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Abstract
Part II of the Civil Contingencies Act 2004 (‘emergency powers’) has remained almost a dead-letter and has never been fully implemented. The first part of this paper will reflect upon the contents and performance of Part II. The second part will seek to explain the powerful official aversion to it. The reasons for this aversion relate not only to the political implications arising from the implied admission of a loss of control or failure of resilience but also to a disinclination to comply with the mechanisms for limitation and accountability in Part II. The latter point is evidenced by the production of draft Bills which set a lower threshold for use whenever a suitable type of emergency arises. Two such Bills have appeared: the Draft Detention of Terrorist Suspects (Temporary Extension) Bill 2011 and the draft Enhanced Terrorism Prevention and Investigations Measures Bill 2011. This growing trend will be analysed and criticised with respect to the potentially diminished governance of resilience and emergency measures.
Acknowledgement
This paper draws upon materials prepared with Jim Broderick for a conference organised by the Guardian, ‘Public Sector Emergency Planning and Business Continuity’, held in London, 2007.
Notes on contributor
Clive Walker is Professor of Criminal Justice Studies at the School of Law, University of Leeds. He has written extensively on criminal justice and human rights issues. His books have focused upon terrorism and the law, including, Terrorism and the Law (Oxford University Press, 2011). In 2003, he was a special adviser to the UK Parliamentary select committee considering the draft proposals which emerged as the Civil Contingencies Act 2004. A book commentating upon that Act, The Civil Contingencies Act 2004: Risk, Resilience and the Law in the United Kingdom, was published by Oxford University Press in 2006. Other recent publications include: Free Speech in an Internet Era (with Russ Weaver, Carolina Academic Press, 2013); and Counter-Terrorism, Human Rights and the Rule Of Law: Crossing Legal Boundaries in Defence of the State (co-edited with Aniceto Masferrer, Edward Elgar, 2013).
Notes
1. Twentieth Century-Fox Film Corporation, 2004.
2. See Clive Walker and James Broderick, The Civil Contingencies Act 2004: Risk, Resilience and the Law in the UK (Oxford: Oxford University Press, 2006); James Broderick, ‘Intelligence and Civil Protection in the UK: Assimilating “Risky” Information in an Uncertain World’, Democracy and Security 3 (2007), 1; and Frank Gregory, ‘The UK Draft Civil Contingencies Bill and the Subsequent Act’, in Homeland Security in the UK, ed. P. Wilkinson (Abingdon: Routledge, 2007).
3. For details of the manifold pieces of legislation, see Clive Walker, Terrorism and the Law (Oxford: Oxford University Press, 2011).
4. See The Pitt Review, Learning Lessons from the 2007 Floods, http://webarchive.nationalarchives.gov.uk/20100807034701/http:/archive.cabinetoffice.gov.uk/pittreview/thepittreview/final_report.html (accessed November 10, 2013); and Flood and Water Management Act 2010.
5. See Foot and Mouth Disease 2001: The Lessons to be Learned Inquiry by Dr Iain Anderson (2001–02 HC 888); Response to the Reports of the Foot and Mouth Disease Inquiries, Cm. 5637, (London, 2002); and Animal Health Act 2002.
6. Deirdre Hine, The 2009 Influenza Pandemic: An Independent Review of the UK Response to the 2009 Influenza Pandemic (London: Cabinet Office, 2010).
7. Frank Furedi, Culture of Fear: Risk Taking and the Morality of Low Expectation (London: Continuum, 2002).
8. For histories, see Walker and Broderick, The Civil Contingencies Act 2004, chap. 2.
9. See Phil Hathaway, The Effect of Fuel Protest on Road Traffic (London: Transport Statistics Road Traffic Division, DETR, 2000). The event is considered to have been the closest to triggering what are now Part II powers in recent years. Hansard House of Commons Standing Committee F, February 2004, col.147 3, Fiona Mactaggart.
10. For full details, see Walker and Broderick, The Civil Contingencies Act 2004, chap. 8.
11. Cabinet Office, Emergency Response and Recovery, 5th ed. (London, 2013), https://www.gov.uk/government/publications/emergency-response-and-recovery.
12. A Government Liaison Officer may be assigned to work alongside the SCG. Cabinet Office, Emergency Response and Recovery, para 9.1.2.
13. Ibid., paras 4.2.25. See also Cabinet Office, ‘National Recovery Guidance’, https://www.gov.uk/national-recovery-guidance (accessed December 11, 2013); and Cabinet Office, Responding to Emergencies: The UK Central Government Response – Concept of Operations (London, 2013): para 5.6.
14. See Department for Culture, Media and Sport (DCMS), A Detailed Guide to Roles and Responsibilities in Humanitarian Assistance (London, 2006), https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/61223/ha_rolesandresponsibilities.pdf; Cabinet Office, Identifying People Who are Vulnerable in a Crisis: Guidance for Emergency Planners and Responders (London, 2008), https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/61225/vulnerable_guidance_0.pdf; Cabinet Office, Humanitarian Assistance in Emergencies: Non-Statutory Guidance on Establishing Humanitarian Assistance Centres (London, 2011), https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/61221/hac_guidance.pdf; and DCMS, Humanitarian Assistance Strategic Guidance: Building Capability to Look after People Affected by Emergencies (London, 2011), https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/61220/final-humanitarian-assistance-guidance.pdf. For disasters abroad, the Foreign & Commonwealth Office can provide assistance through a Rapid Deployment Team network, London Crisis Response Teams, and a Crisis Centre, as well as diplomatic assistance. See https://www.gov.uk/government/policies/supporting-british-nationals-overseas.
15. Cabinet Office, Emergency Response and Recovery, para 13.2.
16. Cabinet Office, The Lead Government Department and its Role – Guidance and Best Practice (London, 2004), https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/61355/lead-government-departments-role.pdf, chap. 1.
17. Cabinet Office, Emergency Response and Recovery, para 13.4.
18. Ibid., 187.
19. Cabinet Office, Responding to Emergencies, para 1.7.
20. See Lady Justice Hallett, Coroner's Inquests into the London Bombings of 7 July 2005: Report under Rule 43 of The Coroner's Rules 1984 (London: Ministry of Justice 2011); and Cabinet Office, Coroner's Inquests into the London Bombings of 7 July 2005: Review of Progress (London, 2012).
21. See Mark Sandford, The Abolition of Regional Government, SN/PC/05842 (London: House of Commons, 2011).
22. Cabinet Office, Emergency Response and Recovery, para 1.6.
23. Cabinet Office, Emergency Preparedness (London, 2006–12), https://www.gov.uk/government/publications/emergency-preparedness. The current edition has 591 pages.
24. Cabinet Office, Emergency Response and Recovery, paras 14.1.1, 14.3.8.
25. See, further, Michael Head, ‘Calling out the Troops and the Civil Contingencies Act’, Public Law [2010]: 340.
26. See, further, Ministry of Defence (MoD), JDP 02: Operations in the UK – The Defence Contributions to Resilience, 2nd ed. (London, 2007), Annex 2D, Annex 2E, https://www.gov.uk/government/publications/operations-in-the-uk-a-joint-doctrine-publication.
27. MoD, Operations in the UK. A shorter version has been issued to civil responders. JDP 02: Addendum, 2010, https://www.gov.uk/government/publications/jdp-02-addendum-to-operations-in-the-uk-the-defence-contribution-to-resilience. It likewise states (para 24a) that ‘Military aid should only be provided where the need for someone to act is clear and where other options have been discounted by the Civil Responder. The use of mutual aid, other agencies, and the private sector must be otherwise considered as insufficient or be unsuitable.’
28. MoD, Operations in the UK, para 205.
29. Cabinet Office, Emergency Preparedness: Guidance on Part 1 (London, 2011), para 15.5, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/61038/Chapter-15-other-sectors-involved-in-EP-amends-10112011.pdf.
30. See Christopher Whelan, ‘Military intervention in industrial disputes’, Industrial Relations Journal 18 (1979): 222; Steve Peak, Troops in Strikes (London: Cobden Trust, 1984), chap. 2; Peter J. Rowe and Christopher J. Whelan, eds., Military Intervention in Democratic Societies (London: Croom Helm, 1985); Gillian S. Morris, Strikes in Essential Services (London: Mansell, 1986), chap. 4; and Anthony Babington, Military Intervention in Britain (London: Routledge, 1990).
31. Ministry of Defence, The Strategic Defence Review: A New Chapter, Cm. 5566 (London, 2002), chap. 5.
32. Ministry of Defence, Operations in the UK, Annex 2F para 2F5.
33. Hansard (House of Commons), vol. 489 col. 1302 W, 19 March 2009, Bob Ainsworth.
34. Defence and Security in the UK (2001–02 HC 518), para 226.
35. Hansard, vol. 421 col. 1362, 24 May 2004, Hazel Blears.
36. See, further, Leonard Jason-Lloyd, ‘Emergency Workers (Obstruction) 2006 – an overview’, Justice of the Peace 171 (2007): 174.
37. Compare Emergency Workers (Scotland) 2005, which also forbids assaults and applies additionally to health workers, but note the Sentencing Guidelines Council document, Overarching Principles: Seriousness (London, 2004), para 1.23: ‘Factors indicating a more than usually serious degree of harm … Offence is committed against those working in the public sector or providing a service to the public’.
38. See Police Act 1996 s 89 (police constables and applied also to prison officers by the Prison Act 1952 s 8); Courts Act 2003 s 57 (court security officers); Criminal Justice Act 1991 s 90 (prison custody officers); Immigration & Asylum Act 1999 Sched. 11 paras 4, 5 (detainee custody officers); and Police Reform Act 2002 s 46 (police custody support officers).
39. See Cabinet Office, Emergency Planning Review: The Future of Emergency Planning in England and Wales: Results of the Consultation (London, 2002), para 6.
40. Ministry of Justice, The Governance of Britain: War Powers and Treaties, Cm. 7239 (London, 2007). See, further, the paper by Blick in this special issue.
41. Cabinet Office, The Governance of Britain: Review of the Executive Royal Prerogative Powers – Final Report (London, 2009), paras 70–72.
42. Ibid., para 75.
43. For further comment, see House of Commons Political and Constitutional Reform Committee, Parliament's Role in Conflict Decisions (2010–12 HC 923) and government responses at 1477, 1673; and House of Lords Select Committee on the Constitution, Constitutional Arrangements for the Use of Armed Force (2013–14 HL 46).
44. Home Affairs Committee, The Home Office's response to Terrorist Attacks (2009–10 HC 117), para 7; and Government Reply, Cm. 7788 (London, 2010), p 4
45. See, further, Clive Walker, ‘Governance of Critical National Infrastructure’, Public Law [2008]: 323.
47. Only the CCA 2004 Part I is mentioned. Cabinet Office, A Summary of the 2012 Sector Resilience Plans (London, 2012), p. 8.
48. Cabinet Office, Civil Contingencies Act Enhancement Programme (CCAEP): Programme Initiation Document, Version 1.7 (London, 2010), para 13.
49. See Cabinet Office, Update of Emergency Response and Recovery – Non-statutory Guidance to Complement Emergency Preparedness: Consultation Paper (London, 2009).
50. Christopher Hood, Oliver James, George Jones, Colin Scott, and Tony Travers, Regulation Inside Government: Waste-Watchers, Quality Police and Sleaze-Busters (Oxford: Oxford University Press, 1999).
51. Michael Moran, The British Regulatory State: High Modernism and Hyper Innovation (Oxford: Oxford University Press, 2003), 4.
52. Civil Contingencies Act 2004 (Commencement No.1) Order 2004 SI No. 3281.
53. Home Office, Addressing Lessons from the Emergency Response to the 7 July 2005 London Bombings (London: Home Office, 2006), para 89.
54. See HM Government, Countering International Terrorism: The United Kingdom's Strategy, Cm. 6888 (London, 2006), paras 99, 100.
55. M. Pitt, Learning Lessons from the 2007 Floods, Interim Report (London: Cabinet Office, 2007); and Pitt, Learning Lessons from the 2007 Floods, Final Report (London: Cabinet Office, 2008). There is no mention of the CCA in House of Commons Environment, Food and Rural Affairs Select Committee, Managing Flood Risk (2013–14 HC 330).
56. Final Report, chs 12, 13.
57. Final Report, para 13.41.
58. Final Report, para 13.42, 13.43.
59. First Report, para 5.71.
60. First Report, paras 5.62, 5.63.
61. First Report, para 5.16.
62. As well as the Pitt Review assessments already mentioned, the verdict on the responses to the 2009 influenza pandemic also was broadly positive. Hine, The 2009 Influenza Pandemic.
63. R.A. Posner, Catastrophe: Risk and Response (New York: Oxford University Press, 2004), 118.
64. Quoted by D. Sevastopulo, ‘US focus on risk “poses threat to economy”’, Financial Times, March 13, 2006, 1.
65. See Walker and Broderick, The Civil Contingencies Act 2004, chap. 9.
66. Ibid., chap. 8; and Mark Sandford, The Bellwin Scheme, SN/PC/00643 (London: House of Commons Library, 2013). For the current implementation in 2013–14, see https://www.gov.uk/government/publications/bellwin-scheme-2013-to-2014-guidance.
67. Draft Detention of Terrorist Suspects (Temporary Extension) Bills, Cm. 8018 (London, 2011). See, further, Walker, Terrorism and the Law, chap. 5; and Ed Cape, ‘The Counter-terrorism Provisions of the Protection of Freedoms Act 2012: Preventing Misuse or a Case of Smoke and Mirrors?’, Criminal Law Review [2013]: 385.
68. Terrorism Act 2006 (Disapplication of Section 25) Order 2010, SI 2010/1909.
69. Lord MacDonald, Review of Counter Terrorism and Security Powers, Cm. 8003 (London, 2011).
70. Home Office, Review of Counter Terrorism and Security Powers, Cm. 8004 (London, 2011).
71. Report (2010–12 HL 161/ HC 893).
72. See also Lord Carlile, Report on Proposed Measures for Inclusion in a Counter Terrorism Bill, Cm. 7262 (London, 2007), para 46.
73. Joint Committee on the Draft Detention of Terrorist Suspects (Temporary Extension) Bills, Report (2010–12 HL 161/ HC 893), para 49.
74. Ibid., para 94.
75. Ibid., para 44.
76. Ibid., para 43.
77. No. 146 cl.57.
78. Home Office, Draft Enhanced Terrorism Prevention and Investigation Measures Bill, Cm. 8166 (London, 2011). See, further, D. Anderson, Control Orders in 2011 (London: Home Office, 2012), 5.39; and Helen Fenwick, ‘Designing ETPIMs around ECHR Review or Normalisation of “Preventive” Non-trial-based Executive Measures?’, Modern Law Review 76 (2013): 876.
79. See Walker, Terrorism and the Law, chap. 7.
80. See Helen Fenwick, ‘Preventive Anti-terrorist Strategies in the UK and ECHR: Control Orders, TPIMs and the Role of Technology’, International Review of Law, Computers & Technology 25 (2011): 129; Tamara Tulich, ‘Adversarial Intelligence? Control Orders, TPIMs and Secret Evidence in Australia and the United Kingdom’, Oxford University Commonwealth Law Journal 12 (2012): 341; Clive Walker and Alexander Horne, ‘The Terrorism Prevention and Investigations Measures Act 2011: One Thing but Not Much the Other?’, Criminal Law Review [2012]: 421; and Alan Hunt, ‘From Control Orders to TPIMs: Variations on a Number of Themes in British Legal Responses to Terrorism’, Crime, Law & Social Change (2013) (published online 28 September 2013).
81. Hansard, vol. 529 col. 74, 7 June 2011, Yvette Cooper.
82. Home Office, Review of Counter Terrorism and Security Powers, 43.
83. It was accompanied by what are now ss.26 and 27 of the TPIM Act, introduced at the Commons Report Stage to deal with any period when Parliament is dissolved, during which a Bill could not be introduced. Hansard, vol. 532 col. 87, 5 September 2011.
84. Compare the intention not to publish expressed by the Security Minister (Baroness Neville Jones) on 8 February 2011. Joint Committee on Human Rights, Counter-Terrorism Review (2010–11 HC 797-i), Qq51–56.
85. Hansard, vol. 532 col. 133, 5 September 2011, James Brokenshire.
86. Ibid., cols 105–106.
87. Home Office, Draft Enhanced Terrorism Prevention and Investigations Measures Bill: Memorandum to the Joint Committee on Human Rights (London, 2011), para 15.
88. Home Office, Review of Counter Terrorism and Security Powers, 43.
89. House of Lords Constitution Committee, Prevention and Investigation Measures Bill Report (2010–12 HL 198); and Government Reply, Letter of 27 October 2011, 5.
90. Home Office, Draft Enhanced Terrorism Prevention and Investigation Measures Bill, para 5.
91. Report (2012–13 HL 70/HC 495).
92. Ibid., para 3.
93. Ibid., para 31.
94. Government Response, Cm. 8536 (London, 2013), para 3.
95. Ibid., para 5.
96. Ibid., para 8.
97. Hansard, vol. 532 col. 135, 5 September 2011, Yvette Cooper.
99. House of Lords Select Committee on the Constitution, Fast-track Legislation: Constitutional Implications and Safeguards (2008–09 HL 116).
100. Hansard, vol. 730 col. 1136, 5 October 2011, Lord Henley.