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Statewatch News online: The origins of Emergency Powers Acts in the UK

28 March 2012

The origins of Emergency Powers Acts in the UK

The Emergency Powers Acts

Public consciousness of Britain's Emergency Powers Act was heightened when in November 1973 the Tory government declared its fifth state of emergency in just three years of office - more than any other British government in history. The specific conditions which lent themselves to this situation are discussed elsewhere,85 however the precise nature of the powers taken by government under these Acts needs to be understood because they have not, as yet, ever been fully employed.

The reasons for the passing of the first Emergency Powers Act in 1gao arose some years earlier during the First World War. When war broke out a 'state of national emergency' was declared, the first since the Napoleonic wars a hundred years before. Within days of the outbreak of war parliament passed the 1914 Defence of the Realm Act (popularly known as DORA). The Act had one central clause giving the government power to make regulations for 'securing the public safety and the defence of the realm'. Immediately a series of Regulations were issued. Some were patently ludicrous, for example Regulation gDD prohibiting dog-shows and Regulation 40B regulating the supply of cocaine to actresses. O thers included Regulation a 7 which provided for six months in prison for spreading false rumours, and Regulation 1 4B, for the detention of people of alleged 'hostile origin or association'. For the most part people obeyed the Regulations and attempts to challenge them in the courts were generally successfully resisted. One of the few exceptions was in 1918 when the Shipping Controller tried to requisition not just the ships but also the personnel of the China Mutual Steam Navigation Company, and the courts upheld the objection.

The Regulations made under DORA were due to lapse when hostilities were officially declared to have ended; however, the government and various state agencies were keen to retain the key powers afforded by DORA for more permanent use. The period immediately after the war was a testing time for the ruling class, and in 1 9 l 9 the first draft of a national emergency plan was prepared for the supply and transport system by Sir Eric Geddes.86 Before DORA expired in 1ga 1, the Emergency Powers Act was brought in, which was to 'make exceptional provisions for the protection of the community in case of emergency'. The government was empowering itself with special sanctions in cases of major strikes, civil disorders and pre-revolutionary situations. Under the Act a state of emergency can be declared by the monarch if at any time it appears 'to the government that the essential services of the country are threatened'. The government (in effect, the Cabinet) is then empowered to draw up a set of Regulations and can 'assume such powers and duties as H is Majesty may deem necessary' to restore order and maintain supplies, or 'for any other purposes'. The Regulations once drawn up have to be passed by parliament (a mere formality in practice) and must be renewed by them every month. In effect power resides totally with the executive and all pretence of parliamentary control is forsaken. The totalitarian nature of this Act becomes apparent when it is realised that the executive has the power to suspend or amend all laws, the only restrictions under the 1920 Act being: I ) no Regulation shall introduce compulsory military service or industrial conscription - this requires the declaration of a state of war; 2) it shall not be an offence to take part in a strike; and 3) existing procedures in criminal cases shall not be altered. But what constitutes a 'crime' can alter fundamentally. The Act, in short, can 'suspend practically all our civil liberties and weight the scales heavily against those who may be in active opposition to the government of the day (Kidd, British Liberty in Danger, 1940, p. 51). Nor was the Act the only one to be born of DORA's wartime applications; other Acts were passed on the restriction of licensing hours, dangerous drugs, firearms, the sale of tea, and official secrets.

The 1920 Act was first invoked in 1921. The mine-owners had announced sweeping wage-cuts and posted lock-out notices at many pits, and the Triple Alliance - the TUC's predecessor comprising miners, railwaymen and transport workers - called a strike. The Lloyd George government declared a state of emergency and dispatched troops to working-class areas. Three days later the militant miners- not for the last time - were sold out by the right-wing leadership of the Triple Alliance (the day of the sell-out, 21 April 1921, became known as 'Black Friday'). The first sustained use of the 1920 Act was in the General Strike in 1926 when it was in force for eight months, though the strike itself lasted only a few days - and again the trade union leadership capitulated and left the miners to fight on alone.

In the next forty years there were only four declarations of a state of emergency, in the dock strike of 1948 and 1949 (by the Labour government), during the 1955 rail strike (by the Tories), and in the 1966 seamen's strike (by Labour). Sir Alec Douglas-Home's brief period as Tory Prime Minister saw the passing of the Emergency Powers Act 1964 which amended the 1920 Act in two ways. Firstly, it widened the causes which could justify the declaration of an emergency with the words 'There have occurred, or are about to occur, events of such a nature' as to disrupt the life of the community. Secondly, it made permanent the provision from the Defence (Armed Forces) Regulations 1939 to allow the use of the armed forces in direct employment in 'agricultural work or in other work, being urgent work of national importance.' The declaration of emergency by the Tory government in October 1973 lasted for four months and was the longest since that of the General Strike. Previously there were two in 1970 (in July over the dock strike, and December over the electricity strike) and two in 1972 (in February over the miners, and August over the docks again). Since the passing of the 1 920 Act only eleven states of emergency have been declared, five of which were during the period of Heath's government.

In November 1974, in response to the extensive IRA bombing campaign in England, parliament rushed through - in one day- the Prevention of Terrorism (Temporary Provisions) Act 1g74.s8The basis of the Act had been drawn up as part of the Home Office contingency planning after the Old Bailey explosion in March 1973, and the Bill introduced by the Labour Home Secretary, Roy Jenkins, was substantially the same as that provided for by the previous Tory government. Introducing the Bill in the Commons Mr Jenkins admitted that 'these powers are draconian. In combination they are unprecedented in peacetime' (Hansard, 29 November 1974).

The Act contained three Parts. Part I proscribed the IRA in Britain and provided for up to 5 years in prison for members of the organisation. Part II gave the Home Secretary the power to exclude people from Britain he considered- on police evidence- to be involved in the 'commission, preparation, or instigation of acts of terrorism' (Section 3:3). Exemption from expulsion was only granted to those permanently resident in Britain for the previous twenty years. The right of appeal to an 'adviser' was provided for, but his advice to the Home Secretary is not binding and may be ignored by the latter. The procedure laid down for expulsion (or exclusion if entry to the country was being sought) was closely modelled on Schedule 2 of the Immigration Act 1971. Part III extended the powers ot arrest and detention ot the police by allowing them to hold a person for questioning for 48 hours, and for a further five days on the issuing of a Detention Order by the Home Secretary. In addition, the police were empowered to search premises on a warrant issued by a police Inspector (or above) and not, as is usual, on the authority of a magistrate.

In practice the Act fully justified the description 'draconian'. In the first four months of the Act's operation, between November 1974 and April 1975, three people were charged under Part I, two subsequently having the charges against them dropped; forty-five Exclusion Orders were issued and only five of the eleven appeals were successful; 489 people were detained under the Act at police stations but only sixteen were later charged with criminal offences. The predominant use of Part III of the Act - to search, arrest and detain - has, in effect, been to expand the intelligence-gathering of the police and the Special Branch rather than to catch those involved in bombings.

The NCCL rightly observed that the police already had sufficient powers to combat the IRA: 'police powers in practice are far wider than in theory . . . the new law, therefore, legitimises and extends past abuses' (NCCL Annual Report 1974/5,p10). The issuing of Exclusion Orders (i.e. deportation) was open to even greater abuse. For, in effect, Orders were issued by the Home Secretary against those whom the police lacked sufficient evidence to bring before a court of law. Kidd's comment relating to the similar 1939 Act could be equally applied to this Act: 'if the evidence against them was not such as would satisfy a court of law it was clearly dangerous that powers should be given to the executive by which it can determine a man's "guilt" while he is denied access to the courts' (Kidd, British Liberty in Danger, 1940, p77).

Finally, there was the Emergency Powers (Defence) Act, 1939, which related to the declaration of a 'state of war' (external or internal). Regulations issued under the Act were termed Defence Regulations and came into force automatically. They did not require parliamentary approval. This Act also allowed that 'Any Act of Parliament may be amended, suspended or applied with or without modification.' Though the Act was repealed in 1959 it stands as a model for future legislation should the threat of war - whether external or internal- arise again. This is not the place to give a full account of the treatment in the Second World War of conscientious objectors, pacifists, and political activists of all parties to the left of the Tories. Some idea of the wartime restrictions on political freedom is conveyed in a letter from the Middlesbrough Police to the NCCL. The NCCL had protested at the treatment of four members of the Young Communist League. The Chief Constable replied that he had told the four young men: 'that free speech was still allowed in this Country, provided a person chose rather carefully what he said.' (Letter, 21 August 1940)

The central piece of legislation in this field, the Emergency Powers Act 1920, was the product of a period of great uncertainty in the ranks of the ruling class. This same mood seemed to prevail during the 1970-74 Heath government and may account for its tendency to reach for drastic powers at the slightest challenge. The line between a permanent state of emergency and the declaration of a war situation is very fine, as we have seen in Northern Ireland. To date, few of the eleven states of emergency have progressed beyond the declaration of emergency itself, while in one or two cases troops have been deployed and a few erring individuals warned of infringing minor provisions. In each case one side or the other has stepped back from the brink of outright confrontation whether because of cautious trade union leadership, respect for the rule of law, or the economic rather than political nature of the labour movement's challenge. Whatever the reasons, the Emergency Powers Acts have been and, more importantly, remain a powerful weapon against any widespread opposition.

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