruption of facilities for transport, or

      8. disruption of services relating to health.

    See s.19(2).

  6. An event or situation threatens damage to the environment only if it involves, causes or may cause –

      1. contamination of land, water or air with –

        1. harmful biological, chemical or radio-active matter, or

        2. oil,

      2. flooding, or

      3. disruption or destruction of plant life or animal life.

    See s.19(3).

  7. The following threaten damage to security –

    8. For the purposes of subsection (1)(c) the following threaten damage to security –

      1. war or armed conflict, and

      2. terrorism, within the meaning given by section 1 of the Terrorism Act 2000 (c.11).

    See s.19(4).

  8. The event or situation is not an "emergency" unless it threatens serious damage; but what one person may regard as threatening "serious" damage may be regarded by another as threatening only damage which is less than "serious"; what one person may regard as a threat of serious damage may not be regarded by another as such a threat; and the itemised lists of damage and possible damage, which if "serious" may trigger the use of emergency powers, leave far too much room for potential misuse of the new powers.

  9. S.20 empowers Government (Her Majesty by Order in Council) to make emergency regulations "if satisfied" [NOT "if reasonably satisfied"] that the conditions in s.21 are satisfied; but a "Senior Minister" may make the regulations if satisfied – not if only reasonably satisfied – both that the s.21 conditions are satisfied and that it would not be possible without serious delay to obtain an Order in Council.

  10. Without the adverb reasonably or some equivalent qualification, the Government or a Minister may be satisfied without having sufficient, or any, grounds or reasons for being satisfied. The parliamentary draftsman would have had in mind the speech of Lord Atkin in Liversidge v Anderson [1942] AC 206 as a reminder of this effect of the unqualified word "satisfied" and of the unqualified word "thinks".

  11. S.20(5) requires the maker of any emergency regulations to preface the regulations with a statement specifying the nature of the emergency in respect of which the regulations are made; and it might perhaps be suggested that this could provide an opportunity to challenge and get the courts to examine whether there is a situation or event constituting an "emergency" and one which is a "serious" emergency; but the terms in which s.19 define "emergency" and the further terms of s.20(5) do not provide any room for such challenge and examination. The further terms of s.20(5) require the statement in the regulations to declare that the maker "is satisfied that the conditions in s.21 are met" and, among other satisfactions, "is satisfied that the effect of the regulation is in due proportion to [an] aspect or effect of the emergency". There is no protection there against the arbitrary making of emergency regulations.

  12. The s.21 conditions are relevant to the person making the regulations being satisfied. They include –

    13. s.21(2) his being satisfied "that an emergency has occurred, is occurring or is about to occur";

    s.21(3) his being satisfied "that it is necessary to make provision for the purpose of preventing controlling or mitigating an aspect or effect of the emergency".

  13. There is no scope for the judicial examination of the reasonableness of such "satisfaction".

  14. S.22(1) emphasises the subjectiveness of the "satisfaction" :

    15. s.22(1) "Emergency regulations may make any provision which the person making the regulations thinks is for the purpose of controlling or mitigating an aspect or effect of the emergency in respect of which the regulations are made".

    That a reasonable man would not think so is irrelevant.

  15. The remainder of s.22, especially s.22(3), permits regulations to make provisions of a virtually unlimited kind. Some particular kinds of provision are mentioned and their scope is remarkable, including

  1. S.23(1) looks like a limitation. It says that emergency regulations –

    2. "may make provision only if and so far as the person making the regulations thinks … [as there mentioned].

    But the word "thinks" is not qualified. The subjectiveness of the thinking, as of the satisfaction, is obviously deliberate. The person who thinks does not have to say why he thinks and his reasons for thinking.

  2. Indeed, all the provisions for emergency regulations are consistent with a dangerous modern and cavalier tendency to create and confer arbitrary power on government and government appointed persons.

  3. It is true that there is provision in s.27 for parliamentary scrutiny. The regulations must be laid before Parliament and are to lapse at the end of 7 days unless in that time each House of Parliament passes a resolution approving them. But – see s.27(4) – that does not prevent new regulations being made without delay. Indeed it does not prevent an arrogant government re-issuing the same regulations without any delay.

  4. S.26 also provides for emergency regulations to lapse at the end of 30 days; but s.26(2) provides that their provisions can be repeated at once in new regulations.

  5. The making of such emergency regulations is effectively removed from any sort of scrutiny or examination or control by the Courts and, assuming that the regulations are themselves drawn in the same authoritarian style what is done under the regulations will also be more or less free from such scrutiny, control and challenge in court. This is a model for arbitrary authoritarian government.

  6. This Opinion is concerned with the provisions in Part 2 of the Bill about Emergency Powers. Part 1 of the Bill – Local Arrangements for Civil Protection" – starts with the same definition of "emergency" as appears in Part 2 and is largely about planning by what are called "responders" – local authorities, chief officers of police, fire authorities, Health Service Trusts and others – to assess risks and make plans to deal with "emergencies". Part 1 is, however, less constitutionally innovative and damaging than Part 2 and in the time available to me I do not have time to provide selective or detailed comments upon Part 1.

  7. Amendments

    8. So far I have not had time to prepare amendments; and, in spite of helpful commentaries and analysis provided for my benefit, I do not know what amendments have been put forward already. The points made in this Opinion about arbitrary use of power which Part 2 permits would or might be covered by amendments proposing that, at each point in Part 2 where the word "satisfied" or "thinks" appears, the adverb "reasonably" is inserted in front of it. That would diminish the exercise of arbitrary government in relation to the making of emergency regulations. There are other changes to the same general effect which would be desirable. Together they would provide opportunity for challenge in the courts. Ousting the jurisdiction of the courts, whether by express provision or, as here, by drafting which leaves no room for the exercise of such jurisdiction requires very special circumstances and needs careful restraint in the drafting which makes that ouster. The possibility of recourse to the courts to protect our inherited constitutional freedoms against arbitrary power and its abuse, whether by government or by government servants or by anyone else is part of our centuries-old constitutional tradition and practice.

  8. It may be said, in defence of (Mr Blunkett and) the proposers of the Bill that it is prudent to have on the statute book provision for emergency powers to be invoked when they are needed and with appropriate urgency. But the emergencies for which this Bill provides are not to be compared with invasion by a wartime enemy or with the prosecution of war or defence in war. It is, moreover, in accordance with our attitude and history, that governments are to have draconian powers only with appropriate safeguards and, as I believe, subject to appropriate scrutiny by the Courts. It is not an answer to this criticism that scrutiny in the Courts can delay action by the government. The Liversidge v Anderson attitude produces, instead, a right to compensation for what the Courts may subsequently decide has been an unlawful infringement of liberty, freedoms and rights. Government, like the citizen and other bodies, is subject to the rule of Law and a temptingly slippery path stretches ahead from the taking of over-wide arbitrary power to abusive authoritarian government. It is a path along which governments can easily slide – especially, perhaps, one like the present government which at times appears resentful of judicial scrutiny of what is done under statutory powers and anxious to be free of such constitutional restraints.

  9. It is not directly relevant but should not be forgotten that, during the BSE troubles, the non-consensual killing of healthy animals was, at the time, represented by Government and government officers as lawful. It was not lawful. The power to make such non-consensual killing lawful had not been conferred by statute or by regulations; and this was acknowledged when, afterwards, the Animal Health Bill was introduced.

  10. Those vested with governing power have a natural inbuilt reluctance to accept restrictions on the exercise of their authority. Sometimes, but not always, there are good – or at least arguable – reasons for conferring very wide discretionary powers. But our freedoms and our constitutional arrangements have been built upon distrust of arbitrary uncontrolled power exercisable by government or the officers or appointees of government, and upon a robustly defiant refusal to grant such power except when absolutely necessary and, even then, in narrowly defined circumstances. Part 2 of the Bill would allow the exercise of arbitrary uncontrolled power in circumstances in which that would not be absolutely necessary. In doing so it impatiently rejects the lessons of our history and essential elements in our constitutional arrangements. The powers which it confers would be appropriate for a country which accepts authoritarian government and is willing to discard what, under the Common Law and our inherited system, is proper protection against the misuse and abuse of government power.

  11. An important amendment to be proposed, at least in relation to Part 2 of the Bill could be to provide for it to lapse at the end of one year unless, after review, renewed for another year by positive resolution in each House of Parliament; but that is not a substitute for the kind of amendments suggested above.

 

LEOLIN PRICE CBE QC

10 Old Square

Lincoln’s Inn

13 September 2004

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OPINION

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