Britain: ‘Civil Contingencies’ and Prerogative Powers

Chapter 7
Britain: ‘Civil Contingencies’ and Prerogative Powers

In Britain today, no less than in previous centuries, wide-ranging powers exist to declare emergencies. This can potentially take place under legislation, common law, prerogative powers or the doctrine of martial law. Although numbers of scholars have argued that the non-statutory powers have been curbed and subjected to greater democratic or judicial scrutiny and control in recent decades, the political and legal record speaks otherwise. Not only has the most sweeping emergency powers legislation in recent British history been introduced, but great care has been taken to preserve all the ancient and amorphous non-statutory powers derived from the British monarchy.

Britain provides a classic illustration of Lenin’s observation that capitalist states, regardless of their democratic or ‘rule of law’ pretensions, invariably leave open recourse to dictatorial forms of rule to counter what are regarded as existential threats, notably political threats from within the mass of the population.

Potentially authoritarian powers remain, both via and beyond the legislation – the Civil Contingencies Act 2004 – that was introduced to ostensibly cover the field of emergency preparations, declarations and powers. In the first place, that Act provides what scholars have described as the ‘most powerful and extensive’ peacetime emergency powers ever enacted (Walker and Broderick 2006: 188).

Secondly, that Act, while itself containing vast powers (reviewed below), did not completely replace other far-reaching legislative provisions, notably the Emergency Powers Act 1964. Thirdly, the 2004 Act itself alludes to the continued application of royal prerogative powers. Section 22(3) stipulates that emergency regulations can make any provision that would be possible through an Act of Parliament or the royal prerogative.

Fourthly, in a 2009 review of the prerogative powers, the Ministry of Justice concluded, and the government of Prime Minister Gordon Brown readily agreed, that the possibility of using the prerogative powers should remain open. On the pretext that urgent emergency scenarios could make compliance with the Act’s regulation-making procedures ‘impractical’, the review reached the conclusion that the Act, despite its sweeping provisions, would have to be cast aside. ‘In practice, therefore’, the report stated, ‘the Royal prerogative might need to be relied on in place of the Civil Contingencies Act in particularly extreme and urgent circumstances’ (Cabinet Office 2009: paras 70–72).

As reviewed below, this declaration of the need to bypass the Civil Contingencies Act was part of a wider retention of the prerogative powers to deal with both major domestic emergencies and decisions to declare war or conduct military interventions overseas.

Having already examined the immense scope of such executive powers and their exploitation historically in Chapters 2 and 3, we need to first consider the extent to which they have been either augmented or supplanted by the Civil Contingencies Act.

Civil Contingencies Act

Officially, the objectives of the Civil Contingencies Act 2004 were stated to be:

• To create a modern framework for coordinating contingency planning and response at the local level, codifying existing arrangements.

• To enhance cooperation and understanding in support of a regional level capability.

• To modernise the legislation under which the Government can respond to extreme emergency situations to turn it into a usable tool fit for the twenty-first century (Cabinet Office 2003).

The legislation was said to be responding to a need to clarify and reform the law:

Whilst the use of the prerogative and common law to deal with matters of crisis and disturbance is well established, there is also wide agreement amongst observers as to the need for both clarification and reform. (Walker and Broderick 2006: 44)

In reality, far from ‘clarification and reform’, the legislation created a new Pandora’s box of executive powers without overriding the existing murky prerogative and common law provisions.

The Act empowers ‘Her Majesty’ by an Order in Council (in ordinary times, this means senior cabinet ministers) to issue sweeping emergency regulations in any event that ‘threatens serious damage to human welfare’ or ‘serious damage to the environment’ or ‘war or terrorism, which threatens serious damage to the security of the United Kingdom’ (section 19).

Emergency powers can be triggered whenever the governing authorities, acting in the name of Her Majesty in Council, are ‘satisfied’ that an emergency has occurred, is occurring or is about to occur. The regulations can suspend, modify or override any other Act of Parliament, with the sole exception of the Human Rights Act 1998 (Walker and Broderick 2006: 44–5). Even statutes regarded as essential to civil liberties and basic constitutional rights – such as the Magna Carta 1297, the Bill of Rights 1688, the Parliament Acts 1911–49 and the Representation of the People Act 1983 – can be swept aside (Walker and Broderick 2006: 192).

Regulations can last for up to 30 days, and can be renewed. They must be laid before parliament ‘as soon as is reasonably practicable’ and shall lapse after seven days unless both houses of parliament approve them; but in the meantime their effect is immediate. Moreover, even these limited provisos would mean little if parliament could not or did not meet. Moreover, the Secretary of State has the power to rule whether an event or situation poses a threat to human welfare, and to amend the Act itself, subject to subsequent parliamentary approval.

Although the Blair government presented the Act as one concerned primarily with responding to disasters, the 2003 Queen’s Speech specifically referred to terrorism, and the proposal was also driven by concerns about civil unrest, including the eruption of fuel price protests and pickets outside oil refineries in 2000 (Walker and Broderick 2006: xiii, 47).

The definitions of emergency are extensive, considerably wider than the previous provisions under the Emergency Powers Act, and allow for politically ‘interventionist stances’ toward potential crises (Walker and Broderick 2006: 63–76). Possible threats to ‘human welfare’ extend to ‘damage to property’ and disruption to supplies, communications or transport. No criteria are provided for the key tests of ‘serious damage to human welfare’ and ‘war or terrorism, which threatens serious damage to the security of the United Kingdom’. ‘Serious’ is not defined; neither is ‘security’. Ministers are given powers to specify that certain situations or events are emergencies.

Once an emergency has been declared, the authorities can assume ‘almost boundless power’ (Walker and Broderick 2006: 161). They can, among other things, prohibit assemblies, ban movement, create offences, deploy the armed forces and confer emergency powers on any individual. There are no specific powers of arrest or detention without trial, but the Act’s sponsors refused to rule out such detention, which the courts have in the past been prepared to accept, even in peacetime ‘civil emergencies’ (see Attorney-General of St Christopher, Nevis and Anguilla v Reynolds [1980] AC 637).

In a briefing on the legislation, Liberty (the National Council for Civil Liberties) called it ‘the most powerful piece of peacetime legislation ever proposed in the UK’, and warned that ‘it seeks to grant the Government unprecedented powers to make emergency regulations which are unavailable under existing laws’. Liberty expressed concern that ‘it is in times of emergency that citizens’ fundamental rights are at greatest risk’ (Liberty 2004: para 4). Liberty also noted that the government had shown an increased willingness to declare an emergency, citing the declaration of a ‘technical’ emergency following the September 2001 attacks in the United States. This declaration enabled the government to derogate from article 5 of the European Convention on Human Rights, thereby permitting detention without trial under the Anti-Terrorism Crime and Security Act 2001 (Liberty 2004: para 5).

One detailed study of the Civil Contingencies Act described it as ‘the most powerful and extensive peacetime legislation ever enacted’, containing within it ‘the tools for dismantling civil society’, with ‘the potential to inflict terrible damage on the constitution of the United Kingdom’ (Walker and Broderick 2006: 188, 214). The authors also drew attention to the slim likelihood of any effective parliamentary or judicial review of actions taken under emergency powers. In effect, the legislation provides the framework for extra-constitutional and dictatorial forms of rule, backed by military force.

Nevertheless, official policy insists, and the reactions of successive governments have confirmed that even greater emergency powers continue to exist. In fact, these governmental responses indicate a disinclination to invoke the Civil Contingencies Act because of the perceived limitations and accountability mechanisms contained within it (Walker 2014b: 217–23). In other words, despite the breadth of the powers contained in the Act, and the ease with which they can be invoked, governments and state authorities prefer to leave open the option of utilising even more arbitrary and ill-defined powers.

Emergency Definitions and Powers under the Civil Contingencies Act

The Civil Contingencies Act has different definitions of emergencies in Part 1, which covers contingency planning and arrangements, and Part 2, which involves the powers and responsibilities invoked during emergencies. Section 1 of Part 1 itself confers three meanings to the word ‘emergency’:

1.   Meaning of Emergency

(1) In this Part ‘emergency’ means

(a)  an event or situation which threatens serious damage to human welfare in a place in the United Kingdom,

(b)  an event or situation which threatens serious damage to the environment of a place in the United Kingdom, or

(c)  war, or terrorism, which threatens serious damage to the security of the United Kingdom.

(2) For the purposes of subsection (1) (a) an event or situation threatens damage to human welfare only if it involves, causes or may cause

(a)  loss of human life,

(b)  human illness or injury,

(c)  homelessness

(d)  damage to property,

(e)  disruption of a supply of money, food, water, energy or fuel,

(f)  disruption of a system of communication

(g)  disruption of facilities for transport, or

(h)  disruption of services relating to health.

(3) For the purposes of subsection (1)(b) an event or situation threatens damage to the environment only if it involves, causes or may cause

(a)  Contamination of land, water or air with biological, chemical or radio-active matter, or

(b)  Disruption or destruction of plant life or animal life.

This definition is extremely broad. Apart from the vagueness of the term ‘serious’, the definition of ‘human welfare’ would permit an emergency to be construed in circumstances that go far beyond threats to life and safety. Disruption of health services, for example, could cover a nurses’ strike, or disruption of transport facilities could cover industrial action by railway workers.

Moreover, section 1(4) permits a minister to declare, by order, that a specified event or situation falls within any of paragraphs (a) to (c) of subsection (1). A minister can also amend subsection (2) to provide that if an event or situation involves or causes disruption of a specified supply, system, facility or service, it is to be treated as threatening damage to human welfare.

Subsection (2) only marginally limits the words ‘human welfare’. According to Walker and Broderick, this may have been due to a fear that the term ‘might be taken to include such esoteric and immeasurable aspects of the human condition as spiritual welfare’ (Walker and Broderick 2006: 64). Likewise, subsection (3) places some slight limit on the term ‘environment’. No such limitation at all applies to ‘war’, which could include various forms of armed conflict.