In times of crisis we know no law, save for that of necessity.[1]
So thought William Gladstone in 1850, echoing the conventional wisdom of his day on emergency actions and martial law. In the years since, it seems that wisdom has changed little. But is this really the case? What are these so-called ‘emergency powers’, and how do they operate in practice?
Emergencies, and the powers that are used to respond to them, are notoriously difficult to define, for by their nature they escape substantive codification. The contours of emergencies can never be fully foreseen, requiring a degree of discretionary power to be afforded to governments and institutions acting in the public interest to deal with a given crisis. This has led many to assume that states of emergency comprise ‘exceptional moments’ beyond the bounds of daily life that appear during times of crisis. In such moments, it is claimed, the state requires equally exceptional actions to overcome the challenges it faces and restore the status quo.
This class of actions, broadly termed ‘emergency powers’, has been said to operate in a realm beyond law, unbound and untethered from the norms and principles that inform the daily workings of the state. For good reason these powers have been referenced in popular culture as the means by which a totalitarian authority might usurp the ‘normal’ processes of a state struggling to survive when faced with a severe threat, whether that threat is manufactured by malign forces or a product of the chaotic world we find ourselves in.
The sorts of measures typically defined as ‘emergency powers’ first found expression in the United Kingdom through the 1914 Defence of the Realm Act, the 1920 Emergencies Act, and the 1939 War Powers Act. These Acts drew substantial lineage from the concept of ‘martial law’, both at home and in Britain’s colonial territories, exercised through the royal prerogatives of the Crown. This heritage is not incidental. Throughout history, emergency powers have most often been invoked in response to wars or the threat of war. Of the ninety-four dictatorships of Republican Rome the vast majority concerned the specific application of emergency measures to a wartime context, with only four used in response to revolts.[2] Yet some of their most famous abuses have also come from these moments, whether that be the ‘Ship Money’ affair of Charles I that preceded the English Civil War, or the decline of the Roman Republic under the subversive wartime dictatorships of Caesar and Sulla. Emergency powers are therefore inherently dangerous instruments, existing at the intersection of politics, morality, and the law. They should only be exercised with the utmost caution and care, with due deference to the scrutinising functions of a parliament and due transparency given to civil society at large.
The contemporary discussion of emergency powers began in 2001 following the September 11th attacks against the United States, when states of emergency were declared by America and several other nations, ushering in the ‘war on terror’. This period reinvigorated academic debates about the limits of executive discretion, coinciding, coincidentally, with a rehabilitation in the Anglosphere of one particularly infamous scholar, Carl Schmitt.[3] Schmitt’s work, which focuses on the role of emergency powers during the Weimar Republic and National Socialist eras of the German State (1918-1945), has had an undue influence on the entire problem of emergency and prerogative governance. His writings grappled with the problem of the emergency and the idea of the exception, theorising the role of dictatorship, the idea of sovereignty, and what he abstractly called ‘the political’. Given the forcefulness of his critique of liberalism as well as his status in the canon of contemporary political philosophy, it is through Schmitt that discussions of emergency powers are often approached, even today.
However, this influence skews what ought to be straightforward discussions about the proper sorts of powers that can be delegated in times of genuine emergency toward the idea of the ‘exception’: the notion that the executive – specifically an individual, sovereign ‘dictator’ – is wholly unbound by laws, norms, and conventions, and can take whatever measures they deem necessary to ensure the survival of the state. His conceptualisation of an exceptional/ordinary dichotomy has become the operational paradigm for studying emergency powers, a difficult legacy that persists despite many eloquent and forceful refutations in the last two decades by scholars of many different stripes.[4]
It was within this conceptual context that emergency powers took on a global significance. With the advent of the coronavirus pandemic in 2019, debates shifted rapidly towards the acts enabling governments to deal with the crisis and the proper limits of state action. Yet one striking feature was the lack of formal emergency actions many states declared to deal with this outbreak. Notably, the United Kingdom chose to side-line the emergency apparatus – constructed in some great detail by Gordon Brown in the form of the 2004 Civil Contingencies Act (CCA) – as it was not sufficiently flexible or expedient to meet the demands the pandemic placed upon it.
This is partly because emergency powers in the United Kingdom are unusual: they refer broadly to the measures the government can take to respond to a crisis, rather than a specific class of authority set out in a codified constitutional settlement, as in French or American-derived systems. This makes the British emergency schema far more ‘ordinary’ than most others: passing regulations without the approval of a formal Act of Parliament, side-lining usual statutory duties, and taking actions beyond the usual scope of governmental remit are all examples of ‘emergency powers’ in the United Kingdom, as well as the more reserved class of actions falling under the prerogatives of the Crown.[5] However, as a formal legal concept, these powers do not exist beyond the scope of the CCA. As the pandemic failed to pass the deliberately high bar the CCA sets for deploying its sweeping and potent range of measures, the government chose to deal with the pandemic under ordinary legislation, enhancing the Public Health Act of 1984 with the Coronavirus Act 2020. This allowed the government to expand the powers and institutional structures of many public health bodies while being scrutinised by Parliament, with extension clauses built into the legislation that required debate and assent by Parliament, and on the proviso that reports were required to be given to Parliament or published every two months during the duration of the pandemic.[6]
In many ways, this was a sensible and pragmatic approach to what is a necessary and inevitable part of government. Crises of many sorts form a natural part of the activity of government, from the local level of flooding to extreme global climate disasters, international military crises, and other anthropogenic existential risks, such as pathogen lab-leaks, nuclear conflict, and the growing threats associated with artificial intelligence. It also highlights why the norm/exception dichotomy fails to capture the complexities of crisis governance, showing the spectrum of different powers and responses available to the state to address issues of emergency, and the problem of conceptualising these issues in this way. While emergency powers may operate under conditions of necessity, these are regulated by an informal nexus of overlapping constraints on public power: morality, convention, self preservation, ‘ways and means’ (the purse strings), and the assent or toleration of the public.[7] This is an important qualification, and one often passed over by those looking at emergency powers through the norm/exception lens. Yet to say necessity is a natural factor in how emergency powers operate is not to say it is the absolute quality of these powers. An element of discretion, judgement, and rights derogations are, to an extent, part-and-parcel of the law’s everyday operation, especially criminal law. As many scholars have been at pains to point out, the emphasis on the ‘normality’ of an emergency is crucial for preserving the regular operation of oversight, accountability, and restraint functions that are so critical during the usual operation of government. This goes hand-in-hand with an understanding by those in positions of influence and power that these informal constraints matter, for both their safe and effective exercise. To make an exception out of emergencies may be perilous, but downplaying the importance of norms and conventions may prove just as lethal to the body politic.[8]
Beyond the pandemic, a number of high-profile occasions have drawn international attention to emergency powers. In early February 2022, in response to the ‘Freedom Protest Convoy’ blocking major trade routes in Ontario into the northern United States, the Canadian Prime Minister Justin Trudeau invoked the Emergencies Act for the first time since its ratification in 1988. The Act replaced the War Measures Act of 1914, which had previously only been used in the First and Second World Wars and the 1970 October Crisis. It differs in significant and substantial ways from the expansive War Measures powers, and is calibrated to different sorts of emergencies with four provisions for emergency situations threatening the sovereignty of Canada: public welfare, public order, international emergencies, and war. Trudeau – who exercised the powers under a public order emergency – was therefore engaged in a very different sort of response to that of ‘your grandma’s War Measures Act’.[9] While the optics of this exercise may have been unhelpful for the Canadian government at times, meeting with stiff opposition from a significant number of opponents, this itself forms a part of the process of informal emergency oversight performed by parliament and civil society, and ultimately ensured that the emergency state lasted no longer than was necessary.
More viscerally, on 23 February 2022, President Volodymyr Zelenskyy received the approval of the Ukrainian Parliament to declare a state of emergency in all regions of Ukraine, allowing the government to impose restrictions on freedom of information, movement, ban mass gatherings, and prevent strike action. A state of emergency had already existed in the two occupied regions of Donetsk and Luhansk since April 2014, when Russian-backed insurgencies seized control following the annexation of the Crimea. The invocation of state-wide emergency powers in 2022 came the day before Russian forces invaded the country under the pretext of a ‘special military operation’ to ‘de-Nazify Ukraine’. This is the most standard use of emergency powers from a historical perspective, and one where the justification is both obvious and legitimate, though as with all such actions it must be closely watched from both within and without. The use of emergency powers is always a cause for concern, and the Ukrainian Parliament would be remiss if it did not hold the President and his government to account for their conduct during the war, if only to improve their own decision-making processes as this struggle continues to unfold.
Emergency powers are both necessary and suspicious instruments that ought to be afforded the respect that they deserve by those who use them. The fact that the norm/exception dichotomy still defines debates about them today shows both the necessity of pushing back against this framework and the mountain of a task that those opposing it are up against. From a theoretical perspective, this may well prove insurmountable. Yet this dimension of the battle is somewhat irrelevant, for what Professor Lazar and many others would have us focus on is not the theory as such, but how to put it into practice. Thanks to their work, the conceptual tools to push back already exist. We know the contours of the debate and the problems that it entails. What matters is how decision-makers, policy-makers, and strategists put this kind of thinking at the heart of emergency infrastructures and institutions, instilling a tempered crisis governance mindset in the individuals occupying these offices.
When considering crisis government moving forwards, we should reflect on the fact that, in emergencies, institutional structures are only half of the game, and that for a truly effective, resilient emergency response framework we must focus as much on the norms and conventions embodied by political actors as the kinds of governance architecture they operate in.
Daniel Skeffington is a researcher and writer. He was a Research Fellow at the Constitution Society and his report ‘The Political Constitution: An Idea Worth Protecting?’ can be found here.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.
[1] Paraphrased from the Select Committee on Ceylon, Second Report, 12 Parl. Papers 1850, Question 5477. Quoted in Nomi Lazar, ‘Must Exceptionalism Prove the Rule? An Angle on Emergency Government in the History of Political Thought’, Politics & Society 34:2 (2006), p.246.
[2] Nomi Lazar, States of Emergency in Liberal Democracies, (Cambridge, Cambridge University Press: 2009) p.124.
[3] See: William Scheuerman, ‘Survey Article: Emergency Powers and the Rule of Law After 9/11’, The Journal of Political Philosophy: 14:1, (2006), pp. 61–84.
[4] Including, but by no means limited to, Nomi Lazar, William Scheuerman, and Clement Fatovic. Other analyses include works by Lars Vinx, David Dyzenhaus, Thomas Poole, and Martin Loughlin.
[5] For a concise explanation, see Government emergency powers and coronavirus | The Institute for Government
[6] This is true in the broad sense, although many rightly criticised the overuse of the Public Health Act’s ‘urgent procedure’. See Dr Hannah White’s article for the IfG: Coronavirus rules must be published before they come into force | The Institute for Government
[7] Nomi Lazar, States of Emergency in Liberal Democracies, (Cambridge, Cambridge University Press: 2009) p.131-134.
[8] For an expansive argument on this front, particularly regarding rights derogations and the necessity of the normality of emergencies, see Nomi Lazar, States of Emergency in Liberal Democracies, (Cambridge, Cambridge University Press: 2009), Chapter 4.
[9] See: What is the Emergencies Act? Expert explains what to know | “This is not the War Measures Act” – YouTube