A recent House of Lords report strongly criticised the powers given to Government to deal with civil emergencies. Now one of the academics quoted in the report has called for an overhaul of the system to ensure that when major crises arise, the most appropriate measures are put in place to deal with them.
The Civil Contingencies Act (2004) allows the Government to act quickly in the event of a dire emergency such as a terrorist attack, flooding crisis or influenza pandemic. The powers at their disposal are wide-ranging, and include major infringements of civil liberties – the imposition of curfews, requisitioning and quarantine. Typically such legislation can also be enacted within days, bypassing many of the Parliamentary stages traditionally required to create new laws.
The House of Lords Select Committee on the Constitution has recommended a raft of measures to ensure these powers are not abused.
Clive Walker, Professor of Criminal Justice Studies at the University of Leeds, who gave evidence to the committee’s inquiry into fast-track legislation, says the rush to create new laws amid a major crisis almost always leads to flawed legislation: "The various parliamentary stages are there for good reason. Members of both houses get to properly debate and discuss the issues, while people outside – individuals and organisations who have expertise in the field – can also lobby and make a contribution.
"If you have legislation that’s being enacted in a week, then none of this happens. There isn’t time to take evidence."
He cites the Omagh bombing of August 1998 as an example of where the use of emergency legislation failed. Omagh was the worst single atrocity in the history of the Republican movement; Parliament was recalled and had just two days to approve new anti-terror measures.
"Some of the measures they introduced that summer were really dangerous," said Professor Walker. "For the first time, the opinion of a police officer would be allowed to count as evidence against a suspect. And these new laws were not only dangerous – they weren’t really needed. There was already plenty of legislation on the statute book to deal with terrorism."
Tellingly, most of the provisions introduced after Omagh were never actually used, and most have now been repealed.
And Professor Walker says the problems of bad laws, and the need to quickly repeal them, can be avoided if Government would allow open discussion of emergency laws, well in advance of them ever being needed. "Most emergency legislation already exists, just waiting to be enacted," he said.
Somewhere in Whitehall there are already draft powers for dealing with a whole host of emergencies. The opportunity already exists for politicians and interest groups to have their say, and ensure that if these ever need to be enacted, they can be as robust and useful as possible.
"Of course, the official line is that these papers don’t exist. The Government doesn’t want to publicise them for fear they will cause alarm among the general public. Actually, I think people would be re-assured to know that its Government was prepared to deal with any emergency."
The Lords report "Fast-track Legislation: Constitutional Implications and Safeguards" makes a number of recommendations:
* Any minister wishing to introduce fast-tracked legislation should make a statement to the House of Lords justifying the need for such emergency action;
* The legislation should include a "sunset clause" setting out the timing for the new measures to end;
* A post legislative review should begin promptly after the emergency powers are introduced, to ensure that the new laws receive the proper Parliamentary scrutiny.
As Professor Walker added: "This report is of vital interest to those who seek to uphold democracy and the rule of law in times of emergency. How can we try to modify the passage of draconian ill-advised legislation when we are in the aftermath of a catastrophe like 9/11?
"It is very easy to take fright and be terrorised and to pass panic legislation which becomes counter-productive by taking away rights and imposing disciminatory measures with the result that it reduces cooperation and trust in society and leaves us living in a police state.
"The only result will be that the terrorists achieve their goal of producing a reaction from society which will recruit more people into terrorism in the future."
