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?