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The Economist lists that among the possibilities of what Johnson might do to avoid asking the EU for an extension past Oct 31:

He might invoke an emergency under the Civil Contingencies Act, to suspend the [Benn] law.

The article doesn't discuss this scenario any further though. Is this a real possibility, that Johnson's government could suspend the Benn act that way? E.g. is it within actual powers of the government under the circumstances, are there any informative precedents, have senior enough tories discussed it publically, can such a suspension be challenged in courts and if so how quickly?


The answer below says that an attempt to use the Act this way would be defeated in court. However, I wonder what the timing of that legal would be relative to the Brexit deadline...

From Aug 28 when Johnson prorogued Parliament until the Supreme Court reversed that on Sep 24, it took almost a month. That's far longer than the 12 days from Oct 19 to Oct 31, which would be needed (to have the Benn law suspended in this interval) in order to exit the EU by default, unless the EU gets very creative with their own interpretation of article 50 extension conditions. Can the Supreme Court meet in some kind of emergency fashion, assuming that a first instance court would side with Johnson somehow (e.g. they would give the government the benefit of the doubt that widespread rioting would occur if Brexit is not done, something that UK government sources have claimed at one point.)

  • Real in which sense? – origimbo Oct 7 at 4:49
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    Stop using emotive language such as "crash out". I crashed out of bed this morning in order to write this comment. – Chris Melville Oct 7 at 12:51
  • @chrismelville I don't even know what OP meant with that idiom. – Mindwin Oct 7 at 18:02
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    @Mindwin: I mean that Brexit would happen by default (due to article 50 provisions) while there's an ongoing legal fight (in the UK) over the extension law. – Fizz Oct 7 at 18:09
  • @fizz Mucho Appreciated! – Mindwin Oct 7 at 18:14
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E.g. is it within actual powers of the government under the circumstances

Absolutely not. The Civil Contingencies Act 2004 is extremely clear in defining the kind of circumstances in which its provisions can be invoked.

19. Meaning of “emergency”

(1) In this Part “emergency” means—

(a) an event or situation which threatens serious damage to human welfare in the United Kingdom or in a Part or region,

(b) an event or situation which threatens serious damage to the environment of the United Kingdom or of a Part or region, or

(c) war, or terrorism, which threatens serious damage to the security of the United Kingdom.

(2) For the purposes of subsection (1)(a) an event or situation threatens damage to human welfare only if it involves, causes or may cause—

(a) loss of human life,

(b) human illness or injury,

(c) homelessness,

(d) damage to property,

(e) disruption of a supply of money, food, water, energy or fuel,

(f) disruption of a system of communication,

(g) disruption of facilities for transport, or

(h) disruption of services relating to health.

(3) For the purposes of subsection (1)(b) an event or situation threatens damage to the environment only if it involves, causes or may cause—

(a) contamination of land, water or air with biological, chemical or radio-active matter, or

(b) disruption or destruction of plant life or animal life.

It is beyond clear that remaining in the EU for a period of 3 months meets none of the conditions the act supplies, without with its provisions cannot be invoked.

Simply put, anyone saying this is a possibility is either clueless or fear-mongering.

Edit: for a more detailed dismissal, see David Allen Green's blog


Regarding your additional question:

Can the Supreme Court meet in some kind of emergency fashion, assuming that a first instance court would side with Johnson somehow (e.g. they would give the government the benefit of the doubt that widespread rioting would occur if Brexit is not done, something that UK government sources have claimed at one point.)

Note that I consider this a very unsafe assumption; the law would really be very very clearly not on the government's side in a case like this, and the CCA mandates regulations made under that Act are Statutory Instruments, which means they can be quashed by the lower courts. Tl;Dr there's not really a tight time limit because the lower court would almost certainly* quash the SI that revokes the Benn Act anyway.

The Supreme Court's website goes over the process of arranging court hearings here. The enigmatic reference to emergency hearings is:

Requests for expedition

6.2.4 Any request for an expedited hearing should be made to the Registrar. Wherever possible the views of all parties should be obtained before a request is made.

This presumably implies that hearings can be expedited where the court feels it necessary. That's up to them of course, but they presumably would do so in this particular case. Jolyon Maugham, who is one of the lawyers for Joanna Cherry in the prorogation case) has been vocal on his twitter feed on a number of occasions that the SC can move very fast when necessary, though I'm struggling to find the reference.


*But I mean seriously, who knows?

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    So if the government claims that not Brexiting on Oct 31 would cause life-threatening widespread riots, who could/should disprove that? ("James Cleverly, the Conservative party chairman, has again suggested that failing to leave the EU could cause civil disorder, despite concerns among many MPs about inflaming tensions around Brexit.") Can that not be the cause of declaring an emergency, which also covers future events, in the UK law? – Fizz Oct 7 at 10:24
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    @Fizz The government's lawyers would have to prove it in court, as if they were actually to try this then they'd immediately end up there. CCA section (21)(2) limits the use of regulations unless an emergency has occurred, is occurring or is about to occur.. They'd obviously have to rely on "about to occur" and would have to conclusively prove that life-threatening riots would happen. Given they didn't happen the last two times we extended, that's an immediate non-starter. – Dan Scally Oct 7 at 10:39
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    Also, while not citing specific names: "Senior allies of Prime Minister Boris Johnson have warned that Britain will face civil unrest on the scale of the Yellow Vest protests in France or the riots in Los Angeles if Brexit is frustrated." theaustralian.com.au/world/the-times/… – Fizz Oct 7 at 10:39
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    @Fizz Probably Cummings then; but see above. We've extended twice already and nothing like that occurred, and the onus would be on HMG to prove that it would in court. Unless they're claiming they'd instigate it, they simply aren't going to be able to do that. Even those threats won't fly; an extension is not "failing to leave the EU" or "frustrating Brexit" – Dan Scally Oct 7 at 10:40
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    If we weight on both sides a) requesting an extension and b) no-deal hard brexit on the scale of which one is closer to the emergencies listed on the mentioned legislation, I wonder what we'd find. Not that I think that any of the two possibilities are emergencies though. – Mindwin Oct 7 at 18:07
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Even if he tried to, the courts would likely not be very amused by it and take steps to make sure the Benn Act was enforced anyway. Courts take a dim view of people trying to get around the law on technicalities and could simply rule the use of the Civil Contingencies Act to be unlawful.

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    "Take steps" - such as? "Could simply rule the use [...] unlawful" - on what basis? Courts don't operate on the basis of being "not very amused" or "taking a dim view" on matters. Rather, they apply laws, precedents, legal principles, findings of fact, etc. This answer needs improvement by providing more details and/or sources. However in this instance I'm not sure if there is any point given that this answer has already covered it. – JBentley Oct 8 at 1:18
  • The court may be able to send the letter on his behalf, or instruct a civil servant to. That is being decided in court today. Boris could be found in contempt of court. Ruling the use of the Civil Contingencies Act unlawful would make it as if it had not been used, i.e. the Benn Act was still in force. – user Oct 8 at 9:41
  • You should edit that into the answer with sources preferably – JBentley Oct 8 at 12:30
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If the UK were to declare war on a Non-NATO EU member state, then use of the CCA is legal.

If the Queen were to dissolve Parliament, and install a military government in the UK, it would be legal too. The Queen is the sole head of the military and judiciary. She is head of state, not Parliament.

The Queen cannot be arrested or tried in court. The Queen can pardon the PM for ignoring an act of parliament. It would require monarchial collusion with the PM to frustrate Parliament, which would likely compromised the monarchy, but also prompt an election, if Parliament is in opposition to the people.

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    Thats wildly outlandish. The queen would do no such thing, and declaring surprise war on a EU member state is so far beyond the pale the fact that you entertained it makes you look rather unserious. – Magisch Oct 9 at 13:00
  • I appreciate your point of view, but the purpose of this platform is to answer the question, which was can the PM use the CCA. The answer is, yes, but with specific caveats. My answer was not emotive; your response was. I present legal realities, that the monarch has powers to act. See politics.stackexchange.com/questions/1237/… ...if the opinion of the House is in opposition to the opinion of the electorate, as it is, the monarch can dissolve parliament and force a General Election. A supreme irony, I know. – Rinky Stingpiece Oct 9 at 15:30

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