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Annex D
Civil Contingencies Act 2004: Part 2 (Emergency Powers)
In the UK emergency powers allow the making of special temporary legislation to deal with the most serious of emergencies. They are not means for instigating martial law, for undermining Parliament, banning political parties or anything else of that nature. An essential point to note is that Emergency Powers legislation is a mechanism for dealing with only the most serious of emergencies that require an urgent response, an instrument of last resort.
The emergency powers provisions of the Act extend to the whole of the UK. They set out a new definition of what constitutes an emergency appropriate to times in which we live and incorporate new risks, including terrorist attacks and contaminated land following a CBRN terrorist attack and loss of communications systems on which we now depend.
The Act ensures 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.
It is possible to use emergency powers on a regional and/or devolved administration basis (for example Scotland only). This ensures any special temporary legislation will apply only in the part of the UK affected by the emergency, leaving those elsewhere unaffected.
The Act also requires the appointment of a 'Scottish Emergency Co-ordinator'. If emergency powers re used, he/she will act as the focal point for co-ordination of response efforts at the regional or devolved administration level.
In Scotland
The Scottish Ministers can request that emergency regulations should be made in Scotland. Such a request would normally be made through the relevant UK Lead Department - or Cabinet Office it is a cross-departmental issue - and in conjunction with the Scotland Office as appropriate. The UK Government will consider such a request, and communicate its response to the Scottish Ministers as rapidly as possible. If, during a CBRN incident there is a perceived need for emergency powers in Scotland, initial consultations should first be made with the Scottish Government.
Regulations may confer functions on the Scottish Ministers, including a power, or duty, to exercise discretion and a power to give directions or orders, whether written or oral. The Act provides for regulations to be made under Part 2 to permit further subordinate legislation to be made, and the regulations may confer the authority to the Scottish Ministers to make such legislation.
A Concordat exists between the UK Government and Scottish Ministers which sets out in more detail about how these arrangements will work in practice.
THIS CHAPTER TO BE REVIEWED BY DECEMBER 2009
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