Emergency Powers (Defence) Act 1939

– Why was it introduced (political sociological context)?

The Emergency Powers (Defence) Act 1939 was passed in the UK in the context of the Second World War (WWII). The aim of the act’s introduction was to free up the government to take up whatever measures were deemed necessary in order to successfully carry out the war and defence of the realm.  The act was passed in the context of developments on the continent which caused the Government to fear inevitable war with Nazi Germany. There were a string of such developments, including German annexation of Austria, negotiated annexation of the Sudentenland in Czechoslovakia and subsequent complete annexation of Czechoslovakia in violation of the prior agreement which gave Germany control over the Sudentenland. In addition, aggressive moves were made by Germany to other countries such as Lithuania. In parallel, Italy (which had a pact with Germany) had successfully invaded Albania. All this culminated in August 1939, with a non-aggression pact between Germany and the Soviet Union (which in the end led to the partition of Poland).  This was the final prompt for the government to act and to passthe Emergency Powers (Defence) Act 1939 the very next day.

– What was the aim of the Act (legal context)?

The aim of the act was to (legally) place the country on a war footing and to allow the government to pass all necessary regulations  which would permit it to undertake the war effort effectively. This included the ability to modify established legal rules as to detention and trial of suspects, as well as rules on the use and appropriation of property by the Government (in this context it was anticipated that the government would need to requisition certain property for use in the war effort). This would allow the government to work around case law and legislation such as the Land Clauses Consolidation Act 1845 which was relevant to compulsory purchase by the government.

– What main changes did it make to the law?

One of the fundamental changes introduced by the Emergency Powers (Defence) Act 1939 was the provision for the promulgation, by the government, of so called “Defence Regulations”. These were essentially to be the tools which would allow the Government to work around laws might otherwise bind the Government from undertaking necessary action. To be precise, section 1 of the Emergency Powers (Defence) Act 1939 stated that:

“1. (1) Subject to the provisions of this section, His Majesty may by Order in Council make such Regulations (in this Act referred to as “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 any war His Majesty may be engaged, and for maintaining supplies and services essential to the life of the community.

(2) Without prejudice to the generality of the powers conferred by the preceding subsection, Defence Regulations may, so far as appears to His Majesty in Council to be necessary or expedient for any of the purposes mentioned in that subsection:-

(a) Make provision for the apprehension, trial, and punishment of persons offending against the Regulations and for the detention of persons whose detention appears to the Secretary of State to be expedient in the interests of the public safety or the defence of the realm;

(b) authorize –

(i) the taking of possession or control, on behalf of His Majesty, of any property or undertaking;

(ii) the acquisition, on behalf of His Majesty, or any property other than land;

(c) authorize the entering and searching of any premises; and

(d) provide for amending any enactment, for suspending the operation of any enactment, and for apply any enactment with or without modification.”

Clearly, therefore, the Act provided the Government with broad authority to bypass a large body of criminal and tort laws in the UK, particularly as they relate to the relationship between the State and citizens. This would allow for more expedient seizure of property needed for the war effort, faster searching of suspected spies, traitors and similar. Further, the act allowed for the detention of persons where such detention was viewed to be expedient in the interest of defence and public safety. This rather broad language provided the government a considerably free hand to carry out arrests which would not be legal in peace time, seemingly without evidence of guilt being necessary (it being “expedient” to arrest someone in the interest of defence is not the same as requiring them to be guilty before they are arrested).   For instance, Defence Regulation 18B allowed the government to arrest persons who were suspected (but not proven) to be Nazi sympathisers.