This week the Government introduced the Coronavirus Bill, which would give it new powers to tackle the spread of Covid-19. In this blog, we look at the emergency powers already available to the Government under existing legislation.
Public Health (Control of Disease) Act 1984
Ministers: regulation-making powers
The Health and Social Care Act 2008 inserted provisions into the Public Health (Control of Disease) Act 1984 allowing ministers to make regulations to tackle a disease. These regulations may include:
- imposing duties on registered medical practitioners or other persons to record and notify cases or suspected cases of infection or contamination;
- conferring on local authorities or other persons functions in relation to the monitoring of public health risks; and
- imposing or enabling the imposition of 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.
Except in an emergency, statutory instruments made under the Act must be laid in draft before, and approved by a resolution of, each House. However, in an emergency the statutory instrument may be made without a draft having been laid and approved by each House. In this case, after the instrument has been made, it must be laid before each House of Parliament. The Act does not give the time period within which it must be laid before Parliament. The statutory instrument ceases to have effect 28 days after it is made, unless it is approved by a resolution of each House. If either House rejects the instrument it ceases to have effect that day.
The Public Health (Control of Disease) Act 1984 was relied on to make the Health Protection (Coronavirus) Regulations 2020. Because of their emergency status, the regulations were made without prior parliamentary scrutiny, and were brought into force immediately. They will automatically expire after two years unless Parliament decides to extend them. The House of Lords debated and approved the regulations on 9 March 2020. You can read more about the coronavirus regulations 2020 on our blog here.
Justices of the Peace: Part 2A orders
In addition to regulation-making powers for ministers, the Public Health (Control of Disease) Act 1984 gives power to local authorities to ask a justice of the peace, also known as a magistrate, to order compulsory health measures. In a survey of global legal responses to health emergencies the Law Library of the US Congress summarises this power:
To prevent the spread of infection or contamination, the Act provides that justices of the peace may impose restrictions and requirements on individuals, premises, groups, and objects through orders, known as “part 2A orders”. Only local authorities may apply to a justice of the peace for a part 2A order, and these orders may, in certain circumstances, be made without notifying the individual affected by the order. Once made, an individual affected by the order, the local authorities, or any other body that is responsible for enforcing or executing the order may apply to have it revoked or varied.
Such an order may require that an individual:
- submit to medical examination;
- be removed to a hospital or other suitable establishment;
- be detained in a hospital or other suitable establishment (unless otherwise stated, for a maximum period of twenty-eight days);
- be kept in isolation or quarantine (unless otherwise stated, for a maximum period of twenty-eight days);
- be disinfected or decontaminated;
- wear protective clothing;
- provide information or answer questions about their health or other circumstances;
- have their health monitored and the results reported;
- attend training or advice sessions on how to reduce the risk of infecting or contaminating others;
- be subject to restrictions on where they go or with whom they have contact; and
- abstain from working or trading.
Restrictions or requirements the order imposes may not be in force for more than 28 days, and any extension of a restriction or requirement must not exceed 28 days.
Civil Contingencies Act 2004
Emergency regulations: provisions
The statutory framework for planning for and responding to emergencies generally is in the Civil Contingencies Act 2004. Under the Act, the Government can make emergency regulations if it is satisfied that:
- an emergency has occurred, is occurring or is about to occur;
- it is necessary to make provision for the purpose of preventing, controlling, or mitigating an aspect or effect of the emergency; and
- the need for the provision is urgent.
If the Government wishes to make regulations to achieve something that could be achieved through existing legislation, it can only do so if existing legislation cannot be relied on quickly enough or might be insufficiently effective.
What could regulations cover?
Regulations made under the Act potentially have a wide scope, as the Act states that “emergency regulations may make provision of any kind that could be made by Act of Parliament or by the exercise of the royal prerogative”. Examples of what the regulations may do include:
- prohibit or require the movement of people to or from specified places;
- prohibit assemblies of certain kinds; and
- create offences of failing to comply with the regulations.
Such regulations are subject to an overall limitation that they are appropriate and proportionate for addressing the emergency. In addition, the regulations cannot:
- conscript people into military service;
- prohibit strikes; or
- amend part 2 of the Civil Contingencies Act 2004.
Writing for Westlaw, Daniel Greenberg argues that the restriction on amending part 2 of the Civil Contingencies Act 2004 is particularly significant:
This last restriction is of particular importance as it makes it impossible for the Government to remove emergency regulations’ essential vulnerability to challenge under the Human Rights Act; the result of that is that the high court could strike emergency regulations down on human rights grounds (including regulations that make provision equal to or amending primary legislation).
Each set of emergency regulations lapses after 30 days, unless an earlier date is specified in the regulations.
There is no requirement to obtain parliament’s approval before emergency regulations are made. However, the Government must lay regulations before parliament as soon as “reasonably practicable” after they are made. The regulations lapse seven days after being laid before parliament unless each House has approved them during that time. Parliament can bring emergency regulations to an end, or amend them, by resolution of the two Houses at any time while the regulations have effect.
The Act specifies that the Government can make new regulations. Therefore, the Government could theoretically repeatedly make similar or identical regulations even if parliament had declined to approve or revoked previous regulations.
Introduction of the powers
The Labour Government of 1997-2010 introduced both sets of provisions.
It explained to the House of Lords Constitution Committee why it considered the regulation-making powers it added to the Public Health (Control of Diseases) Act 1984 required different parliamentary scrutiny to those in the Civil Contingencies Act 2004. The then Government said that measures made under the 1984 Act might be urgent but “minor in scope and effect”. Therefore, it believed that recalling Parliament to debate and approve them within seven days would “send the wrong signals to the public”, and might not warrant preferential treatment over other parliamentary business.
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