Monday 16 November 2015

Governmental emergency powers ~ a very brief look

On Friday 13th November, three teams of terrorists laid siege to Paris, killing 129 people in a spree of shootings and explosions across six locations. The attackers were all outfitted with suicide vests and armed with Kalashnikovs.  "Islamic State" (IS) claimed responsibility for the attacks - Reuters 14th November.   The President of France described the attacks as "an act of war."  This has been followed by the French authorities hunting for suspects - NBC News 16th November - Paris attacks. - with the French Interior Minister (Bernard Cazeneuve) saying -  "The response of France will be total. Those who attack France, we will catch them and we will be unrelenting with them ... Terrorists will never destroy the Republic, because the Republic will destroy them."

An act of war - but what response?

The attacks in Paris
have heightened the desire for further military action against Islamic State though one article in The Guardian states that, whilst Islamic State's actions may be an act of war, retaliation might be unlawful because IS is not actually a State in international law - The Guardian 16th November.  Such an argument that ought not to withstand serious analysis since it would provide the perfect loophole for murderous "non State" groups all over the planet.  I believe that a complete refutation of such an argument is available and is set out in a paper by Sir Daniel Bethlehem QC (Legal Adviser to the Foreign and Commonwealth Office May 2006 to May 2011) - Principles relevant to the scope of a State's right of self-defence against an imminent or actual armed attack by non-State actors

This article concludes that - "Armed action in self-defence may be directed against those actively planning, threatening, or perpetuating armed attacks.  It may also be directed against those in respect of whom there is a strong, reasonable, and objective basis for concluding that they are taking part in those attacks through the provision of material support essential to the attacks."  Bethlehem also argues that the word "imminent" has to be assessed by all the relevant circumstances.  The absence of specific evidence of where an attack will take place or of the precise nature of an attack does not preclude a conclusion that an armed attack is imminent.

Of course, one would expect stable States to take action against those seeking to launch terrorism from within the State's territory.  In the present circumstances in Syria and elsewhere that may not be realistically possible but this should not render potential victim States impotent to act.

Fast-tracking investigatory powers:

There has been a call by Lord Carlile QC for the Investigatory Powers Bill to be fast-tracked through Parliament.  Lord Carlile (a former Independent Reviewer of Terrorism Legislation) is an eminent voice but I submit that this would be an unwise course to take.  The Bill needs the Parliamentary scrutiny that has been promised so far and that will lead to better legislation.  Siren calls for fast track legislation should generally be resisted.  The UK Human Rights blog has a fuller discussion of this and also see The Guardian 16th November - Don't fast track the new surveillance bill: it needs considered scrutiny

Extensive terrorism law and general criminal law:

The UK has extensive Terrorism Legislation and this is kept under review by the Independent Reviewer (Mr David Anderson QC).  These powers are strong but there are continual calls for additional or stronger powers - see Jack of Kent blog 15th November.  Terrorism offences are in addition to our extensive criminal law.

Prerogative powers:

The UK government has Royal Prerogative powers available to it.  For example, it is clear enough that the Armed Forces may be deployed to maintain the peace in support of the Police.  The Crown also has power to requisition certain ships and this was done in 1982 in connection with the military campaign to recover the Falkland Islands.

In March 2004, the House of Commons Administration Select Committee published "Taming the Prerogative .." (4th report of session 2003-04).  Toward the end of that document is a Memorandum from the Treasury Solicitor's Department where it is noted that - " the Crown still has certain prerogative powers in time of grave national emergency to enter upon, take and destroy private property, though the conditions under which these powers are exercisable are far from clear, partly because the powers were never precisely defined, partly because the scope in time of war was not considered in general terms by the courts for nearly three hundred years, and partly because of the encroachment of various statutory provisions made over the years." 

The memorandum also claims that - "it is likely that the courts would be willing to recognise a wide range of necessary responses by the Executive to an emergency as authorised under the prerogative in the absence of a clear statutory basis."

The Civil Contingencies Act:

The Civil Contingencies Act 2004 (CCA) could be invoked in the event of an emergency occurring in the United Kingdom - see previous post of 14th April 2011.   Part 2 of the CCA deals with "Emergency Powers" and the term "emergency" is defined in section 19.  A power to make emergency regulations is conferred by section 20 but this power is subject to certain conditions - section 21 .   Regulations could be exceptionally extensive in scope - (section 22) - and permit actions such as the requisition or confiscation of property (with or without compensation); control of movement and transport; deployment of the armed forces etc.  Certain limitations apply to the powers which can be granted - section 23.   Further sections deal with the appointment of Regional and Emergency Coordinators and for Parliamentary scrutiny of any regulations (sections 27 and 28).  Basically, emergency regulations last for 30 days from the day on which they are made but further regulations can be made. 

1 comment:

  1. Following the 11th September 2001 incidents in the USA, the UK parliament on 21 November 2001 at 22:47hrs voted (on the basis of there being a 'public emergency threatening the life of the nation) to dismiss the right of any UK citizen/resident to be brought before a court following arrest, and the right to liberty unless convicted (a derogation order from Article 5(1) of the European Convention on Human Rights).

    This power remained in place in the UK for over 1,200 days until April 2005, after a judgment in the House of Lords of 16 December 2004.

    Even then, those persons detained without trial were then each put under a Control Order & probably still to this day remain under TPIM measures.......