The term “emergency powers” usually refers to government powers to respond rapidly to a public emergency by:
making regulations without an act of parliament
taking actions without complying with statutory duties that it would normally have to comply with
taking actions that it would not normally be allowed to take.
Those powers can be set out in new primary legislation or, sometimes, in regulations made by ministers using existing primary legislation.
Emergency powers allow the government to introduce measures that may affect fundamental rights, such as the right to liberty. These measures can only be introduced in exceptional circumstances and should be temporary in nature.
Emergency powers are only intended to be used in exceptional circumstances. The Public Health (Control of Disease) Act 1984, which contains powers to deal with pandemics, specifies that regulations may be introduced to manage an infection which presents or could present “significant harm to human health.”
The Civil Contingencies Act 2004 (CCA), which provides for ministers to take emergency powers in general, is intended to be used in the event of a “catastrophic emergency”, when the government needs to bring in powers rapidly. The Cabinet Office guidance states that the CCA should only be used for a “category three” emergency (the highest level), and only as a last resort. The examples it gives for such an emergency are major natural disasters or a Chernobyl-scale industrial accident.
Most of the powers used by the government have been based on two acts, the pre-existing Public Health (Control of Disease Act) 1984 and new legislation, the Coronavirus Act 2020, which provides additional measures to respond to the Covid-19 emergency.
The Public Health Act is the basis for most of the emergency powers that the government has used to respond to Covid-19. The UK government has passed regulations throughout the pandemic to impose restrictions on the public. In England, these have included lockdowns on three occasions (March and October 2020 and January 2021) and other restrictions throughout. In Scotland, Wales, and Northern Ireland, regulations to enforce Covid-19 policies have also been made under the Public Health Act 1984.
The Public Health Act allows the appropriate minister to make provisions to prevent or control the spread of infection, including provisions to close schools, shops, restaurants and other premises, prohibiting or restricting events or gatherings, and limiting the activities of the public.
A magistrate has the power under the Act to make a person submit to a medical examination, detain them in hospital, hold them in quarantine, and make them abstain from working or trading.
The three main aims of the Coronavirus Act are:
- to give further powers to the government to slow the spread of the virus
- to reduce the resourcing and administrative burden on public bodies
- to limit the impact of potential staffing shortages on the delivery of public service.
The Act increases the powers of the government to restrict or prohibit events and gatherings and to close educational establishments beyond those set out in the Public Health (Control of Disease) Act 1984. Police and immigration officials will have the power to detain an individual who may be infectious.
The Act also makes provision to deal with the disruption that Covid-19 might cause to certain national security processes. It relaxes the judicial safeguard on the power of the home secretary to order the interception of communications. The maximum amount of time allowed before a warrant for interception is reviewed by a judge will be increased from three to 12 days. The government says that this is because the virus may affect judges’ availability. It will also be possible for police to retain fingerprint and DNA records for longer than usual.
To alleviate administrative and staffing shortages, the Act introduces measures such as an expansion of video hearings in courts; additional employment safeguards to allow volunteers in the health and social care sectors to leave their main jobs and temporarily support mitigation efforts; and the emergency re-registration of health professionals who have retired.
The Act also postpones local, mayoral, and police and crime commissioner elections that were scheduled to take place on 7 May 2020 until 6 May 2021.
Find out more about the Act’s provisions in our Coronavirus Act 2020 explainer. Extension of the Act, and a report on its first year of operation, are scheduled to be debated in the House of Commons on 25 March 2021.
Although the government has made use of the Public Health Act 1984 to pass regulations in response to Covid, it also passed the Coronavirus Act 2020 because the pandemic has required significant changes to the way that public bodies operate and public services are delivered that may stay in place for some time. Existing public health legislation does not contain powers which are wide enough to make those changes.
The government could have chosen to make regulations under the Civil Contingencies Act 2004, which is designed to provide powers to the government to act in the event of a catastrophic emergency.
The CCA, which replaced the Emergency Powers Act 1920, gives senior ministers the power to make any provision that could ordinarily be made through an act of parliament or by exercise of the Royal Prerogative. This includes the power to amend or suspend legislation (although not amend the Civil Contingencies Act itself, or the Human Rights Act). These powers are usually exercised by the home secretary but can be passed to another minister, such as the secretary of state for health and social care.
However, the CCA is only meant to be used as a last resort, when primary legislation cannot be passed. It also requires strict limits on its use. Regulations made under the CCA would lapse after 30 days, and the government would need approval from parliament every time it wanted to extend them. Regulations made under the CCA are also vulnerable to judicial review, whereas primary legislation is not (although decisions and regulations made under the Coronavirus Act 2020 and PHA are).
The government therefore decided that in order to manage the health threat posed by the coronavirus, greater flexibility is afforded by new primary legislation. Speaking on our IfG LIVE podcast, Shami Chakrabarti, the shadow attorney general, said it was preferable to have a bespoke piece of legislation to allow the government’s powers to be viewed in the round and scrutinised by parliament.
The use of emergency powers should be proportionate to the scale of the threat and time limited.
Regulations introduced under the CCA and the Coronavirus Act must be consistent with the Human Rights Act. There has been dispute about how the Human Rights Act interacts with measures brought in under the Public Health Act 1984, particularly concerning the right to protest.
The government has stated that the emergency measures to tackle the coronavirus will be time-limited to two years and not all measures have been used.
Regulations brought in under the Public Health Act 1984 have to be approved by parliament within 28 days or they cease to have effect. However, in the first months of the pandemic, the health secretary brought these in using the 'urgent procedure' whereby they came into force before parliament had a chance to debate and vote on them. The use of urgent procedure meant that parliament was not able to scrutinise lockdown regulations before they were law. On several occasions, these regulations had to be later amended and some have led to judicial reviews. As the pandemic continued, the health’s secretary’s use of the urgent procedure was criticised because the government did not need to bring in new regulations as hurriedly.
The Coronavirus Act 2020 includes several checkpoints for parliament:
- The secretary of state is required to publish a report every two months on the use of non-devolved aspects of the Act.
- MPs vote on the continued operation of the Act’s temporary provisions every six months. However, the powers can only be voted on in entirety, MPs do not have the ability to vote down only particular provisions. If MPs vote against keeping the provisions of the Act in force, the government must make regulations to prevent provisions having effect within 21 days. MPs are only be able to vote on the continuation of the powers if parliament is sitting. If they are not able to vote, the powers will remain in force.
- Most of the provisions in the Act are limited to two years, but a parliamentary debate must be held in both Houses of Parliament one year after the bill becomes law.
If CCA powers had been triggered, the Act requires the government to put the regulations before parliament as soon as practicable. The regulations lapse at the end of seven days unless each House of Parliament passes a resolution approving them. If parliament has been prorogued when the regulations are made, it must be recalled within five days.
The emergency powers under the Civil Contingencies Act 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.