Haselrig, Pym, Hampden, Holles, Strode....

[liadnan]

"The argument that there is no power to enforce the law by injunction or contempt proceedings against a minister in his official capacity would, if upheld, establish the proposition that the executive obey the law as a matter of grace and not as a matter of necessity, a proposition which would reverse the result of the Civil War."

(per Lord Templeman in M v. Home Office [1994] AC 377).

And see a variety of other cases going back to the run of "no you can't get any money that way either Charlie" cases that, along with a few other bits and pieces, eventually brought down Charles I's personal rule, forced him to summon first the Short Parliament and then the Long Parliament, and finally precipitated the Civil War.

Civil Contingencies Act 2004

Be it enacted by the Queen’s most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows:— [...]

s.20
Power to make emergency regulations
(1) Her Majesty may by Order in Council make emergency regulations if satisfied that the conditions in section 21 are satisfied.
(2) A senior Minister of the Crown may make emergency regulations if satisfied—
(a) that the conditions in section 21 are satisfied, and
(b) that it would not be possible, without serious delay, to arrange for an Order in Council under subsection (1).
(3) In this Part “senior Minister of the Crown” means—
(a) the First Lord of the Treasury (the Prime Minister),
(b) any of Her Majesty’s Principal Secretaries of State, and
(c) the Commissioners of Her Majesty’s Treasury.

[...]

s.22
[...]
(3) Emergency regulations may make provision of any kind that could be made by Act of Parliament or by the exercise of the Royal Prerogative[*].

(Quoted from Bills Before Parliament as although the Bill passed it has not yet made it onto Public Acts of the UK Parliament 2004. The form of the Act as passed may differ in some details from this, though the substance remains, I believe, the same.) (Edited to add now here.)

Yes, it's fair to point out that the executive of 2004, unlike that of 1642, does itself have a degree of democratic legitimacy. It should also be conceded that the Civil Contingencies Act contains many limitations on itself.

I am, nonetheless, far from convinced that these are sufficient.

(*ie about anything at all)

Edited to add: oh and the double "satisfied" in ss.20(1) and 20(2)(a), while comprehensible, is bloody awful stylistically.

Comments

[nicnac.livejournal.com]

So, what are the conditions of s21?

[liadnan]

21[...]
(2) The first condition is that an emergency has occurred, is occurring or is about to occur.
(3) The second condition is that it is necessary to make provision for the purpose of preventing, controlling or mitigating an aspect or effect of the emergency.


"Emergency" is defined in s.19 as follows:
"19 Meaning of “emergency”
(1) In this Part “emergency” means—
(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 seriously threatens the security of the United Kingdom.

(2) For the purposes of subsection (1)(a) an event or situation threatens damage to human welfare only if it involves, causes or may cause—
(a) loss of human life,
(b) human illness or injury,
(c) homelessness,
(d) damage to property,
(e) disruption of a supply of money, food, water, energy or fuel,
(f) disruption of an electronic or other system of communication,
(g) disruption of facilities for transport, or
(h) disruption of services relating to health.

(3) For the purposes of subsection (1)(b) an event or situation threatens damage to the environment only if it involves, causes or may cause—

(a) contamination of land, water or air with—
(i) harmful biological, chemical or radio-active matter, or
(ii) oil, or
(b) disruption or destruction of plant life or animal life.

(4) The Secretary of State may by order amend subsection (2) so as to provide that in so far as an event or situation involves or causes disruption of a specified
supply, system, facility or service—
(a) it is to be treated as threatening damage to human welfare, or
(b) it is no longer to be treated as threatening damage to human welfare.

[nicnac.livejournal.com]

Right, so it is pretty much wide open then, as subsection 2 of S21 hardly limits the definition of "damage to human welfare."

That's a bit of a worry. < /understatement >

[liadnan]

Bear in mind also that R v. Minister for the Civil Service ex p. CCSU also known as the "we'll have no dodgy union types in the intelligence services thank you very much" case (ok, known as such by me) would seem to indicate that the question of whether the Minister or the [privy councillors giving Advice to] the Queen is "satisfied" is satisfactorily dealt with if they can show that they have considered the relevant issues and are in fact satisfied: there is not an objective test of whether they should be satisfied. Probably.

[nicnac.livejournal.com]

Well, let's hope our PM never becomes the ineffectual puppet of a megalomaniac US President, or who knows what might happen...

[nicnac.livejournal.com]

Would it be OK for me to ask you a quick question on property law? I don't need a definitive answer, more an idea of how much hassle it would be to pursue something. Don't worry if you'd rather not, I know you don't want to the focus of an "Ask Liadnan" forum :)

[liadnan]

You may ask, and I'll have a go, but with caveats. Email me: liadnan at livejournal dot com works.

[nicnac.livejournal.com]

Thanks - done.