A Consideration of The Constitutionality of ‘Emergency Legislation’

At this time we hear much of what governments like to call ‘Emergency Legislation’. Such is usually invoked to allow some autocratic forms of governance owing to a contingency, such as the outbreak of a war. The most extreme form might be considered to be martial law where military orders are given at times of great peril to the nation and disobedience in the eyes of the commanding authority will cause force to be used to effect compliance. All without resource to the usual legalities, such as trial by Jury.

This will usually be regarded as a temporary necessity and expedience to effect the perceived remedy. But how might all this fit in with the ‘Rule of law’ most particularly where it has made constitutional arrangements for the mode of governance, which may for instance say that there may be no punishment without a trial.

Obviously if the Rule of law is simply a matter of ‘do as we the legislator enact’ and authoritarian law is enacted, it would seem that that would be the end of the matter.

Conversely if the Rule of law has laid out a specific prescription in some form of a constitutional construct for the constraint of the legislator to comply with, then any legitimate power derived therefrom must be in compliance with the fundamental constitutional requirement of those principles.

Sadly legislators often overreach their constitutionally prescribed authorities and the administrator will always find it convenient to accrue dictatorial power wherever possible. This of course then means that the oppressed will need to have means to assert their Constitution over and above the non compliant laws.

The English Constitution which underlies much of the Western World ‘democracies’ legislative processes, has some inherent safeguard against misgovernance.

Ostensibly the basic protective principle was laid out in the Magna Carta of 1215. In essence it stated that allegiance was owed to the Crown conditionally and that if the Crown was to breach the conditions and that breach confirmed then allegiance may be dropped and lawful resistance applied until redress was forthcoming; at which point allegiance would again be owing. Sir William Balckstone alluded to this in his famous books ‘Commentaries on the Laws of England’ saying that if the fundamental contract between the Crown and the people should be broken that in the end resistance would be justified.

Thus a constitutional path was defined and intended to be trod which allowed for the legitimate enforcement of its assertion if breached.
In essence the Magan Carta laid out some fundamental paths by which governance would be legitimate. Those principle underlie the English constitutional rule of law. The Rule of Law as an Englishmen ought to understand it includes some very fundamental principles from which the subject may not be and ought not to be, separated.

At the root of this must lie the separation of powers. It is a vital principle that the power of enforcement always remains in the hands of the people via their Juries and never attaches to the state. Thus it may be defined by stating ‘the people ought never to be separated from their Courts’. Necessarily coupled to that it is the absolute right of a Jury to declare a ‘not guilty’ verdict if that is their perception of the case in hand.
With this separation as a fundamental it is easy to see that it wards away tyranny and despotism as the authoritarian and autocratic will always seek to unite the power to legislate with the power of enforcement.

It becomes apparent that the mere term emergency legislations becomes something of an enigma. It is along the lines of the idea of having a Ministry for Justice. If the rule of law is pure and applied as the written words, enforced in the peoples’ courts and only by their juries then the Rule of law will tend to be applied as is customary.

Introducing politics into the mix by having a Minister for Justice tends to the introduction of a political element for consideration and contamination of the true principles of the Rule of Law. Lord Hewart of Bury warned us of making this mistake in his book the New Despotism in 1929. Sadly we have started in this century along this potentially slippery slope when such was introduced here by the Blair government. Following the logic outlined it is easy to spot the enigma in today’s interpretation of emergency powers.

If emergency powers are introduced by a supposedly legitimising enactment which purports to allow for the existence of new powers opposed by the constitutional conditions and constraints for governance and grants an arbitrary power; say by allowing for fines and forfeitures to be made without any conviction in an ordinary court. It would be thus separating the people from their courts by uniting the power of conviction with that of its fiat making.

We must ask and challenge by what authority may the legislator who is bound to only govern by the rules of law enact an enactment in contravention of the basis for their holding a position of office?

What seems to be practiced is that legislators believe that by making a ‘law’ they may legitimise the constitutionally outlawed and assume that they may not be held in contempt of constitutional statutes or of practicing malfeasance in public office thinking that they may at any time enact any law of their choosing.

True emergency power should surely always be at the hazard of the Minister breaking the law. Then emergency breaches will be assertions of such utter necessity that whilst it being a breach of the constitutional, it will be seen to be a true necessity to relive an issue, perhaps of force majeure. The people will accept the issue for the resolution of a truly emergency occurrence.

This is a far cry from allowing the legislator to assume a fully autocratic system of power in law making that is purportedly capable simply by administration of separating the rule of law from the nation on a temporary or even permanent basis. Parliaments may not destroy their own omnipotence and the Crown must fulfil its duty emanating from the rules of the laws in force. Parliaments are always subject to the Rule of Law.

Powers used in emergency should be just that, they are extraordinary only permissible for an utter necessity not some form of dictatorial authority capable of undermining the liberty of the Subject and suspending or trashing the Rule of Law. The emergency itself must be exactly that and pertaining to major consequences not simply an issue of political convenience.

These affairs of abuse and usurpation of power lie at the heart of the English Civil War of the 1640s and were laid to rest by the annihilation of the Divine Right of Kings at the Glorious Revolution of 1688/9. They may and ought not to be resurrected as the Divine Right of Politicians.

The method of defining an emergency is fraught. Clearly an executive hand is needed when events may change at zero notice and be critical but at the same time due consideration by a free Parliament ought to be compulsory at the earliest opportunity. The basic rule of fundamental law should not in any form be set aside or suspended. Then truly emergency commands may always be subsequently tested by the ordinary courts for their degree of necessity at the hands of the people and their juries, not by a tribunal, by a judge led review or enquiry allowing the executive to effectively be sitting in judgement of its own cause.