Emergency! Granting and limiting extraordinary powers

After reading degauntier's thread on the limits of military activity, I think the issue of emergency powers of the executive should be painted with a broader brush, that is, a constitution should define the government's powers and circumscription of those powers during times of emergency, to prevent abuse or contravention of human rights. Generally, it must furthermore address the question of how independently a government, or even the head of state, may act in times of national security.

It should also state how a state of emergency can be declared (by the legislature for example) and the right of the judiciary to review such declarations, as well as affirm the rights and obligations of citizens during periods of hardship, war, environmental disaster and the length of time these powers may be exercised.

Where practical, a definition of state emergency, such as 'threat to the life of a nation' (quoting the SA Const. s. 37) could also feature.

As the Civil Contingencies Act prohibits modification of the Human Rights Act, basic law should provide for the immutability of natural rights in times of state emergency and/or whether temporary modification/suspension of said basic law during times of emergency is permissable at all. 

Definitely trucks of cans of worms in this one, but a topic definitely germane to the constitutional role of government.

edited on Feb 21, 2015 by Ramon James

Christine Farquharson Apr 7, 2015

To start off the comments for phase 2, here is a summary of what was discussed in the first phase:

- degauntier: there are few if any cases where suspending the constitution would be necessary, but many cases where politicians will believe it is necessary. With this in mind, the UK should consider adopting German-style restrictions specifically stating that suspending the constitution is not possible (2 up)

- JimF: 'There should be no power for any unit of government under any circumstances to suspend the constitution,' particularly given current concerns around terrorism (1 down)

As ramonjd pointed out previously, these are good points and worth some discussion! It would be great to get a wider range of views from the community on whether there are ever emergencies that justify suspending the constitution or some/all of the rights it outlines. Remember to keep voting on ideas and comments to give idea authors a sense of what you consider important!

Tom Austin Apr 9, 2015

Dear all. I have come across this very interesting web site all about Constitutions, it has a facility (for instance) to compare and contrast two or more Constitutions, and affords ready access to all...

https://www.constituteproject.org/content/about?lang=en

I hope this can help, especially for links, where reference is made to Articles & Clauses of other Nation's Constitutions.

Andrew Bulovsky Apr 13, 2015

With only one week remaining in the refining stage, the facilitators will draft some language for this idea. We'll do everything we can to redraft the original submission in line with your comments and suggestions. If the original poster would like to take over the idea they are more than welcome to at any point. Please do comment to offer suggestions on specific wording and to guide us on which suggestions should take priority (by voting them up/down).

"Parliament shall have the power to declare War. In times of national emergency, the Prime Minister and their Cabinet may act immediately with sole discretion in any way deemed necessary, with the exception of suspending the Constitution, to protect the citizens of Great Britain and Northern Ireland from foreign and domestic enemies, with the acknowledgement that they are responsible to Parliament for their actions. A report on any and all actions taken during the declaration of national emergency must be submitted to the House of Commons and made publicly available within 90 days of the action."

Tom Austin Apr 13, 2015

Andrew, I think there needs to be a strict time limit set upon 'periods' of action under these National Emergency Powers.

Daniel Gaunt Apr 13, 2015

Andrew - with the exception of the last bit, it's all picked up (though could be done better) in other suggestions. 

Was the intent of the the original poster not to cast it a little wider? I.e. It is less about the immediate decision, but more about the checks and balances in place? 

 

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Andrew Bulovsky Apr 13, 2015

Tom, what do you think those periods should be? How about we say the ability to act after a declaration is 30 days at which point a further declaration may be made should the situation require it?

Degauntier, we are by no means bound to the language I've proposed. It was simply a draft to get the community discussing the wording. Would you prefer it said differently?

Rob G Apr 13, 2015

Andrew,

I wonder if the introductory sentence about a state of war muddies the waters? There will be other situations which merit being declared an emergency, and there may well be no "enemies" involved - a Fukushima-style situation, for example.

It might also be worth allowing for a localised state of emergency, not just a national one; and specifying how the central and devolved administrations work together where the situation arises (1) in one of the nations with devolved institutions, or (2) near one of those nations. (e.g., a situation arising at Avonmouth could have significant implications for Newport and Cardiff).

Ramon James Apr 13, 2015

hi all, been AWOL for a while, but since this issue is getting interest i thought i'd chime in again.

degautier is right, and the intention was to provide a safeguard to citizen's rights should parliament decide to activate its emergency powers via the legislature not just during war, but in times of extraordinary circumstances. the constitution/bill of rights should be protected, agree. the 'cooling off period', for want of a better term, should perhaps not merely include reports but should also open up to the parliament the possibility of tabling amendments to the war or emergency legislation, allowing for review.

talk of enemies and war might best be abstracted into another clause, or even removed altogether, if focus were given to sovereign protection and the defence of the nation and its citizens (from war, disease, natural causes etc etc). further construction could be made by the judiciary.

anyway, thanks for the input! :)

 

Andrew Bulovsky Apr 13, 2015

The first sentence can definitely be removed. It was just an attempt to clarify who has the official power.

Robg8, do you have ideas for the specific language you're proposing for the emergency powers stuff? I'd love to hear it. Thank you for the great participation!

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Rob G Apr 13, 2015

Andrew,

I carefully didn't suggest any wording ;-) It's getting a bit late now, so I'll sleep on it and see what I can come up with.

Rob G Apr 14, 2015

Andrew,

How's about this? Words in square brackets are very tentative suggestions on my part; phrases between double asterisks are suggested alternative wordings. I've drawn heavily on the Civil Contingencies Act, but not repeated its provisions verbatim.

Should an event or situation ("the Emergency") arise which causes or threatens serious damage to human welfare or the environment in the United Kingdom, or in a region or locality within the United Kingdom, Her Majesty may, on the recommendation of two Senior Ministers of the Crown, by Order in Council make emergency regulations for the purpose of preventing, controlling or mitigating an aspect or effect of the Emergency. Emergency regulations shall expire after [fourteen] days, but may be extended for a further period of [twenty-eight] days with the consent of both Houses of Parliament, or the Scottish Parliament, Welsh Assembly, or Northern Ireland Legislative Assembly where the Emergency is restricted to the relevant part of the United Kingdom.

Legislation shall provide the nature of the permitted regulations, but *in no case shall such regulations suspend, amend, or repeal any part of this Constitution [and Bill of Rights]* OR *no part of this Constitution [and Bill of Rights] shall be suspended or amended other than in accordance with Article XXX of this Constitution*.
[see Section 22(3) Civil Contingencies Act 2004 for example list of permitted purposes.]

For the purposes of this Article, the following are Senior Ministers of the Crown:

  • The Prime Minister
  • The Principal Secretaries of State [Home & Foreign Secretaries, Chancellor of the Exchequeur]
  • The First Minister of Scotland
  • The First Minister of Wales
  • The First Minister and Deputy First Minister of Northern Ireland, acting jointly

Where the Emergency arises within Scotland, Wales, or Northern Ireland, or has or is likely to have a significant impact in Scotland, Wales, or Northern Ireland, the relevant First Minister (and Deputy First Minister in the case of Northern Ireland) must, wherever possible, be fully consulted before any emergency regulations are made, and throughout the period of the Emergency. In other cases, those Ministers must be kept informed of developments throughout the period of the Emergency.

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Andrew Bulovsky Apr 13, 2015

Welcome back, Ramonjd! Do you have suggestions for language? Post the draft language I have and replace words with your ideas in bold so we may debate it as an amendment.

Looking forward to hearing your ideas!

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