It has been suggested by former Prime Minister John Major that Boris Johnson could implement a no-deal Brexit by circumventing statute law, by passing an order of council to suspend the Benn Act until after 31 October.’ One suggestion of how the Prime Minister could do this would be through use of the Civil Contingencies Act 2004 (CCA 2004)—a piece of emergency legislation designed to allow the Government tackle a serious crisis without the need of prior parliamentary approval. In order to enable these powers, the Government must first declare a state of emergency. This post will examine the legality of such a declaration by analysing how the courts may approach this question.
The meaning of emergency under the CCA 2004
Section 19(1) of the Act defines an emergency as:
(a) an event or situation which threatens serious damage to human welfare in the United Kingdom or in a Part or region,
(b) an event or situation which threatens serious damage to the environment of the United Kingdom or of a Part or region, or
(c) war, or terrorism, which threatens serious damage to the security of the United Kingdom.
Section 19(2) further elaborates on the meaning of an event or situation that threatens damage to human welfare by requiring such an event to involve, cause, or have the potential to cause:
- loss of human life,
- human illness or injury,
- homelessness,
- damage to property,
- disruption of a supply of money, food, water, energy or fuel,
- disruption of a system of communication,
- disruption of facilities for transport, or
- disruption of services relating to health.
A key barrier to the Government using the CCA 2004 to implement a no-deal Brexit therefore is the requirement that an emergency must exist for the powers to be used. On the face of things, this may seem like a very high threshold for the Government to cross. It is difficult to describe the failure to deliver Brexit as an event or situation which threatens serious damage to human welfare or the environment in the United Kingdom or in a Part or region. And it certainly cannot be the case that Brexit satisfies the definition of war or terrorism. It may therefore appear that the government cannot use the CCA 2004 to implement a no deal Brexit.
Does the Definition of Emergency Matter?
The difficulty with this argument, however, is that it would require the judiciary to closely scrutinise a government’s declaration of a state of emergency. This is something that courts in the UK and elsewhere have been notoriously reluctant to do.
Although we do not have a case to date on how courts have scrutinised a declaration of emergency under the CCA 2004, it is illustrative to look at how they have approached other declarations of emergency. For example, Article 15 of the European Convention on Human Rights (ECHR) defines a state of emergency as a ‘time of war or other public emergency threatening the life of the nation’. Again, this ostensibly appears like a high threshold for a crisis to cross for it to satisfy this definition. In A and others v Secretary of State for the Home Department, the House of Lords found that a law enacted shortly after 11 September 2001 providing for indefinite detention without trial of non-UK citizens suspected of terrorism was not ‘proportionate to the exigencies of the situation.’[1] They issued a declaration of incompatibility and Parliament responded by repealing the provision in question and introducing the control order regime instead.
While this case is often seen as a victory for human rights and an example of the judiciary curtailing political excess in the area of national security, what is notable, however, is that the majority judgments do not question that a state of emergency existed in the UK following 11 September 2001. On this point, Lord Bingham stated that:
…I would accept that great weight should be given to the judgment of the Home Secretary, his colleagues and Parliament on this question, because they were called on to exercise a pre-eminently political judgment. It involved making a factual prediction of what various people around the world might or might not do, and when (if at all) they might do it, and what the consequences might be if they did…The more purely political (in a broad or narrow sense) a question is, the more appropriate it will be for political resolution and the less likely it is to be an appropriate matter for judicial decision… The present question seems to me to be very much at the political end of the spectrum.[2]
The European Court of Human Rights, echoed a similar sentiment, concluding that national authorities were better placed than an international court at assessing whether a public emergency exists.[3] Thus although both courts found that the measures enacted were not proportionate, they nevertheless upheld the Government’s declaration of an emergency by essentially refusing to scrutinise the decision at all.
Similar examples of an extremely hands-off approach by the judiciary to the existence of an emergency can be seen other states. In Ireland in 1976, for example, the Supreme Court refused to say whether the decision to declare a state of emergency under Article 28.3.3° of the Irish Constitution was even justiciable. Instead, the Court decided to reserve that question for ‘future consideration’.[4] The Irish example is particularly important because the definition of an emergency in the Irish Constitution is much narrower than the CCA 2004 or Article 15 ECHR— a time of war or armed rebellion.[5]
A robust definition of an emergency therefore does not necessarily entail robust judicial scrutiny. Although it is, of course, better than a poorly defined provision. The United States’ National Emergencies Act 1976, for example, contains no definition of what constitutes a national emergency; rather, it merely states that ‘the President is authorized to declare such national emergency.’ In February of this year, US President Donald Trump declared an emergency under this Act to enable him to use emergency funds and powers to build a wall on the border between the US and Mexico.
An Exceptional Exception?
Ultimately, what matters is not necessarily the definition of emergency but how courts see their role, and the role of the other constitutional powers on this question as to the existence of an emergency. If Boris Johnson were to declare an emergency under the CCA 2004 to give effect to a no-deal Brexit, the courts may take their lead from the House of Lords in A v SSHD and will be reluctant to interfere in such a ‘pre-eminently political judgment.’ Using the CCA 2004 in this manner would illustrate the dangers of extreme deference to the executive, even on matters of national security. As US Supreme Court justice Jackson J warned in his famous dissent in Re Korematsu, such judicial capitulation to the executive sets a dangerous precedent. ‘The principle then lies about like a loaded weapon, ready for the hand of any authority that can bring forward a plausible claim of an urgent need.’
In my view, this would be an incorrect approach. Using the CCA 2004 to implement a no-deal Brexit would be an egregious abuse of power by the Government. Consequently, the courts should scrutinise the reasons for declaring a state of emergency carefully. This argument is based not on the detailed definition of emergency contained in the CCA 2004 but on the court’s constitutional duty to protect and vindicate the rule of law. This duty is arguably even more important in a time of emergency owing to the extreme damage that emergency powers can cause to the rule of law and human rights. Consequently, careful judicial scrutiny should be the case for all emergencies; this is not an exceptional exception. It just so happens that the consequences of this emergency—a no deal Brexit—are more electorally salient than indefinite detention without trial, notwithstanding the severe impact the latter has on an individual’s rights.
Conclusions
To date, the European Court of Human Rights has never over-turned a declaration of emergency under Article 15. However, in 1969, the now defunct European Commission on Human Rights rejected the Greek Military Junta’s declaration of emergency to deal with the communist opposition. There, the Greek Government’s anti-democratic basis undermined any claim they made that this was a genuine emergency. The Greek government then withdrew from the ECHR system before the Court could rule on the case.
If the British courts were to over-turn Boris Johnson’s declaration of emergency under the CCA 2004, he would find himself in some questionable company.
[1] [2004] UKHL 56
[2] Ibid [29].
[3] A and Others v United Kingdom, Judgment of 19 February 2009, [2009] ECHR 3455/05.
[4] Re Emergency Powers Bill [1977] IR 159, 176.
[5] Article 28.3.3° in full reads as follows: ‘Nothing in this Constitution other than Article 15.5.2° shall be invoked to invalidate any law enacted by the Oireachtas which is expressed to be for the purpose of securing the public safety and the preservation of the State in time of war or armed rebellion, or to nullify any act done or purporting to be done in time of war or armed rebellion in pursuance of any such law. In this subsection “time of war” includes a time when there is taking place an armed conflict in which the State is not a participant but in respect of which each of the Houses of the Oireachtas shall have resolved that, arising out of such armed conflict, a national emergency exists affecting the vital interests of the State and “time of war or armed rebellion” includes such time after the termination of any war, or of any such armed conflict as aforesaid, or of an armed rebellion, as may elapse until each of the Houses of the Oireachtas shall have resolved that the national emergency occasioned by such war, armed conflict, or armed rebellion has ceased to exist.’
Alan Greene 