• 緊急法令:冇效日期|戴啟思
  • 2020-05-18    


Emergency Laws-What are their sell-by dates?

For Great Britain, the war against Germany began on September 3, 1939, when Hitler refused to comply with an ultimatum requiring him to withdraw his troops from Poland which had been invaded on September 1. The state of hostilities ended with the unconditional German surrender on May 8, 1945. Although the war against Japan would continue for a few more months, the British people looked forward to a resumption of everyday life with the end of the war in Europe.

That meant repealing a raft of emergency legislation which touched the people's day to day life like food and petrol rationing, compulsory acquisition of property for defence use, mandatory work orders for some employees and regulations about blackouts and other air raid precautions.

Some of the regulations were made under the Defence of the Realm Act 1939. This enactment gave the Executive sweeping wartime powers, including detention without trial. The Act had a life of 12 months only. Parliament could renew the Act for successive years, and one provision said that an order in council, a type of executive order, could terminate the Act by declaring that the emergency had ended.

There were other Acts of Parliament dealing with emergency powers on the same basis. One of them was the National Registration Act 1939. It dealt only with the issue of identity cards which adults had to produce on-demand to police officers.

People resented the National Registration Act because identity cards had not been required before the war and carrying them and having to produce them was looked on as oppressive, something that might be acceptable in Nazi Germany but not in Great Britain. It was a law to be endured only because of the war. Like the other wartime Acts, a simple order could declare the emergency ended and terminate the Act.

Although the war with Germany had ended five years before and the pattern of civilian life had long reverted to normal, in December 1950 a Mr Willcock was driving his car when he was stopped by a Police Constable Muckle and asked for his identity card. Mr Willcock refused to comply with the request because the police officer asked for the production of the card simply because the National Registration Act was still in force and under the Act no reason need be given by Constable Muckle for making the requirement. Magistrates summonsed Mr Willcock for the offence of failing to produce his national registration identity card and convicted him. However, they then granted Mr Willcox an absolute discharge meaning there was no penalty at all.

Mr Willcock's defence before the Magistrates had been that another wartime emergency statute had been pensioned off by an order declaring the wartime emergency was over on October 8 1950. Since that was the same emergency that gave rise to the laws about identity cards, it had to be the case that that Act had ceased to be.

The case went on appeal. Mr Willcock's claimed defence failed there too. The court said that just because one emergency Act had been retired did not mean that another emergency Act had also been withdrawn.

However, like the magistrates, the appeal judges were not impressed with having to deal with cases about laws that had outlived an emergency and had lingered on to enable police officers to exercise oppressive powers simply because they had the legal right to do so.

The appeal judges went further. Not merely was it an appropriate disposal of the case to let Mr Willcox off with an absolute discharge. Granting one was the only way to deal with such cases. The Lord Chief Justice, Lord Goddard, had this to say:

'…the court wishes to express its emphatic approval of the way in which [the magistrates] acted in granting the defendant an absolute discharge. Because the police may have powers, it does not follow that they ought to exercise them on all occasions or as a matter of routine….This Act was passed for security purposes; it was never passed for the purposes for which it is now apparently being used. To use Acts of Parliament passed for particular purposes in wartime when the war is a thing of the past - except for the technicality that a state of war exists - tends to turn law-abiding subjects into lawbreakers, which is a most undesirable state of affairs.'

(The' technicality' referred to was that the Allied Powers occupied Germany at the end of the war. The country did not have a government that was competent in international law to reciprocate the acts of the Allies ending the war. A new West German government came into existence in 1949, and Great Britain only ended the war 'officially' in July 1951.)

Another judge hearing the appeal, Mr Justice Devlin, echoed Lord Goddard and expressed the objection to such laws slightly differently.

I think that it would be very unfortunate if the public were to receive the impression that the continuance of the state of emergency had become a sort of statutory fiction which was used as a means of prolonging legislation initiated under different circumstances and for different purposes.

That judge identified the real vice in letting emergency laws go beyond their sell-by date. Ordinary people resent them because they operate on a factual premise that has ceased to exist. Their application in changed circumstances does the Rule of Law no favours at all. Such laws bring into disrepute the law enforcement bodies that misuse them.

Insight into the baleful effects of outdated emergency laws is not something that is the preserve of judges. The Nobel prize-winning economist, Friedrich Hayek, a champion of limited Government and for enlarging individual freedoms for social and economic reasons. He made this perceptive comment in 1979: "'Emergencies' have always been the pretext on which the safeguards of individual liberty have been eroded-and once they are suspended it is not difficult for anyone who has assumed emergency powers to see to it, that the emergency will persist. "

The remarks of the judges from seventy years ago and the economist's warning from more recent times need to be taken on board in Hong Kong today. The current pandemic has allowed the Government to invoke emergency powers under Part 4 of the Prevention and Control of Diseases Ordinance to make regulations affecting all of us in the name of combating a public health emergency.

One set of regulations is the wordy 'Prevention and Control of Disease (Prohibition on Group Gathering) Regulation'. This regulation permits police to issue fixed-penalty notices to individuals who engage in 'group gatherings' (i.e. gatherings of 4 people or more). People who had assembled to make a political point and tried their best to avoid becoming a 'group gathering' by careful spacing have not succeeded in avoided ticketing by police officers. They have a different view on the regulation, which, incidentally, is due to expire at midnight on June 28.

There is a decent case for saying that the premise of the regulation-a public health emergency-has gone away already. Section 8 of the Ordinance defines a public health emergency as follows:

In this section, public health emergency means—

(a) the occurrence of or the imminent threat of a disease, an epidemic or a pandemic;

(b) the occurrence of a novel, or highly infectious, agent or matter; or

(c) the widespread exposure or the imminent threat of widespread exposure of human beings to an infectious agent,

that has a high probability of causing a large number of deaths in the population or a large number of serious disabilities (whether or not long-term) in the population.

Although no one should underestimate the deadly potential of Covid-19 if unchecked, Hong Kong is not now at the present risk of a 'high probability' of a 'large number of deaths in the population'. In about three months, there have been only four deaths compared to 30,000 deaths in the United Kingdom which also has laws enforcing social distancing. It is a death toll well below the death rate for common influenza, which is about seven deaths per 100,000 population per year.

When it comes to looking at the expiry date of the Regulation-in about six weeks' time-it would be disappointing in the extreme if the Government decided to extend it for another month if the public health situation had improved overall. July is the traditional time for protests. It would be detrimental to the image of the police force if they were to attempt to regulate assemblies on the pretext of enforcing measures for a public health emergency that was by that time, in the words of Mr Justice Devlin, 'a sort of statutory fiction'.

About the author

Philip Dykes is a Senior Counsel. He has lived in Hong Kong for over thirty years. His interests are in literature, language, history, fine art and photography. He worked as government lawyer until 1992 and he is now in private practice.


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