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9 September 2019

Could the government deliver Brexit by declaring a national emergency?

The power to declare an emergency is strictly defined – and the government cannot indefinitely bypass parliament. 

By New Statesman

After the passage by parliament of legislation preventing a no-deal Brexit, discussion has turned to whether the government could annul the act by declaring a national emergency. Under the Civil Contingencies Act 2004, ministers can temporarily suspend the rule of law for 30 days in response to “an event or situation which threatens serious damage to human welfare”, “serious damage to the environment of the United Kingdom or of a part or region”, or “war, or terrorism, which threatens serious damage to the security of the United Kingdom”. 

Brexiteers have argued that Johnson could use the act to avoid being forced to request a Brexit extension, or to override the Fixed-Term Parliament Act and call a general election. Crucially, however, there are multiple conditions that the government must meet in order to satisfy the law. An event or situation is defined as threatening human welfare only if it involves, causes or may cause: loss of human life; human illness or injury; homelessness; damage to property; disruption of a supply of money, food, water, energy or fuel; disruption of a system of communication; disruption of facilities for transport; or disruption of services relating to health. 

Though some of these conditions would potentially be met in the event of a no-deal Brexit, the government has no obvious grounds to declare an emergency in advance. In addition, all actions must be compatible with the 1998 Human Rights Act and emergency regulations must be brought before parliament within seven days if they are not to lapse. Should parliament be prorogued (suspended) when an emergency is declared, it must be recalled by the Queen within five days. 

In short, the Civil Contingencies Act cannot simply be deployed as a political vehicle to force through a no-deal Brexit – and the government cannot indefinitely bypass parliament. 

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