26th September 2019
Every so often in the story of Brexit the suggestion is made that the government could use emergency powers under the Civil Contingencies Act 2004 to do something or other, sometimes even to “push through Brexit” or to amend or repeal unwelcome legislation.
The reality is that it would be difficult to use that Act in practice.
This is because of three things:
- it is not easy for a thing to qualify as an “emergency’
- there are several legal conditions to be fulfilled and legal tests to be met before the powers under the Act can be used (all of which can be the grounds for immediate court challenges)
- there is strict parliamentary supervision for use of the Act
For central government to successfully rely on the emergency powers under Act requires, well, an emergency that cannot be dealt with under any other legal powers and requires a legal provision to be made.
What the Act is not is an “Enabling Act” where a politician can merely assert there is an emergency so as to invoke wide legal powers to do anything they may want.
If, however, there is an emergency as defined in the Act, ministers do have wide legal powers for a short period. These powers do include being able to amend or repeal primary legislation (or do anything that can be done by primary legislation) subject to strict conditions and tests.
This post will now take a guided tour through the Act so as to show how hard it will be for Brexiter (or other) politicians to use the Act.
The first thing to do is to click on the Act here.
Straight away, as you scroll down, you will see the Act has two main “Parts”.
Part One is to do with obligations on local authorities.
They are interested instead in the powers under Part Two of the Act and so it is to that we should now go.
What is an “emergency”
The first step is for a thing to be in the scope of the definition of “emergency”.
If the definition is not met then the emergency powers are unavailable
“Emergency” is defined in section 19.
On the face of it, section 19(1) provides three wide definitions of “emergency”.
But the first two definitions are subject to sections 19(2) and 19(3), and you will see in both the word “only”.
And if you look carefully at all three definitions in section 19(1) you will also see a “serious damage” requirement.
If a thing does not meet the applicable “only” and “serious damage” requirements then it will not be an emergency for the purposes of the Act.
And as these are objective legal tests it will be a matter for the court, not the minister, to decide if the definition of “emergency” is met.
Not just a politician saying so.
The legal conditions and tests for using emergency powers
Fulfilling the section 19 definition of “emergency” is only the start.
We then come to the three conditions under section 21, all of which need also to be met (and not just one or two of them).
These include a “necessity” requirement under section 21(2) and an “urgency” requirement under section 21(3).
These are objective conditions that, again, can be for a court to determine.
Once the section 21 conditions are met, we then go to section 20, which is the operative provision for making regulations.
You will then see that section 20(5) provides for further requirements on emergency regulations, including relevancy, proportionality and compliance with human rights law.
The requirements of relevance and proportionality are important and would mean that emergency regulations had to have a direct connection with the emergency and go no further than needed in dealing with the emergency.
And, again, these are objective legal tests which can be tested in court.
We then move to section 22, which sets out the scope of the regulations.
This section provides for what the regulations can do, including anything which can be done by Act of Parliament.
You will also notice, however, that there is a requirement that the minister be “satisfied” that the regulations are appropriate – an additional legal hurdle.
You will see also at section 22(5) an express obligation on the minister to have regard to the roles of parliament and the courts in supervising the regulations.
And then, after all these hurdles, we get to section 23, which is headed “limitations of emergency regulations” – that is, limitations in addition to all the conditions and tests before we even get to this stage.
Section 23(1) in particular provides for a general condition governing use of the regulations:
“(1) Emergency regulations may make provision only if and in so far as the person making the regulations is satisfied—
(a) that the provision is appropriate for the purpose of preventing, controlling or mitigating an aspect or effect of the emergency in respect of which the regulations are made, and
(b) that the effect of the provision is in due proportion to that aspect or effect of the emergency.”
Note the use of “only if and in so far” which is as strict an obligation as the law allows.
This section 23(1) obligation, of course, covers many of the tests and conditions elsewhere in the Act, but (as lawyers say) it places the legal position beyond all doubt.
If there is any attempt by a minister to use the emergency regulations other than in direct proportion to an emergency as defined, the regulation can be easily quashed by a court.
The supervision of emergency powers
But say all the requirements are met, and the emergency regulation has been made and is being used appropriately so as to deal with an emergency – there is then “back end” supervision, as well as “front end” requirements.
Under section 26 emergency regulations lapse after a maximum of thirty days.
Section 27 provides that there the regulations be brought parliament as “as soon as is reasonably practicable” within those thirty days, and then will lapse within seven days unless approved by both houses of parliament.
There is even provision under section 28 for what happens if (ahem) parliament is prorogued (if so, Parliament has to be summoned).
Making regulations under the Act in an emergency without Parliament is therefore possible in exceptional circumstances, but Parliament is still quickly engaged to ensure that there is no misuse.
The Contingency Powers Act and Brexit
If there is a “No Deal” Brexit then it is possible, indeed likely, that there are emergencies such as to fulfil the section 19 definition.
But any emergency regulations, if they are required at all, would have to be subject-specific, and would need to deal directly with that emergency and nothing else.
Attempting to use the regulations to, say, amend legislation which had nothing to do with mitigating the emergency would not be legally possible.
Any such attempt to repeal or amend legislation for a wrongful purpose would be ultra vires the Act and have no legal effect.
There are several ways any such misuse can be challenged in the courts.
The Contingency Powers Act has an important purpose, but Parliament was careful to build in a number of safeguards against it being abused.
The Act is not an Enabling Act for Brexiters wanting to impose arbitrary government.
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