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Preparing Scotland: Scottish Guidance on Resilience

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CHAPTER 6: EMERGENCY POWERS

Emergency powers

Emergency powers, which are reserved, allow the UK Government to make special temporary legislation (emergency regulations) as a last resort in the most serious of emergencies where existing legislation is insufficient to ensure a properly effective response. 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.

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 will be appointed.

Emergency powers ensure the UK 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 UK Government can act legally and accountably in situations where temporary new legal provision is required without the time for Parliament to provide it beforehand.

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

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
  • war or terrorism, which seriously threatens the security of the UK.

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.

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 these powers are sufficient, emergency powers cannot be used, no matter how serious the emergency.

The decision to use, or not use, emergency powers, is a matter for the UK Government.

How emergency powers are invoked

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 the UK Parliament as soon as is reasonably practicable. If approved by Parliament, the regulations may stay in force for up to 30 days beginning on the day on which they are made, but can be renewed for a further 30 days at any point during or after, this period if emergency powers remain necessary.

What they will do

What emergency regulations will contain will depend on the circumstances of the emergency. The types of provision which may be made are set out at section 22 of the Civil Contingencies Act. The person making the regulations must consider their provisions to be appropriate for the purpose of preventing, controlling or mitigating an aspect of the emergency at which they are aimed; so not all of the powers in section 22 will be apposite in every case.

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

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
  • what safeguards should be included to ensure the powers are proportionate to the emergency.

The UK 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

If emergency powers are used, emergency regulations must require a senior Minister of the Crown to appoint a Scottish Emergency Co-ordinator. In practice, the appointment will be made in consultation with the First Minister or an appropriate deputy. The post‑holder will facilitate co-ordination of activities under the emergency regulations. Similar posts may be appointed elsewhere as described above.

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.

The Co-ordinator will act under the direction of the senior UK Minister of the Crown who will be responsible to the UK 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 SGoRR and, if needed, resources allocated by the Scottish Government. They will chair meetings of SGoRR.