Civil Contingencies Bill
[08 October 2004]. After posting this article, it occurred to me that there has already been an instance of a staged political assassination shortly before a big vote on Europe: The murder of Sweden's Foreign Minister Anna Lindh on 11th September 2003, three days before Sweden's referendum on the Euro. This was a failed attempt to swing finely balanced public opinion in favour of the pro-euro camp which she represented. In these circumstances, the Civil Contingencies Bill would allow the British Government to declare a state of emergency and use emergency powers to suppress the activities of its political opponents.
[22 September 04]
Civil Contingencies Bill: Loophole Allows Emergency Regulations to be used to Protect the Government rather than the Public
The significant differences between the Bill and the current Emergency Powers Acts (1920 and 1964) are the breadth of circumstances which constitute an emergency and the loophole which allows the government to use emergency powers in respect of any aspect of the state of emergency without requirement of acting in the public interest. Together, they represent a real opportunity for a Machiavellian regime to abuse its power.
Subsection 22 , (1) states:
Emergency regulations may make any provision which the person making the regulations thinks is for the purpose of preventing, controlling or mitigating an aspect or effect of the emergency in respect of which the regulations are made
"Aspects" or "effects" of an emergency could be entirely political, financial or economic and have nothing to do with public safety. Subsection 22 (2) gives examples of the purpose of emergency regulations and these are mostly reasonable. However the list is not exhaustive - the government can make any provisions it likes under 22 (1).
Under the current legislation, the 1920 Emergency Powers Act, there is a requirement for the emergency powers to be used, not in respect of any aspect of the emergency, but specifically in the public interest.
2.- (1) Where a proclamation of emergency has been made and so long as the proclamation is in force, it shall be lawful for His Majesty in Council, by Order, to make regulations for securing the essentials of life to the community, and those regulations may confer or impose on a Secretary of State or other Government department, or any other persons in His Majesty's service or acting on His Majesty's behalf, such powers and duties as His Majesty may deem necessary for the preservation of the peace, for securing and regulating the supply and distribution of food, water, fuel, light, and other necessities, for maintaining the means of transit or locomotion, and for any other purposes essential to the public safety and the life of the community, and may make such provisions incidental to the powers aforesaid as may appear to His Majesty to be required for making the exercise of those powers effective.
The definition of an emergency in the bill is a situation or event which threatens serious damage to (a) human welfare in the United Kingdom or in a Part or region, (b) the environment of the United Kingdom or of a Part or region, or (c) the security of the United Kingdom or a Part or region. Threats to national security are war and terrorism. Terrorism for the purpose of the bill is defined by the 2000 Terrorism Act as follows:
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
(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.
This means that a terrorist attack which only caused relatively minor damage to the government but nonetheless infringed the 2000 Terrorism Act could be used to invoke emergency powers. Lets take a worst case scenario. Imagine a staged attack on the Prime Minister which allegedly endangered his life and which was allegedly carried out by a lone nut who believed that the Iraq war was a crime against humanity and that terrorism was being sponsored by Western governments. The said lone nut would himself be dealt with by the Terrorism Act. However, in order to "prevent" or "control" future terrorist atrocities of this nature, it was deemed that there was a need to clamp down on the anti-war and 9/11 truth movement which fostered such delusions. There is no public interest requirement needed, only a government interest.
The same could ploy could be used against eurosceptics before a referendum. Imagine a staged attack on a pro-euro government conference or exhibition by government agents two months before a referendum on the EU constitution or single currency. If it endangered human life this would be terrorism so the government may decide in its wisdom that the "effects" on public opinion, might be mitigated by use of emergency powers to censure eurosceptics. Imagine if a government agent decided to embark on a mass email campaign (spam) to members of the civil service, army, police, media and the wider public. This might be construed as disruption of electronic systems under section(2) e of the Terrorism Act. Or perhaps the government agent might hack a government website placing a link to offending anti-war, eurosceptic or 9/11 truth websites. Ordinarily the Terrorism Act be invoked to deal with the culprits, but then the government could use emergency powers to block all eurosceptic or 9/11 websites to deal with the threat to public opinion which was deemed to be an "aspect" or "effect" of the said atrocity.
Even without these extreme conspiratorial possibilities, there is a more prosaic objection to this subsection. If there were a terrorist attack, in which both the government and the public were affected, we could find ourselves put to work without compensation to protect the government, its cronies or its contractors rather than ourselves and communities. Or the government may favour measures which maintain "order" rather than humanitarian concerns. For example, if there was a major power cut or mass looting, the government could enforce cordons or curfews with no requirement whatsoever to benefit the public. It might decide that its priority is the protection of certain banks or corporate headquarters rather than the provision of food, water and the community interest as would have been the requirement under the current legislation. It can choose what "aspects" and "effects" of the emergency it wishes to deal with, without consideration of public interest at all.
Similarly the grounds for declaring a state of emergency need to be narrowed to a serious threat to the public interest and public safety. The 1920/1964 definition of an emergency is already sufficient, perhaps with the addition of communications and health infrastructure. It is disgraceful that a state of emergency can be declared on the basis that a relatively inconsequential infringement of the 2000 Terrorism Act has occurred, which could easily be staged by a Machiavellian regime.
The Bill does not remove the 1920 Act's requirement for Parliamentary scrutiny of emergency measures. They automatically lapse after seven days unless parliament approves them so it does not terminate democracy as many have feared. However, when Parliament is considering emergency regulations they need to have clear legal obligation to approve those measures necessary to protect vital public interests above political or financial interests. Clause 22 (1) and the grounds for declaring an emergency should be amended to this effect.
Michael Nield
www.policestateplanning.com
References:
2000 Terrorism Act
Civil Contingencies Bill
Explanatory notes to the Bill
1920 Emergency Powers Act and 1964 amendment
More Info
The Cabinet Office responds : Ruth Kelly's reply to a letter based on the above articleRuth Kelly MP
Minister for the Cabinet Office
70 Whitehall
London
SW1 2AS
Telephone 020 7276 0652
Fax 020 7276 0655
E-mail [email protected]
www.cabinet-office.gov.uk
25 October 2004
Our Ref RK/04/38979
Anne Campbell MP
House of Commons
London
SW1A 0AA
Dear Anne,
Thank you for your letter of 20 September enclosing correspondence from your constituent, Mr Michael Nield of .... Cambridge regarding the Civil Contingencies Bill.
It may be helpful if I begin by setting out some of the background to the Bill. The Government carried out a public consultation exercise from June to September 2003 on specific proposals in the form of a draft Bill. This set out a new framework for civil protection work at the local level and a new framework for the use of special legislative measures. The draft Bill then underwent pre-legislative scrutiny by a joint Committee of both Houses. Following amendments in the light of the consultation, and the recommendations of the Committee, the Bill was introduced to Parliament on 7 January 2004. The Bill's development was informed by close consultation with key stakeholders, including the emergency services, the Local Government Association, the voluntary sector and civil liberties groups, in what was an open and inclusive policy-making process. The Bill is currently at the committee stage in the House of Lords.
I understand that Mr Nield's interest is in Part 2 of the Bill, which modernises outdated emergency powers legislation. Emergency powers allow the Government to make special temporary legislation (emergency regulations) in the most serious of emergencies, and serve as a legislative safety-net to ensure effective action can be taken by enabling temporary new powers to be provided for in emergency regulations where existing legislation does not supply the powers to respond most effectively. They ensure the Government can act legally and accountably in situations where temporary new legal provision is required without the time for Parliament to provide it before hand.
Mr Nield suggests that the Bill would allow the Government to make any provisions it likes. This is not the case. The powers are not unprecedented: the Bill simply replaces out of date legislation for dealing with the most serious of emergencies, restricting and tightening up, rather than extending the existing legislation. It introduces a range of new safeguards to prevent the misuse of emergency powers. Parliament must approve and, unusually, can amend the regulations. The Government will be accountable to Parliament throughout any use of emergency powers.
The new definition of "emergency" under the Bill reflects the breadth and variety of the possible risks and threats to the UK may face at present, and in future, and has been drawn up in consultation with stakeholders. It is intended to cover all the potential risks and threats that may lead to a situation so serious as to create a need to use emergency powers. It is deliberately detailed in order to communicate more clearly the kind of situations in which use of emergency powers may be contemplated.
Mr Nield raises concerns that the Government could use emergency regulations for entirely political and economic reasons rather than for reasons of public safety. I would point out that we have refined and reviewed the definition in light of the results of public consultation and recommendations from the Joint Committee. We have removed "political, administrative and economic stability" as possible grounds for using the power and we have adjusted the definition of human welfare to make it clearer.
The definition is just the starting point - any emergency would have to satisfy the safeguards laid out in the Bill in order for the emergency powers to be available. In particular the "triple lock" tests of seriousness, necessity and proportionality.
While the "triple lock" presents a significant barrier to misuse, there are also a range of safeguards set out in the Bill. Any emergency regulation made must also comply with the Human Rights Act, it being an "unlawful act" for a Minister or Her Majesty to make regulations which breach the Convention rights. Emergency regulations must be for the purpose of dealing with the emergency and must contain only provision for this purpose - they cannot be used for extraneous purposes. In order to introduce emergency regulations temporary new provision must be needed urgently.
The Bill also contains explicit prohibitions on instigating military conscription, prohibiting strikes or other industrial action, amending criminal procedures, altering the right to trial and the creation of offences other than breach of regulations themselves, for which a strict limit on the punishment available is set out.
I hope that Mr Nield finds this reply helpful.
Best Wishes
Ruth Kelly
Reply to Ruth Kelly's letterAnne Campbell MP
House of Commons
London SW1 0AA
30 October 2004
Dear Anne,
Re My letter of 13 September 2004 and Ruth Kelly's reply of 25 October 2004
Thank you for taking my concerns about the Civil Contingencies Bill seriously and sending a copy of my letter to the Cabinet Office.
I am grateful to Ruth Kelly for setting out the Government's aspirations for the Bill and I would like to reply to two points. Firstly, the Minister states that the triple lock test of seriousness, necessity, and proportionality will prevent the Government for using emergency powers for political, economic or any other extraneous purpose. This is not true, firstly because of the Bill's definition of an emergency and secondly because of the absence of an exhaustive list of purposes for which regulations can be used. Also, there is no requirement for the Government to declare a state of emergency before making emergency regulations.
The second point concerns the Minister's statement that emergency regulations have to comply with the Human Rights Act. This also not true and even if it were, it offers little consolation.
1. The Triple Lock - seriousness, necessity, and proportionality
The Bill limits the use of emergency regulations to three types emergency: Human welfare, the environment and national security. It is the last two which raise concerns. Although "political, administrative and economic stability" has been removed from the definition of a human welfare emergency, a national security emergency will include threats to political, military and other interests other than public safety and the life of the community.
National Security
Serious damage to the security of the UK would involve purported or real attacks which may or may not yet have occurred either in the UK or in a foreign country. They may target government bodies, politicians, state secrets, the armed forces or intelligence services. They might not directly affect any ordinary members of the British public.
The Bill states that national security can only be threatened by war or terrorism. Terrorism for the purpose of the Bill is defined in the 2000 Terrorism Act. The definition of terrorism in this Act includes actions designed to influence the Government or public opinion. Terrorism does not have to involve any threat to the supply of food, transport, healthcare, or the life of the community which is the exclusive definition of an emergency in the 1920/64 Emergency Powers Act .
National security should not be grounds for using emergency regulations. Parliament is in a weak position to scrutinize Government claims of threats to national security as the Iraq crisis demonstrated. Parliament would find itself in the difficult position of ratifying regulations based on classified information which they were not allowed to see, the purpose of which might be to protect Government policy or individuals and bodies within Government which control the supply of the same information.
In place of the national security clause should be one which sets out the limited arrangements for dealing with a serious disruption of Parliament, the Executive and the Monarchy.
The Environment
Expanding the definition of an emergency to include threats to the environment is not appropriate for an emergency powers act. Emergency powers should be used to protect people not rocks, plants or animals. One wonders how a serious threat to the environment would be defined given that there are already a multitude of end of earth scenarios such as global warming which are already on the political agenda. Serious environmental pollution, such as radioactivity or chemical or biological contamination should be dealt with as an emergency only as far as they are a serious threat to human welfare.
Human Welfare
This is adequately defined by the Bill.
The Purpose of Emergency Regulations
Section 22 (1) allows emergency regulations to be used to deal with "any aspects or effects" of the emergency. Section 22 (2) lists examples of the purposes to which emergency regulations may be used. These are are mostly public interest purposes but unfortunately this is not an exclusive list. The explanatory notes to the Bill confirm that the list is exemplary not exclusive. A national security emergency would trigger the use of emergency powers to deal with political, economic, military, financial or any other aspect or effect of the emergency. This would not be possible under section 2 (1) of the Emergency Powers Act which provides exclusively for public interests:
the preservation of the peace, for securing and regulating the supply and distribution of food, water, fuel, light, and other necessities, for maintaining the means of transit or locomotion, and for any other purposes essential to the public safety and the life of the community
Furthermore, the lack of an exclusive list of public interest purposes allows misuse of emergency powers in either a human welfare or environmental emergency. There might be political and financial "aspects" to a human welfare or environmental emergency, which could see banks and corporate headquarters, or the homes and livelihoods of unusually wealthy or powerful individuals being protected at the expense of public safety and the life of the community generally.
State of Emergency?
Unlike the Emergency Powers Act, clause 21 of the Bill does not require the Government to declare that a "state of emergency" exists before using emergency regulations. That in itself indicates that the Government envisages using emergency regulations in situations which are not a serious threat to the community. A "state of emergency" is a declaration that the country and community is facing a genuine crisis, not just the Government or its policies and interests.
2. Emergency Regulations Must Comply with the Human Rights Act?
Firstly, the Bill does not state that emergency regulations have to comply with the Human Rights Act. It states that the minister need only make a statement declaring that he is satisfied that they comply. What if the minister is wrong in his or her opinion?
Secondly, Liberty have already pointed out in their second reading briefing of June 2004 that emergency regulations would in many cases not comply with the Human Rights Act. The explanatory notes to the Bill at paragraph 76 confirm this. Examples of the emergency powers listed under section 22 (3) include forced labour and destruction of property, plant and animal life without compensation.
The same broad powers are available under the Emergency Powers Act. In some circumstances they may be required to protect public safety and the life of the community. Should they also be available to protect national security concerns, political or financial interests, or the environment? The problem with the Bill is not so much what the Government can do, it's the circumstances in which they can do it. Whether regulations do or do not comply with the Human Rights Act does not determine whether they are being properly or improperly used.
Conclusion
The Bill allows the Government or its allies to stage terrorist events either inside or outside the UK which are either real or fictitious and then govern by decree. As the Iraq crisis revealed, Parliament is in a weak position to scrutinize national security issues, which are inherently secretive. In 1933 the Nazis burned down the Reichstag building, blamed it on their opponents and pressured the German President to invoke Article 48 of the Weimar constitution. Article 48 placed the same restrictions on free speech, free movement of people etc. which the Bill allows and was used by the Nazis to intimidate their opponents and pressure the German Parliament into passing the Enabling Act less than a month later. Recently declassified documents on "Operation Northwoods" reveal that in 1962, the U.S. Joint Chiefs of Staff drafted a plan to hijack airliners and bomb Washington D.C., and to blame this on Fidel Castro as a pretext for invading Cuba. On 11th September 2003, three days before the Swedish referendum on the Euro, Anna Lindh the Swedish Foreign Minister and pro-euro campaigner, was assassinated. Was this a pro-euro plot to swing finely balanced public opinion in favour of the yes vote? Under the Bill, a similar situation would enable the Government to invoke the Terrorism Act and then use emergency regulations to suppress opposition to its policies. These concerns were stated in my previous letter and are not diminished by the Minister's reply.
Under the Emergency Powers Act, the Government can take any necessary steps to protect vital public interests in a real emergency which affects ordinary people. The Civil Contingencies Bill opens the door wider for putting Machiavellian theory into practice. This theory has been described as "problem-reaction-solution", where the sponsors of an undesirable measure pose it as the solution to a problem they themselves secretly created. It was used successfully to dupe the country into war, with the West supplying the very same weapons of mass destruction used to justify the invasion of Iraq. With super-computers being supplied to China for its nuclear programme and light water nuclear reactors being supplied to North Korea, the stage being set for a spectacular denouement. I refer you to Order out of Chaos, Elite Sponsored Terrorism and the New World Order, by British author Paul J. Watson webmaster of prisonplanet.com and prisonplanet.tv. For $5.99 (£3.50) you can read the entire book on-line at prisonplanet.tv. Documented with mainstream media reports and government sources, it details the history of Government/elite sponsored terrorism worldwide. It includes the sources for David Shayler's allegation that the British Government gave at least £100,000 to Osama Bin Laden for an attempted assassination of Colonel Gadaffy in 1996. It also provides the sources indicating the Government's prior knowlege and involvement in the Omagh bombing in 1998. The same concerns have been expressed by senior politicians - by Michael Meacher who wrote the foreword to the book The New Pearl Harbour, and by the former German Technology and Defense Minister Andreas Von Buelow, author of 9-11 and the CIA. Lastly, I have traced and documented the plan for the New World Order - its aims, methods and sponsors - in precise detail at policestateplanning.com.
I would be grateful if you could forward a copy of this letter to the Minister so that she can reconsider my exact concerns.
Yours sincerely,
Michael Nield
Cc www.policestateplanning.com>>Articles>>Civil Contingencies Bill
See the current version of the Bill as amended by the Committee of the Whole House of Lords 21 October 2004
Proposed amendments
The 21 October version
Progress of the Bill
Ruth Kelly MP
Minister for the Cabinet Office
70 Whitehall
London
SW1 2AS
Telephone 020 7276 0652
Fax 020 7276 0655
E-mail [email protected]
www.cabinet-office.gov.uk
Anne Campell MP
House of Commons
London
SW1A 0AA
7 December 2004
Dear Anne,
Thank you for your letter of 18 November enclosing correspondence from your constituent, Mr Michael Nield .... regarding the Civil Contingencies Bill. I am glad that Mr Nield found my earlier comments helpful.
The Bill received Royal Assent on 18 November and, I believe, is an important enhancement to our cababilities for dealing with serious emergencies. Mr Nield's concerns relate to Part 2 of the Act, modernised Emergency Powers legislation.
Emergency Powers are simply a mechanism for making temporary legislation, emergency regulations, to deal with the most serious emergencies where existing powers are insufficient to provide for effective response. They ensure the Government can respond quickly in emergencies where new powers are needed and there is not time to legislate in the usual way. They ensure the Government can act legally and accountably in situations where temporary new legal provision is required without the time for Parliament to provide it before hand.
The Act has undergone public consultation, pre-legislative scrutiny and detailed scrutiny in Parliament, all of these were defined by sensible and consensual discussion on what has been a well-received and widely supported piece of legislation. We have engaged in dialogue with parliamentary committees, including the Joint Committee on Human Rights. We have listened to concerns, and where appropriate, met them.
Mr Nield suggests that the triple-lock tests of seriousness, necessity and proportionality set out in the Act will not prevent the Government using emergency powers for political, economic or any other extraneous purpose. He suggest this is due to the fact that the Act's definition of 'emergency' and absence of and exhaustive list of purposes for which regulations can be used. He is also concerned that there appears to be no requirement for the Government to declare a state of emergency.
He suggests that the inclusion of war and terrorism in the definition of emergency powers opens up the potential for misuse. This is not the case. War and terrorism are genuine emergencies that affect the safety and welfare of the population, it is absolutely right that the Government should be able to intervene to protect the public in such circumstances and to prevent, mitigate or control such emergencies. There are robust safeguards to prevent any misuse of the powers in such circumstances.
It is right too that threats to the environment should be included within the definition. The Government believes that the environment should be protected from harm, both as a matter of principle and because many people depend upon it for their livelihoods (it is worth making clear that 'environment' covers both the countryside and the built environment). It is true that serious environmental pollution, such as radioactivity or chemical or biological contamination may not be a direct threat to human welfare. They may though be and indirect threat or become a threat if left untreated. It is absolutely right that the Government should be able to intervene in such cases.
The modernised definition of emergency set out in section 19 of the Act reflects the breadth and variety of risks and threats the UK may face at present and in future and has been drawn up in consultation with stakeholders. A clear and explicit definition limits the circumstances under which emergency powers could be used. It was refined and tightened in the light of the results of public consultation, pre-legislative scrutiny and Parliament debates.
The purpose for which emergency regulations can be made are clearly defined in the Act. They can only be used for the purposes of preventing, mitigating or controlling an aspect of the emergency they have been invoked to deal with. This must be read in context with the other safeguards set out in the Act - in particular the test of proportionality. Taken together these ensure that emergency regulations must only contain provisions directed at resolving the emergency that are proportionate in the circumstances.
The powers needed to deal with emergencies are wide and varied. Those needed to respond to a major failure of the waters system will be very different from those needed to deal with major disruption to communication systems. The scope of the powers must be very wide as emergency powers function as a last resort safety-net for effective response in the full range of possible serious emergencies. The scope is however limited by the safeguards in the Act. Any powers must be necessary, needed urgently, proportionate and targeted at the emergency. It is worth pointing out that the test of proportionality applies in every case, not just where Human Rights are at issue. In the regard, the Act goes beyond what is demanded by the Human Rights Act. These tests set clear limits on what can be done in any given situation- all those powers listed at section 22 will not be available in every case, the powers actually used must be tailored to the emergency or will be ultra vires.
It would not have been desirable to make the list of potential powers at section 22 exhaustive. Emergencies are by their very nature unpredictable. Some of what needs to be done in order to mount the mosts effective response may not be clear in advance. To attempt to contruct an exhaustive list of possible actions that would cover every possible scenario where emergency powers may be needed now and in the future would not only be unfeasible but risk leaving us in a position where the action needed could not be taken as something has been missed or as a new technology develops and comes to play an essential role.
Mr Nield questioned the removal of the concept of a 'state of emergency'. This term is unhelpful and does not describe what use of emergency powers is actually about, namely the need to take special temporary legislation to repond to a particular crisis. Such measures may only affect one policy sector or aspect people's lives, use of the term 'state of emergency' does not reflect this fact accurately.
Mr Nield also suggests that the Act does not state that emergency regulations have to comply with the Human Rights Act. This is incorrect. It states that this Minister must make a statement declaring that he is satisfied that they comply. He or she must do so on reasonable grounds and the the decision can be challenged in the courts if it is considered to be wrong. It is not possible for emergency regulations to breach the European Convention on Human Rights. The Civil Contingencies Act provides the strongest and most explicit guarantee of compatibility with ECHR to be found on the statute book.
Best Wishes
Ruth Kelly
My final comment: Ruth Kelly does not appreciate the significance of 'Terrorism' as defined in the 2000 Terrorism Act. That oversight renders worthless any assurances about the 'purposes' and the 'proportionality' of emergency regulations.