Civil Contingencies Bill: Britain's Patriot Act - revised, and just as dangerous as before
- some clauses dropped but overall powers remain a great danger to democracy
- government, not head of state, to declare "state of emergency"
- powers to ban protests and travel unchanged
- powers to control or withdraw e-mails and websites services added
On 7 January the government published their response to a highly critical report by the parliamentary Joint Committee on the Civil Contingencies Bill. Douglas Alexander, Cabinet Office Minister, appeared on TV news broadcasts saying that the government had "listened to concerns about civil liberties". Lewis Moonie MP, chair of the Joint Committee, said the changes were: "better than I feared and as much as I'd hoped for". The overall message was that the government had listened to criticisms that the Bill might give governments draconian powers and amended it accordingly (eg: "MPs welcome rethink on anti-terror plans", Guardian, 8.1.03). The government's approach was also praised as a good example of pre-legislative scrutiny.
The draft Civil Contingencies Bill and Explanatory Notes had been published in June 2003 and the Joint Committee reported on 28 November 2003. The proposal would replace the 1920 Emergency Powers Act.
The government's response to the Committee's report and the formal Civil Contingencies Bill came out on 7 January.
The new Bill meets a number of the concerns raised by the parliamentary Committee and civil liberties groups. The scope of the Bill now no longer covers: "the political, administrative or economic stability of the United Kingdom" and the controversial Clause 25 which could have excluded judicial review is gone too. The term "human welfare" applies in both Parts of the Bill, regulations made under an emergency should not be allowed to change criminal procedures and the creation or use of Tribunals is set out.
On the face of it the new Bill was presented, and widely accepted in the media, as having been significantly changed to respond to criticisms that it could be misused by a right-wing/authoritarian government in the future. But was it?
Tony Bunyan, Statewatch editor, comments:
"The draft Bill would have allowed the imposition of an authoritarian state. The new Bill is only better in that it paves the road to an authoritarian state. The government is really naive if it thinks people will not read the fine print of the new Bill and realise that it has preserved nearly all the powers it originally proposed - albeit in a different form - and added new contentious provisions which were not in the first draft"
The Bill has two Parts, Part 1 covers "local arrangements for civil protection" and Part 2 is an entirely new proposal which would protect the state, government, financial companies in times of crisis/emergency and give exceptional and extensive powers to the government and state.
The Emergency Powers Act 1920 is concerned solely with:
"the supply and distribution of food, water, fuel, or light, or with the means of locomotion, to deprive the community, or any substantial portion of the community, of the essentials of life"
This new Bill, like its predecessor, extends power to as to protect the government, state agencies and financial institutions.
The definition of an emergency - Clause 18
The "meaning of "emergency"" (Clause 18) is defined as "an event or situation" which "threatens serious damage" to:
(a) human welfare,
(b) the environment or
(c) the security of the United Kingdom.
Under all three headings this may affect the whole UK, part of it, or a region.
The clause 18 now excludes "the political, administrative or economic stability of the United Kingdom" which was defined in the first draft as covering the "activities of Her Majesty's government", "the performance of public functions" and "the activities of banks and other financial institutions" (however, see below).
Clause 18.2.e, where an event or situation affects "human welfare" has been changed to:
"disruption of a supply of money, food, water, energy or fuel"
The word "money" has been added and is the first of three changes concerning "the activities of banks and other financial institutions" in the new Bill.
The "security of the UK" is defined in 18.4 as:
"(a) war or armed conflict, and
(b) terrorism, within the meaning given by section 1 of the Terrorism Act 2000".
The inclusion of S.1 of the Terrorism Act 2000 is a major extension in the concept of emergency powers (see S.1 text below). This Act is intended for use in everyday policing and should be outside of "emergency" situations.
Government to declare emergencies rather than head of state - Clause 18
A new section has been inserted in clause 18 on the meaning of an "emergency" which at first sight seems strange. A "Secretary of State" (a government minister) can by "order" lay down that:
"a specified event or situation, or class of event or situation"
is to be treated as triggering an "emergency" under one of the three headings in 18.1. - human welfare, the environment or the security of the UK.
The mystery as to this new power is solved when it is realised that clause 18 in the draft Bill, which said that a "Royal proclamation" would declare a state of "emergency" has or is about to occur has been deleted.
The government's response to the Joint Committee report (Cm 6078) simply makes the statement - without any reasoning or rationale - that:
"the government has decided that it is inappropriate to retain the requirement for a declaration of emergency" (page 6)
A key provision in the EPA 1920, the proclamation of a state of emergency, is to be removed.
Wade and Phillips commented that:
"The power to govern by regulation under the Act arises only when a state of emergency has been declared by royal proclamation" ("Constitutional and administrative law" (9th edition)
Both in terms of constitutional propriety and legitimacy the removal of the step of a declaration of a state of emergency within which certain powers are exercised is highly dangerous. The declaration of a "state of emergency" signals not just to parliament but to the people that an exceptional peacetime situation exists within which "regulations" may be made law for limited periods.
It places in the hands of politicians, the government of the day, a power previously exercised by the head of state (the monarch).
The issuing of a "royal proclamation" by the head of state that a "state of emergency" exists implies a gravity and constitutional importance that is not evident in the new Bill.
The issuing of an "order" that a "situation" or "event" exists or is about to occur is not the same as a "declaration of a state of emergency".
It would allow governments enormous discretion and allow them to mix ongoing business in normal times with powers that are intended to deal with a peacetime emergencies.
This new "normality" could see parts of cities of whole towns subject to exceptional laws and controls in the same way that emergency laws have been in place in Northern Ireland for more than thirty years.
Moreover, whereas a proclamation of a state of emergency under the EPA 1920 could only be in force for one month without being renewed, the issuing of an order by the government has no such limit set out and appears to be indefinite until revoked.
Thus a Secretary of State (a government Minister, probably the Home Secretary) could under 18.5.a make an order applying to any or all of the main headings - human welfare, environment or security of the UK - in a part or region of the country. The "order" has to be "approved by resolution of each House of Parliament" ("Approved" by the House of Commons and House of Lords is not here defined as being "negative" or "affirmative").
Clause 18.5.b allows the government to re-define the clause on "human welfare" (18.2) as a means of triggering emergency powers to be extended to cover an "event" or "situation":
"involving or causing disruption of a specified supply, system, facility or service" (emphasis added)
The use of the term "disruption" was rightly criticised by the Joint Committee report.
Finally, clause 18.7 says that the "event or situation" that may trigger an "emergency":
"may occur or be inside or outside the UK"
This is not in EPA 1920.
"Power to make emergency regulations" - Clause 19 - and "Conditions" - Clause 20
The primary power to make Regulations will be by Her Majesty through "Order in Council" (that is by the Privy Council nodding measures through - these Orders stand unless negated or amended by parliament). The monarch (or a Minister is they are unavailable) must make a statement specifying the nature of the emergency and satisfy themselves that the conditions in clause 20 are met (namely that an emergency has occurred or is about to occur, is necessary and urgent and existing legislation "cannot be relied upon" or "might be insufficiently effective").
Scope of emergency regulations - Clause 21
Clause 21 sets out the "Scope of emergency regulations" and by use of the term "in particular" indicates that the controversial list of purposes is not intended to be exclusive and could be added to.
In Clause 21.2.d. the word "money" has again been inserted in "protecting or restoring a supply of money, food, water, energy or fuel".
A new clause 21.2.h. has been inserted for:
"protecting or restoring the activities of banks and other financial institutions"
Clause 21.2.l. allows Regulations to be made for:
"protecting or restoring activities of Her Majesty's government"
and clause 21.2.n. for:
"protecting or restoring the performance of public functions"
Thus although "political, administrative or economic stability of the United Kingdom" as a ground for declaring an emergency has been removed Regulations can be made in order to enforce these objectives. "Public functions" are defined in clause 30 as:
"(a) functions conferred or imposed by virtue of an enactment,
(b) functions of Ministers of the Crown (or their departments),
(c) functions of persons holding office under the Crown"
Thus by "protecting" or "restoring" the "performance" (surely a subjective term) the continuance government and state is ensured. The term: "persons holding office under the Crown" include the military and police forces.
Taken together, clauses 21.2 (h), (l) and (n) with the definition of "public functions" in clause 30 would allow a government to introduce regulations to cover the deletion of the "political, administrative or economic stability of the United Kingdom". This intent is specifically set out in the government's response to the Joint Committee report (page 8, point 8) where it says that:
"The government continues to consider that, should a situation or event pose such a threat to human welfare, the environment or security that the making of emergency regulations is appropriate, it should be possible for those emergency regulations to contain provision which is designed to protect or restore the activities of Her Majesty's government, the activities of parliament or the legislatures of the devolved administrations, the activities of banks or other financial institutions or the performance of public functions."
Clause 21.3 says:
"Emergency regulations may make provision of any kind that could be made by Act of Parliament or by the exercise of the Royal Prerogative, in particular, regulations may..."
The Joint Committee was extremely concerned about this provision. Indeed so concerned were they that they listed twenty-two fundamental constitutional laws which should not, under any circumstances, be amended or removed (eg: the Magna Carta 1297 and the Bill of Rights 1688). Their report commented that this clause as set out in 21.3.j:
"allows regulations to disapply any Act of Parliament. In the wrong hands, this could be used to remove all past legislation which makes up the statutory patchwork of the British Constitution".
The government's response was to reject the need for a list of constitutional laws that should be protected from amendment or revocation under this Bill. Their rejection simply relies on a convoluted argument from Parliamentary Counsel namely that:
"each proposed exercise of such a power must be assessed by reference to whether or not it is within the class of action that Parliament must have contemplated when conferring the power"
The Parliamentary Counsel goes on to advise that "in the unlikely event of needing to use this power Parliament will not permit interference either with a general presumption or with a "constitutional" enactment". This leads the government to conclude:
"we cannot presently envisage circumstances in which this power would lawfully enable us to make a substantial amendment to a constitutional enactment".
The Joint Committee argued that if the government wished to even have the possibility of such a sweeping power then it should be subject to separate legislation. The government refusal to remove this clause leaves a hostage to fortune. As the Joint Committee observed:
"In the wrong hands, it could be used to undermine or even remove legislation underpinning the British Constitution and infringe human rights"
In addition regulations could confer on a government Minister or "other specified person" a "discretionary function" and the power "to give directions or orders (whether written or oral)" (21.3.a).
Property can be requisitioned or confiscated (property can be taken to apply both to building and personal possessions) (21.3.b) and the destruction of "property, animal like or plant life" is covered by 21.3.c, both "with or without compensation".
Clause 21.3. allows for Regulations to be made in order to:
"(d) prohibit, or enable the prohibition of, movement to or from a specified place;
(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;
(g) prohibit, or enable the prohibition of, travel at specified times;
(h) prohibit, or enable the prohibition of, other specified activities (emphasis added)
(i) create an offences 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"
Under 22.4.c new offences can be created allowing for imprisonment for up to three months or a fine.
As the parliamentary Joint Committee did not make a recommendation on the inclusion of these powers the government saw no reason to justify them in its response to their report or to make any changes.
The effect of 21.3.d-i. would be to ban the right to demonstrate and the right of free movement and "other specified activities". "Other specified activities" was interpreted in press briefings to include the banning of organisations.
These powers would not just ban protest and travel but authorise the enforcement of the bans (ie: preparatory acts for a protest such as making banners, publicising it etc) and introduce new criminal offences (see 21.4.d) to counter any dissent.
Two new clauses under clause 21.3 have been introduced to empower the military. 21.3.l "enables the Defence Council to authorise the deployment of Her Majesty's armed forces". The "Defence Council" is a variant of the Privy Council where relevant Ministers nods through orders. Such a Regulation would establish an independent centre of power for the military. 21.3.m. allows for "facilitating any deployment of Her Majesty's armed forces" (which may include powers to requisition).
21.3.n. allows jurisdiction to be given to a "court or tribunal" including new tribunals "established by the regulations".
21.3.o. extends the scope of regulations to the "territorial sea", an "area within British fishery limits" (which is much, much larger than the former) or "an area of the continental shelf".
As if all these powers to make regulations were not enough a new 21.3.q. allows for regulations to:
"make different provision for different circumstances or purposes"
Some restrictions, taken from the 1920 EPA are preserved under clause 22. Regulations cannot be made forcing people to undertake "military service" (22.3.a) or to
"prohibit or enable the prohibition of participation in, or any activity in connection with, a strike or other industrial action" (22.3.b) - though how the latter can be reconciled with 21.3.f (banning assemblies) is not at all clear and may mean workers can strike but not demonstrate (assemble) or come together in solidarity.
The making of regulations and parliamentary scrutiny
To the lay person the procedure for making regulations in declared emergency "situations" or "events" is almost incomprehensible. Under clause 19 "Her Majesty may be Order in Council make emergency regulations", so the archaic Privy Council (composed of Ministers, ex-Ministers and members of the Royal Family) can make regulations.
However, as far as parliament is concerned "Emergency regulations shall be made by statutory instrument" (Clause 29). Statutory instruments (or SIs) can be made by either "negative" resolution of the Houses of Parliament (ie: they are listed in the daily Order Paper and if no-one objective the measure automatically become law) or "affirmative" resolution which requires and actual vote in both Houses. Whether a "negative" or "affirmative" resolution is needed in set out in the originating measure - in this case in the Regulation which will already have been agreed by the Privy Council and put into operation by the government unless later rejected or amended by parliament within the seven day period set down.
Under the SI procedure the power to amend them is not established in constitutional practice. In this instance it is proposed, clause 26.3, that if both Houses of Parliament pass a resolution amending a regulation it will be amended and equally the same procedure would apply to both Houses calling for a regulation to cease.
The standard of the EPA 1920 should be restored so that any reference to statutory instruments should be deleted.
The Joint Committee called for draft emergency Regulations to be published not just so that parliament could consider them but also "in the interests of open government". The government has rejected this request.
If Regulations are passed which apply to Scotland the Scottish Ministers are to be only "consulted", there is no reference to the Scottish Parliament. The same goes for Northern Ireland. For Wales the Welsh Assembly has to be "consulted" (clause 28)
The Schedule on "Responders" (those to act under the Regulations or at the "direction" of government Ministers) now includes a wider definition (Schedule 1, Part 3, 22.1) which extends the definition of telecommunications to cover not just phones but also expressly "the transmission of data" (e-mails, websites etc).
The real world of civil contingency planning
The discussion on the Bill has been based on the idea that at some far distant, future, point Regulations will be laid down when an "emergency" is proclaimed. This perspective ignores the fact that an infrastructure of Regulations, regional plans and assigned duties for public officials has been in place for years. Historically emergency powers under the EPA 1920 were available to deal with internal emergencies and "enemies" and Civil Defence planning was intended to counter an external "enemy". In the 1970s this distinction - with the receding possibility of nuclear war - began to disappear and the Civil Contingencies Committee in the Cabinet Office was set up in 1974. The process was completed with the Civil Protection in Peacetime Act 1986 which enabled:
"local authorities to use their civil defence resources in connection with emergencies and disasters unconnected with any form of hostile attack by a foreign power"
During the same period the role of the military inside the UK was defined: i) Military Aid to the Civil Community (MACC), eg: natural disasters; ii) Military Aid to the Civil Power (MACP) for the maintenance of law and order and iii) Military Aid to Government Departments (MAGD) for "work of national importance and essential services".
The civil Regional Commissioners (now termed Coordinators) are to be assisted by a triumvirate: the Regional Military Commander, a Chief Constable (police) and a Regional Controller (from a local council). The twelve Regions are dove-tailed with the ten Army Districts. Acting under Regulations laid down, and the directions of government ministers, the powers of this group could be absolute.
In the 1970s a number of the Regulations then in place were "leaked" and they included emergency broadcasting services (ES 2/ 1975) and another the Post Officer Telephone Preference System (ES 6/1975). Under this "preference system" subscribers are divided into three categories: i) those whose lines are "vital" to the emergency; ii) additional lines "necessary to maintain the life of the community in a peacetime emergency" and iii) "all lines not covered by Categories 1 and 2". Those in Categories 1 and 2 "can both receive and originate telephone calls", whereas "Category 3 lines will only be able to receive calls".
The Bill also only deals directly with the local and regional arrangements (through local councils, fire services etc) and with the powers of the state and government at national level to make new law through regulations and to give "directions" to specified bodies and individuals. It does not cover the role of the military or security and intelligence agencies whose role would be central in any meaningful emergency.
Further reading: see: a) The Political Police in Britain by Tony Bunyan, 1977; b) Troops in Strikes by Steve Peak; c) Emergency Powers in Peacetime by David Bonner and d) States of Emergency by Keith Jeffery and Peter Hennessy.
S.1. of the Terrorism 2000 Act says:
1. (1) In this Act "terrorism" means the use or threat of action where: (a) the action falls within subsection (2), (b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and (c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.
(2) Action falls within this subsection if it: (a) involves serious violence against a person, (b) involves serious damage to property, (c) endangers a person's life, other than that of the person committing the action, (d) creates a serious risk to the health or safety of the public or a section of the public, or (e) is designed seriously to interfere with or seriously to disrupt an electronic system.
(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.
(4) In this section: (a) "action" includes action outside the United Kingdom, (b) a reference to any person or to property is a reference to any person, or to property, wherever situated, (c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and (d) "the government" means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.
(5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.
1. The Bill published on 7 January 2004: Full-text (pdf)
2. Full-text of the Emergency Powers Acts 1920 and 1964 and the Civil Protection in Peacetime Act 1986: Full text
3. The origins of the Emergency Powers Acts (EPAs) in the UK (extract from "The Political Police in Britain"): Origins of the EPAs
4. Further reading: see: a) The Political Police in Britain by Tony Bunyan, 1977; b) Troops in Strikes by Steve Peak; c) Emergency Powers in Peacetime by David Bonner and d) States of Emergency by Keith Jeffery and Peter Hennessy.
9. The draft Bill (June 2003) and Explanatory Note (2003): Full-text (pdf)
10. House of Commons, Defence Select Committee: Report (pdf file)
11. Evidence presented to the Joint Committee on Human Rights: Evidence (link)
12. Joint Committee on Human Rights, report issued 21 July 2003: Report (link)