Legal Challenges to Emergency Powers

This note summarises briefly judicial control over the use of emergency powers, relevant to the draft Bill. It does not cover Northern Ireland, nor broader challenges to permanent legislation.

Overview

There do not appear to have been legal challenges to the states of emergency in the period 1966 to 1974. However, there have been challenges to other types of emergency powers, both before and after. A rough summary might be that judges would be willing to prevent use by the executive of what they considered excessive powers deriving from an emergency. However, judges are willing to take account of the reasons that led to the executive's decisions. In a serious emergency, judges are willing to accept policies that would be considered infringement of liberty in normal circumstances.

The Problem of Judicial Control of Emergency Powers

A constitutional law textbook notes that the nature of emergency powers in British law has changed during the 20^th century. Initially, special powers were taken to deal with the consequences of war (Defence of the Realm Act 1914) and then large scale industrial unrest (Emergency Powers Act 1920). These measures tended to authorise the making of secondary legislation for a limited period, and for a specific end. In recent years the threat of terrorism has seen the development of standing legislation, so that we now live in a state of "permanent emergency".

The draft Civil Contingencies Bill would mark a return to the earlier strategy, without abandoning the standing legislation. The textbook notes the difficulties of parliamentary control of emergency powers, continuing:

It is thus up to the courts to ensure that these wide powers are not misused. But concern about the unenviable role in which thy have been cast is hardly eased by Lord Hoffman's postscript in the Rehman case where the said that the events of 11 September 2001 in Washington and New York were

a reminder that in matters of national security, the cost of failure can be high. This seems to me to underline the need for the judicial arm of government to respect the decisions of ministers of the crown on the question of whether support for terrorist activities in a foreign country constitutes a threat to national security. It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process. If the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove.[398]

A Challenge to Wartime Powers

Wartime emergency regulations were challenged in the case of Anderson v Liversidge. A man called Robert Liversidge had been sent to prison as a threat to public safety. The home secretary, Sir John Anderson, gave no reasons. The House of Lords supported that action in 1942, although Lord Atkin made a famous dissenting judgement. The headnote to the House of Lords judgement opened as follows:

When the Secretary of State, acting in good faith under reg. 18B of the Defence (General) Regulations 1939, makes an order in which he recites that he has reasonable cause to believe a person to be of hostile associations and that by reason thereof it is necessary to exercise control over him and directs that that person be detained, a court of law cannot inquire whether in fact the Secretary of State had reasonable grounds for his belief. The matter is one for the executive direction of the Secretary of State…[399]

Lord Atkin dissented, arguing that some objective evidence for that belief was required. His argument would have allowed the courts to retain control over the process of imprisonment under wartime regulations. The majority judgement meant that they lost that control. Lord Atkin's dissenting judgement has often found favour with later judges. Another textbook on constitutional law notes later disagreement with the original judgement:

In Nakkuda Ali v Jayaratne a strong Privy Council held that Liversidge v Anderson must not be taken to lay down any general rule on the construction of the expression "has reasonable cause to believe." Subsequently Liversidge v Anderson was described by Lord Reid in Ridge v Baldwin as a "very peculiar decision." Lord Diplock in I.R.C. v Rossminster Ltd thought that "the time has come to acknowledge openly that the majority of this House in Liversidge v Anderson were expediently and, at that time, perhaps, excusably, wrong and the dissenting speech of Lord Atkin was right."…It should not, however, be forgotten that the House of Lords, as evidenced by McEldowney v Forde in construing powers for dealing with emergencies may still give greater scope to ministerial discretion than subsequent judicial criticisms of Liversidge v Anderson might suggest.[400]

A textbook on judicial review gave an overview of changes in the attitude of judges towards the exercise of emergency powers:

The exercise of statutory powers directly affecting individual interests in nearly always potentially reviewable, albeit that it may be on narrow grounds, at the instance of a person having appropriate locus standi, and the courts at different times have shown a variable degree of enthusiasm about intervening.

Wartime and immediate post-war decisions ought now to be treated with caution. The emergency legislation of the Second World War gave the Executive vast powers over persons and property. The wording of the grants of power was sufficient, on a literal interpretation, to support the validity of almost any act purporting to be done under their authority, yet not only did the courts give a strictly literal interpretation to subjectively worded formulae; in their anxiety not to impede the war effort they declined to give a literal interpretation to a formula which prima facie enabled them to review the reasonableness of the grounds for exercising a discretionary power authorising summary deprivation of personal liberty. Such a measure of judicial self-restraint it is to be hoped will not be repeated except possibly in conditions of grave emergency. But a literal construction of the subjective type of formula was to reappear in a number of immediate post-war cases having only a remote connection with national emergency. Happily, a shift in approach to judicial interpretation has taken place since these cases were decided.[401]

399   Liversidge v Anderson, [1942] A.C. 206. Back

400   O.Hood Phillips and Jackson, Constitutional and Administrative Law, 8th Edition, p406. Back

401   de Smith, Woolf & Jowell, Judicial Review of Administrative Action, 5th edition, pp118-9. Back