§ Lord Lester of Herne Hillasked Her Majesty's Government:
Whether there is a precedent for Clause 25 of the draft Civil Contingencies Bill, which stipulates that emergency regulations should be treated as primary legislation so as to avoid their being suspended or struck down by the courts because the regulations have been made in excess of Ministers' powers; and [HL3996]
Whether they consider Clause 25 of the draft Civil Contingencies Bill to be compatible with British constitutional principles of government under the rule of law. [HL3997]
§ Lord Williams of MostynThe Government consider that emergency regulations of the kind proposed constitute a special case and may require special treatment in relation to certain procedures under the Human Rights Act. No other case has required special treatment of that kind since the Human Rights Act came into full effect, on 2 October 2000. The Government believe that emergency regulations are a unique case and do not intend this approach to set a precedent.
The Government consider that Clause 25 of the draft Civil Contingencies Bill is compatible with British constitutional principles of government under the rule of law for three reasons. First, legal challenges to emergency regulations on grounds of incompatibility with the Convention rights are possible, leading to declarations of incompatibility. The mechanism for challenging the compatibility of emergency regulations, which must be approved by Parliament, is the same as that applied to Acts of Parliament. Second, legal challenges to actions under emergency regulations, as opposed to the regulations themselves, on grounds of incompatibility with Convention rights, leading to suspension and/or striking down. are possible. Third, legal challenges to emergency regulations on grounds other than 10WA incompatibility with Convention rights, leading to suspension and/or striking down, are possible.