Civil Contingencies Bill: is an outbreak of Dutch elm disease a national emergency?

It is easy to overlook the harmless-sounding Civil Contingencies Bill in such a crowded legislative programme as that announced in last week’s Queen’s Speech. Certainly, it is not likely to steal many column inches from the brewing political crisis over university tuition fees or the worrying new regime for asylum seekers. Nonetheless, civil libertarians have long been alarmed at the powers of the new legislation, which updates the emergency powers acts of 1920 and 1948. In the last few weeks it has been described variously as complete “legislative overkill” and “the greatest threat to civil liberties to date”. So widely drawn are the proposals that Justice, the all-party civil rights group, has argued that a virulent outbreak of Dutch elm disease could constitute an emergency under the present proposals, as could a wide range of other circumstances that “pose no discernible threat to public safety or security”.

Only last week a joint committee of MPs and peers warned of the proposed legislation’s “potentially dangerous flaws”. “The draft bill does not provide adequate safeguards to protect against the misuse of emergency powers. In the wrong hands, it could be used to undermine or even remove legislation underpinning the British constitution and infringe human rights,” said Lewis Moonie, the committee’s Labour chairman. “Our democracy and civil liberties could be in danger.”

So what is the problem? Under the proposals, either the Queen or a Secretary of State could declare themselves satisfied that an emergency has occurred and pass whatever regulations ministers think “necessary for the purpose of preventing, controlling or mitigating” such an emergency. There are wide powers to disapply acts of Parliament, confiscate or destroy private property, as well as impose restrictions on freedom of movement. Special courts are also envisaged for those that disobey ministerial rules. Regulations would need to be reviewed every 30 days and they would have to be presented to Parliament “as soon as is reasonably practicable”. They would then lapse if not approved within seven days.

Few would disagree that there should be legislation to cover a terrorist strike but that is not the only ‘contingency’ that ministers appear to have in mind – they also envisage fuel strikes or the spread of foot-and-mouth. Hence the ‘emergency’ definition includes a serious threat to the environment and “the disruption of plant or animal life”, and this could indeed cover Dutch elm disease.

However, lawyers feel especially aggrieved at the way in which ministers plan to bypass any awkward challenges under the Human Rights Act. Emergency regulations are issued by a minister, not debated before Parliament, and deemed primary legislation for human rights purposes. Conor Gearty, Rausing director of the Centre for the Study of Human Rights and professor of human rights law at the London School of Economics, points out that ministers need only declare themselves satisfied that the emergency definition has been fulfilled to justify pressing the emergency button. “But just to make doubly sure that the courts don’t muscle in, the bill also proposes to disapply the Human Rights Act so as to ensure that regulations under the new act cannot be properly challenged in court, no matter how draconian or disproportionate they might prove to be in practice,” he adds.