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The Draft Civil Contingencies Bill,

The seventh report from the House of Commons Defence Committee poses some very important questions, although the committee is generally in favour of the Draft Civil Contingencies Bill, they were critical of some government requirements as portrayed in the draft.

The Civil Contingencies Bill is an enabling bill that if passed will enable the government or a future government to declare an emergency and then decide what powers it needs to face that emergency. All well and good but as the bill is required according to the government to update the present emergency legislation because of the threat of terrorist action the government is asking for wide sweeping powers but is not declaring either the conditions that will be required for declaring the emergency in the first place, nor the powers it may consider appropriate to meet the emergency, neither is the government preparing to offer safeguards against the misuse of the powers by some future government. The House of Commons Defence Committee report states on this point

“The consultation document claims that before using the emergency powers, Ministers “must be satisfied” that the triple lock criteria are met.56 But no such requirement appears in the bill and the consultation document does not ask for views on this point”

If does not appear in the bill it does not exist no matter what the government promise.

The triple lock

63. Although the draft bill does not limit by scale or extent the emergencies in respect of which Ministers could use the emergency powers, the consultation document describes what it calls a ‘triple lock’ to prevent possible misuse.

The three elements of this are—

• Seriousness—the situation must be serious enough in nature to warrant the use of Emergency Powers.

• The need for special legislative measures—Emergency Powers allow the making of Emergency Regulations and should only ever be used if there is a genuine need to take such special legislative measures.

• Relevant geographical extent—A need for special legislative measures should be declared on the minimum geographical extent required. A UK emergency should not be declared where the declaration of a regional emergency will be sufficient.55

Powers of this type should only be used when absolutely necessary. There is clearly scope for these powers to be misused. It seems to us that the bill which provides the powers should also provide the necessary safeguards on their use.

The Bill does not offer a description of serious or who would decide what was serious enough. It does not identify a genuine need or who should decide and it does not set out a process for deciding which would be the appropriate minimal geographical area for which type of emergency.

What this government is asking for is nothing less than a blank cheque to do anything they decide without any parliamentary oversight.

The report also points out other areas of concern:-

The Government must explain why it is right to impose statutory obligations on local authorities and local emergency services, but not on itself or on regional bodies.

The draft bill is an ‘enabling’ bill. It gives Ministers powers to make regulations to

implement their proposals. But the Government has not described what use it will make of those powers, or what specific obligations it intends to impose on the bodies covered by the bill. We believe that it must do so before asking for parliamentary approval of the bill.

The bill would also prevent any special legislative measures being struck down by a court as incompatible with the Human Rights Act. The Government will need to present a clear and compelling case for this provision. It has not yet done so.

States therefore have legislation in place that enables such measures to be taken to deal with emergencies that exceed the capacity or authority of the usual systems or cannot be dealt with most effectively under any existing legislation. The document, however, gives no examples. We recommend that the Government list in respect of each of the major emergencies of the last ten years or so (eg floods, fuel crisis,

foot and mouth, 11 September 2001) whether they would have used the powers in Part II had they been available.

The total package is elaborate and complicated. The Government must demonstrate that it is also necessary, robust and effective. We do not believe that it has yet done so.

The Government should explain why the draft bill does not include provisions

relating to central government’s national responsibilities for civil protection.

We believe that the decision not to include the regional tier in the framework

established by the draft bill requires a proper explanation. (Paragraph 33)

We believe that the Government must provide much more detailed information on the content of the regulations which Ministers propose to make under the draft bill.

We believe that the Joint Committee should consider whether for certain types of emergency Ministers might require access to only some of the powers set out in Clause 21 and, if so, whether the bill should limit access to certain powers for certain types of emergency. (Paragraph 62

We conclude that the provision to treat specialist legislative measures as primary legislation for the purposes of the Human Rights Act should not be included in the bill unless the Government can demonstrate a clear and compelling need for the additional powers which it provides. (Paragraph 68)

We believe that regulations made under Clause 2 of the bill should be subject to affirmative resolution by both Houses of Parliament. (Paragraph 71).

We believe that consideration should be given to whether the proclamation of an emergency, or its renewal, should require to be approved by Parliament, perhaps in the same way as the regulations made under it. (Paragraph 73)