There has been a lot of talk recently that the Prime Minister could use the Civil Contingencies Act to ensure Brexit happens on time, but could he?
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I have seen a few articles and a lot of social media comments regarding the use of the Civil Contingencies Act of 2004 to push through Brexit on the 31st of October.
The argument goes something like this.
The Prime Minister, Boris Johnson, declares an emergency as defined by the Act and then invokes the power that then arises so as to suspend the Fixed Term Parliament Act 2011 (FTPA), then he asks the Queen to dissolve parliament under the old system and holds what would be an emergency Brexit general election on Tuesday the 15th of October. Wins a big majority and job done.
But would this really fly?
Now, the Civil Contingencies Act gives quite a wide definition of emergency, some of which could easily fall within the scope of what the fear-mongerers predict on a no deal Brexit.
For example the Act talks about emergency covering such thing as the disruption to the supply of money, food, water, energy, fuel, communications, transport and health services.
It is argued that Boris could therefore trigger the Act to deal with the any possible no deal fall-out.
Now, once invoked the Act then gives the government the power to suspend other Acts of Parliament and laws for up to 30 days.
Dr Sean Gabb wrote about this in the Commentator saying:
"He [Boris Johnson] cannot change the Act itself, or the Human Rights Act. He cannot set up concentration camps for his opponents, or put them before a firing squad. But the Fixed Term Parliament Act is fair game. He could suspend that. Then he could dissolve Parliament in the traditional way."
That then suggests it would lead to a Brexit General Election with the people having their say on who should run the country and who should control Brexit.
But I have to say that I see one gigantic flaw in this argument.
And that revolves around something that crops up a lot lately where Brexit is concerned, and that is the Royal Prerogative.
Now, before the Fixed Term Parliament Act 2011, the Prime Minister could at any time go to the palace and ask the Queen to dissolve parliament to hold an election using her Royal Prerogative. She had that power.
But now that the Fixed Term Parliament Act is in place it not only overrides that Royal Prerogative power, it removes it. In fact as far as I know, the Fixed Term Parliament Act is the only route to a General Election that exists in law today.
And the main issue here, is that once removed, the Royal Prerogative cannot be restored, it is lost forever.
The only way to get round that would be to have another Act of Parliament written to be similar to those lost prerogative powers.
A House of Commons briefing paper on the Royal Prerogative puts it this way:
"While the prerogative can be abolished or abrogated by statute, it can never be broadened. However, Parliament could create powers by statute that are similar to prerogative powers in their nature."
That means, if the government did as suggested and declared an emergency then suspended the Fixed Term Parliament Act, it would, as far as I can see, actually make it impossible in law to call an election, because that prerogative power to dissolve parliament for an election no longer exists. A whole new Act of Parliament would be required, to enable any election until the Fixed Term parliament Act came back into force 30 days later.
So, in my layman's opinion, the Civil Contingencies Act gets us absolutely nowhere. Other than fuelling no deal Brexit worries.
House of Commons Briefing Paper 03861 on The Royal Prerogative