After my previous article on the Civil Contingencies Bill, I’ve decided to cover some aspects of the Bill in more detail to help explain my concerns over it. Those concerns do not just relate to the draconian powers the government acquires upon declaring an emergency, but also relate to the lack of effective safeguards to prevent abuse of the process.
To appreciate the lack of safeguards and the potential for abuse, one needs to consider the following features of the bill:
- The threshold for lawfully declaring an emergency in the first place.
- The nature of the powers the government acquires.
- The intended safeguards against abuse contained in the bill.
This article will consider the first of these, and subsequent articles the remainder. The threshold for lawfully declaring an emergency in the first place is determined by:
- The definition of an emergency.
- The conditions that must be met for someone to declare an emergency.
- How that person can go about declaring an emergency.
Taking the definition an emergency first, Section 19 of the bill provides it. To summarise section 19(1), an emergency is an event or situation that threatens serious damage to human welfare in, the environment of, or the security of the UK or a part or region of the UK.
Sections 19(2) to (4) elaborate on this (to paraphrase and summarise):
An event or situation threatens human welfare if it involves, causes, or may cause loss of human life; human illness or injury; homelessness; damage to property; disruption of supply of money, food, water, energy or fuel; disruption of transport facilities; disruption of a system of communication; disruption of health services.
An event or situation threatens the environment if it involves, causes, or may cause contamination of land, water or air with harmful biological, chemical or radioactive matter or oil; flooding; or disruption or destruction of plant or animal life.
War, armed conflict and terrorism (as defined in the Terrorism Act 2000, section 1) are all deemed to threaten the security of the UK.
Several points are worth noting at this juncture:
- The situation or event concerned need not be occurring in the UK, e.g. events in the middle east could lead to a reduction in oil production leading to disruption of the supply of this fuel to the UK.
- The situation or event need not actually have caused damage, it merely needs to threaten “serious” damage.
- There is no indication how serious “serious” is, in the phrase “serious damage”.
- Many situations that have been handled perfectly well without such draconian powers in the past would fall under this definition of emergency: hurricanes, deep recessions (e.g. that may make some people homeless), oil spills, the fuel protests of 2001, terrorist bombings, accidental explosions and the oil crises of the 1970s.
- Many forms of civil disobedience and protest could fall under this definition, e.g. strikes by medical staff in the NHS (note however that the bill protects the right to strike), anti-GM crops campaigners tearing up GM crops (damage/disruption to plant life).
- The above definition is very broad and quite vague.
The conditions that must be met for someone to declare an emergency are set out in Section 20 and Section 21. These conditions are that:
- The person is the Queen (by an Order in Council), or (without an Order in Council) a senior Minister of the Crown (a cabinet minister or commissioners of the Treasury, this latter including government Whips).
- A “senior Minister of the Crown” can make emergency regulations without an “Order in Council” if they are satisfied that conditions in section 21 are met and that arranging for an “Order in Council” would cause a delay that might cause serious damage or seriously obstruct the prevention control of mitigation of serious damage.
- The conditions in section 21 that need to be met include that the emergency is occurring, has occurred or is about to occur; it is necessary to make provision for the purpose of preventing controlling or mitigating the emergency or an aspect or an effect of it; and the need for the provision is urgent. It is necessary to make provision if existing legislation cannot be relied on without risk of serious delay; it isn’t possible without risk of serious delay to ascertain of existing legislation can be relied upon; or the existing legislation might be insufficiently effective.
- The person making the regulations must preface the regulations with a statement specifiying the nature of the emergency and declaring that they are satisfied the conditions in section 21 are met, they are satisfied the regulations only contain provision for the purpose of mitigating, controlling or preventing the emergency or an aspect/effect of it, they are satisfied the effect of the regulation is in due proportion to the emergency or the aspect/effect of it, that they are satisified the regulations are compatible with the Human Rights Act and they are satisfied that arranging for an Order in Council would risk serious delay.
Note that the final requirement is simply to produce a declaration of the opinion of the person making regulations that the required conditions are met.
Putting this all together, we can summarise the weakest set of conditions that suffice: A senior Minister of the Crown may make emergency regulations if in their opinion an emergency (which could just be a flood) is about to occur and existing legislation might be insufficiently effective at tackling the emergency.
Thus all that’s required is for a cabinet minister or government whip to state that they personally believe an emergency is about to happen and that the existing legislation might not be effective enough, and the power to make emergency regulations is thereby acquired.
There is no requirement in the Bill that their belief be reasonable, thus making the possibility of legal challenge remote.
And note that it is ANY cabinet minister or government whip who could do this on their own authority, where previously the agreement of Parliament was required.