As a Classics student, much of my study of legal affairs has been focused on the Ancient World, and I have taken a special interest in the politics, laws, and legal scene of the later Ancient Roman Republic. During my studies of Ancient Rome’s political and legal sectors, I have been keen to relate what I have studied to the present day. The principle of the Senatus Consultum Ultimum (SCU), to protect the state and its people, has been echoed Governments around the world, especially as a result of the Coronavirus pandemic. And so, in this article, I shall explore the extraordinary powers which the UK Government has, and analyse their legal impacts, linking their similarities to the ancient predecessors.
During the last century of the Roman Republic, the laws of the state evolved with the changing political scene. Throughout the pockets of chaos in the final eras of the Republic, the Senatus Consultum Ultimum was decreed on many occasions by the senate, granting the consuls imperium both within the city of Rome, and within the wider Republic. This decree was only reserved for ‘state emergencies’ and despite the debated constitutionality of the decree, its intended use was to provide the consul with a legal standing from which he could take unrestrained actions to ensure the safety of Rome. For example, in 63 BC, Cicero utilised the powers under the Senatus Consultum Ultimum to quell the Catilinarian Conspiracy, with the conspirators punished by death, notably without trial. Such drastic actions, not just in 63 BC but also in 121 BC and 100 BC, were only taken once the SCU was passed; the SCU was primarily used to defeat threats to the peace and stability of Rome. And throughout the world today, there are many governments that have the capability to utilise comparable laws to ensure the safety of their states, against ever-evolving threats.
Throughout the pandemic, many of us have become familiar with the term ‘emergency powers’, which the Government has used to justify the necessary measures it has established in the wake of the pandemic. The Institute for Government outlines these ‘emergency powers’ as “making regulations without an act of parliament … taking actions without complying with statutory duties that it would normally have to comply with … taking actions that it would not normally be allowed to take.” There is a clear correlation between the powers granted to the consul under the SCU decreed by the senate, and the ‘emergency powers’ exercised by the Government, powers which “may affect fundamental rights, such as the right to liberty.” The recent lockdowns imposed restrictions on the liberty of the people, however it could be argued that the SCU could have even greater impacts upon the rights of citizens. It was common for consuls (such as Cicero in 63 BC) to declare those rebelling against the state as ‘hostes’ - ‘enemies of the state’; such a declaration stripped them of their citizenship, making it easier (from a legal perspective) for the threats to be dealt with. However, such actions often led to the decree’s constitutionality being scrutinised, notably whether the SCU gave the consuls the authority to strip a person’s citizenship, or whether it had to be voted for by the people.
Whereas Roman use of the SCU was established by precedents, The Select Committee of the Constitution outlined the provisions and limitations of the ‘emergency powers’ used by a government in the United Kingdom; “All governments should recognise that, however great or sudden an emergency may be, exceptional powers are lent, not granted, by the legislature to the executive, and such powers should be returned as swiftly and completely as possible, avoiding any spill over into permanence. When a government decides to fast-track legislation, it should do so for legitimate and urgent reasons only, limiting parliamentary scrutiny to the extent strictly necessary.” As this indicates, a key aspect of these ‘emergency powers’, which resonates from the SCU, is the temporary nature of the restrictions. As with the pandemic, the restrictions protect the country during an immediate threat to the population, just as the SCU provided temporary executive power to the consul to ensure the safety of Rome during a crisis. The recent lifting of the majority of restrictions seemingly adheres to the ‘constitutional’ provisions which insists on the removal of restrictions before they are integrated into permanence. In contrast, the politics of the Ancient World often meant that various communities were subject to permanent restrictions on their liberties, dependent on the level of civil rights they were granted by the Romans, which juxtaposes the democratic ideal the Romans prided themselves on upholding.
However, just as the imperium decreed by the SCU allowed the consul to enforce temporary laws, acting outside of the traditional judiciary framework of Rome, such as bypassing the votes of the assemblies, it appears there is a similar procedure for the UK Government. The lesser known ‘urgent procedure’ enables laws to initially bypass a parliamentary vote and become enforceable by law before the laws could pass through Parliament. This allowed the Government to act with speed in enforcing restrictions, such as imposing lockdowns, to protect the people, however it also meant that the laws which initially bypassed Parliament were later subject to amendments, which came about following the laws’ scrutinisation by Parliament.
The utilisation of ‘emergency powers’ is not a rare occurrence in the UK. The Government has previously issued both the Emergency Powers Act 1920, outlining the general premise for the use of emergency powers by the Government in a designated state of emergency, and the Emergency Powers Defence Act 1939, which introduced measures aimed at ensuring the safety of the UK during the Second World War. It is worth noting that the powers of this latter Act were officially extended until 1964, even beyond the Emergency Laws (Repeal) Act 1959, due to the use of extensions, which ensured the governments during this period had the ability to protect the people in a rapidly changing global landscape. Moreover, the Government introduced the Civil Contingencies Act (CCA) 2004, which was designed to replace the original Emergency Powers Act 1920. It outlines the circumstances for the use of ‘emergency powers’ in the 21st Century, with the Act having a “triple-lock” system in place which would activate its use, including “an emergency that threatens serious damage to human welfare, the environment or security has occurred, is occurring or is about to occur.”
As such, this guidance seems applicable to the recent Coronavirus pandemic, especially as pandemics and epidemics are covered by the Civil Contingencies Act. However, the Government’s decision not to use the CCA has been under scrutiny, with the MP Michael Gove citing the developing nature of the pandemic as one of the reasons for the Government’s decision not to use the CCA, which was primarily applicable to immediate and unexpected situations, but rather to introduce new legislation and laws via the Coronavirus Act 2020. It was argued in Government that the use of the CCA would have meant that there could have been judicial reviews of laws and regulations brought in for public safety, whilst the new act meant that Parliament had the ability to review and amend the act, thus making it more suitable for its introduction into legislation. The foundation of the Coronavirus Act 2020 is symbolic of an area where politics and law are integrated; in this case, it was determined by both Katharine Hammond, Head of the Civil Contingencies Secretariat, and the Paymaster General, Penny Mordaunt, that there was no legal requirement for the Government to have used the CCA, and that the decision to form a new Act allowed the Government to ensure their new Act could be more rigorously scrutinised by Parliament, and was legally fit for purpose. Such scrutinisation and debate surrounding the ‘emergency powers’ was less prominent in Ancient Rome, with the exile of Cicero in 58 BC a consequence of one of the few instances in which a consul was held accountable for their actions during a time when the SCU was active.
In conclusion, the purpose of the ‘emergency powers’ established and used by governments both in Ancient and Modern times is to serve the best interests of the state, protecting the people and maintaining peace, even if that includes temporary restrictions on the rights and liberties of its people.
Bibliography
Civil Contingencies Act 2004: a short guide (revised), accessed via: https://www.merseysideprepared.org.uk/media/1053/15mayshortguide.pdf
Emergency Powers (Defence) Act 1939, (June, 2019), accessed via: https://www.lawteacher.net/acts/emergency-powers-defence-act-1939.php
Emergency Powers Act, 1920, accessed via: https://www.legislation.gov.uk/ukpga/1920/55/pdfs/ukpga_19200055_en.pdf
Government Emergency Powers and Coronavirus, (March, 2021), accessed via: https://www.instituteforgovernment.org.uk/explainers/emergency-powers
3rd Report Session of 2021-2022 of the Select Committee of the Constitution, “Covid 19 and the Use and Scrutiny of Emergency Powers”, accessed via: https://publications.parliament.uk/pa/ld5802/ldselect/ldconst/15/15.pdf
Political and Constitutional Reform Committee: The UK Constitution, House of Commons, March 2015, accessed via: https://www.parliament.uk/globalassets/documents/commons-committees/political-and-constitutional-reform/The-UK-Constitution.pdf
‘Section 2: The Government’s approach to legislation and the framework for Parliamentary Scrutiny’ in ‘Parliamentary Scrutiny of the Government’s handling of Covid-19’, (2020), accessed via: https://publications.parliament.uk/pa/cm5801/cmselect/cmpubadm/377/37705.htm#footnote-074
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