Struggle for Survival

Governing Britain after the Bomb

Steve Fox

 

File 10  Emergency Laws back to contents
New laws for wartime  
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Throughout the Cold War the planners were anxious to ensure that any measures that had to be taken would be within the rule of law and sanctioned by the appropriate authority. This lead to the preparation of many new laws, some of which would have been completely unacceptable in peacetime.

 The government has a responsibility to defend the state under its general duty of care. Many of these responsibilities such as preserving the peace could be exercised using common law powers or the body of powers loosely called the Royal Prerogative. This is ill defined and has largely fallen out of use with the rise of Parliamentary democracy and specific legislation. It certainly includes the power to make foreign policy and to declare war. Some constitutional authorities suggest prerogative powers could be used to legitimise virtually any action by the Government although they would lack a democratic foundation. As an example, during the 1982, Falklands War prerogative powers were specifically used to requisition British merchant ships under an Order in Council.

However, a full-scale war would need additional powers. In the months leading up to the last war the Emergency Powers (Defence) Act 1939 was passed. This empowered the Crown (in practice the Government) to make, by Order in Council, defence regulations for the purpose of securing the public safety, the defence of the realm, the maintenance of public order, the efficient prosecution of any war and the maintenance of essential supplies and services. As well as general regulations, some specific ones were made to control for example agriculture, building societies, patents and trading with the enemy. The Act and its regulations were repealed after the war but similar powers would again be needed for a future war.

Consequently, a series of draft laws were prepared in the late 1950s, the existence of which was known only to a few senior officials. The key measure was the Emergency Powers (Defence) Bill, which would have been, as far as home defence was concerned, an enabling Act[1] allowing Ministers to bring in detailed measures by Regulations. These Regulations would be made law by Order in Council and would not require to be debated in Parliament. They could consequently be implemented very quickly. The Bill was not enacted in advance because this might mean one Parliament determining the actions of a future one which was considered to be unconstitutional. Instead, it was planned to push the Bill through all its Parliamentary stages in a few hours as and when needed and the Regulations would be issued straight after. However, Exercise Felsted in 1962 found that this was unrealistic because for one thing it would take four days to print the Regulations.

The key provisions were the Defence (Machinery of Government) Regulations, which would allow the functions and powers granted to individual ministers to be exercised by any Minister and so legitimise regional government. The actual transfer of power from the Parliamentary system of cabinet government to the War Cabinet and the Regional Commissioners would be made by Royal Proclamation. The Regional Commissioners would be appointed by the Queen (in practice the Prime Minister) and receive full powers both to impose any existing law and also to deal with new situations as they developed by making laws by Ordinance. This is an archaic device usually only used for making laws in the Colonies whereby an authorised person could simply announce what the law was.

The powers of the Regional Commissioner would not be limited under the Regulations but in practice certain areas of government would be “reserved to the centre” so that foreign policy, prosecution of the war and the control of resources at a strategic level would remain in the hands of the central government nucleus. Additionally, Regional Commissioners would have to follow any policy directives laid down by the central government before or after the attack. These powers would continue until revoked by the Queen or any Minister authorised by Her to act on Her behalf. The Regulations were revised in the mid-1960s and a measure introduced so that the powers would cease 6 months after a resolution by both Houses of Parliament.

Other pre-drafted Regulations included –

·        The Defence (Public Safety) Regulations that allowed for such things as the prevention of interference with essential services and the control of newspapers and other means of communication.

·       The Defence (Essential Supplies, Works and Services) Regulations that would give the power to  control all land and property, industry and transport.

·        The Defence (Public Safety and Order) Regulations that were concerned with such matters as public shelter, the control of lighting and sound and the restriction of the public electricity supply.

·        The Defence (Births, Marriages and Deaths) Regulations.

·        The Defence (Cash) Regulations

The Defence (Cash) Regulations were drafted in 1963 with the aim of limiting withdrawals of cash from banks to prevent a breakdown of cash supplies which might lead to a failure of confidence in the currency. The Regulations would however not restrict transactions by cheque. This measure was seen as an alternative to maintaining large reserves of cash to meet a run on the banks in the precautionary period. The Regulation was drafted and a printed copy prepared but it was then apparently forgotten until 1969 when the issue was again raised and it was found, no doubt in a filing cabinet.

These measures which were revised periodically were drafted specifically to deal with a nuclear war, but increasingly from the 1970s the planners had to consider the period not just before a nuclear attack but also during the period when the crisis was developing.

  

The problem of transition to war

During a crisis period, the Government’s message would be one of “business as usual”, which might be better described as one of “don’t panic”. All the normal peacetime activities would be expected and encouraged to continue as usual, but alongside them, and perhaps secretly, the country would be prepared for war. Some of the preparations would soon start to conflict. Officials in both central and local government would have to do both their normal work and prepare war plans. Then, as the crisis deepened, many staff would need to move to RGHQs, RECs and Emergency Centres. More overt things would start to happen – schools would close, hospital patients discharged and prisoners released[2]. Civilian resources, particularly relating to transport would be increasingly directed to the military effort.

The civil and military authorities would soon find that their peacetime powers were inadequate. They would need to raise and spend money that had not been budgeted for, to acquire new physical assets, to take over private property and do many things such as arresting dissidents and directing workers that the existing laws did not cater for.

During Exercise Vireg in 1986 and the regional exercises that followed it local authority players frequently asked for additional powers notably to requisition property or to spend extra money. The response from the directing staff from the Home Office was generally vague, repeating what was said in EPGLA which suggested that in a war-emergency the government might seek emergency powers comparable to those used during the Second World War to secure the defence of the country and its people, and to ensure that essential services, supplies and resources were maintained. EPLGA said it would be difficult to speculate precisely what powers Parliament would grant or the government would seek at the time and the Home Office said this was the reason for not being more forthcoming. This approach was however disingenuous, as the Home Office had already publicly admitted that emergency legislation existed in draft form. The real reason was more likely a reluctance to disclose what, of necessity, would be a very draconian series of additional powers. EPLGA however told the emergency planners to make their plans on the basis that they would be given the necessary powers to “permit the full execution of their essential wartime plans…” In specific terms, it mentioned “powers to control the use of land and buildings, to requisition certain essential supplies and take control of certain essential local services….” Exercise Hard Rock planned for 1982 had assumed that County Controllers were given powers to requisition premises and goods in the conventional war period.

EPGLA also said the powers which might be sought “to secure an effective transition to war and the defence of the country…” might include “measures (some of which might be delegated to local authorities) to counter espionage and sabotage, to ration food, to requisition ships, vehicles and aircraft and other resources for the protection of the population.” It added that in the event of nuclear attack legislation would be needed to give the Regional Commissioner the internal powers of central government and for the emergency arrangements for local government.

In reality, there is a large body of legislation already in existence that the government could use in an emergency. The Energy Act 1976 for example gives the Secretary of State the power to make Regulations to control the production, distribution and use of fuels and electricity. Similarly, the Civil Aviation Act 1976 allows the Government in time of emergency to take possession of the aircraft and other assets of any British air transport business. The Railway Act also allows the Secretary of State to effectively take control of the railways in a time of hostility or national emergency. When the local authority players in Exercise VIREG asked about spending extra money they were told the councils already had powers to do so in an emergency under S138 of the Local Government Act 1982.

Beyond these powers are more wide ranging ones. The Emergency Powers Act 1920 which, according to its preamble, is “An Act to make exceptional provision for the Protection of the Community in Cases of Emergency”, allows the Queen, or in effect, the Cabinet, to proclaim a State of Emergency if it appears that the community is about to be deprived of the “essentials of life“ because of interference with the “supply and distribution of food, water, fuel or light, or with the means of locomotion.”. Regulations could then be made under the Act “…as His Majesty may deem necessary for the preservation of the peace, for securing and regulating the supply and distribution of food, water, fuel, light and other necessities, for maintaining the means of transit or locomotion, and for any other purposes essential to the public safety and the life of the community…”. The only restriction on the use of such powers would be the need for Parliament to approve the Regulation within seven days.

In an emergency troops could be deployed under the duty of the Crown to aid the civil authorities and acting under prerogative powers. But more formally, the Emergency Powers Act 1964 specifically allows service personnel to be temporarily engaged in urgent work of national importance.

Although these powers existed, the expectation was that special legislation would be passed through Parliament to give the Government any powers it was likely to need before and after a nuclear attack. By 1980 it seems that the existing draft laws were out of date, perhaps because for example they did not deal with the need to assist allied, and in particular US forces which would be based in or pass through the UK in a crisis. New laws were therefore drafted.

 

Emergency Powers Bills

The contents of the resulting 3 Emergency Powers Bills was never made available to the public or even the local authority planners although some senior designated regional staff were briefed on them. The Bills corresponded roughly to the 3 stages expected to be used in the national transition to war preparations -

Stage 1 (review period) would be a review of plans including any necessary revision and updating. This stage would be low-key and largely covert. Only a few people in each department or service would be involved.

Stage 2 (preparatory period) would involve taking more overt preparatory measures but without causing excessive disruption of services or exciting undue public anxiety. Government departments would man their offices on a 24-hour basis, key staff would be briefed and designated wartime staff informed of their roles. Wartime headquarters would be brought to operational readiness and communications systems, including the attack warning system tested and made good where necessary. The armed forces and the Royal Observer Corps would be mobilised. Government Ministers would make frequent broadcasts in an attempt to re-assure the public.

Stage 3 (activation period) would require the implementation of all the plans to fully implement local authority and other organisations’ war measures. All wartime headquarters would be fully manned. Local authorities would set up and staff rest centres and emergency feeding centres. The media would be saturated with advice to the public. This stage would possibly require wide ranging emergency legislation for example to cover requisitioning of private property.

The 3 Bills appear to have been essentially enabling ones that would allow pre-drafted Regulations to be implemented. The first bill, The Special Powers Bill covered the protection of certain vital installations such military and civilian key points, powers to stop, search and arrest, restrictions on crews of ships and aircraft, and compensation.

The Readiness Bill then covered general preparation for war notably the military reinforcement of Europe and the control of essential services and supplies. The proposed Regulations would build on those of the first bill and then cover requisitioning of property, land, vessels, aircraft and vehicles, stopping essential workers leaving their employment, widening the role of the armed forces and fire service, re-organising the National Health Service, the control of essential services and supplies, control of air, sea and land transport, direction of postal and telecommunications services, the regulation of money, regulation of movement, extra police powers and, again, compensation.

The third bill was The General Bill. It covered the final stages needed to put the country onto a war footing including laying the legal foundations for regional government and the powers of the Regional Commissioner. Its regulations would incorporate and expand on the stage two regulations and in addition included powers to control labour, control the BBC[3] and IBA, for the Defence of the Realm and Public Safety, for machinery of government (i.e. regional government), the administration of justice, the registration of births, marriages and deaths and compensation.

The assumption would be that in a crisis period these bills would be passed through all stages of the Parliamentary procedure to become acts within a matter of hours, or at least a few days. The Regulations would be pre-drafted, and possibly pre-printed so they could be brought into effect immediately. This however, assumes that both Houses of Parliament were in session at the time. In a serious crisis, Parliament would be recalled if in recess but this would again take time. The Regulations would then have to be publicised and distributed. It seems unlikely that this could have been done in the two days given in EPGLA for all the most important plans to be operational.

During the regional local government exercise Ninex held in 1988 various emergency measures were introduced by the central government control point but not until well into the crisis and 7 days after the reserve forces had been called up. The measures included the appointment of county transport co-ordinators, power for counties to requisition property (but only after they had explained what they wanted and why) and the placing of key construction materials under government control. British Gas was released from its statutory duty to supply gas, manpower controls were introduced and all display and advertising lighting banned.


 

[1] A Bill becomes an Act when it has passed through Parliament and becomes law.

[2] Exercise Hard Rock assumed that all but 1000 prisoners would be released on parole.

[3] This would formalise a long existing agreement between the government and the BBC backed up by its Charter and statute under which the Secretary of State can at any time take control of broadcasting if in his opinion an emergency has arisen.

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