The phrase "declare a state of emergency" was interesting. Did such a "declaration" actually give greater power to the authorities?
The answer lay in the Emergency Powers Act 1920. This Act had its origins in the Defence of the Realm Act 1914 (here). In some circumstances; such as action interfering with the supply and distribution of food, water, fuel or light; "His Majesty" could issue a proclamation of emergency to declare that a state of emergency existed. A proclamation could be in force for one month but further proclamations were possible. One a state of emergency existed, Orders in Council could be made under section 2 of the Act with a view to securing the essentials of life to the community. Up to its repeal in 2004, this Act was used 12 times, mainly at periods of industrial unrest.
Common law:
In so far as there were any powers at common law to deal with emergencies, the 1920 Act can be taken to have left them alone. English common law has seemed to be generally quite silent in this area though a few points might be noted:
1) There were many offences defined at common law to deal with disorder: riot, affray etc. (The outmoded procedure of "reading the riot Act" was abolished by the Criminal Law Act 1967). The old common law offences are discussed in the Law Commission's Report on Public Order - Law Com 123, 1983.
2) The concept of "breach of the peace" is a common law notion and is still in force. Thus, Magistrates have the power to "bind over" individuals to "keep the peace." The Police also have power to arrest individuals when breach of the peace is imminent. During the Miner's Strike, the police power to restrain breaches of the peace was used to controversial effect when the Police intercepted cars carrying miner's intending to picket. The courts accepted that the police were entitled to act because of recent violence from pickets at the colliery and the likelihood of a breach of the peace by reinforcements was a real possibility: Moss v McLachlan 1984.
In R v Secretary of State for the Home Department, ex parte Northumbria Police Authority [1989] 1 QB 26 it was recognised that there is prerogative power to do whatever "was necessary to meet either an actual or an apprehended threat to the peace". The case concerned the Home Office's decision to maintain a store of CS gas and plastic baton rounds. In 1986, a Home Office circular, 40/1986, authorised the Home Secretary to release this store to a police force without the approval of the Chief Constable if Her Majesty's Inspectorate of Constabulary agreed that it was necessary. The Northumbria Police Authority brought a judicial review case against this decision, arguing that it was ultra vires. The Divisional Court which heard the case recognised a prerogative power to keep the peace, which authorised the Home Office's actions. On appeal to the Court of Appeal, the decision was confirmed.
3) Some jurisdictions have developed a law of necessity so that governmental actions in emergency can be justified. The House of Lords seems to have come close to this in deciding Burmah Oil v Lord Advocate [1965] AC 75. The case was concerned with the World War 2 destruction by the British Armed Forces of oil installations in Burma so that they were rendered useless to the Japanese Army. The House of Lords held that this action was lawful but that compensation should be paid. The possibility of compensation was removed by Parliament enacting the War Damage Act 1965. A significant feature of this Act is that it removed the common law right to compensation for damage (whether past or future) to property done by, or on the authority of, the Crown during, or in contemplation of the outbreak of a war in which the Sovereign was, or is, engaged. The damage has to be "lawfully done" but it may occur in or outside the UK.
Modern statutory powers:
The old common law public order offences (riot etc) were replaced by new statutory offences in the Public Order Act 1986.
The Civil Contingencies Act 2004 has now replaced the former Emergency Powers Acts. Of particular note is the wide definition in section 19 of "Emergency" and the extensive powers triggered by an "emergency" - Part 2 of the Act. For a view that, at a stroke, democracy could be replaced by totalitarianism, see The Guardian 16th December 2008. Whatever the truth of that statement, it should be noted that the Act provides for Parliamentary approval of regulations (sections 27 and 28). However, with the abolition in 2013 of the Administrative Justice and Tribunals Council, section 25 was removed from the Civil Contingencies Act. Section 25 was something of a control over emergency powers being used to establish a tribunal.
Civil Contingencies Act - history
Miner's Strike 1984 (Youtube)
This post was reproduced by Legal Week
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