Wednesday, March 18, 2020
Context and proportionality in a time of coronavirus
On 25 July 1911 the then UK Government, in an atmosphere of widespread hysteria, responded to the Agadir Crisis, in which the UK threatened war with Germany, by introducing the Official Secrets Act in the House of Lords.
The act was rushed through Parliament, with little debate or opposition, passing through all of its stages in a single day - 18 August 1911 - and receiving the Royal assent four days later on 22 August.
The act contained extremely wide ranging powers, replacing the earlier Official Secrets Act 1889 that had provided criminal sanctions only for breaches which could be shown to be contrary to the public interest. It was not until 1989 that the act was replaced with a more reasonable and proportionate measure, following a number of controversial court cases.
In 1974 the first Prevention of Terrorism Act was enacted following the IRA bombing campaigns of the early 1970s. The Act was introduced by Roy Jenkins, then Home Secretary, as a severe and emergency reaction to the Birmingham pub bombs.
The conception of the Bill was announced on 25 November, when the Home Secretary warned that: "The powers... are Draconian. In combination they are unprecedented in peacetime." Parliament was supportive and had passed the Bill by 29 November, virtually without amendment or dissent.
The Bill passed through the Commons on 28 and 29 November and passed through Lords on 29 November. In fact, much of the Bill had been drafted in secrecy during the previous year, as shown in the only full length television commentary on the legislation by Clive Walker.
It was rewritten in 1976, 1984 and again in 1989, but continued to stay as emergency 'temporary' powers, that had to be renewed each year. The first three Acts all contained final date clauses beyond the annual renewal, this provision was not included in the 1989 Act.
In 2000, the Acts were replaced with the more permanent Terrorism Act 2000, which contained many of their powers, and then the Prevention of Terrorism Act 2005. See also Terrorism (Northern Ireland) Act 2006.
It is absolutely right that in a time of crisis Parliament should act to legislate to give the authorities the powers to deal with every contingency. I think the lesson of these two acts however is that such powers need to be proportionate and last only as long as they are needed.
In that context the proposed Coronavirus Bill (whose contents can be seen here) is absolutely the right way forward. However, that bill proposes to remove some safeguards in the context of health and mental health, and to temporarily repeal some advances in the field of social care that need to be reinstated as soon as this crisis is over.
There are also some civil liberties concerns over the powers being proposed to enable the government to restrict or prohibit events and gatherings during the pandemic in any place, vehicle, train, vessel or aircraft, any movable structure and any offshore installation and, where necessary, to close premises;
and to enable the police and immigration officers to detain a person, for a limited period, who is, or may be, infectious and to take them to a suitable place to enable screening and assessment.
In the attempt to contain this virus these powers may well be necessary, but I question why they need to be in place for two years and I would like some reassurances that once the crisis is over they will not continue to exist, even in a watered down form.
Experience shows that in times in crisis, Parliament often legislates in haste and repents at leisure. Let's beat this disease and then get back to normal as soon as possible.
The act was rushed through Parliament, with little debate or opposition, passing through all of its stages in a single day - 18 August 1911 - and receiving the Royal assent four days later on 22 August.
The act contained extremely wide ranging powers, replacing the earlier Official Secrets Act 1889 that had provided criminal sanctions only for breaches which could be shown to be contrary to the public interest. It was not until 1989 that the act was replaced with a more reasonable and proportionate measure, following a number of controversial court cases.
In 1974 the first Prevention of Terrorism Act was enacted following the IRA bombing campaigns of the early 1970s. The Act was introduced by Roy Jenkins, then Home Secretary, as a severe and emergency reaction to the Birmingham pub bombs.
The conception of the Bill was announced on 25 November, when the Home Secretary warned that: "The powers... are Draconian. In combination they are unprecedented in peacetime." Parliament was supportive and had passed the Bill by 29 November, virtually without amendment or dissent.
The Bill passed through the Commons on 28 and 29 November and passed through Lords on 29 November. In fact, much of the Bill had been drafted in secrecy during the previous year, as shown in the only full length television commentary on the legislation by Clive Walker.
It was rewritten in 1976, 1984 and again in 1989, but continued to stay as emergency 'temporary' powers, that had to be renewed each year. The first three Acts all contained final date clauses beyond the annual renewal, this provision was not included in the 1989 Act.
In 2000, the Acts were replaced with the more permanent Terrorism Act 2000, which contained many of their powers, and then the Prevention of Terrorism Act 2005. See also Terrorism (Northern Ireland) Act 2006.
It is absolutely right that in a time of crisis Parliament should act to legislate to give the authorities the powers to deal with every contingency. I think the lesson of these two acts however is that such powers need to be proportionate and last only as long as they are needed.
In that context the proposed Coronavirus Bill (whose contents can be seen here) is absolutely the right way forward. However, that bill proposes to remove some safeguards in the context of health and mental health, and to temporarily repeal some advances in the field of social care that need to be reinstated as soon as this crisis is over.
There are also some civil liberties concerns over the powers being proposed to enable the government to restrict or prohibit events and gatherings during the pandemic in any place, vehicle, train, vessel or aircraft, any movable structure and any offshore installation and, where necessary, to close premises;
and to enable the police and immigration officers to detain a person, for a limited period, who is, or may be, infectious and to take them to a suitable place to enable screening and assessment.
In the attempt to contain this virus these powers may well be necessary, but I question why they need to be in place for two years and I would like some reassurances that once the crisis is over they will not continue to exist, even in a watered down form.
Experience shows that in times in crisis, Parliament often legislates in haste and repents at leisure. Let's beat this disease and then get back to normal as soon as possible.
