Our constitution, July 2012: Provision of emergency powers

“Provision of emergency powers in times of war, disaster – with restrictions (eg, parliamentary approval by supermajority, time limits) to prevent abuse”

In a discussion on Twitter on Friday about whether or not the UK already has a Constitution I found there is a consistent argument, which I disagree with, that the UK does have a Constitution, just it’s all over the place in various bits of legislation but which, this is argued, add up not to the equivalent of a Constitution, but a real Constitution, just uniquely British in not actually being written down in one document.

The 1689 Act which places Parliament in control of the revenues (and bans any Catholic prince from inheriting the Crown), the EU treaties binding the UK to the Convention of Human Rights, and so on. This is described more coherently than was possible on Twitter in a 1998 article by “BBC Constitutional Affairs Correspondent” Joshua Rozenberg, citing emeritis emeritus professor of politics and government at Oxford University, Vernon Bogdanor:

As he explains, much of our constitution is to be found in written documents or statutes such as Magna Carta, the Bill of Rights, the Act of Settlement and the Parliament Acts.

There will soon be other documents on this distinguished list, as explained in the section on new constitutional measures.

Professor Bogdanor prefers to call Britain’s constitution historic. By that he means it has evolved over the years, the product of historical development rather than deliberate design.

But ‘historic’ does not mean ‘old-fashioned’. Our constitution is evolving so quickly at present that only an on-line version of it can be entirely up to date.

Most of Magna Carta has since 1297, been repealed by several Acts of Parliament, between 1829 and 1969, except for these bits:

1. FIRST, We have granted to God, and by this our present Charter have confirmed, for Us and our Heirs for ever, that the Church of England shall be free, and shall have all her whole Rights and Liberties inviolable. We have granted also, and given to all the Freemen of our Realm, for Us and our Heirs for ever, these Liberties under-written, to have and to hold to them and their Heirs, of Us and our Heirs for ever.

9. THE City of London shall have all the old Liberties and Customs which it hath been used to have. Moreover We will and grant, that all other Cities, Boroughs, Towns, and the Barons of the Five Ports, as with all other Ports, shall have all their Liberties and free Customs.

29. NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the land. We will sell to no man, we will not deny or defer to any man either Justice or Right.

(The numbering of the clauses, though by this time traditional, was done by Sir William Blackstone in 1759 – the original documents of the Magna Carta between 1215 and 1297 were not numbered.)

The first clause obviously originally applied to the Catholic Church in England, a problem which Henry VIII resolved by declaring there was still a Catholic Church in England but he was the Head of the Church, which solution has continued almost unbroken down to the present day.

The ninth clause is what allows the City of London to be the offshore capital of the world. (In 1215, one of the original Enforcers of the charter was William Hardel, Mayor of the City of London.)

The twenty-ninth clause is the one that everyone remembers as their right under the Great Charter and everyone hopes is inviolable – at least as far as their own rights are concerned. (Though if you ask Melanie Phillips about the multicultural menace you might get a different answer. Phillips, by the way, is married to Joshua Rozenberg, who left the BBC to become legal affairs editor for the Telegraph and who is now a freelance journalist.)

As for “We will sell to no man, we will not deny or defer to any man either Justice or Right” – well, as from next year, the Ministry of Justice say you won’t be able to take your employer to an industrial tribunal for bullying unless you’ve got £1200 to spend (on top of whatever your lawyer is charging you – the £1200 fee is your price to get access to the tribunal). Bullied by the boss? Too bad for you.

The ninth clause has been repeatedly reinforced over the centuries, and has a specific Parliamentary guardian today as for the past four centuries:

The City’s “elsewhere” status in Britain stems from a simple formula: over centuries, sovereigns and governments have sought City loans, and in exchange the City has extracted privileges and freedoms from rules and laws to which the rest of Britain must submit. The City does have a noble tradition of standing up for citizens’ freedoms against despotic sovereigns, but this has morphed into freedom for money.

A few examples illustrate the carve-out. Whenever the Queen makes a state entry to the City, she meets a red cord raised by City police at Temple Bar, and then engages in a col­ourful ceremony involving the lord mayor, his sword, assorted aldermen and sheriffs, and a character called the Remembrancer. In this ceremony, the lord mayor recognises the Queen’s authority, but the relationship is complex: as the corporation itself says: “The right of the City to run its own affairs was gradually won as concessions were gained from the Crown.” The modern ceremony strikingly marks the political discontinuity at the City’s borders.

The Remembrancer, whose position dates from the reign of Elizabeth I, is the City’s official lobbyist in parliament, sitting opposite the Speaker, and is “charged with maintaining and enhancing the City’s status and ensuring that its established rights are safeguarded”. His office watches out for political dissent against the City and lobbies on financial matters.

The twenty-ninth clause has no Parliamentary guardian in particular looking out of it. People accused of terrorism in England and Wales can be legally imprisoned without charges being brought for up to 28 days. While asylum-seeker detention centres are legally not called prisons, people who have not been charged with any crime (and who are in many instances not guilty of anything but entering the UK under circumstances of doubtful legality) are locked up indefinitely – and the difference between that and a prison seems to me to be mere verbal quibbling.

The argument that the powers of the various Terrorist Acts will only be used against terrorists has been refuted by various uses of this legislation against people who are by no stretch of the imagination terrorists – anti-GM protesters, anti-war protesters, and even trainee accountants who tweet stupid jokes.

In 1997 Joshua Rozenberg explained the then-new Labour government plans for a Human Rights Act to the BBC audience:

The Government has announced plans to incorporate the European Convention on Human Rights into the laws of the United Kingdom. The convention was drawn up after the war and ratified by the UK in 1951. Among many other things, it guarantees the right to respect for family life, freedom of expression and a fair trial. However, there are exceptions to most of these rights.

Strasbourg court

At the moment, the only way of claiming rights granted by the convention is to take a case to the European Court of Human Rights, which is based in the French city of Strasbourg. This is a lengthy and complicated process: it can take five years or more. If parliament accepts the government’s proposals, anyone who claimed their human rights had been breached would be able to challenge the government in the United Kingdom courts.

A claimant who lost would still be able to go on to Strasbourg. However, the Government will not be able to appeal against a defeat in the United Kingdom courts. Governments do not have human rights.

The previous government opposed these moves because it feared that judges would be forced to make political decisions. Much depends on how the legislation is worded. The government is thought to support a fairly weak form of incorporation, along the lines of the New Zealand Bill of Rights. The courts would be told that as far as possible they should interpret the law in a way that was consistent with the human rights convention. However, parliament would still be able to pass a law which was inconsistent with the convention if it said so explicitly. This means parliamentary sovereignty would be preserved.

What Joshua Rozenberg hails as an excellent aspect of the UK’s “Constitution” – that any part of it can be rewritten or repealed by the government of the day with a Parliamentary majority – is precisely what makes this not a Constitution, which ought to be inviolable except by supermajority and referendum.

Which brings me at last to the point about emergency powers. The question I would want to ask a Constitutional Convention is: do we need this?

We are, I think, too used in the UK to the idea that rights can and will be taken away or amended by Act of Parliament. Rights can also be gained by Act of Parliament – and some rights (like the freedom to marry) are unlikely to be repealed because of the confusion this would cause in so many other legal issues. But fundamental human rights such as a woman’s right to have an abortion remain perpetually under threat from pro-life MPs who believe the government should decide for her (and ideally, say no).

What constitutes an emergency such that temporarily rights can be abrogated?

Nikil Jain writes about the Constitution of India

Under our Constitution the citizens of India have been granted Fundamental Rights. A full chapter has been devoted to the description of these Fundamental Rights running into 24 Articles. These rights are mentioned in Part III of the Constitution and are justiciable. We have borrowed the concept of fundamental rights from USA. During the British Raj, we had no rights since in UK itself there was no bill of rights. Our Constitution has recognised the right of every person to move the Supreme Court for the enforcement of these rights. The State may impose reasonable restrictions upon the enjoyment of these rights. It can also suspend these rights during an emergency under Article 359 of the Constitution. In India unlike the U.S.A. only specific rights have been granted. The concept of natural rights finds no place in our Constitution.

In a 2003 memorandum to Parliament from Justice, the British section of the International Commission of Jurists, note the inclination of the British government when writing emergency legislation to define “emergency” as broadly as possible and to grant powers as widely possible:

18. The Government’s regulation-making powers should be constrained by requirements of strict necessity and proportionality. As the Select Committee on Defence noted, “Parliament should not give Ministers powers in excess of what they need”.[73] We also share the Committee’s concern that the “triple lock” criteria referred to in the consultation paper (seriousness, the need for special legislative measures, and relevant geographical extent) [74]are not reflected in the language of the Bill.

19. We note that strict necessity is a central requirement of emergency powers legislation in other common law jurisdictions, eg:
(a) Section 4(c) of the New Zealand Civil Defence Emergency Management Act 2002 stipulates that an “emergency” involves a situation that, inter alia, “cannot be dealt with by emergency services, or otherwise requires a significant and coordinated response under this Act”. Section 66 further requires that a Minister cannot declare a state of emergency unless “the emergency is, or is likely to be, of such extent, magnitude, or severity that the civil defence emergency management necessary or desirable in respect of it is, or is likely to be, beyond the resources of the Civil Defence Emergency Management Groups whose areas may be affected by the emergency”.

(b) Section 37(1)(b) of the South African Constitution directs that a state of emergency may only be declared when “the declaration is necessary to restore peace and order”.

(c) Section 6 of the Canadian Emergencies Act 1988 requires that, in order to declare a public welfare emergency under the Act, the Head of State must have “reasonable grounds” for the existence of an emergency that “necessitates the taking of special temporary measures for dealing with the emergency”.

20. Maintaining the proportionality of any emergency measures to the harm addressed is also a key feature of emergency powers legislation elsewhere.

This memorandum was presented to the Joint Committee on Draft Civil Contingencies Bill as part of the Minutes of Evidence on 16th September 2003. The memorandum from Liberty, presented at the same time, is also worth reading: they note:

We do not dispute that there may be grounds for updating civil contingency measures. Certainly earlier laws could not anticipate the problems arising out of a communications network breakdown for example. However, the main focus for change contained in the draft bill is to broaden the definition of emergency and an increase of powers available once an emergency has come into effect. We fear the Government using the current climate of fear and uncertainty about the future as a means to allow itself sweeping powers without an appropriate consideration of proportionality. The Government is to be given powers which go beyond any that were considered appropriate for those times mentioned above when the nation arguably faced far greater threat.

If provision for emergency powers is to be written in to the Constitution, it needs to be defined carefully by strict necessity and explicitly time-limited – a sunset clause should not permit a government to simply decline to repeal emergency powers nor should the government be permitted to use emergency powers for the sake of using them – not just the bad joke of the Twitter Joke Trial, but the case of Mohammed Atif Siddique, a Glaswegian student who appears to have been guilty of Blogging In An Annoying Way and Being Related To People We Don’t Like got sent down for eight years in 2007, sentence quashed February 2010.

When a British citizen is jailed for nearly three years for blogging about terrorism – MI5 and Special Branch broke into the Siddique family home with a battering ram to arrest him – and this is claimed to be justifiable as an emergency protection, then liberty and justice are bad jokes.

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Filed under Elections, Scottish Constitution, Scottish Culture, Scottish Politics, War

2 responses to “Our constitution, July 2012: Provision of emergency powers

  1. Thanks for linking to some of the earliest posts on the BBC website. The one from 1997 dates back to before a comprehensive website was launched. The 1998 one shows the website in its earliest incarnation.

    I still stand by what I said, incidentally.

    • Thank you for commenting – and thank you (belatedly) for writing such clear articles for the BBC that let me understand what this position was (it didn’t make sense on Twitter, but few complicated things do).

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