Typologizing the UK's Emergency Powers: Law, Politics and the 'Ideal' Normal

Abstract

This Chapter typologises UK’s approach to emergency powers. Due to the lack of a codified constitution and the minimal limits on Parliament’s legislative power, it is difficult to identify the norms that the UK abides to in a state of normalcy and, by definition, those norms that may be suspended during a state of emergency. Despite this challenge, however, this chapter contends that the values ordinarily espoused in UK’s constitutional order in a period of ‘normalcy’, are best understood in terms of an ‘idealised notion’ — conceptualising the constitution as how it ought to operate. Against this idealised notion of normalcy, emergency powers can then be identified and appraised. Part 1 establishes this ‘idealised notion’ of the UK constitution. Part 2 then discusses how the UK attempts to realise the archetypal emergency paradigm through provisions to declare a state of emergency in two principal pieces of UK emergency legislation — the Civil Contingencies Act 2004 and the Human Rights Act 1998. Notwithstanding these formidable emergency powers, however, a common recurring pattern for the UK is instead to enact exceptional legislation in response to a specific crisis. Part III will discuss these powers and demonstrate that the temporariness and exceptionality of such legislation is reinforced by provisions such as the inclusion of sunset clauses but have, nevertheless, demonstrated a propensity to become permanent. This entrenchment also poses a profound challenge to ‘idealised normal’ itself as the British values supposedly vindicated by the British constitution are permanently undermined. These challenges to both the ideal normal and ideal emergency thus demonstrate the limits of focusing only on officially declared emergencies when assessing a state’s emergency apparatus.