Statutes
| Date | 01 October 1940 |
| DOI | http://doi.org/10.1111/j.1468-2230.1940.tb02739.x |
| Published date | 01 October 1940 |
I32
MODERN LAW REVIEW
Oct.,
1940
STATUTES
The
Emergency
Powers
(Defence)
(No.
2)
Act,
1940.
The powers conferred by the Emergency Powers (Defence) Act,
1939,
and the Emergency Powers (Defence) Act,
1940.
have frequently been
exaggerated because not enough attention
has
been paid to the limitations
expressed or implied in them. The former enables the King in Council
to
make such Defence Regulations
as
appear
to
him to be necessary
or
expedient for securing the public safety, the defence of the realm, the
maintenance of public order, and the efficient prosecution of the war, and
for maintaining supplies and services essential to the life of the community.
Among the limitations were, however, the following-
(I)
Except within the narrow limits of section
2,
there was no
power to impose taxation, to authorise the issue of funds
from
the
Exchequer, or to spend money.
(2)
The Act was in force for one year only.
It
was prolonged for
another year under the Act of
1940,
and there was and
is
power to
extend by parliamentary resolution. But
in
no case can action be
continued after the end of the emergency,
so
that
if
power for long-term
borrowing, or for confirming tenancies beyond the period of the Act is
required,
it
must
be
given by Parliament.
(3)
There was no power for the compulsory acquisition of the
ownership of land (as distinct from the compulsory taking possession
of land).
(4)
There was no power to authorise the imposition of any form
of compulsory naval, military or air force service.
(5)
There was no power to authorise the imposition of any form
of industrial conscription.
(6)
There was no power to make provisions for the trial by courts
martial of persons not subject to military law.
(7)
There was no power to transfer or suspend the jurisdiction of
the civil and criminal courts or to authorise the punishment of offences
against the Defence Regulations otherwise than in the criminal courts.
The precise effect of the Emergency Powers (Defence) Act,
1940,
is by
no means clear. It
is
probable that it was of more importance as
a
political
gesture-a defiance to Hitler’s Germany and a demonstration of resolution
by the British Parliament. The King in Council might under its terms
require persons to place their property “at the disposal of His Majesty”;
but they could already
be
compelled to do
so
under the Act of
1939.
Presumably the Act would not be interpreted
so
as to authorise the
compulsory acquisition of the ownership of land, which was the only
exception to the power of requisition. The Act of
1940
also enabled the
King in Council to require persons to place themselves and their services
at
the disposal of His Majesty. But compulsory military service, subject
to limitations, had already been provided under the National Service
(Armed Forces) Act,
1939.
and powers of control over labour had been
taken by the Control of Employment Act,
1939.
It
was perhaps more
important that the power to amend legislation conferred by the Act of
1939
was extended by the Act of
1940
so
as to permit the amendment of
the legislation of
1939.
The Act
of
1940
therefore enabled the limitations
on compulsory military service to be swept away (though in fact the power
To continue reading
Request your trial