In this article, I shall concentrate on the powers given to Ministers via emergency regulations and on the effect of the safeguards that are in the bill. Already in my first article on this bill I described the powers in some detail.
The key point regarding the powers is that the emergency regulations permit any provision that can be made by an Act of Parliament or by Royal Prerogative.Without any constraint being put on this formulation, this would amount to absolute power. There are, however, some apparent safeguards in the Bill. I contend that these are ineffective and that Ministers will have absolute power under the Bill, despite these safeguards.
Section 23 details the main limitations of emergency regulations. The limitations specified are that (to summarise):
- The person making the regulations thinks the regulations are for preventing, controlling or mitigating an aspect or effect of the emergency for which the regulastions are being made and that the effect of the provision is in due proportion to that aspect or effect of the emergency.
- The regulations must specify the parts of the UK or regions in which they’re to have effect.
- The regulations may not require or enable a person to be required to provide military service and may not prohibit or enable the prohibition of strikes or other industrial action.
- The regulations may not create an offence other than one of failing to comply with emergency regulations, disobeying an order made under emergency regulations or obstructing a person in the performance of a function under emergency regulations.
- The regulations may not create an offence other than one only triable before a magistrate’s court (or in Scotland before a sheriff under summary procedure).
- The regulations may not create an offence punishable by more than 3 months in prison or a fine exceeding level 5 of the standard scale.
- The regulations may not alter procedure in relation to criminal proceedings.
Points 1 & 2 do not limit the power of the regulations in any way.
Point 3 seems significant in apparently preventing conscription or the banning of strikes. However given that Section 22 explicitly allows a regulation to require the performance of an unspecified function on someone, this would merely mean that the person could not be drafted into the Army. Carrying out a function involving pointing guns at people who disobey you need not involve being conscripted. Similarly the banning of strikes might be a limitation, but it is a deeply uncertain one given that emergency regulations can prohibit or require movement to or from a particular place, and can ban assemblies. I submit that any limitation of power due to point 3 is insignificant or nonexistent in practical terms.
Point 4, does not affect the power of the regulations at all and merely affirms the ability to make an offence of disobeying regulations.
Point 5 simply limits the offences to those that can be tried in a magistrate’s court. Yet Section 22 explicitly allows jurisdiction to be placed on a court or other tribunal, thus ensuring that the normal system of courts can be by-passed for special courts set up for the purpose of administering emergency regulations.
Point 6 limits the scale of punishment for disobeying regulations. However since regulations can confiscate property without compensation or mandate indefinite detention in one place, I submit it is no real practical limitation on the power of the regulations.
Point 7 preserves criminal procedure but this only matters if a trial takes place. Given that regulations can require indefinite detention in a particular place, with disobedience carrying a 3 month sentence of imprisonment or fine, after which you could be put in indefinite detention again (on pain of 3 months imprisonment), again we have no real limitation.
There are some further safeguards in the bill.
- Emergency regulations lapse after 30 days (Section 26). However this does not prevent new regulations being issued, and thus enabling permanent renewal of the regulations.
- Where emergency regulations are issued by a senior Minister of the Crown, the regulations have to be accepted by both Houses of Parliament within 7 days or they lapse. Again this does not prevent new regulations being issued.The government can thus cut Parliament out of the loop by simply reissuing regulations every 7 days. They can thus bully or bribe Parliament via these regulations until Parliament agrees to e.g. make some set of the regulations permanent or make the state of emergency permanent.
- Section 22(3)(j) prevents regulations amending Part 2 of the Bill (the part that is the subject of these articles). This does at least prevent regulations being used to e.g. extend the lifetimes of regulations, or remove such limitations on regulations as are in the bill. However given that ALL OTHER LEGISLATION could be repealed or modified that’s not much of a limitation at all.
It is a common pattern of this Bill that any safeguard that is proposed in one section can be subverted or undone in another, as can be seen with the first two bullet points immediately above. An additional example: Under section 25(1), if the government wish to set up a tribunal under emergency regulations they’re supposed to consult the “Council on Tribunals”. However section 25(2) enables the tribunal to be set up without such consultation if the government thinks setting the tribunal up is urgent, and also stipulates that failure to consult does not affect the validity of the regulations setting up the tribunal!
Anyway as we can see above, the Bill enables the government to rule by decree and cut Parliament out of the process, with no practical limits on its power. And as an earlier article demonstrated, a Minister need merely claim that in his opinion an emergency is about to occur and existing legislation might not be sufficient to deal with it. And there are no penalties for misuing the powers in the bill.
Can we trust this and all future governments not to abuse such legislation?
I regard it as a Sword of Damocles hanging over British democracy, should it get on the statute books. If the government gets its way, it’ll be in force by the end of the year.