The Civil Contingencies Act 2004 is not an Enabling Act for Brexiters

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.

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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. 

These are fascinating (and you can read more here and here) but this is not what excited Brexiter politicians are interested in.

They are interested instead in the powers under Part Two of the Act and so it is to that we should now go.

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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.

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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.

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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.

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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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34 thoughts on “The Civil Contingencies Act 2004 is not an Enabling Act for Brexiters”

  1. In these very disturbing times, this post is a welcome reassurance. However, is the suggestion that Major made tonight, that Johnson could issue Privy Counsel orders suspending the Benn Bill a serious possibility? Plainly, such an act would be analagous to the recent prorogation debacle and condemned by the Supreme Court – but it is hard to see how a Privy Counsel order might be justicable as it is surely not covered by statute.

    1. The CCA would certainly be justiciable and in my view any use of this mechanism to engineer a no deal Brexit would probably be regarded as ultra vires if litigated and reaching the Supreme Court. But, as I say, litigation is a game of chess. You have to consider timing and practicalities. Plus none of this would happen in a political vacuum. If the courts intervene and are perceived by the public to have blocked a general election at this pivotal moment – there would be serious damage to the judiciary. And it would feed into the narrative of the Establishment vs the People which would have a major influence on any subsequent general election which cannot be avoided forever.

  2. Very interesting explanation of the Act and also reassuring. Presumably one would expect Opposition politicians to turn to the Courts if there was abuse of the provisions?

    1. I wouldn’t be too reassured Ian. Let’s see how this plays out. I think it could go either way. The article was interesting yes, but this is a political battle and not purely a legal matter. It’s all about strategy and how and when you deploy your available weapons.

    1. Well this was contrary to centuries of precedent and the doctrine of the separation of powers not to mention the Bill of Rights Act 1689. But the Supreme Court is able to make things up as it goes along. But again you have to consider the timing and practicalities of litigation…and the fact Treaty law overrides UK law, so if an extension to the 31 Oct expiry date for Article 50 is not agreed – we’re out – regardless of whether the PM is found to having acted ultra vires or otherwise unlawfully.

  3. But if the attempt to use the Cc Act effectively pushed us past 31st of October while parliament was trying to reassert it’s authority, what then?

      1. Yes but the PM can combine proroguing and dissolution at any time of his choosing. He could let the clock run down until such time that a threat appears – for example, tightening up the Benn Act or other legislation that might tie his hands – then prorogue before such legislation passes.

        They would have to start again with such legislation when recalled, but wouldn’t be able to do so immediately due to a further Queens Speech. So then he can play his next hand and use the CCA to suspend the Benn Act. There would be uproar in Parliament of course but then he could simply close it down by dissolution for a general election.

        It’s like a game of cards. The result depends on how the the cards are played and the precise sequence of events.

        1. Dissolution is no longer the prerogative of the crown. It is governed by FTPA. Also with the limits on prorogation recently clarified by the SC it is hard to see how he could legitimately “shut down parliament” against its will whenever he wants.

    1. I am legally qualified and have also reviewed this legislation. At first glance, my response was the same as the author of this article, but you have to remember the context and practicalities of this situation. In my view, Nicholas Taylor makes a very valid point regarding the timing and sequencing of all this, which is crucial!

      I believe that the PM could quite reasonably attempt to prorogue Parliament again, albeit for a much shorter period of time.

      He could also attempt to use the CCA 2004 to suspend both the Benn Act (requiring him to seek an extension to article 50) and the Fixed Term Parliaments Act on the basis that the elected government has been stymied by Parliament in carrying out its executive responsibilities of effectively negotiating a withdrawal agreement with the EU and prevented from seeking a mandate from the electorate before our statutory date of departure on 31.10.19 with or without a deal (and the latter would clearly pose a considerable risk of disruption to transport and supplies of food and medicines).

      The PM could then dissolve Parliament and call a general election before exit day. He would hope to return to Parliament with a reconstituted House of Commons with far more Leaver representation that would not hesitate to repeal the Benn Act.

      Any action to thwart this plan would be damaging for Remainers in any post 31.10 general election because, by stalling, it would reinforce the political narrative of the People vs Parliament and Remainers not respecting democratic accountability.

      So, in my opinion, it is really 50:50 whether we have a no deal Brexit on 31.10 or if article 50 is extended. The EU may decide that a no deal would actually be better than a troublesome UK remaining a member state and using its veto to cause maximum chaos and not choose to offer the UK a further article 50 extension even if Boris observes the Benn obligation to request one.

  4. John Major warns in The Independent that Boris Johnson may be planning to bypass a law blocking no deal Brexit by issuing an order to suspend it until after the scheduled date of Britain’s EU withdrawal on 31 October. The order could be passed by ministers acting in the Privy Council without the involvement of parliament or the Queen. Is this possible? Thanks

  5. Any Minister who sought to abuse the CC Act to suspend the Benn Act provisions could potentially be deemed after a successful legal challenge to High Court to be acting in contempt of court and therefore dismissal from office surely and even criminal sanctions?

    1. True, but a little extreme and highly unlikely. It would be a political outrage. These are complex issues so acting in contempt of court would be very harsh. The proroguement was upheld by the Master of the Rolls in the High Court. Arguably any use of the CCA is reasonable and justified.

    1. These powers only appear to apply after we’ve withdrawn from the European Union (with or without an agreement). Additionally, they can only be used to “prevent, remedy or mitigate any failure of retained EU law to operate effectively, or any other deficiency in retained EU law”.

      There are also various methods of Parliamentary scrutiny in place. The vast majority of delegated legislation that could conceivably be used maliciously in this fashion is going to be subject to positive affirmation: that both Houses of Parliament must see and approve the delegated legislation before it comes into effect.

      See Schedule 7 1(1) and 1(2)(d) for more information: http://www.legislation.gov.uk/ukpga/2018/16/schedule/7/paragraph/1/enacted#schedule-7-paragraph-1-2

      This would restrict their power to grant themselves the ability to legislate on other matters that are outside the scope of Schedule 8.

      And, of course, there are legal safeguards through the courts — a minister of the crown who tries to legislate the Human Rights Act away under these powers, by way of example, would probably be found to be acting ultra vires and the consequences of their actions would be quashed.

  6. OK David, so lets imagine you were “old Dom” meshing your fingers behind a desk and staring knowingly into the distance. What’s your scheme for the next 5-weeks?

    They clearly think they have something with all these references to “we’ll follow all law”

    1. Exactly Ed. People shouldn’t be too confident about what will happen. Everything is still very much in play in my view.

  7. A further question, I noticed that the Human rights act 1998 is one of the few pieces of legislation that is protected from the CCA’s emergency powers. Am I right in thinking that if Brexit comes to pass, this act will be scrapped and therefore the scope of the CCA would vastly increase in one fell swoop?

    1. The HRA is protected from the CCA – the latter was actually introduced under Tony Blair by the way. Who knows whether a future administration will choose to repeal the HRA? That’s not really an issue related to this discussion.

    2. No. We haven’t withdrawn from the European Convention on Human Rights (ECHR) which is what the Human Rights Act 1998 (HRA) implements in UK law.

      It is, of course, possible for the HRA to be scrapped in the future and for us to withdraw from the ECHR in which case, yes presumably the CCA would no longer need to take into account human rights legislation (although it is possible we’d need to also withdraw from any associated UN human rights treaties we’ve signed.)

  8. “… the EU (Notification of Withdrawal) Act, passed so hastily, only gave the prime minister power to give notice of her current intention to withdraw the UK from the European Union. It did not provide any power actually to leave, and the government defeated a Labour amendment to say what would happen if acceptable terms were not reached.” and “Britain’s constitutional arrangements require parliamentary authority not only to notify an intention to leave the EU, but also actually to leave. The latter has not yet been conferred. It will be granted, if it is passed, by the European Union (Withdrawal) Bill, currently going through parliament. But this Bill was amended after an unlikely rebellion led by former Attorney General Dominic Grieve MP, to mean that parliament does have a vote on the “final deal” with the EU before it is signed.” According to Helen Mountfield QC.
    So Parliament will still have to pass some kind of Withdrawal Bill to actually leave, there is no crash out…

    1. I love all the pub lawyers on this thread! I think the CCA is a possible mechanism to secure a no deal Brexit. If the PM prorogues for a period of say 5 days, that will be fine and this further runs down the clock.

      Then he could suspend the FTPA by decree using the CCA on the basis that government has been stalemated and this event itself is an emergency, esp. given the impending prospect of a no deal Brexit if the EU do not offer an extension.

      Remember also that the Benn Act overlooked to amend the exit date of 31 Oct in the existing Withdrawal Act. But regardless of UK law, we leave on 31.10 unless an article 50 extension is offered and agreed. It remains the legal default. The EU would want to impose conditions on any extension it might offer. Nothing in the Benn Act would compel the PM to accept such conditions and the offer of an extension could then be refused. It is not completely watertight – although this may change.

      The PM would then be free to dissolve Parliament at his leisure and call a general election. The Houses would return with a majority of Leavers, and the Benn Act repealed.

      To stop this , the Supreme Court could intervene based on the relevant minister acting ultra vires under the CCA. But could the case be decided in sufficient time? Would the courts really want to stop a general election already in full swing and return us to the impasse? Is there not a reasonable argument that it is unconstitutional for Parliament to usurp the functions of the executive and effectively govern by proxy and that a general election is a reasonable and proportionate response?

      1. Surely parliament can only be prorogued to enable the preparation of a Queens Speech?
        What kind of Queens Speech can we look forward to under these circumstances?
        I know that Her Majesty is supposed to be above politics but surely she is not above common sense?

      2. “Then he could suspend the FTPA by decree using the CCA on the basis that government has been stalemated”

        So are you arguing that each time parliament is prorogued or dissolved there is an “emergency” under the CCA? The government has all the powers it needs to maintain general law and order and protect public welfare on a day to day basis. It doesn’t need to have the confidence of the commons to do any of this normal duties. There is no sense in which a government not being able to carry out its policy agenda can be considered a public emergency.

        Also it is by no means clear that the prerogative to dissolve Parliament would revert to the crown upon suspension of the FTPA.

    2. I believe we’ll still crash out if the 31 October comes and we haven’t approved a withdrawal agreement with the European Union. This is because (based on my understanding) under EU law, a Member State automatically ceases to be part of the Union 2 years after Article 50 is triggered—regardless of whether we’ve signed a withdrawal agreement or not—unless an extension is reached unaninmously by both the EU and the departing Member State.

      Our constitional arrangements have been satisfied already: we passed the relevant legislation to allow the executive to trigger Article 50, and then they did so. If we want to delay leaving, we need to ask for an extension, etc. (as the Benn Act has stipulated) or revoke Article 50.

  9. There is a well planned (and widely publicised) Extinction Rebellion ‘rising’ from 7th October to 19th October (with plans to occupy the area around Parliament as well as many other locations). This is likely to paralyse central London.

    See: https://rebellion.earth/international-rebellion/

    Could this provide an opportunity or pretext for the government to invoke the powers of the Act which it could then use to force a no deal Brexit?

  10. Thank you for highlighting the relevant parts of the Act and for the informed responses. Never as an ordinary citizen have I felt more of need to arm myself with so much detail to counter government deceit and the inadequacies of mainstream reporting.

    Meanwhile, as government ministers warn of civil unrest and advisors seek to legitimise Brexit-related anger as ‘understandable’, one can’t help but think that they are attempting to create the conditions under which an emergency could be declared.

    Despicable, obviously.

    At best though it appears like a thinly veiled threat and an odd one for a party that likes to appear tough in the face of adversity. Imagine for example, as Matthew Parris did back in February*, a Conservative government placating extremists of other persuasions to limit the threat of terror attacks.

    *www.spectator.co.uk/2019/02/those-who-warn-of-brexit-civil-unrest-are-inviting-it/

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