28 March 2012
Contingencies Bill published - Britain's "Patriot Act"
Please see updated analysis on revised Bill, 20.1.04: Analysis revised Bill
The government has published the Civil Contingencies Bill. There are a number of changes to the draft Bill presented last year and which was strongly criticised by a number of parliamentary committees. The changes to the Bill include:
a. When defining what is an "emergency" the definition: "presents a serious threat" is replaced by "an event or situation which "threatens serious damage".
b. The category in defining an emergency of "political, adminstrative or economic stability of the UK" (the protection of government and financial institutions) has been dropped. However, the government response to the parliamentary Joint Committee on the Bill says that powers would still exist for Regulations to be made which are designed "to protect or restore the activities of Her Majesty's government".
c. A limitation is placed under "Conditions for making emergency regulations" (clause 20) stating that "existing legislation might be insufficiently effective"
d. Responding to criticism clause 24 sets out that the Council on Tribunals must be consulted before a tribunal is set up under a Regulation.
e. There is still no provision that parliament can vote on the declaration of an emergency - it is simply recalled. The procedure for adopting Regulations remains that of Statutory Instruments - which can, at a Minister's discretion, be approved if there are not sufficient MPs to force a vote (ie: a Regulation can be adopted by a "negative" vote, that is where no vote is successfully demanded). A new clause (26.3) says that if parliament agrees a Regulation "with a specified amendments" this shall be enacted. However, it is not at all clear that under the Statutory Instruments procedure amendments will be permitted - a precedent would have to be created to allow this.
f. The extensive powers to prevent "assemblies" (protests), travel and "other specified activities" (undefined) are unchanged.
g. The contentious clause 25 in the draft draft concerning the Human Rights Act 1998 has been dropped (this would have precluded judicial review).
h. 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)
i. 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).
Tony Bunyan, Statewatch editor, comments:
"The concessions made by the government in no way change the fundamental objections to this Bill. The powers available to the government and state agencies would be truly draconian. Cities could be sealed off, travel bans introduced, all phones cut off, and websites shut down. Demonstrations could be banned and the news media be made subject to censorship. New offences against the state could be "created" by government decree. This is Britain's Patriot Act, at a stroke democracy could be replaced by totalitarianism"
UK: The Civil
Contingencies Bill - Britain's "Patriot Act"
- in the "wrong hands" it could undermine or remove democracy
- Royal prerogative and Privy Council to authorise emergency powers
- Scope of new law extended to protect the government, the state and financial institutions
Update 28.11.03: The Joint Committee on the Draft Civil Contingencies Bill (of Commons and Lords) published a report today which has concluded that the proposed Civil Contingencies Bill means: "Our democracy and civil liberties could be in danger"
The Committee's report says:
the bill explicitly prohibit regulations which would contravene
any inalienable rights protected by the European Convention on
Human Rights or the Geneva Conventions... In the wrong hands,
it could be used to undermine or even remove legislation underpinning
the British constitution and infringe human rights."
A key clause says that Regulations can be made to:
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;
(i) create an offence of:
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"
1. Report by the Joint Committee on the draft Civil Contingencies Bill published 28.11.03: Full-text (pdf)
2. The draft Bill and Explanatory Note: Full-text (pdf)
3. Full-text of the Emergency Powers Acts 1920 and 1964 and the Civil Protection in Peacetime Act 1986: Full text
4. The origins of the Emergency Powers Acts (EPAs) in the UK (extract from "The Political Police in Britain" by Tony Bunyan): Origins of the EPAs
BBC News (28.11.03): "Disaster plans "open to misuse" (link)
Guardian citing PA (28.11.03): 'Anti-terror law threatens democracy'
The UK government has published a draft Civil Contingencies Bill together with Explanatory Notes.The Bill would repeal the Emergency Powers Acts of 1920 and 1964 and the Civil Protection in Peacetime Act 1986. The proposal is now open to consultation until 11 September and responses should be directed to: Civil Contingencies Bill (Consultation), First Floor, 10 Great George Street, London SW1P 3AE or e-mail: email@example.com
The first part of the Bill on Civil Protection is one thing but the second part on Emergency Powers brought the following editorial comment from the Guardian newspaper on 20 June that this represents:
"the greatest threat to civil liberty that any parliament is ever likely to consider"
The original 1920 Act was passed at a time of great political and industrial unrest and gave the government draconian powers which can be introduced under the royal prerogative and adopted by "Orders in Council" - that is, by a meeting of any two Privy Counsellors (all cabinet ministers are automatically made Privy Counsellors on appointment). Parliament has to agree new powers adopted but all real power is delegated to government ministers and state officials. The 1964 Act made permanent provisions in wartime Defence (Armed Forces) Regulations 1939 to allow military personnel to replace civilian workers. In 1972 a Civil Contingencies Unit was set up in the Cabinet Office and when an internal crisis arises it operates through the operational centre known as "COBRA" (Cabinet Office Briefing Room).
The scope of the Bill goes well beyond that of the 1920 Act. This Act was 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"
The new Bill does include the "essentials of life" for the population (Art 17.1.a) but massively extends the scope under Article 17.1 to:
"(c) the political, administrative or economic stability of the United Kingdom or of a Part or region or (d) the security of the United Kingdom or a Part or region"
Article 17.1.c. is defined in Article 17.4 as covering the "activities of Her Majesty's government", "the performance of public functions" and "the activities of banks and other financial institutions".
Tony Bunyan, Statewatch editor, comments:
"What is extraordinary is that the government in reviewing an 83 year old law still wants to rely on the ancient powers of the monarch. Moreover it intends to change its purpose from a law to provide the essentials of life for the population to one that also covers the protection of the government, the state and financial institutions.
will not be aware that under emergency plans put in place in
the late 1970s travel bans can be introduced, food rationed and
all telecommunications cut off under the Telephone Preference
System - the whole of the civilian population can be cut off
from the outside world with no access to phone-calls, e-mails
or the internet at a stroke."
1. The Bill was 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.
5. 3rd edition of "Dealing with Disaster", Cabinet Office is on: Disaster (link)
6. Regulatory impact - Part 1 (link)
7. Regulatory impact - Part 2 (link)
8. Consultation document (pdf) The consultation period has now ended
9. The draft
Bill 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)
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