The state of emergency in legal theory

Abstract

‘There are times of tumult or invasion when for the sake of legality itself the rules of law must be broken…. The Ministry must break the law and trust for protection to an Act of Indemnity. A statute of this kind is … the last and supreme exercise of Parliamentary sovereignty. It legalises illegality. … [It] … combine[s] the maintenance of law and the authority of the Houses of Parliament with the free exercise of that kind of discretionary power or prerogative which, under some shape or other, must at critical junctures be wielded by the executive government of every civilized country’. A. V. Dicey Introduction Dicey says that in an emergency situation public officials might find themselves compelled to act outside the law and Parliament might then indemnify them. But an Act of Indemnity does not make what the officials did legal – Parliament has ‘legalised illegality’. Rather, it places them in a zone uncontrolled by law – a legal black hole, to use the current term. His point is that political power can be exercised in a brute fashion, permitting those who wield it to break free of the constraints of constitutionality and legality. It might, Dicey thinks, be at times justified to do this because without illegal action the state and thus law itself might have been overthrown. But it would be far better if Parliament were to delegate in advance the resources to public officials to deal with the emergency.