Emergency powers

Part 2 of the Civil Contingencies Act 2004 allows temporary emergency regulations to be made when an emergency is so serious that existing law is not enough. Cabinet Office guidance describes Part 2 as updating the Emergency Powers Act 1920, calls its use a last resort option, and says local planning should not assume that emergency powers will be made available. Part 2 was brought into force in December 2004.

Section 19 defines emergency for Part 2 in terms that mirror section 1 but refer to the United Kingdom or a Part or region of it.

Who can make regulations (section 20)

Section 20(1) allows Her Majesty by Order in Council to make emergency regulations if satisfied that the conditions in section 21 are met. Section 20(2) allows a senior Minister of the Crown, meaning the Prime Minister, a Secretary of State or the Commissioners of the Treasury, to make them instead if it would not be possible to arrange an Order in Council without serious delay. Section 20(5) requires the regulations to be prefaced by a statement that the conditions are met and that the regulations are proportionate and compatible with the Human Rights Act 1998.

The three conditions (section 21)

Section 21 specifies the conditions, commonly called the triple lock:

• the first condition is that an emergency has occurred, is occurring or is about to occur
• the second condition is that it is necessary to make provision for the purpose of preventing, controlling or mitigating an aspect or effect of the emergency
• the third condition is that the need for that provision is urgent

What regulations may do (section 22)

Section 22(1) allows any provision the maker is satisfied is appropriate to prevent, control or mitigate an aspect or effect of the emergency. Section 22(3) says regulations may make provision of any kind that could be made by Act of Parliament or by the Royal Prerogative. The list includes requisition or destruction of property with or without compensation, prohibiting or requiring movement, prohibiting assemblies and travel, creating offences of failing to comply, disapplying an enactment, and enabling deployment of the armed forces.

The limits (sections 23 and 24)

Under section 23 the regulations must specify the Parts of the United Kingdom or regions in which they have effect. They may not require military service or prohibit a strike or other industrial action. Any offence created must be triable only in a magistrates' court or, in Scotland, before a sheriff under summary procedure, with a maximum of three months' imprisonment or a fine at level 5 on the standard scale. The regulations may not alter criminal procedure, and may not amend Part 2 itself or the Human Rights Act 1998.

Section 24 requires coordinators to be appointed for each nation other than England and for each English region covered.

Duration and parliamentary scrutiny (sections 26 to 30)

Section 26 says emergency regulations lapse at the end of 30 days beginning with the date on which they are made, or earlier if the regulations say so.

Section 27 requires a senior Minister to lay the regulations before Parliament as soon as is reasonably practicable. They lapse at the end of seven days beginning with the date of laying unless each House passes a resolution approving them. Each House may also resolve that they cease to have effect, or have effect with a specified amendment. Section 28 requires Parliament to be recalled within five days if it is not sitting. Section 29 requires consultation with the devolved administrations unless urgency prevents it. Section 30 makes the regulations statutory instruments, treated as subordinate legislation under the Human Rights Act 1998.

In practice

The Emergency Response and Recovery guidance states that there must be no expectation that the government will agree to use emergency powers. The ordinary route is the lead government department and COBR, working with local responders under Part 1.