Thank you for your letter of 17 July. I wish to raise in a brief form some concerns about the Human Rights implications of the Bill.

  I have two specific issues that I wish to address—the powers available under Order in Council or regulations laid under the Bill and the issue of review of these powers for compatibility with the European Convention on Human Rights.

SCOPE OF REGULATIONS UNDER CLAUSE 21

  There is no doubt a case for modernising the power to make emergency regulations for the purposes specified in Clause 21(2). However, my concern is that once CL 21(2) is invoked it provides a gateway into the range of powers under CL 21(3) with too little continuing regard to the initial "triggering" factor.

  It is true that some limits are set by CL21(1)—setting an initial threshold of seriousness—and by CL21(4). However, in view of the limitations of judicial review under the Wednesbury doctrine (which will be the standard to be applied in considering whether CL 21(1) is satisfied) and the broad range of CL 21(3), these safeguards are inadequate.

  Of particular concern is CL 21(3)(j) which allows for regulations to "disapply or modify" an enactment. "Enactments" at risk could include the Human Rights Act 1998, Police and Criminal Evidence Act 1984, Public Order Act 1986, Regulation of Investigatory Powers Act 2000, the Terrorism Act 2000 and the Anti-Terrorism Crime and Security Act 2001. In all these cases, however, and many others, Parliament has already balanced civil liberties and community interests and, frequently, made particular arrangements for serious and urgent situations. It should not be open to the Government to set these balanced schemes aside by regulations under CL 21. A minor safeguard is provided under CL 21(4)(e) for subsisting legislative provisions, but the standard at which the person making the regulations can invoke CL 21 notwithstanding is too low. Either specific Acts dealing with emergencies should be exempted under CL 21 or CI 21(4) should be strengthened.

  More generally, some effort could be made to relate the powers available under CI 21(3) to the specific purposes in CL 21(2). Not all CL 21(2) purposes are equally serious. It would be commonly accepted, for example, that "protecting or restoring an electronic or other system of communication" or prevent disruption to plant life (CL 21(2)(e) and (j) respectively) are less serious. However, all these purposes trigger the full range of CL 21(3) powers, notwithstanding. A better approach would be to band the CL 21(2) purposes and the available powers under regulations according to the degree of seriousness.

  Finally, CL 21(3) refers to any provisions that could be made by Royal Prerogative. Since it does, the Act should make clear that the powers it confers are intended to supplant the prerogative powers. There is an unfortunate history of earlier administrations sometimes attempting to circumvent statutory limitations by invoking overlapping prerogative powers and the courts have not acted as decisively as they might to prevent it. This avenue should not be left open.

THE HUMAN RIGHTS ACT 1998

  Clause 25 sets a most unfortunate precedent and should be resisted. The effect is to prevent the courts from declaring regulations made under CL 21 from being invalid on human rights grounds. The justification offered from this is that it would cause uncertainty. However, policy arguments about the effects of legal challenge should be addressed as part of any possible legal challenge itself, rather than in this way.

  The ECHR itself deals with emergencies and will need to be taken into account in any event. Limits exist on the suspension of rights, even in times of emergency, under the European Convention on Human Rights under Article 15.

Article 15—Derogation in time of emergency

  1.  In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.

  2.  No derogation from Article 2, except in respect of deaths resulting from lawful acts of war, or from Articles 3,4 (paragraph 1) and 7 shall be made under this provision.

  3.  Any High Contracting Party availing itself of this right of derogation shall keep the Secretary General of the Council of Europe fully informed of the measures which it has taken and the reasons therefore. It shall also inform the Secretary General of the Council of Europe when such measures have ceased to operate and the provisions of the Convention are again being fully executed.

  Consequently, some fundamental rights (notably, the right to life under Article 2 and Article 3 protection from torture, inhuman and degrading treatment) are non-derogable and procedural requirements for the registration of a state of emergency exist under Article 15. The European Court of Human Rights will be able to review the legality of the state of emergency in order to check that the necessary pre-conditions are met (see, for example, Ireland v UK (1978) 2 EHRR 25; Lawless v Ireland (1961) 1 EHRR 15; Aksov v Turkey (1996) 23 EHRR 553).

  In the light of this, there is a powerful case for domestic courts to have the same facility. Arguably, the power merely to interpret regulations in a Convention-friendly way and where this cannot be done to issue a Declaration of Incompatibility under s.4 of the Human Rights Act 1998 is inadequate and may not constitute an effective remedy as required under Article 13 of the ECHR (this point has yet to be tested at Strasbourg). In countries with a written constitution one would expect the parameters of emergency powers to be laid in the constitution and for review by the Constitutional Court to extend to this.

  I hope these comments are useful.

18 August 2003