Thinking about emergency legislation

22nd March 2020

The current coronavirus pandemic is a public health emergency and, as with any emergency, there can be the need for emergency legislation.

By definition, there is not often the need for emergency legislation (or, at least, there should not be), and so emergency legislation is not something that often needs to be considered.

Now in the United Kingdom the government is bringing forward emergency legislation.

There is a bill before parliament that will be enacted in days.

And yesterday there was a statutory instrument issued under public health legislation.

Both instruments raise particular issues, but rather than dealing with the detail of the provisions, this post asks what can be usefully said about emergency legislation generally.

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Emergency legislation is, of itself, a good thing.

This may seem trite and obvious, but the existence of emergency legislation means that those responsible for dealing with an emergency are doing so in accordance with the rule of law.

Emergency legislation means that even though there are exceptional and dangerous challenges, the government is still wanting to place their actions on a lawful basis.

And by doing so, it means in turn that in principle those adversely affected by the legislation have (or should have) the ability to challenge decisions made under it – though in practice this may well be difficult.

There may be an emergency, but (at least in theory) the rule of law is still in place.

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Emergency legislation, however, should be exceptional.

This means that once the emergency is over then the legislation should lapse.

It also means that the legislation should not be used for purposes other than dealing with the emergency.

A genuine fear is that emergency legislation, once enacted, is too convenient for a government to then let go.

And for the executive-minded, any emergency – whether regarding terrorism, public health or anything else – can be the pretext for an executive power grab.

Never let a good crisis go to waste, as the saying goes.

But the prospect that the emergency powers can be abused is not a reason for the powers not to granted for their proper purpose.

(The “thin end of the wedge” argument is often a substitute for thought.)

Emergency powers need to be time-limited and subject to judicial review and democratic supervision.

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Most importantly, emergency legislation also has to be useful.

All because there is an emergency, it does not necessarily follow there is a need for emergency legislation.

The executive already has wide legal powers.

There are already many public health and related statutes.

There is always the risk of a “something must be done” sentiment meaning that emergency legislation is enacted just because something needs to be seen to be done – like an assertion of political virility.

Every piece of emergency legislation should make a difference and be relevant to the emergency faced, as well as going no further than required or lasting longer than is needed.

In other words: emergency legislation should always be necessary and proportionate.

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In technical terms, much emergency legislation falls into two categories:

– first, to provide a legal basis for the government to do a particular thing that it would otherwise not be able to do at law; and

– second, to remove a legal restriction that would otherwise mean the government cannot do a particular thing at law. 

In both situations, the legal status quo may be there for a reason – that parliament and the courts have provided for settled legal arrangements for what can and cannot happen in usual, happier, non-emergency times.

Emergency legislation is thereby a sudden interruption to these settled legal arrangements, for a specific urgent reason.

So when you look at a piece of legislation, you can see clauses that suspend some legal powers and clauses that create other legal powers.

But in both cases the three questions to be asked are the same:

– is that change necessary for the purpose of the particular emergency?

– does that change go further (and last longer) than necessary for this particular emergency?

– what are the safeguards against abuse?

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That the government is bringing forward emergency legislation to deal with an emergency is to be welcomed – for that is why emergency laws exist or should exist.

And a government seeking to enact such legislation should have nothing to fear from anxious scrutiny.

But if there are genuine concerns that the laws are not necessary, or go further or last longer than required, or do not have safeguards against abuse, then those concerns should not be shouted down with “don’t you know there is a virus (or a war) on”.

Emergency legislation is for emergencies only – and proper scrutiny, like the rule of law, should never be suspended.

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6 thoughts on “Thinking about emergency legislation”

  1. The outcome from an emergency often depends less on what the government does (or does not do) in immediate response to the emergency, and more on how individuals behave in response to the emergency: in particular whether they comply with government advice, or with the law. The current emergency is a particularly good example of this, as shown inter alia by the modelling and advice from the SAGE group.

    Some emergency legislation may be designed not actually to be used, but to shock the more recalcitrant members of the population into compliance.

    In that sense it may be simultaneously proportionate (in terms of the desired effect of the legislation) and disproportionate (in terms of its effect if actually used)

  2. A measured and thoughtful take on the government’s approach. however, some caveats. I live in Spain which has also enacted emergency legislating for a “State of Alarm”, which is one of three states allowed for under the constitution, the other two being, a “State of Emergency” and a State of Seige” or martial law. The first point is that these provisions are enshrined in the 1978 written constitution put in place after Franco. The UK of course does not have a written constitution and so we are already seeing parliamentary disquiet and opposition, not least about the two year term of the emergency provisions put forward by the Johnson/Cummings government, whilst a number of its provisions arguably fall foul of the tests set out in the article, such as for example the relaxation of health care standards. Second, this government has form when it comes abuse of process as the proroguing of parliament fiasco quite clearly showed, and the entirely credible point has been made by a number of commentators that the proposed duration of these emergency provisions is with half an eye on managing Brexit which seems likely to be heading to a No Deal scenario and the perfect storm brewing in any case because of likely exponential deaths due to government negligence and a nosediving economy. So whilst one might agree with common sense assertions about the legality of emergency legislation, such provisions will be in the hands of charlatans, liars and psycopaths, so one should be far from sanguine.

  3. Another line of thought is: necessity brings with it a dispensation since ‘necessity knows no law’. I dare say that the government’s proposed financial support for businesses falls foul of some EU law. However, human law is directed towards the common good, but where this is no longer the case it ceases to bind, at least morally.

  4. Apart from the fact that my firewall decided you were not ‘real’, (of which I am very doubtful!) your explanation of “emergency legislation” satifies me entirely.
    Been following Twitter a/c for ages; have subscribed to your ‘notifications’ for ages… so wtf am I doing wrong?
    I (really) do depend on your explanations (for which I am supremely grateful!)… but…I guess some internet person/organisation decided you were a threat (or that’s what I’d like to think)…
    So, thank you for making (all) things clear! You have my respect”

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