In 1933, Adolf Hitler managed to get his Enabling Act through the German parliament, which gave him absolute power over Germany in the event of an emergency. Once this Act was in place, Hitler declared an emergency and the rest is, as they say, history.
Over on Samizdata, David Carr is worried that the British government is pushing through its very own Enabling Act in the form of the Civil Contingencies Bill.
Having read the Bill myself in detail now, it seems to me Carr’s concerns are entirely justified. I find myself wishing I’d paid more attention to this earlier. So what is the cause for concern?
Under this Bill, Cabinet Ministers (and government Whips!) can declare a state of emergency in the UK, or any part of it, orally.
An emergency is defined in a very loose manner that would cover, e.g. the fuel protests of 2001. The conditions for making such a declaration are that an emergency has occurred, is occurring or is about to occur, that it is necessary to make provision to mitigate, control or prevent the emergency or an aspect of it and that the need for the provision is urgent[see Sections 19 to 21].
Note that a Minister merely needs to be “satisfied” (i.e. believes/thinks that) the conditions apply. There is no test of “reasonableness” that might enable, e.g. a court challenge.
Furthermore, as Spy.org.uk notes, there is no provision for authentication of Ministers’ orders or for punishing the false declaration of an emergency and there is no punishment for abusing emergency powers.
On declaring such an emergency, Ministers acquire the power to make regulations for any of the following purposes [Section 22(2)]:
- protecting human life, health or safety,
- treating human illness or injury,
- protecting or restoring property,
- protecting or restoring a supply of money, food, water, energy or fuel,
- protecting or restoring an electronic or other system of communication,
- protecting or restoring facilities for transport,
- protecting or restoring the provision of services relating to health,
- protecting or restoring the activities of banks or other financial institutions,
- preventing, containing or reducing the contamination of land, water or
- preventing, or mitigating the effects of, flooding,
- preventing, reducing or mitigating the effects of disruption or
destruction of plant life or animal life,
- protecting or restoring activities of Parliament, of the Scottish
Parliament, of the Northern Ireland Assembly or of the National
Assembly for Wales, or
- protecting or restoring the performance of public functions.
I.e. just about any purpose imaginable.
Furthermore, the Act explicitly states that regulations may make provision of any kind that could be made by Act of Parliament or by Royal Prerogative[Section 22(3)]. Under the British system of government, this is absolute power.
The Act reinforces this by explicitly listing the making of provisions[Section22(3)] to:
- (a) confer a function on a Minister of the Crown, on the Scottish Ministers,
on the National Assembly for Wales, on a Northern Ireland
department, on a coordinator appointed under section 24 or on any
other specified person (and a function conferred may, in particular,
- (i) a power, or duty, to exercise a discretion;
- (ii) a power to give directions or orders, whether written or oral);
- (b) provide for or enable the requisition or confiscation of property (with
or without compensation);[i.e. everything you or your business owns could be confiscated without compensation]
- (c) provide for or enable the destruction of property, animal life or plant
life (with or without compensation);[i.e. everything you or your business owns could be destroyed without compensation]
- (d) prohibit, or enable the prohibition of, movement to or from a specified
place;[i.e. you could be indefinitely imprisonened]
- (e) require, or enable the requirement of, movement to or from a specified
- (f) prohibit, or enable the prohibition of, assemblies of specified kinds, at
specified places or at specified times;[i.e. banning all forms of protest, but also note that Parliament, the Scottish Parliament and the Welsh Assembly are all assemblies!]
- (g) prohibit, or enable the prohibition of, travel at specified times;
- (h) prohibit, or enable the prohibition of, other specified activities;[i.e. banning anything at all!]
- (i) create an offence of—
- (i) failing to comply with a provision of the regulations;
- (ii) failing to comply with a direction or order given or made under
- the regulations;
- (iii) obstructing a person in the performance of a function under or
- by virtue of the regulations;
- (j) disapply or modify an enactment (other than a provision of this Part) or
a provision made under or by virtue of an enactment;
- (k) require a person or body to act in performance of a function (whether
the function is conferred by the regulations or otherwise and whether
or not the regulations also make provision for remuneration or
- (l) enable the Defence Council to authorise the deployment of Her
Majesty’s armed forces;
- (m) make provision (which may include conferring powers in relation to
property) for facilitating any deployment of Her Majesty’s armed
- (n) confer jurisdiction on a court or tribunal (which may include a tribunal
established by the regulations);[i.e. set up courts/tribunals that bypass the normal legal system!]
- (o) make provision which has effect in relation to, or to anything done in—
- (i) an area of the territorial sea,
- (ii) an area within British fishery limits, or
- (iii) an area of the continental shelf;
- (p) make provision which applies generally or only in specified
circumstances or for a specified purpose;
- (q) make different provision for different circumstances or purposes.
I.e. just about any provision imaginable.
Note that under existing laws, as I understand it, Parliament has to agree a state of emergency, whereas under this Bill it is the senior members of the executive, along with the Queen, who hold the power to declare an emergency without Parliament getting a look in. Once this is done, they have absolute power over us.
This Bill is currently in the Lords and was rushed through Parliament with the third reading “guillotined” so that opposition amendments were not debated and the Bill was passed “on the nod”. The government want it on the statute books before the next Queen’s Speech in November.