Talk:Civil Contingencies Act 2004

Puzzling comment

The article includes a quoted comment:

    The wide-ranging powers in the Act have the capability of delivering on the promise. But .. efforts will be hampered because the legislation is hesitant and uneven [my emphases]

To me, that comment, presented without its context, is opaque and borderline self-contradictory. Can anyone with a copy of the book clarify its authors’ thinking?

In fact I’m seeing two tensions: “wide-ranging powers” vs. “hesitant”, and “have the capability” vs. “will be hampered”.

I’m puzzled that the authors seem to be describing legislation giving “wide-ranging powers” as “hesitant”. And legislation that “will be hampered” as “having capability”. Can anyone explain what they mean?

SquisherDa (talk) 17:57, 12 December 2018 (UTC)

Effect on existing legislation

Following the section "Puzzling comment"—the article needs to cite commentary (which surely exists) on the Act's surprisingly jumbled provisions as to effect of a regulation under it upon existing legislation:

• s.18(3): "Except in a case of contradiction, nothing in or done under this Part shall impliedly repeal or revoke a provision of or made under another enactment."—but in law "contradiction" is a difficult concept, involving principle and policy as well as logic
• s.23(3):

Emergency regulations may make provision of any kind that could be made by Act of Parliament or by the exercise of the Royal Prerogative; in particular, regulations may [...]

(j) disapply or modify an enactment or a provision made under or by virtue of an enactment;

—"of any kind" appears to include "repeal or revoke", as in s.18(3),and (j) is only an example and not clearly a limitation

• s.23(5): "may not amend" Part 2 of the Act, or the Human Rights Act 1998—but, by implication, may amend any other element of this Act or amend any other Act
• s. 35(2): "where this Act amends or repeals an enactment or a provision of an enactment"—echoing "repeal or revoke" in s.18(3) but now (almost as an afterthought) extending to a whole enactment.

Errantius (talk) 00:00, 2 October 2019 (UTC)

Yes!! There seems to be some pretty startling stuff in this Act! - and there should be substantial commentary out there: notably by constitutional lawyers! On the face of it (and I’m reading it without context), s.23(3) appears to authorise emergency regulations entirely displacing the legislature’s authority, and thus raises questions about the rule of law. (Have Boris Johnson’s advisers considered declaring tht the imminence of the current Brexit date constitutes an emergency??)

On the specific point about "contradiction", I wonder if the intended meaning is "explicit contradiction"? That is, maybe the intent is only to emphasise the limit on the limitation(!) in the following words, "nothing in or done under this Part shall impliedly repeal or revoke a provision of or made under another enactment."

It may help if I show my train of thought on this?

# What the subsection doesn’t say is

[18(3) Nothing done under this Part shall repeal or revoke a provision of or made under another enactment.]

(That might seem too obvious, and too true, to need saying. It must be plain law tht actions done under one Act can’t repeal another.)

# Nor does it say

[18(3) Nothing in this Part shall repeal or revoke a provision of or made under another enactment.]

(That would be obviously untrue, and too self-contradictory to be contemplated. If something appearing in the Act seems to repeal a provision elsewhere it does repeal it.)

# What the subsection does say is a combination of

[18(3)(i) Nothing done under this Part shall impliedly repeal or revoke a provision of or made under another enactment.]

(which clarifies why the too-obvious point might be worth stating: it’s stated to preclude any attempt to deduce, from action taken in emergency, any repeal of other legislation tht would appear to have prohibited such action), and

[18(3)(ii) Nothing in this Part shall impliedly repeal or revoke a provision of or made under another enactment.]

(which applies a limitation: it specifies tht this Part only repeals/revokes other legislation by explicit provision – not by mere implication).

# The Act as enacted actually combines my suggested 18(3)(i) and (ii):

18(3) .. nothing in or done under this Part shall impliedly repeal or revoke a provision of or made under another enactment

and my guess is tht someone somewhere (maybe not a lawyer!) felt tht the limitation applied by 18(3)(ii) had got buried a little too deep for safety, and brought it back to the surface in the opening words:

18(3) Except in a case of contradiction, nothing in or done under this Part shall impliedly repeal or revoke a provision of or made under another enactment

—meaning

18(3) Except [where explicitly provided in this Act], ..

If I’m right, the intention in adding those opening words was to insist tht only plain words would effect any repeal—and so to avoid swamps of concept and of principle / policy!

I’m also rather aware tht 18(3) excludes only repealing/revoking legislation. It’s silent on the possible effects of emergency arrangements on the Common Law. So if emergency regulations in the State’s ongoing struggle authorise routine General Warrants, it might become possible, after a few years, to argue tht the regulations had annulled common-law safeguards.

So yes, we could do with some reliable-source commentary on this!

- SquisherDa (talk) 12:18, 2 October 2019 (UTC)