Can Boris Johnson invoke the Civil Contingencies Act to suspend the Benn law?

Question

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?

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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.)

Answer 1

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.

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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.

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*But I mean seriously, who knows?

Answer 2

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.

Answer 3

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.