Should the army have been sent in?
I saw some suggestions the other day that military intervention was desirable in order to put down the riots. At the time I said that I thought this was a ridiculous idea, playing to some kind of authoritarian demagoguery and that the damage to society would irreparable. I still stand by that.
However, in researching my paper on communicating science in emergencies, I was examining the Short Guide to the Civil Contingencies Act 2004. I know, my lifestyle is probably a main cause of the riot, it’s so celeb.
Specifically, my eyes caught the section on emergency powers.
… the Act allows the making of temporary special legislation aimed at dealing with a serious emergency that fits within the definition. The Queen, as Head of State, will formally indicate that emergency powers are necessary as part of the Order in Council that makes the regulations themselves. For the first time a fallback option has been included to cover the possibility that emergency powers will be needed, where the Queen is, for whatever reason, unable to act. The Act therefore allows for a senior Minister or the Prime Minister to make the regulations in the unlikely event that Her Majesty is not able to do so.
The Act introduces a range of other new features, mostly designed to ensure emergency powers cannot be misused and can be used in a more targeted and proportionate manner. The centre piece of these is the “triple lock”, which ensures emergency powers will only be available if:
- an emergency that threatens serious damage to human welfare, the environment or security has occurred, is occurring or is about to occur;
- it is necessary to make provision urgently in order to resolve the emergency as existing powers are insufficient and it is not possible to bring forward a Bill in the usual way because of the need to act urgently; and
- emergency regulations must be proportionate to the aspect or effect of the emergency they are directed at.
In addition emergency regulations:
- cannot prohibit or enable the prohibition of participation in, or any activity in connection with, a strike or other industrial action;
- cannot instigate any form of military conscription;
- cannot alter any aspect of criminal procedures;
- cannot create any new offence other than breach of the regulations themselves;
- must be compatible with the Human Rights Act and EU law; and
- are open to challenge in the courts
(Civil Contingencies Secretariat, 2004. Civil Contingencies Act 2004 : a short guide ( revised ), p 5)
Now, I am not a lawyer (if you are, perhaps you could add your professional opinion below), but it seems to me that:
- The riot situation did threaten damage to human welfare, the environment and securityand had occurred, was occurring and was likely to occur. In the absence of anything I could find immediately, I take environment to be construed not only as the natural environment, but also the built, urban environment which was threatened by the riots.The question is whether the damage was serious. Whilst a number of people died and a number of people were made homeless and had their businesses destroyed, acts which were clearly serious to the individuals involved, I’d question whether this is serious in this context. Serious in the context of civil contingencies has to mean that significant numbers of people and businesses were affected or threatened to be affected. I am not sure the riots, as horrible as they were, met this criteria.
- It might have become necessary if the police had been unable to restrict and contain the riots. However, my reading of necessary in this case is that nothing else could or would have been likely to have the desired effect. If Kent needs evacuation after an incident because people who stay there will definitely die, then that’s a time when evacuation is a necessary precondition of success. In this case, I am not convinced that deploying the army was a necessary precondition for successfully quelling the public disorder.
- I doubt very much that deploying the army could have been construed as being proportionate unless the state itself was in danger of collapse (ie. a revolution was being fomented).
In addition, I think that the deployment of the army would likely have altered criminal procedures (non-judicial killing?) and would likely have been incompatible with the HRA and EU law.
Even assuming that this had gone to parliament (so it became a legislative debate rather than emergency powers as announced by the Monarch), I would hope that our parliamentarians would have balked at the deployment of the army.
First, the army are equipped and trained for killing in war zones, not arresting during civil unrest. It’s worth remembering that the army’s reputation for managing even combat detainees, whilst better than the USA’s reputation, is not spotless.
Second, it would have created the situation in which Briton was set against Briton. This would definitely have inflamed the situation (the response to people who do not feel part of a community is not to create new divisions and disenfranchisement), and could well have resulted in it going out of control, all the way up to civil war.
Third, it would have been demagogic at best. I’m not sure what it would have been at worst. However, I for one would be deeply shamed to live in a society where the elected government (even if not actually the government that was elected) decided the solution to civil unrest was to face them down the barrel of a gun.
The worst part for me was that this was being seriously proposed by people who are very clearly on the left wing. If us liberal lefties immediately resort to violence as a ‘solution’, then where does that leave the Overton window? Of course evicting people and taking their money has become a realistic option, because, compared to shooting them, it’s positively moderate.
As the representative from Nottingham City Council said on the Channel 4 Riots Debate last night, “the way to tackle issues related to poverty is not to create more poverty.” Nor is it to threaten them with violence until they comply, or further disenfranchise an already disempowered social group. As I’ve said before, the solution is to create communities in which people feel included, have opportunities and have the power to collectively decide the way forward.
We also need to have a plan in place, which has been collectively negotiated by everyone in society, on how we respond to unrest in the future. Because if we don’t, then the extremist suggestions made might well be the catastrophic route we walk down, and that’s not a society I find attractive.
EDIT (following has been added):
A friend points out that this piece of legislation is not necessary, as a minister can authorise the deployment of the army under Military Aid to the Civil Authorities (MACA), as outlined in the Joint Doctrine Publication Operations in the UK: The Defence Contribution to Resilience, specifically, Military Aid to the Civil Power (MACP).
However, their use in exceptional circumstances (ie. not the routine deployment, such as fisheries protection, mountain rescue etc…) is subject to key restrictions:
- Deployment of the military must be the last resort, other options (mutual aid, private sector etc…) are insufficient
- The civil authorities do not have the capability to do what is required (and it’s too expensive or would take too long to develop)
- The civil authorities have the capability by have urgent need to act and insufficient resources.
Clearly, the riots did not meet that standard.
In addition, specifically in relation to working with the police and in public order scenarios:
Force is never lawful unless the immediate object is the prevention of crime (including public order offences), the arrest of offenders, self-defence or the defence of others. (4A3.b(2))
Force must never be used to punish or to act as a deterrent for the future. (4A3.b(5))
Service personnel should be suitably equipped to deal with the situation. If the potential use of firearms is considered necessary, usually as a last resort in civil disturbances, a force so armed should be kept in reserve and out of sight of those involved in the disturbance. (4A3.b(6))
The Ministry of Defence (MOD) would not deploy untrained or improperly equipped personnel on public order duties. Any such deployment would have to be clearly proportionate to the threat. The need to preserve both the actual and the perceived political neutrality of the Armed Forces would be a primary concern. (4B3) [my emphasis]
It should, moreover, be assumed that any decline in the UK security environment would lead to changes in policing methods (for example, enhanced police training in public order duties) prior to the use of the armed forces being considered. (4B4)
In short, the required standards for use of MACP is unlikely to have been met during the current circumstances.