"Emergencies" in the Civil Contingencies Bill

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.

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Is Britain headed for dictatorship?

In 1933, Adolf Hitler managed to get his Enabling Act through the German parliament, which gave him absolute power over Germany in the event of an emergency. Once this Act was in place, Hitler declared an emergency and the rest is, as they say, history.

Over on Samizdata, David Carr is worried that the British government is pushing through its very own Enabling Act in the form of the Civil Contingencies Bill.

Having read the Bill myself in detail now, it seems to me Carr’s concerns are entirely justified. I find myself wishing I’d paid more attention to this earlier. So what is the cause for concern?

Under this Bill, Cabinet Ministers (and government Whips!) can declare a state of emergency in the UK, or any part of it, orally.

An emergency is defined in a very loose manner that would cover, e.g. the fuel protests of 2001. The conditions for making such a declaration are that an emergency has occurred, is occurring or is about to occur, that it is necessary to make provision to mitigate, control or prevent the emergency or an aspect of it and that the need for the provision is urgent[see Sections 19 to 21].

Note that a Minister merely needs to be “satisfied” (i.e. believes/thinks that) the conditions apply. There is no test of “reasonableness” that might enable, e.g. a court challenge.

Furthermore, as Spy.org.uk notes, there is no provision for authentication of Ministers’ orders or for punishing the false declaration of an emergency and there is no punishment for abusing emergency powers.

On declaring such an emergency, Ministers acquire the power to make regulations for any of the following purposes [Section 22(2)]:

  • protecting human life, health or safety,
  • treating human illness or injury,
  • protecting or restoring property,
  • protecting or restoring a supply of money, food, water, energy or fuel,
  • protecting or restoring an electronic or other system of communication,
  • protecting or restoring facilities for transport,
  • protecting or restoring the provision of services relating to health,
  • protecting or restoring the activities of banks or other financial institutions,
  • preventing, containing or reducing the contamination of land, water or
    air,
  • preventing, or mitigating the effects of, flooding,
  • preventing, reducing or mitigating the effects of disruption or
    destruction of plant life or animal life,
  • protecting or restoring activities of Parliament, of the Scottish
    Parliament, of the Northern Ireland Assembly or of the National
    Assembly for Wales, or
  • protecting or restoring the performance of public functions.

I.e. just about any purpose imaginable.

Furthermore, the Act explicitly states that regulations may make provision of any kind that could be made by Act of Parliament or by Royal Prerogative[Section 22(3)]. Under the British system of government, this is absolute power.

The Act reinforces this by explicitly listing the making of provisions[Section22(3)] to:

  • (a) confer a function on a Minister of the Crown, on the Scottish Ministers,
    on the National Assembly for Wales, on a Northern Ireland
    department, on a coordinator appointed under section 24 or on any
    other specified person (and a function conferred may, in particular,
    be—
    • (i) a power, or duty, to exercise a discretion;
    • (ii) a power to give directions or orders, whether written or oral);
  • (b) provide for or enable the requisition or confiscation of property (with
    or without compensation);[i.e. everything you or your business owns could be confiscated without compensation]
  • (c) provide for or enable the destruction of property, animal life or plant
    life (with or without compensation);[i.e. everything you or your business owns could be destroyed without compensation]
  • (d) prohibit, or enable the prohibition of, movement to or from a specified
    place;[i.e. you could be indefinitely imprisonened]
  • (e) require, or enable the requirement of, movement to or from a specified
    place;
  • (f) prohibit, or enable the prohibition of, assemblies of specified kinds, at
    specified places or at specified times;[i.e. banning all forms of protest, but also note that Parliament, the Scottish Parliament and the Welsh Assembly are all assemblies!]
  • (g) prohibit, or enable the prohibition of, travel at specified times;
  • (h) prohibit, or enable the prohibition of, other specified activities;[i.e. banning anything at all!]
  • (i) create an offence of—
    • (i) failing to comply with a provision of the regulations;
    • (ii) failing to comply with a direction or order given or made under
    • the regulations;
    • (iii) obstructing a person in the performance of a function under or
    • by virtue of the regulations;
  • (j) disapply or modify an enactment (other than a provision of this Part) or
    a provision made under or by virtue of an enactment;
  • (k) require a person or body to act in performance of a function (whether
    the function is conferred by the regulations or otherwise and whether
    or not the regulations also make provision for remuneration or
    compensation);
  • (l) enable the Defence Council to authorise the deployment of Her
    Majesty’s armed forces;
  • (m) make provision (which may include conferring powers in relation to
    property) for facilitating any deployment of Her Majesty’s armed
    forces;
  • (n) confer jurisdiction on a court or tribunal (which may include a tribunal
    established by the regulations);[i.e. set up courts/tribunals that bypass the normal legal system!]
  • (o) make provision which has effect in relation to, or to anything done in—
    • (i) an area of the territorial sea,
    • (ii) an area within British fishery limits, or
    • (iii) an area of the continental shelf;
  • (p) make provision which applies generally or only in specified
    circumstances or for a specified purpose;
  • (q) make different provision for different circumstances or purposes.

I.e. just about any provision imaginable.

Note that under existing laws, as I understand it, Parliament has to agree a state of emergency, whereas under this Bill it is the senior members of the executive, along with the Queen, who hold the power to declare an emergency without Parliament getting a look in. Once this is done, they have absolute power over us.

This Bill is currently in the Lords and was rushed through Parliament with the third reading “guillotined” so that opposition amendments were not debated and the Bill was passed “on the nod”. The government want it on the statute books before the next Queen’s Speech in November.