Why the Legislative and Regulatory Reform Bill is worse than the Civil Contingencies Act

I’ve posted this article on Magna Carta Plus as well as here. It follows up on my earlier article on the government’s new enabling bill.

In my earlier coverage of the Abolition of Parliament Legislative and Regulatory Reform(LRR) Bill, I think I have underestimated how much power it gives to government ministers. I now think this bill actually gives more power to government ministers, in practical terms, than the Civil Contingencies Act (CCA).

The CCA explicitly gives Ministers both the powers of legislating via an Act of Parliament and the powers of the Royal Prerogative. However those powers are supposed to be invoked only in an emergency, are time limited to 7 days, albeit renewable, and have various other constraints such as not modifying the CCA itself or the Human Rights Act. There are protections for the courts and criminal offences created under CCA regulations can carry only 3 months imprisonment.

The possibility that the LRR is worse than the CCA was pointed out to me when discussing the bill in this thread on the usenet group, uk.politics.misc. One poster makes the following points:

  • The LRR is designed ostensibly to be used in the normal course of governing, where the Civil Contingencies Act (CCA) is supposed to be used only in emergencies.
  • The LRR can amend any legislation, where the CCA cannot be used to alter the CCA itself or the Human Rights Act.
  • The LRR can be used to delegate legislative power, without apparent limit, to anybody the specified in an appropriate order.
  • The LRR can be used to alter or abolish any rule of law.

The key matter I hadn’t considered fully before is this. The orders under the LRR can be used to confer legislative power on Ministers, such that they would then be able to legislate without any reference to Parliament at all. Given the government’s ability to control Parliamentary procedure (e.g. to ensure the negative resolution procedure is used), it would be possible for such a transfer of power in the favour of Ministers to occur without any vote in Parliament occurring!

This transfer could be achieved by sneaking the measure into a suitably large and convoluted order that implements a policy strongly backed by the governing party, and hoping it will either not be noticed due to the lack of time for scrutinising the order (this lack of time being arranged by the government) or if it is noticed it will be allowed through because the governing party’s MPs and Peers do not wish to abandon a key policy.

Remember there is no possibility for making amendments that would allow MPs or Peers to selectively modify problematic areas of the parliamentary orders. At best a request to revise the order can be made to the government which the government can consider and reject, or for that matter implement in any way it pleases. The Ministers will be in control at every step unless MPs or Peers vote the order down in its entirety.

I thus fear that if this bill passes we will not only see increasing amounts of legislation passed via parliamentary order with little or no scrutiny, but we will see Ministers being given increasing powers to legislate directly without reference to Parliament. The bill really should be entitled the Abolition of Parliament bill. The Abolition of Parliamentary Scrutiny Bill moniker I’ve been using in some posts is thus too mild a description of the threat this bill makes to Parliament’s role.

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Barbara Follet MP on house arrest

A report from the Scotsman quotes the novelist Ken Follet’s wife:

Mrs Follett (Stevenage), now married to novelist Ken Follett, said the system of control orders proposed by Home Secretary Charles Clarke bore “an extraordinary resemblance” to those used under apartheid.

She told the Commons during second reading debate on the Prevention of Terrorism Bill that Richard Turner was placed under house arrest in 1973 because he campaigned to give black people the right to vote and join trade unions.

He lived under the order for five years, unable to work or leave home, until he was assassinated in front of their two daughters Jann, 13, and Kim, aged nine.

“House arrest hampered but didn’t stop him,” she said.

“That is probably why, just before his five year order was due to expire, he was shot dead in front of our two young daughters in their bedroom.

“In the days that followed I tried to comfort them by telling them we were going to go to Britain where people were not detained without trial or put under house arrest.
She said she would not support the Bill and called on Mr Clarke to change the orders so they can only be implemented by a judge, to consider using intercept evidence in court and to write a sunset clause into the Bill.

“The end does not justify these means,” she said.

“The example we set will stay with us for many years.

“These principles are the very basis of our democracy and the Labour Party – destroy them and you destroy us.””

We have:

[This list is not comprehensive.]

Should we be surprised when they put forward measures like house arrest without trial, on the say so of the Home Secretary, with evidence kept secret from the detainee and his legal representatives and try to rush them through the House of Commons in the space of 1 week with only 2 or 3 days of debate?

If they get away with this, what will they try next?

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Reminder: the lack of safeguards in the Civil Contingencies Act (updated)

Further to the Civil Contingencies Act getting Royal Assent, and in response to a reader’s request, I figured a reminder of the lack of safeguards in this legislation is needed.

Note that since I posted the original article, it has come to my attention that the Bill was amended so that the Human Rights Act 1998 is protected from emergency regulations. I’ve updated this article to reflect this.

The Act enables any cabinet minister or govt whip to declare an emergency orally. Under emergency regulations, the minister/whip concerned can make “provision of any kind that could be made by Act of Parliament or by the exercise of the Royal Prerogative” [Section 22(3)].

Without any limitations, this is absolute power. The main limitations provided in the Bill are that:

  • regulations have to be approved by Parliament within 7 days (but this does not stop new regulations being issued…),
  • that the state of emergency can only last 30 days without
    parliamentary approval (but this does not stop a new emergency being declared…),
  • conscription to the military is prohibited (but the govt can confer any function on anyone and require them to carry it out)
  • any new offences created by regulations can carry a maximum of 3 months imprisonment (but the govt can make regulations requiring movement to and prohibiting movement from a specified place),
  • strikes and other industrial action may not be prohibited (but the govt can make regulations requiring movement to and/or from a specified place and can confer any function on people and require them to carry it out),
  • regulations cannot alter criminal procedure (but the govt has the power to confer jurisdiction on unspecified courts and tribunals and the power to alter any legislation whatsoever aside from the Civil Contingencies Act(CCA) itself and the Human Rights Act(HRA) 1998).

So what of the HRA 1998, doesn’t it prevent the government exercising absolute power under the CCA 2004? The answer is no for 2 reasons:

  • Firstly, section 14 of the HRA enables derogations from the European Convention on Human Rights, and indeed we already derogate from the right to a fair trial under legislation passed after 9/11, to enable foreign nationals to be detained indefinitely without trial. This was done by declaring an ongoing public emergency. As the Edge of England’s Sword blog notes, it is likely that the grounds used to invoke the CCA could be used to invoke a derogation from any awkward rights.
  • Secondly, many of the rights are either nullified or weakened in the event of an emergency, thus invoking an emergency reduces the rights available. Amongst those affected are the rights against slavery and forced labour (exempt is service/work exacted in an emergency) and the rights to privacy, freedom of expression, freedom of association and freedom of protest all of which are heavily qualified with respect to such things as national security, public safety and public morals.

Thus the provisions of the CCA and the HRA can combine to nullify the protections the ECHR would normally provide and the govt can still thus exercise absolute power under this legislation.

As I stated in an earlier blog article:

“It is a common pattern of this Bill that any safeguard that is
proposed in one section can be subverted or undone in another,…”

“…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.”

Isn’t it comforting to know that at a moment’s notice our govt, or any cabinet minister or govt whip, can acquire absolute legal power in the event of an “emergency”?

Isn’t it odd that the mainstream media have failed to cover the passing of this legislation by Parliament and instead give more airtime/column inches to Band Aid 20 and the Fox Hunting Bill?

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Spy Blog: Civil Contingencies Act 2004 gets Royal Assent

Blair’s enabling Act is now law. In fact it was so as of yesterday. spy.org.uk’s Blog reports that the Civil Contingencies Act 2004 (formerly the Civil Contingencies Bill) has received royal assent after passing through Parliament. Yet the mainstream media have given scant coverage to this, instead focussing on such things as Band Aid 20 and the anti-fox hunting legislation.

Anyway, we are now in a position where, legally speaking, all a cabinet minister or govt whip has to do to acquire pretty much absolute power, is to state that an emergency is about to occur, that existing legislation might not be sufficient to tackle it and they need to enact emergency regulations to deal with it. At this point they can then cut Parliament completely out of the loop.

Comforting thought eh?

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How the Civil Contingencies Bill might be used

Discussion of this Bill continues in the blogosphere. Over at Airstrip One, Philip Chaston has offered us this scenario for its usage:

An ’emergency’ is declared by the government. Who knows what the catalyst may be? It could vary from an outbreak of foot and mouth to a mega-terrorist attack on the United States of America or another European country. The definition of emergency within the Civil Contingencies Bill is so vague that it could be stretched to cover a terrorist attack in a foreign country, and the consequences of any perceived threat on our own shores. My own assumption is that it would have to be an NBC attack. Nothing less could do for the government’s subsequent actions.

Following this, a nationwide emergency is declared and all democratic assemblies are prorogued. The Government pushes through a number of authoritarian measures by regulation including a national ID scheme and, possibly, the reintroduction of a limited draft. In oredr to show solidarity with fellow European Union Member States, the government also signs up to the Euro and the Constitution, promising a democratic vote once the national state of emergency has ended.

Regulatory changes include the creation of a list system for parties, the use of postal, mobile and electronic voting, and the prohibition of ‘extremists’ such as the British National Party and UKIP. Certain opinions and arguments deemed offensive are banned from the media or the public airwaves. After these regulatory changes, introduced as modernisation or democratisation, are embedded, the government calls another election, which Labour wins handsomely, having introduced a ‘managed democracy’. This election is cited as a referendum on Europe and the ruling party declares that no further votes are required on membership within Europe.

Tying this in with the EU constitution is not something just plucked out of the air either. The EU constitution lists “civil protection” as one of the “coordinating” powers for the European authorities. Note that the bill enables the creation of arbitrary imprisonable offences and can delegate powers to anyone or confer jurisdiction on any court or tribunal.

The scenario above sounds plausible to me. Certainly, a nuclear, biological or chemical attack (NBC attack) in the US or the EU would engender enough fear, anxiety and panic for the government to declare an emergency with some credibility in the eyes of the public. Taking Britain into the Euro and the EU Constitution would fit with the aims of Tony Blair and many pro-EU politicians in all the major political parties. And the actions taken, whilst falling short of turning Britain into Nazi Germany or even East Germany, would turn it into a state where political views deemed offensive are repressed and elections are easily manipulated. And the possibility of invoking another emergency remains if too much opposition is generated by such actions and needs to be repressed.

A key question here is what if the scenario was modified in one crucial respect. Suppose the emergency is declared, ostensibly in anticipation of a NBC attack? Remember the Bill merely requires that a Minister thinks an emergency has occurred, is ocurring or is about to occur? Would the government get away with it?

If this Bill reaches the statute books in its present form, such questions will have real significance. Since the emergency powers can be invoked so easily and without any real scope for legal challenge, it follows that the main restraint on using this bill is down to what the government (believes it) can get away with.

One thus has to make tricky judgements about whether there’d be a large enough, powerful enough body of resistance, either within or without the UK, to stop the government, and to do so by force if necessary and whether the government is willing to tolerate certain consequences such as being regarded as a pariah state internationally or economic disruption caused by people and companies fleeing the country.

The need to make such judgements, and the gamble living in Britain thereby represents, are the consequences of giving the state a means of suspending democratic politics and assuming absolute power, however temporary the basis is meant to be. This bill provides such means.

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The Civil Contingencies Bill: Safeguards and the scope of emergency regulations

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):

  1. 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.
  2. The regulations must specify the parts of the UK or regions in which they’re to have effect.
  3. 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.
  4. 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.
  5. 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).
  6. 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.
  7. 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.

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Correction made to previous article

When re-reading the article on emergencies in the Civil Contingencies Bill, I spotted an omission. The person making regulations must preface those regulations with a declaration of what the emergency is and their opinion that all the conditions are met to justify making emergency regulations.

I don’t regard this requirement as important as it is merely a statement of the maker’s opinion on the matter, but I now include it for completeness sake.

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