Some of the media reports:
The National is a Scottish publication supporting an independent Scotland. Its headline of 27 January stated - UK government prepare for martial law in the even of no deal Brexit.
The Mirror on 28 January declared that
- "The government is reportedly examining the possibility of martial law if food and medical shortages spark civil disobedience and rioting following a no-deal Brexit."
- "The government is reportedly examining the possibility of martial law if food and medical shortages spark civil disobedience and rioting following a no-deal Brexit."
The Telegraph 24 May 2017 looked at "Operation Temperer" which involved the deployment of British troops at strategic locations. It was part of a plan established in 2015 to use troops within the UK in response to major terrorist threats. [Civilian Police Forces have been markedly reduced in manpower]. Zero Hedge commented (20 November 2018) that Temperer was "essentially a martial law programme" and that plans exist to apply a similar plan in the event of a no deal Brexit.
BBC News 13 February 2019 reported the view of the Welsh political party Plaid Cymru that "the use of martial law should be ruled out by the defence secretary" and continued - "Martial law involves suspending normal law, and temporary military rule."
What is Martial Law?
"Martial Law" is an emotive phrase lacking definition in English law. It is a strange concept in that references to it date back centuries and yet it is far from settled as to what martial law actually is.
"Martial law" suggests the imposition of direct military control in place of the normal civilian functions of government. Martial law is therefore much more extensive than the use of the armed forces to assist civil powers with matters such as the maintenance of order.
The term is often applied in connection with violent overthrow of government when a new regime seizes power. It is sometimes used to describe a response to war or major disaster particularly if normal governmental arrangements have ceased to operate. Martial Law is associated with curfews, suspension of civil rights, extending military law to civilians. It can even extend to subjecting civilians to military justice processes such as trial by military tribunals or court-martial.
It appears that martial law can exist even if civilian courts are continuing to function - Marais v The General Officer [1902] AC 109. Mr Marais was in military custody after his arrest and charge for breaching martial law regulations. He had appealed to the Privy Council from a decision of the Supreme Court of the Colony of the Cape of Good Hope. Crucially this meant that the civilian courts were still open and, it was argued, the ordinary rule is that the civil courts should have jurisdiction where the civilian courts are open. The Privy Council held that war could still be raging even if the military permitted some courts to remain open for business.
Prior to 1914:
The principal reference to Martial Law in English legal documentation appears to be the Petition of Right presented to Charles I in 1627 and assented to by the King in 1628. [See this modern typesetting of the Petition].
As a precondition to granting any future taxes, Parliament forced the King to assent to the Petition. This asked for a settlement of Parliament's complaints against the King's non-parliamentary taxation, imprisonments without trial, the use of martial law and forced billets. However, the King ensured that the Petition was enrolled in such a way that there would be doubts about its force as law: it was granted by his grace, rather than 'of right' - Parliament - The Petition of Right.
Although not a formal statute, the Petition has traditionally been invested with the full force of law. It has a hallowed place as one of the more significant "constitutional" documents - Magna Carta, the Petition of Rights, the Bill of Rights, Habeas Corpus Acts, the Act of Settlement etc.
The Petition noted that "divers commissions" had been issued under the Great Seal to appoint Commissioners with power to "proceed within the land according to martial law." Further, the commissions permitted trial and execution of offenders "according to the law martial."
The Petition (at 8) sought to prevent further martial law commissions. It stated -
World War 1:
The outbreak of World I on 4 August 1914 prompted the rapid enactment of the Defence of the Realm Act 1914 - [and see Parliament and the First World War]. This contained power to issue Regulations as to the powers and duties of the Admiralty and Army Council for securing the public safety and defence of the realm.
Regulations could order trial by court-martial and civilians could be punished in the same way as if they were subject to military law and had on active service committed an offence. At first, a court-martial could not impose the death penalty on a civilian but even that safeguard was removed in November 1914 if the offence in question was committed with the intention of assisting the enemy.
In March 1915, British subjects were given a right to trial by the civil courts for offences against the regulations but the amended law provided that this right could be suspended by proclamation "in case of invasion or other special emergency" and trial by court-martial for offences under the regulations restored.
The enactment of this emergency legislation is well described in an article in the Michigan Law Review 1916 - Martial Law and the English Constitution - Harold Bowman - Volume XV Michigan Law Review December 1916.
World War 2:
The Emergency Powers (Defence) Act 1939 enabled the British Government to take up emergency powers to prosecute the war effectively. It contained clauses giving the government wide powers to create Defence Regulations which regulated almost every aspect of everyday life in the country. The Emergency Powers (Defence) (No. 2) Act 1940 enabled the creation of special courts to administer criminal justice in war zones, as well as authorising them to punish offenders for violating the Defence Regulations.
Non-statutory legal powers:
Government has a duty to preserve the peace and that could include the deployment of troops.
Troops have been deployed on numerous occasions in aid of the civil power - National Army Museum and, for Northern Ireland see Operation Banner.
In 1910 Winston Churchill (then Home Secretary) deployed troops to South Wales having been requested to do so by the Police. There is much inaccurate reporting about these events - for a more balanced account see Wales History - The Tonypandy Riots of 1910, iNews Tonypandy Riots,
Wales Online The towns in Wales where Churchill was loathed, The Churchill Project - Tonypandy and Llanelli - Myth and Reality.
There are various non-statutory powers available to deal with serious emergency situations - e.g. a power for the Crown to take property for the purposes of defence of the realm in time of danger - In Re A Petition of Right [1915] 3 KB 649 discussed in Attorney-General v De Keyser's Royal Hotel [1920] AC 508 and in the Burmah Oil case [1975] AC 75.
The claimant, Burma Oil Company, brought proceedings against the UK government (who were represented in the case by the Lord Advocate) seeking compensation for the destruction of oil fields in Burma by British forces in 1942 (during the Second World War). The destruction had been considered necessary to prevent the installations from falling into the hands of the advancing Japanese army. There were two questions at stake in the case: firstly, whether the destruction had been within the limits of the prerogative powers of the executive and therefore lawful; secondly, whether the government was liable to pay compensation for the damage to the claimant. The House of Lords held by a majority of 3 to 2 that although the damage was within the executive’s prerogative powers and was therefore lawful, the power in question required the payment of compensation. Parliament then enacted the War Damage Act 1965 removing a right to compensation both prospectively and retrospectively.
The claimant, Burma Oil Company, brought proceedings against the UK government (who were represented in the case by the Lord Advocate) seeking compensation for the destruction of oil fields in Burma by British forces in 1942 (during the Second World War). The destruction had been considered necessary to prevent the installations from falling into the hands of the advancing Japanese army. There were two questions at stake in the case: firstly, whether the destruction had been within the limits of the prerogative powers of the executive and therefore lawful; secondly, whether the government was liable to pay compensation for the damage to the claimant. The House of Lords held by a majority of 3 to 2 that although the damage was within the executive’s prerogative powers and was therefore lawful, the power in question required the payment of compensation. Parliament then enacted the War Damage Act 1965 removing a right to compensation both prospectively and retrospectively.
It is possible to envisage extreme situations where normal governmental arrangements have become inoperable (e.g. due to invasion of territory) and the military might have to step in to maintain order and, in doing so, might have to assume control of usual civilian functions of government. This type of scenario is discussed in some detail in relation to experience in Australia in Chapter 3 of Crown and Sword - see Chapter 3 Martial Law. This contains material relating to the events in Papua and New Guinea in 1942 and to the coup in Fiji in 2000. The Fijian coup eventually gave rise to the interesting case of Republic of Fiji v Prasad - see discussion by the Melbourne Journal of International Law.
For the purposes of this post, I have deliberately avoided discussion of the legal basis for non-statutory powers. This interesting topic is discussed in some detail in the material listed below under Further Reading.
Civil Contingencies Act 2004:
The government now has extensive powers under the Civil Contingencies Act 2004 and Explanatory Notes. The Act could be invoked in the event of a "no deal" Brexit which created serious problems such as food shortages etc.
The Act repealed the Emergency Powers Act 1920 and the Emergency Powers Act (Northern Ireland) 1926. It confers a power on Her Majesty (or in certain very limited circumstances, a senior Minister of the Crown) to make regulations if an “emergency” has occurred or is about to occur.
“Emergency” is defined broadly to include events and situations which threaten serious damage to human welfare in the United Kingdom, a Part or a region, the environment of the United Kingdom, a Part or a region or war or terrorism which threaten serious damage to the security of the United Kingdom.
The Act gives further detail as to what provision may (and may not) be included in emergency regulations, including specific safeguards designed to prevent misuse. The Act expressly allows for emergency powers to have effect in a Part or region of the United Kingdom only. The Act also makes provision for consultation with, and the conferral of functions on, the devolved administrations.
The scope of possible emergency powers is wide - see section 22 - but there are limitations on the powers - section 23 - and also provisions for parliamentary scrutiny - section 27. For further see The Guardian 16 December 2008 - Civil Contingencies Act 2004.
See also UK Government 4 August 2016 - 2015 to 2020: Military Aid to the Civilian Authorities for activities in the UK
UK Parliament -Research Briefing CBP-8074 - Military Aid to the Civil Authorities
Conclusion:
The term "Martial Law" is emotive and is not defined. Nonetheless, the term embraces situations in which there is military control in place of the normal civilian functions of government. It is not the same concept as Military Aid to Civilian Authorities.
If an emergency arises - as defined in the Civil Contingency Act - then appropriate powers can be granted under the Act. There is a so-called ‘triple lock’such that the emergency powers available under the Act can only be resorted to where there is a threat of serious harm; where it is necessary to make provision on an urgent basis; and where the effects of the powers would be proportionate to the aims sought to be achieved.
Further Reading:
Martial Law and the English Constitution - Harold Bowman - Volume XV Michigan Law Review December 1916.
Crown and Sword - Executive Power and the Use of Force by the Australian Defence Force - Cameron Moore
UK Parliament -Research Briefing CBP-8074 - Military Aid to the Civil Authorities
Governance of Britain - Review of the Executive Royal Prerogative Powers
University of Toronto Law Journal - David Dyzenhaus - The Puzzle of Martial Law
Cornell International Law Journal - William Feldman 2005 - Theories of Emergency Powers
Republic of Fiji v Prasad 2001 - The doctrine of necessity enabled those in de facto control, such as the military, to respond to and deal with a sudden and stark crisis in circumstances which had not been provided for in the written Constitution or where the emergency powers machinery in that Constitution were inadequate for the occasion. Action authorised by that doctrine is essentially of a temporary character and it ceases to apply once the crisis has passed. The Prasad case is discussed further HERE and HERE.
Other Materials:
Youtube - The Petition of Right
Youtube - Easter Rising 1916
Speech by Sir Nick Harvey MP - 14 October 2011 - Supporting civilian authority: what role for the military?
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