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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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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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.