The War And The Constitution
| DOI | http://doi.org/10.1111/j.1468-2230.1940.tb02735.x |
| Published date | 01 October 1940 |
| Author | A. Berriedale Keith |
| Date | 01 October 1940 |
82
MODERN LAW REVIEW
Oct.,
1940
THE WAR AND THE CONSTITUTION
PART
I1
MATTER of vital importance for the life of the civilian popu-
lation was the passing of the Emergency Powers (Defence)
Act,
1939.
The measure is significant in the amplitude of
power conferred to provide by Order in Council for securing the
public safety, the defence of the realm, the maintenance of public
order and the effective prosecution of war, and for the mainten-
ance of supplies and services essential to the life of the community.
Even more striking
is
the power given to authorise such persons
as
may be prescribed to make orders, rules, and byelaws for any
purpose for which regulations may be made
by
Order in Council.
Moreover, any regulation, order, rule or byelaw shall take effect
notwithstanding the fact that
it
is
inconsistent with any Act,
or instrument having validity under any Act, other than the
Emergency Powers (Defence) Act itself. The problem of incon-
sistency of these various forms of subordinate legislation
irtter
se
is thus shirked; presumably
a
regulation would be deemed of
higher validity than an order, rule, or byelaw.
The safeguards limiting the use of these forms of legislation
are restricted
to
forbidding any form
of
compulsory military,
naval, or air force service or any form of industrial conscription,
or the subjecting to trial by court martial of any person not sub-
ject to the Naval Discipline
Act,
military law, or the
Air
Force
Act. Special provision, however,
is
made regarding charges,
which must be deemed
as
limiting in this regard the generality
of legislative power. Defence regulations, not, therefore, other
forms, may authorise the making of a charge up to five pounds for
licence, permit, certificate or other document for the purpose of
the regulations, and of charges in respect of services rendered by
the Crown, other than services necessary for the performance of
duties imposed by law on the Crown. This power would doubtless
cover services rendered by way of protection to shipping beyond
those covered by the general duty of protection.' The case of
charges in connection with control schemes under defence
regulations is specially provided for.
A
Treasury order is requisite,
and
it
must be expressly affirmed by
a
resolution of the Commons
within
28
days after the making of the order, disregarding
as
usual any period of prorogation, dissolution or adjournment for
more than four days. There
is
no doubt of the wisdom of this
procedure, apart from the fact that otherwise the levying
of
a
A
1
China
Navigation
Co.
v.
At.
Gsn..
[I9321
2
K.B.
197.
THE
WAR
AND THE CONSTITUTION
03
contribution might be called into question
as
in
Att.
Gea.
v.
Wilts United
Dai~ies.~
A nominal rather than a real safeguard is afforded by the
rule that Orders
in
Council under the Act, but not other forms of
legislation, must be
laid
before both Houses and may be annulled
by either within
28
sitting days after laying.
It
was patently
impossible for the Houses to consider effectively the regulations
enacted on 25th August,
1939,
with their numerous and onerous
provisions. Moreover, the power to annul the Orders in Council
was utterly unsuitable for use. There was much that was essential
in the regulations and only certain portions were open to objection,
and even then amendment was the remedy required, not repeal.
Nothing, however,
is
more remarkable than the acceptances
accorded by Parliament to the provisions of regulation
22
which
contained provisions natural under
a
totalitarian regime, but
almost inexcusable in
a
country which respects freedom, and
which claimed to have taken up arms in order to vindicate liberty.
Under this regulation it is legitimate, under the authority of the
Minister of Health, to serve
a
notice on the occupier
of
any
premises requiring such person to provide lodging, food, and
attendance for specified persons. There is provided
a
penalty
which may be up to
L-50
fine or three months imprisonment for
any person who fails to comply with such a notice. There is
allowed as
a
safeguard the right to complain to
a
tribunal set
up by the Minister of Health in respect either of the service of
a
billeting notice or the operation of such
a
notice.
This regulation was used to compel householders in England
and Scotland alike to take charge
of
children evacuated from
towns held to be in vulnerable areas. Threats of compulsion were
freely used to force acceptance, and in many cases elderly women
were coerced into taking charge of children who on arrival were
found to be suffering from disease, filthy, and barely clothed in
garments which had on sanitary grounds to be destroyed.4 In
many cases serious suffering was thus inflicted, and it was in the
extreme fortunate that large numbers of the parents whose
children had been evacuated recalled them, when asked to con-
tribute even nominal sums towards their support. In cases where
women were evacuated with children under age five the position
was even worse, but most of these women speedily returned to
their husbands, whom they had been encouraged by the Ministry
to leave to fend for themselves with disastrous physical and
8
(1922)
91
L.
J.
K.B.
897.
*
The idea that with war in Poland Germany
could
bomb
Britain
on
a
wide
See e.g.
351
H.C.
Deb.
5
8.
824
ff.;
cf.
710,
802
ff.,
809
ff.,
1159
ff.,
2104
ff.
scale seemed incredible.
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