Workers' Daily Internet Edition: Article Index :

The Civil Contingencies Bill and Other Despotic Measures of Britain and the European Union

Commentaries from Statewatch on EU Despotic Legislation
Summit nods through "EU Homeland Security" package

For Your Information:

The Debate on the Second and Third Readings of the Civil Contingencies Bill in the House of Commons is reported in Hansard, beginning:
http://www.publications.parliament.uk/pa/cm200304/cmhansrd/cm040524/debtext/40524-11.htm#40524-11_head0
continuing on the following and subsequent pages
http://www.publications.parliament.uk/pa/cm200304/cmhansrd/cm040524/debtext/40524-12.htm
and ending on http://www.publications.parliament.uk/pa/cm200304/cmhansrd/cm040524/debtext/40524-35.htm
  For links to the Civil Contingencies Bill and accompanying Explanatory Notes see:  
http://www.publications.parliament.uk/pa/ld200304/ldbills/077/2004077.htm

The growing fascism is being developed by the monopoly bourgeoisie as a bulwark to stave up their crisis-ridden, exploitative and warmongering system in a situation where they are preoccupied with its collapse. Against the demands of the people that states and their governments should be anti-war, pro-worker and pro-social, the tensions between the capitalist states are intensifying as US imperialism steps up its aggression, warmongering and threats against all peoples and states, while many-sided measures are being taken to impose fascism domestically.

All of this is being carried out in the name of security, freedom, democracy and defending the values of civilised nations in what is claimed to be an exceptional period of ongoing emergency, a period which it is claimed is dominated by the threat of mass terrorism. One reason for the despotic, racist and anti-worker measures is the upsurge in the opposition of the peoples of the world to the war in Iraq, the threats to world peace and security and the demand for political sovereignty, which the warmongers are anxious to contain and subvert. As the peoples challenge the bankrupt political authority, so does this authority step up its attacks on fundamental democratic rights and principles.

It is in this context that the Civil Contingencies Bill completed its remaining parliamentary stages in the House of Commons before being taken to the House of Lords on May 24. This Bill has been described as "Britain’s Patriot Act", a reference to the draconian and fascist measures instituted by the Bush administration following September 11, 2001. It adds to the government’s despotic powers in the case of a situation of national "emergency", a new broadly defined concept which the Bill introduces. Thus it prepares to give permanence to "emergency" powers of the government and state authorities.

At the end of April, the government published draft legislation paving the way for a compulsory identity card. This has been introduced in the context of the state’s demand that everyone "prove" they are who they say they are, targeted particularly at those who the government euphemistically and contemptuously brands as "economically inactive". All this legislation is in addition to the "anti-terrorist" measures of the Terrorism Act 2000 and the Anti-Terrorism, Crime and Security Act 2001 which are a perversion of all progressive conceptions of justice, and violate the right to conscience and other fundamental human rights. The Asylum and Immigration Bill, which aims to strip asylum seekers of further legal and social rights, is at present in the House of Lords before being returned to the Commons to become law. Furthermore, the European Union even flouted its own so-called European Parliament on May 17 when the European Commission adopted the EU-US data retention agreement which obliges European airlines to give access to all kinds of passenger records to US agencies.

The government is claiming that the new laws it is enacting are to fight terrorism and other events which "threaten serious damage to human welfare". The reality is that they provide the government of the ruling class with even more despotic powers and its ministers and police forces with impunity, which is a form of state terror. The government’s arming itself and its police and other state forces with impunity are posing increased dangers to society. All these measures are dragging the very conception of the rule of law into contempt.

It is instructive that at the time the 60th anniversary of the D-Day Landings are being commemorated, which were a part of the titanic struggle of the whole of humanity against fascism, it is necessary to put the issue of combating growing fascism once more on the agenda. As part of the ideological culture which is surrounding the 60th anniversary commemoration, the significance of defeating the most backward, reactionary and medieval rule over the peoples of the world which Hitlerite fascism represented is being obscured. The ruling circles are deathly afraid of the working class and people drawing the appropriate conclusions and appreciating the necessity to fight for and bring about a renewed, progressive and enlightened social system. It is even being obscenely suggested that the D-Day Landings have their modern-day equivalent in the aggression and occupation of Iraq. No! With the defeat of the fascism of Hitler, Mussolini and Tojo, democracy advanced on the world scale, even though after the Second World War the US carried on propping up fascism in order to avert the "catastrophe" of revolution, a scenario which is now bringing the whole world to the brink of an untold catastrophe.

The working class and people must step up their actions to demand that these despotic measures are not passed or are repealed and that the government is held to account, and that all fundamental human rights, which the measures seek to violate, be provided with a guarantee. This struggle must be waged in the context of fighting for a lasting alternative to the danger of fascism and war which can be achieved through the renewal of the political institutions and the decision-making process. In this context the working class and people must organise in such a manner which brings into being a government which is anti-war, pro-worker and pro-social.

"the two most intrusive measures in the pipeline - mandatory retention of communications data and the compulsory fingerprinting of nearly everyone in Europe for biometric documents - did not even get into the draconian US Homeland Security package, their citizens were up in arms when these ideas were floated"

The EU Summit (a meeting of the 15 EU Prime Ministers) in Brussels on 25 March 2004 "nodded" through in the afternoon the "Declaration on combating terrorism" and moved on to other matters that concerned them more (like the EU Constitution). The "Declaration" was made available to Brussels-based journalists on the afternoon on Wednesday 24 March and was adopted 24 hours later by the EU Summit - which makes everything in it politically binding on the member states and constitutionally binding on EU institutions.

Tony Bunyan, Statewatch editor, comments:

"This method of decision-making is totally undemocratic. The Declaration was drawn up in secret, differences were discussed in secret, and the outcome was agreed in secret.

There was literally no time for newspapers to report what was on the table and there was no time at all for the people, civil society, and parliaments to discuss the issues or make their views known.

This "Declaration" contains measures which will affect the civil liberties and fundamental rights of the people of Europe. Maybe people will accept them but maybe they will not and decide that this is a "bridge too far".

What is quite extraordinary is that the two most intrusive measures in the pipeline - mandatory retention of communications data and the compulsory fingerprinting of nearly everyone in Europe for biometric documents - did not even get into the draconian US Homeland Security package, their citizens were up in arms when these ideas were floated.

The EU is at a cross roads, eight out of the ten countries who are joining on 1 May have lived under totalitarian regimes and think they are joining a "democratic" Europe, but are they going to be joining a Europe where Prime Ministers decide what is best for them without any input from people or parliaments?"

The "Declaration on combating terrorism" contained only minor changes from the draft available on Wednesday and analysed in Statewatch's "Scoreboard" which found that 28 of the 57 measures had little or nothing to do with terrorism. The changes were:

- point 1, European day is added
- point 3, clarification of protection of EU citizens abroad
- point 9 has a quicker deadline for Solana to submit proposals
- point 10 includes dialogue with 3rd states, UN SCR 1373
- point 14 includes the name of the tsar

Documentation

1. The "Declaration on combating terrorism" agreed at the EU Summit on 25 March 2004: Full-text (pdf)
2. Statewatch "Scoreboard" and examines 57 planned measures: Statewatch Scoreboard on terrorism and civil liberties (pdf)
3. Statewatch analysis (pdf)
4. "Scoreboard" and analysis (42 pages, in one pdf file)
5. Draft Declaration on combating terrorism, Council of the European Union, doc no 7486 REV 4, dated 22 March 2004: 7486-rev4 (pdf)
6. Commission Action paper, dated 18 March 2004: Commission Action Plan (pdf)
7. Commission background document: Commission SEC 332 (pdf)

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EU/Surveillance of telecommunications:
Data retention comes to roost - telephone and internet privacy to be abolished

- proposal broader in scope than 2002 version; grave gaps in civil liberties protection remain;
- data to be held for between 12 and 36 months, though member states can opt for longer if they choose;
- data to be retained extended from "traffic data" to traffic and "location data";
- scope extended from 32 specific offences to any crime;
- scope extended from specific investigations and prosecutions to "prevention and detection" of crime;
- "This is a proposal so intrusive that Ashcroft, Ridge and company can only dream about it, exceeding even the US Patriot Act"

The governments of the UK, France, Ireland and Sweden have proposed a draft EU Framework Decision that if adopted will see all communications location and traffic data retained for between 1 and 3 years, or longer, should the member states choose. The proposal was endorsed by the EU summit on 25 March 2004 as part of a raft of proposals to combat terrorism in the wake of the Madrid bombings. This proposal (like many others) is in no way limited to terrorism, and will apply to the:

"prevention, investigation, detection and prosecution of crime or criminal offences including terrorism"

The proposal brings home to roost long standing demands by the law enforcement community for the compulsory retention, and thus surveillance, of all telecommunications. It is notable that these demands are coming not from the security and intelligence services but from national criminal intelligence services. In August 2002, Statewatch leaked a confidential draft of this Framework Decision drawn-up by the Belgian government (see background section, below).

New proposal worse than before; grave gaps in civil liberties protection remain

The new version of the proposed Framework Decision is, in privacy and civil liberties terms, worse than before. The original Belgian proposal contained:

- no grounds for refusing to execute a request on human rights grounds;
- no limits as to what data can be exchanged where member states allow for the retention of data on all crimes;
- no reference to supervisory authorities on data protection;
- no reference to the individual's right to correct, delete, block data nor compensation for misuse or for related judicial review;
- no reference to controls on the copying of data;
- no rules for checking on the admissibility of data searches.

With the exception of the inclusion of a reference to "rules on correction and judicial review" (which may prove meaningless in practise - see analysis below), these shortfalls remain in the UK/Ireland/France/Sweden proposal. Moreover, two important safeguards, restricting access to data and limiting the use of the provisions have been dropped. The new proposal is also considerably broader:

- the time period for the storage of data is extended from 12-24 months to 12-36 months (though member states can opt for longer if they choose);
- the data to be collected is extended from "traffic data" to traffic and "location" data;
- scope extended from 32 specific offences to "any crime";
- scope extended from specific investigations and prosecutions to "prevention and detection" of crime.

The new proposal does introduce two derogations for member states, though these are quite limited. Detailed analysis of the proposal follows below.

An unjustified, unlawful and expensive proposal

The original Belgian proposal in 2002 provoked a furious reaction. EU Data Protection Commissioners issued a statement describing the plans as:

an improper invasion of the fundamental rights guaranteed to individuals by Article 8 of the European Convention on Human Rights, as further elaborated by the European Court of Human Rights.

A legal opinion obtained by Privacy International agreed that:

The data retention regime envisaged by the (EU) Framework Decision, and now appearing in various forms at the Member State level, is unlawful.

And a coalition of civil society groups called on the European Parliament to oppose data retention and:

promote and preserve the most fundamental values democratic societies must defend: the right to privacy, freedom of expression, and presumption of innocence.

It should also be pointed that the proposals will lead to enormous costs for the telecoms and internet industry. Major commercial associations have already expressed strong concerns about plans for data retention. A coalition comprising the International Chamber of Commerce (ICC), the Union of Industrial and Employers' Confederation of Europe (UNICE), the European Information, Communications and Consumer Electronics Technology Industry Association (EICTA) and the International Telecommunications Users Group (INTUG), said in a statement last year:

data retention is an intrusive measure that should not be taken until less intrusive alternatives, such as a European data preservation regime, have been tested and proven insufficient.

The proposed measures would affect not only consumer confidence but also business competitiveness the coalition said, and the costs of storage should not be borne by the industry, nor the customer.

Background

The proposal brings home to roost long standing demands by the law enforcement community for the compulsory retention of all communications data. Their demands have already resulted in an amendment of the 1997 EC Directive on privacy in telecommunications which said that the only purpose for which traffic data could be retained was for billing (ie: for the benefit of customers) and then it had to be erased (law enforcement agencies could, however, get access to the traffic data with a judicial order for a specific person/group). Despite significant opposition to the proposed amendments, the obligation to erase data was finally deleted after an "unholy alliance" between the two largest parties in the European Parliament (PPE, conservative and PSE, Socialist groups) reversed the EP's pre 'September 11' belief that the measure was entirely disproportionate. This allowed member states to begin passing national laws on data retention; a survey by Statewatch shows that nine of the 15 EU countries have already done so (see background documentation, below).

In August 2002, Statewatch published a leaked draft Framework Decision on mandatory data retention drawn-up by the Belgian government. The then Danish presidency issued a statement saying that the proposal "was not on the table". Nor was it - it was "under the table" waiting for the right time to be produced. Behind the scenes the UK joined the Belgian government in endorsing the proposals, but because of public opposition the two were not prepared to formally present the proposal to the Council (member states).

No sooner had the dust settled from the Madrid bombings, than the UK went public with plans to resurrect the Framework Decision; it also figured in proposals from the Commission and the Council. Again: the proposal is in no way limited to terrorism and concerns "crime in general". Ireland and France joining the UK in putting their names to the proposal comes as little surprise - Ireland leads the member states in having introduced data retention for at least three years ("Directions" were issued by the Minister for Public Enterprise in April 2002 under the Postal and Telecommunications Services Act 1983), while France has mandatory data retention for up to one year (under Article 29 of the Law on Everyday Security of 15 November 2001). That Belgium is no longer sponsoring the proposal maybe significant, suggesting that they could endorse such intrusive measures (although Belgium does have data retention for at least 12 months under its Computer Crime Act 28 November 2000). Sweden's support is curious, though it had previously indicated support for a binding EU measure on data retention. The UK argues that data retention is included in the Anti-Terrorism, Crime and Security Act 2001 but only in relation to purposes "directly or indirectly connected with national security". The UK would thus use EU legislation as a broader legal basis for data retention than provided by ATSA.

Ben Hayes of Statewatch comments:

"If this proposal was a genuine anti-terrorism measure it would be clearly restricted to terrorist offences. The fact that it is so broad as to potentially cover any crime shows just how cynically EU governments are exploiting the climate engendered by 'September 11' and now 'March 11'.

This is a proposal so intrusive that that Ashcroft, Ridge and company can only dream about it, exceeding even the US Patriot Act.

What is needed is good intelligence on specific threats, rather than mass surveillance of everyone, generating more data than can usefully be analysed. The increase in convictions of people exchanging child pornography has come without wide-ranging data retention. This proposal is disproportionate, unnecessary and has no place in a democracy."

Documents and background material

 

1. Draft Framework Decision on the retention of data processed and stored in connection with the provision of publicly available electronic communications services or data on public communications networks for the purpose of prevention, investigation, detection and prosecution of crime and criminal offences including terrorism, 8958/04, 28 April 2004: full-text

2. EU "HOMELAND SECURITY" PLANS - Key documents:
a). Adopted Declaration on combating terrorism; b). Statewatch's analysis finding 27 out of 57 proposals have little or nothing to do with tackling terrorism ­ they deal with crime in general and surveillance, see: Statewatch Scoreboard; c). Statewatch coverage of the conclusions: Summit nods through "EU Homeland Security" package: report

3. Mandatory retention of telecommunications data "unlawful": Legal opinion (October 2003)

4. Major commercial associations express strong concerns about plans for data retention: Report (June 2003)

5. Majority of governments introducing data retention of communications: Statewatch survey (January 2003)

6. European Conference of Data Protection Commissioners opposes EU Framework Decision on data retention: statement (September 2002)

7. Draft Framework Decision on data retention leaked to Statewatch: full-text and analysis (August 2002)

8. Amendment of 1997 EC Directive on privacy and telecommunications: "European Parliament caves in": report and background (May 2002)

Analysis of proposed Framework Decision

 

1. The scope of the Framework Decision is very broad indeed. It will put in place the compulsory retention of all communications traffic and location data - land and mobile telephones, faxes, e-mails, internet histories and any future communications technology (see Article 2). It is highly doubtful whether a general reference requiring the Framework Decision to apply automatically to all 'future technology' is precise enough to be compatible with human rights law.

2. Communications data is to be retained for the "purpose of prevention, investigation, detection and prosecution of crime or criminal offences including terrorism". (the 2002 draft limited the scope to specific investigations and prosecutions). The idea of data retention for "crime prevention" as distinct from investigation and prosecution is particularly disturbing, at least outside the scope of very serious crimes such as terrorism. This is also clearly unacceptable to the more democratic countries in the EU and article 1(3) allows them to restrict the scope of Framework Decision. However, this clause is badly written, and appears to allow a member state to exclude application of the Framework Decision to the "prevention" of crimes/criminal offences, but must apply it to the "investigation, detection and prosecution" of crimes/criminal offences. This means individual member states cannot limit the Framework Decision to terrorism only, or even to selected crimes only.

3. The key provisions are in Article 3, which places an obligation on service providers to retain and make accessible this data to law enforcement agencies, Article 4, which sets a time period of 12-36 months (though the member states may exceed this) and Article 5, under which the member states will share retained data with one another.

4. Article 2(1) defines data to include not only "traffic data" but "location data", which would certainly apply to mobile phones users. "user" and "subscriber" data is potentially unrestricted and inexplicably applies to natural persons who may are not necessarily "users" or "subscribers"! It appears that that this proviso means they mean that if a "user" calls an individual, they can keep data that individual, even if that individual is not a "user".

5. Article 2(2) sets out a mandatory list of data types to be retained but uses the non-exhaustive term "data shall… include". Falling short of "content", which is prohibited under this Framework Decision by Article 1(2), is this ambiguity to allow for the collection of data from a computer or phone other than the content of the conversation? This is clearly another unpalatable demand for some member states and another opt-out is available for member states (see Article 4(2)). However, the opt-out does not apply to "telephony" and only appears to give the power to make the retention period shorter; it is not clear whether retention could be refused altogether. This begs further questions in regard to the "dual criminality" principle, under which judicial cooperation between states can only take place where both countries criminalise the activities under investigation. Can a member state call upon another to send the retained data in relation to actions it does not regard as criminal (on protestors, for example)?

6. The ambiguous wording of article 2(2) means it is unclear exactly what the proposal covers, for instance, information on which websites people have visited? This would appear to be tantamount to the transmission of "content" in the case of web surfing.

7. Article 2(3) covers the retention of data generated by specific communications "infrastructures, architectures and protocols". Art. 2(3)(a) applies the Framework Decision to "Telephony excluding Short Message Services [SMS/"text messages" from mobile phones], Electronic Media Services and Multi Media Messaging Services". Article 2(3)(b) then goes on to include SMS/text messages and multi-media communications within the scope of the Framework Decision, while 2(3)(b) adds e-mails, voice over IP (internet telephony), broadband etc. The inherent contradiction between (a) and (b) is only explained by a further opt-out for the member states to exclude the data in (b) and (c) from the scope of the Framework Decision (see Article 4(2)). Member states who do choose to derogate from these provisions and limit retention must inform the other member states in writing.

8. Under Article 4 data "shall be retained for a period of at least 12 months and not more than 36 months following its generation". However, Member States "may have longer periods" if they believe it "constitutes a necessary, appropriate and proportionate measure within a democratic society", giving them carte blanche to go beyond 36 months. The complex procedural mechanisms for member states who wish to limit the retention period to not apply to those who wish to extend it.

9. There are grave gaps in civil liberties protection even compared to Schengen, the Cyber-crime convention or other recent EU measures like the arrest warrant. The gaps are:

a). there is no ground for possible refusal to execute a request from another Member State on human rights grounds (unlike in the arrest warrant, proposals on confiscation and freezing, Article 15 of the Cyber-crime convention etc.). The only possibility is for the requested state to impose "conditions" on access to the data that reflect national procedures (Article 3).

b). two important safeguards in the data protection provisions in the 2002 version have been dropped. Access to retained traffic data was originally to be "given only to judicial authorities or, in the extent that they have autonomous power in criminal investigation prosecution, to police authorities" and "not authorised when other measures are possible which are less intrusive in terms of privacy and leading to similar results regarding criminal investigation and prosecution". These restrictions have been replaced with more ambiguous references to "competent authorities" and "case-by-case basis" (Article 6(a)).

c). there is no reference to the involvement of supervisory authorities on data protection (as in the SIS rules).

d). Article 6 states that the member states must have rules on "judicial remedies" but makes no direct reference to an individual right to access, deletion, correction or blocking of data, or compensation where it used unlawfully. Unless individuals have subject access or at the very least the supervisory authorities have the power to check what is going on, then how on earth can this be enforced? How will anyone be able to bring judicial review proceedings to start with?

e). the Framework Decision must be applied "in accordance with national law". However, there must surely be a risk that the whole process of providing for this massive data retention obligation will surely encourage member states to relax the rules which currently apply to national access to this data - the law enforcement lobby will doubtless say it is "odd" that all this information is being kept just for the benefit of other member states.

f). there are no specific rules on controls on the collection or the copying of the data (as in the SIS rules) except for a reference to "accordance with national law".

g). there are no rules on checking on the admissibility of searches (as in the SIS rules).

 

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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.

NOTE:

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.

Documentation

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)