CIVIL CONTINGENCIES BILL: NOTES CIVIL CONTINGENCIES BILL: NOTES
NOTES ON THE HOUSE OF COMMONS 2ND READING 19th January 2004:
Unless otherwise stated, all quotes are from Hansard for 19.1.04. Not all quotes are necessarily in sequence order, however we have attempted to preserve the flavour of the debate.
INTRODUCING THE BILL
Douglas Alexander MP: Both the Civil Defence Act and the Emergency Powers Act do not take account of the significant cultural, technological and constitutional changes that took place in the second half of the last century.
When the Government's proposals were ready, we published them in a draft Bill last June and set two important processes in train, the first of which was public consultation. Notwithstanding our almost continuous contact with practitioners and their representatives, we wanted to maintain a high level of dialogue. The 12-week public consultation exercise included seminars in all the English regions, Scotland, Wales and Northern Ireland to explain the content of the draft Bill and the policy behind it. The consultation elicited a wide range of responses from local authorities, the emergency services, the private and voluntary sectors and national lobby groups. We received about 400 responses.
POWERS AND ASSURANCES ON SAFEGUARDS
Douglas Alexander MP: The Bill is, of course, an enabling Bill.
Douglas Hogg MP: The definition of "emergency" is far too broad: we should construct it so narrowly that it touches only on matters of extreme gravity that threaten the security of the nation.
Douglas Alexander MP: It was put to us that we should consider including a specific debarment of any change to legislation of a constitutional nature and, again, advice was sought from parliamentary counsel on that. However, because of the unwritten nature of the British constitution, there are considerable difficulties in defining in such a Bill exactly what constitutional legislation is.
Elfyn Llwyd MP: [on the Government's constitutional assurances]
"Parliamentary Counsel have advised that if we wished to be able to modify or disapply a constitutional enactment, we should take an express power to do so. We do not propose to do this."
That is not very persuasive in my view. It continues:
"Without such an express power, we cannot presently envisage circumstances in which this power would lawfully enable us to make a substantive amendment to a constitutional enactment."
Those are pretty weak words when dealing with such an important principle.
Douglas Alexander MP: The Bill overhauls the safeguards against misuse in the 1920 Act. By and large, they were express limitations such as prohibiting emergency regulations from providing for military conscription or interfering with criminal procedure. The measure significantly strengthens the protections in the 1920 Act and creates much greater transparency. It introduces new features, many of which are designed to ensure that emergency powers cannot be misused and that, when they are required, they can be used in a more targeted and proportionate manner.
Elfyn Llwyd MP: No one imputes unworthy motives to the Government, but one must be wary of over-reaction in legislation and about when such legislation might be used. Let us consider the Terrorism Act 2000, which the hon. Member for Southwark, North and Bermondsey (Simon Hughes) said had been in force throughout London for many months. I well remember that, in that Bill's passage through the House, firm, bankable assurances were given by Home Office Ministers that such legislation was necessary—but only as a last resort. The Bill made it to the statute book only to the used shortly afterwards by the Metropolitan police—with or without Home Office collusion—to tackle peaceful, flag-waving demonstrators protesting against a visit by a member of the Chinese Government
Douglas Alexander MP: [on safeguards on the powers created in the Bill].
We have sought parliamentary counsel's advice on exactly that point and are assured that, in the triple lock that I was about to describe, the necessary precautions are in place.
Douglas Hogg MP: There have been many references to a triple lock. Surely we should keep it in mind that this is no more than a statement of what the Minister needs to be satisfied about. There is no mechanism for making sure that there are sufficient grounds for his satisfaction.
Richard Allan MP: The right hon. and learned Gentleman is entirely correct. The triple lock sounds very good—it sounds robust—but in reality it would be tested only if people went through incredibly convoluted court proceedings to challenge the fact that a Minister had made regulations using these powers. We must place enormous faith in Ministers observing the powers set out in the Bill, but it is extremely unlikely that the public would be able to challenge a decision made under the Bill.
Douglas Alexander MP: Emergency regulations provided for in the Bill will be subject to judicial scrutiny. The courts will be able to review action taken using emergency powers in the usual way.... If the Secretary of State makes emergency regulations in situations where Her Majesty could make the regulations by Order in Council without any delay, the courts will be able to intervene. An individual being prosecuted for an offence created by the regulations will be able to raise the invalidity of the regulations as a defence in court. The remedy awarded by the courts will depend on the circumstances.
Editorial note - we dispute this in certain cases
HUMAN RIGHTS ACT
Douglas Alexander MP: Although some sections of the press may have speculated that emergency powers could breach or suspend the Human Rights Act, as my hon. and learned Friend the Member for Medway (Mr. Marshall-Andrews) has just suggested, that is simply not the case. The Bill must operate within the confines placed upon it by that Act.
Robert Marshall-Andrews MP: [on the alleged protection of the Human Rights Act 1988] I feel bound to say that the Minister's assertion that we have arrived at this constitutional position, which he can defend because of a conversation with parliamentary counsel, without the slightest reference to the reasons that parliamentary counsel gave for what would otherwise appear to be an incomprehensible view, is not something of which he should be proud in recommending the Bill on Second Reading to the House.
Oliver Heald MP: When one examines the wording of the Bill, it is clear that there are specific points at which disallowances are made for particular human rights; for example, subsection (3)(a) of clause 22 disapplies the emergency regulations from a requirement for military service. Given the Joint Committee's recommendations and the fact that other Bills have included such protection, it is hard to understand why there is no specific protection for the provisions of the Human Rights Act, especially as the Act states that article 15 of the European convention on human rights can be disapplied for legitimate emergency powers.
Douglas Alexander MP: The courts will be able to review action taken using emergency powers in the usual way. For example, if a Minister exercises a discretion conferred on him by the emergency regulations in a way that breaches the Human Rights Act, the individual affected will be able to raise the matter in the courts. If the Secretary of State makes emergency regulations in situations where Her Majesty could make the regulations by Order in Council without any delay, the courts will be able to intervene..
Douglas Hogg MP: Let us assume that the Bill, as enacted, contravenes the European convention as incorporated into domestic law. The aggrieved citizen goes to court, the court makes a declaration of incompatibility, but the law remains in place.
Richard Shepherd MP: Such a regulation cannot be quashed or set aside in legal proceedings on the ground that it violates a convention right. That is my legal advice.
Fiona Mactaggart MP: ...parliamentary counsel advised that these powers would not give the Government the power to overrule on constitutional matters. That means, for example, that the Human Rights Act 1998 could not be overruled.
Douglas Hogg MP: [quoting paragraph 76 of the explanatory notes],
Well, the Bill says precisely that they can do so, because it gives the power to disapply or modify, by regulation, any enactment. Where in the Bill does it say that that provision does not touch on the human rights legislation? The fact that we are told that it is not a persuasive argument does not give much comfort to hon. Members...
AMENDMENTS TO EMERGENCY REGULATIONS
Douglas Hogg MP: ...Standing Order No. 16 makes it plain that in the generality of cases that procedure will take 90 minutes. So in the ordinary case, in which law will be substantially changed, the regulations will be approved by the House in 90 minutes...
Governments will monopolise the power to table amendments. The rest of us will not be able to, even the Opposition Front Benchers. If we are to have such order-making powers, subject to the affirmative procedure, that procedure must be proper. We must not have timetabled debates and be subject to 90 minutes of debate. All of us must surely have the right to table amendments.
TERRORISM - A PRETEXT FOR ABUSE OF POWERS?
Richard Allan MP: ...it is worth making the point that there is a high threshold, including circumstances that have arisen over the past 30 years, including an attack on the Cabinet by terrorists in the Brighton bombing and attacks on London's financial centres. Those situations did not require the use of emergency powers, and the correct response was made to introduce anti-terrorism legislation in the normal way....
...There is law available to deal with any criminal action that arises from politically motivated protests, such as the law on criminal damage and assault. Political protest, however destabilising, should never be grounds for Government to invoke emergency powers.
...The Reichstag fire scenario is perhaps... the most fanciful in the current stable political climate, but it should never be discounted. It assumes that an anti-democratic party is on the rise in the UK.... Such a political grouping might seek to cause an emergency precisely so that it could govern using emergency powers, rather than normal democratic procedures
Robert Marshall-Andrews MP: The basis of the Bill—the only basis on which Government could ask the House to pass it—is terrorism....
...If we pass into law things which, in due course, can cause us to lose those liberties, we are in effect producing precisely the result that terrorism demands. Also, terrorists rely on our own politicians and a de facto complicity. There is no shortage of politicians in democratic countries who are able to exploit that fear in order to enhance their own populist support and their own control.
ACCOUNTABILITY
Richard Shepherd MP: However, we are now told that the danger, and the order of the danger, is so great that it cannot be specified or anticipated, and that the Government must therefore take unto themselves powers whereby Whips, no less, can make regulations. It can be no comfort to this country to think that Whips can make regulations that have the force of law, and which could place us in criminal jeopardy.
Douglas Hogg MP: ...Whips never speak in the House, so they will never be accountable for what they have done.
Richard Shepherd MP: We are trying to demonstrate that the powers in the Bill are not inconsiderable, that they are unusual in our constitutional context and that they go far beyond anything that any previous generation has sought. This is essentially enabling legislation—that is all. We have no idea what regulations will follow from it...
Kevan Jones MP: I am not clear about the role of the regional nominated co-ordinator. We know that it will not necessarily be the same person for the same emergency. The person will vary, depending on the emergency. Those matters need clarification before the Bill is enacted; otherwise there will be local tensions. Local councillors and councils have a clear democratic mandate, but if a Government office without any local democratic accountability intercedes, tensions will arise. The role of the regional co-ordinator will therefore be important. He or she could have draconian and wide-ranging powers under the Bill. Clearly, they will conflict with democratically elected local councils, and possibly with local police commanders and others.
AND A LIGHTER SIDE...
Derek Conway MP: The Bill deals with human welfare, which is rightly the priority for the Government and the House. However, did the consultation involve animal welfare organisations, as many people are close to their pets, especially family pets? There could therefore be a practical difficulty, and the Minister will have to spend time on such difficulties in Committee...
Douglas Alexander MP: One of my colleagues observes from a sedentary position that no animals wrote to us during the consultation, and I certainly believe that that is the case.
© Parliament 2004
For the full Second Reading Hansard
FOOTNOTES (not Hansard)
Editorial from Evening Standard, London, 8.1.04
"Some of the draconian measures contained in the Civil Contingencies Bill ... are a dangerous overreaction. The government already has enough legal powers for civil defence against a terrorist attack ...
"People will be rightly sceptical of provisions designed to cope with a terrorist atrocity, which could equally be used to deal with 'emergencies' such as a train crash, a repeat of the foot and mouth crisis or a gang of computer hackers. The public will not feel safer as a result of these measures. Rightly or wrongly, people feel that the government is not taking them fully into its confidence in the so-called war against terrorism. If it wants to retain public faith, it needs to trust the people more."
Guardian report, 19.12.03
Patrick Mercer MP, Conservative homeland security spokesman on the indefinite detention of suspects: "We must not do the terrorists' work for them by passing laws which remove our freedoms and liberties."
Compiled: 9 September 2004