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05 Emergency Powers
Summary
- Emergency powers are a last-resort option for responding to the most serious of emergencies where existing powers are insufficient.
- They are a mechanism for making temporary legislation in order to prevent, control or mitigate an aspect or effect of the emergency.
- Emergency regulations must be necessary to resolve the emergency and proportionate to the effect or aspect of the emergency they are aimed at.
- What emergency regulations will contain will depend on the circumstances of the emergency.
What are emergency powers?
5.1 Emergency powers allow the Government to make special temporary legislation (emergency regulations) as a last resort in the most serious of emergencies where existing legislation is insufficient to respond in the most effective way. Emergency regulations may make provision of any kind that could be made by an Act of Parliament or by exercise of the Royal Prerogative, so long as such action is needed urgently and is both necessary and proportionate in the circumstances.
5.2 The regulations may extend to the whole of the UK or to any one or more of the English regions and/or Scotland, Wales and Northern Ireland. In Scotland a Scottish Emergency Co-ordinator will be appointed to co-ordinate the handling of the emergency. Emergency Co-ordinators may be appointed for Wales and Northern Ireland and, in the English regions, Regional Nominated Co-ordinators may be appointed.
5.3 Emergency powers ensure the Government can respond quickly in emergency situations where new powers are needed and there is not sufficient time to legislate in the usual way. They ensure the Government can act legally and accountably in situations where temporary new legal provision is required without the time for Parliament to provide it beforehand.
5.4 Emergency powers are not a substitute for effective planning and investment; they are a last resort safety net for when existing powers prove insufficient. Their use cannot be guaranteed in any given situation and there are clear limits on what they may do.
When emergency powers may be used
5.5 The Act states that emergency powers can only be used if an event or situation threatens:
- serious damage to human welfare in the UK, a devolved territory or English region;
- serious damage to the environment of the UK, a devolved territory or English region; or
- war or terrorism, which seriously threatens the security of the UK.
5.6 They can be used if such a situation is occurring, has occurred or is about to occur. They can therefore be used pre-emptively to attempt to prevent or limit an expected emergency, to address an emergency while it is taking place and/or to deal with its aftermath and facilitate the return to normality.
5.7 If the situation or event is so serious as to warrant consideration of use of the powers then the decisive factor will be whether existing powers that could be used to deal with it are insufficient or ineffective. If they are sufficient emergency powers cannot be used, no matter how serious the emergency.
5.8 The decision to use emergency powers or not is a matter for central government.
How emergency powers are invoked
5.9 Emergency regulations are made by Her Majesty by Order in Council on the advice of her ministers. If, for whatever reason, this is not possible without serious delay, a senior minister of the Crown may make the regulations by order. The regulations must then be laid before Parliament as soon as reasonably practicable. Parliament must approve them (with or without amendment) within seven days of laying or they fall. They may stay in force for up to 30 days beginning on the day the regulations are made but can be renewed for a further 30 days at any point during or after, this period if it is necessary and proportionate to do so.
What they will do
5.10 What emergency regulations will contain will depend on the circumstances of the emergency. It must be necessary to make additional provision and the emergency regulations must be proportionate to the effect or aspect of the emergency they are aimed at. This sets clear limits on what can be done in any given situation. All those powers listed in section 22 of the Civil Contingencies Act will not be available in every case; the powers actually used will be tailored to the emergency.
5.11 Any decision to make regulations and the content of the regulations, will be entirely dependent upon the unique circumstances of a particular emergency.
Requesting the use of emergency powers
5.12 The decision to use emergency powers and the content of emergency regulations, are matters for the UK Government. It will assess any requests made for their use. Any such requests will have to clarify:
- what powers are requested and who should exercise them;
- why existing powers and alternative approaches (such as a voluntary approach) will be insufficiently effective;
- how the powers will be used and why this is necessary;
- the implications of not having such powers on response efforts;
- who will be affected by the powers, how they will be affected and any human rights issues raised; and
- what safeguards should be included to ensure the powers are proportionate to the emergency.
5.13 The Government will assess requests based upon its overall response strategy and the safeguards laid out in the Civil Contingencies Act. It should be borne in mind that emergency powers are a last-resort option for dealing with only the most serious of emergencies with wide scale effects. The presumption is against their use.
Emergency Co-ordinators
5.14 If emergency powers are used a Scottish Emergency Co-ordinator must be appointed in consultation with the First Minister. The postholder will be appointed by the Government in order to facilitate co-ordination of activities under the emergency regulations. Similar posts may be appointed elsewhere as described above.
5.15 The role and functions of the Co-ordinator will depend on the nature of the emergency and the response strategy adopted. The role may be very hands-off - overall strategic co-ordination and a public face for the media - or more hands-on, with the emergency regulations granting the Co-ordinator specific powers.
5.16 The Co-ordinator will act under the direction of the senior minister of the Crown who will consult with the First Minister and who will be responsible to Parliament for their actions. The Co-ordinator will act within the parameters set by the emergency regulations, by their terms of appointment and by the senior minister of the Crown. Once appointed the Scottish Emergency Co-ordinator will be supported by SEER and, if needed, resources allocated by the Scottish Executive. They will chair meetings of SEER.
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