Saturday, 23 May 2020

The Civil Contingencies Act 2004 was not used. Why?

Some States have provisions in their national law for declaring emergencies. See, for example, the Declaration by the President Trump of the USA of 13 March 2020.  Such declarations of emergency can trigger special powers such as powers to maintain public order and safety, to requisition and take possession of property, limit traffic and transport, place restrictions on financial transactions etc. The exact impact of such declarations of emergency varies from nation to nation.  The UK relies on existing legal powers (mostly in legislation) but will, if necessary, enact specific legislation to cope with a serious event. The UK's Civil Contingencies Act 2004 is a major piece of legislation designed for emergency events but has not been used in the coronavirus pandemic. 

Civil Contingencies Act:

The Civil Contingencies Act 2004 Part 2 - (CCA) - confers
a power on "Her Majesty" (or, in limited circumstances, a senior Minister) to make regulations if an “emergency” has occurred or is about to occur.
 
“Emergency” is defined broadly to include events and situations which threaten serious damage to human welfare in the UK - (see section 19 for the full definition). An international pandemic such as coronavirus is a paradigm example of situations for which the Act was designed.

Section 20 sets out the Regulation-making powers and those powers are subject to the conditions specified in section 21. Details of what may be included in the powers are amplified in section 22.

Conditions - section 21:

The conditions set out section 21 are - first, an emergency must either have occurred, be occurring or be about to occur - section 21(2). Secondly, it must be necessary to make provision for the purpose of preventing, controlling or mitigating an aspect or effect of the emergency - section 21(3). Thirdly, the need for provision to be made must be urgent - section 21(4).

It appears that all of those conditions were met as the coronavirus pandemic developed.

As a general principle, emergency regulations are not made where existing legislation is adequate to deal with a situation but section 21 provides that the CCA power can be used if, for example, existing legislation (a) cannot be relied upon without the risk of serious delay, (b) it is not possible without the risk of serious delay to ascertain whether the existing legislation can be relied upon, or (c) the existing legislation might be insufficiently effective - see sections 21(5) and 21(6).

Parliamentary controls:

The CCA includes strict provisions for parliamentary scrutiny of any regulations made under the Act.

Regulations expire after 30 days (section 26) but new Regulations may be made.

Emergency regulations must be laid before Parliament "as soon as is reasonable practicable" - section 27 - and they lapse 7 days later unless each House of Parliament passes a resolution approving them.

Section 28 provides for a recall of Parliament if it stands prorogued when emergency regulations are made. If one or both Houses of Parliament are adjourned at the time emergency regulations are made then the House has to meet.

These provisions ensure that emergency powers are strictly limited to what is required for the duration of that emergency and no more. 

The CCA was not used:

Although the CCA is ready and waiting in the armoury to be used to fight an emergency such as coronavirus it was not used.

Instead, the government brought forward a lengthy bill which became the Coronavirus Act 2020 - (see earlier post). This was enacted with minimum scrutiny and yet it is a complex Bill touching on numerous areas. There is a clear risk that many of its provisions could become permanent features in our law.

The government also opted to use powers in Part 2A of the Public Health (Control of Disease) Act 1984  (1984 Act) to make the English version of the "lockdown" regulations - (see the amended version of the Regulations).

The 1984 Act:

Explanatory Notes to the Health and Social Care Act 2008 Act state that amendment to the Public Health (Control of Disease) Act 1984 was required to enable new International Health Regulations (IHR) to be implemented, including World Health Organization (WHO) recommendations issued under them.  The Health and Social Care Act 2008 inserted Part 2A into the 1984 Act

The regulation-making power in the 1984 Act is section 45C.   It is a convoluted power enabling the Secretary of State to impose "restrictions or requirements on or in relation to persons, things or premises in the event of, or in response to, a threat to public health."  The 1984 Act is considered in further detail in this previous post of 26 March 2020.

The powers in the 1984 Act also include the emergency procedure used to make the lockdown regulations - section 45R.  The emergency procedure requires that regulations made by the Minister must be laid before Parliament and must be approved within 28 days but the 28 days does not include any time during which Parliament is prorogued or dissolved or during which both Houses are adjourned for more than 4 days.

There are no provisions in the 1984 Act to address the situation when Parliament is prorogued. Also, if either House is adjourned when the regulations are made then approval can await the return of the House.

If Parliament could not meet?

Neither the CCA nor the 1984 Act consider the situation where Parliament is unable to meet. This might have arisen during a pandemic where members are unable to physically meet. In the event, Parliament took steps to continue to function.

Options for government:

In the making of the lockdown powers the government could have:

a) brought foward primary legislation to impose the lockdown - e.g. powers could have been included in the Coronavirus Bill which, after speedy passage through Parliament, received Royal Assent on 25 March,

b) used the Civil Contingencies Act (CCA) - sets out clearly the powers that may be included in emergency regulations. Requires parliamentary scrutiny and renewal of the regulations at 30 day intervals,

c) used other appropriate existing legislation.

Looking at each of those options -

Option (a) - would have prevented legal challenges other than those based on "Convention Rights" as defined by the Human Rights Act 1998. The courts could make a declaration of incompatibility in an appropriate case but primary legislation cannot be "struck down" (or quashed).  The UK has not entered into a derogation from the European Convention on Human Rights - see Article 15.

Option (b) - the CCA is an appropriate and existing legislative mechanism but the Act itself points to the use of other legislation where it is appropriate and available for use without delay. The CCA also imposes parliamentary controls which the government may have considered to be inconvenient / unduly restrictive.

Option (c) - the 1984 Act was amended in the light of the International Health Regulations (2005) and is clearly intended to create powers for use to control the spread of disease. The Minister makes the regulations which can come into force as soon as they are made though they must eventually be approved by Parliament.

Using the 1984 Act has left the lockdown regulations (in whole or, perhaps more likely, in part) open to the possibility that they are ultra vires the powers given to Ministers by the Act.

For a view that the Regulations are lawful see Professor Jeff King - Part 1 dated 1 April and Part 2 dated 2 April and for the contrary view that they are ultra vires see UK Human Rights Blog 6 April (Robert Craig)   Also see the article published by Blackstone Chambers - Coronavirus and civil liberties in the UK

Conclusion:

Not to use the Civil Contingencies Act in this situation begs the question - "When, if at all, would the Act ever be used?"

The answer to that probably lies within Cabinet Office guidance on Response to Emergencies where 3 levels of emergency are set out. Level 3 (Catastrophic Emergency) is probably the one where the CCA is most likely to be invoked.

This is an emergency with "exceptionally high and potentially widespread impact and requires immediate central government direction and support, such as a major natural disaster, or a Chernobyl-scale industrial accident. Characteristics might include a top-down response in circumstances where the local response had been overwhelmed, or the use of emergency powers were required to direct the response or requisition assets and resources. The Prime Minister would lead the national response."


Using emergency powers in the UK has always raised serious concerns about infringement of liberty and long-term adverse impact on rights. As the Institute for Government pointed out -

"The emergency powers under the CCA have never been used.

The Emergency Powers Act 1920 was invoked on 12 occasions, in each case during periods of industrial action. It was most recently used by the Conservative government during the energy crisis and coalminers’ strike in 1973.

During the First and Second World Wars, the government passed legislation giving the executive sweeping powers under the Defence of the Realm Act 1914 and the Emergency Powers (Defence) Act 1939 respectively." 

It is also possible that entirely practical considerations were at play in making the decision as to how to proceed. As explained by Graeme Cowie (see tweet below) - " they couldn’t say with confidence that Parliament would be able to sit at regular intervals, which CCA explicitly requires when making e-regs."  In the event, Parliament has been able to make arrangements to continue its work. The Regulations – and the amendments to them – were approved in accordance with the terms of the 1984 Act by the House of Commons on 4 May 2020 and by the House of Lords on 12 May 2020.

Links:

Law Society Gazette 2 April 2020 - Why the goverment did not use the Civil Contingencies Act  rather than enact the Coronavirus Act.

Bennett Institute - Emergency legislation and the Covid-19 crisis 

Institute for Government - Emergency Powers

1 comment:

  1. The closure of schools may be another unused part of the COVID-19 statutory armoury. The government’s 18 March announcement that schools were to close has not (so far as I can find) been followed up by a temporary closure direction under Coronavirus Act 2020 Schedule 16, which leaves a puzzle as to the lawfulness of schools currently failing to carry out their normal statutory duties.

    Similarly, this week’s government announcements about the part re-opening of schools in June sound as if this will be mandatory. But there is no hint of any temporary continuity direction being made under Schedule 17 of the Act. Which means it will be up to schools to decide what they want to do and again raises the question of whether there is any lawful basis for what they decide.

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