The outbreak of Covid-19 is an unprecedented crisis and yet the UK, like many countries, has not declared a ‘state of emergency’. In order to combat the disease, Boris Johnson’s government has taken on additional powers and responsibilities enabled by the Public Health (Control of Disease) Act 1984 and the new Coronavirus Act 2020. It has not used the Civil Contingencies Act 2004 and the history of emergency powers in the UK helps to explain why that is the case.
The Coronavirus Act did not emerge because of a legislative vacuum. A framework for managing emergencies has existed in the UK since 1920. That year, David Lloyd George’s government placed the Emergency Powers bill before parliament. In was amended in 1964 and then bolstered by the creation, under Edward Heath’s government, of the Cabinet Office Civil Contingencies Unit (CCU). Sector-specific legislation came in the following decades, such as the Energy Act 1976, the Electricity Act 1989, the Radioactive Substances Act 1993 and the Environment Act 1995. There was then a major overhaul in the 2000s when Tony Blair’s New Labour government replaced the CCU with the Civil Contingencies Secretariat, and the 1920 Act with the Civil Contingencies Act, which remains in force today.
The Civil Contingencies Act is both far-reaching in terms of the kinds of powers it grants and strict as to the burdens it places on the government. As the Institute for Government has explained, this rigidity is part of the explanation of why the Johnson government has chosen to rely on the Public Health Act and the Coronavirus Act. Any regulations made under the Civil Contingencies Act lapse after 30 days, although they can be renewed with the approval of Parliament. New measures must be placed in front of MPs as soon as possible, and if they are put in place while Parliament is prorogued it must be recalled within five days. By contrast, the Coronavirus Act obliges the government to publish a report every two months on the status of emergency provisions and calls on the House of Commons to debate the continuation of the Coronavirus Act every six months.
Emergency legislation is necessarily strict in order to ensure that the executive acts in proportion to the threat it faces. The ability of MPs to hold government to account has been a central consideration in past parliamentary debates on new legislation to grant the government extraordinary powers in an emergency. For example, Herbert Asquith, a critic of the Emergency Powers Bill, worried about the ‘free run of nearly fourteen days’ that the government would have if there were an emergency and Parliament was not sitting.
The Civil Contingencies Act is designed to provide stricter controls. It contains a ‘triple lock’ procedure to ensure that an emergency can only be declared if there is a serious threat; that the regulations are necessary; and that any measures are proportionate. To reassure Parliament that the government would face consequences if emergency powers were abused, Douglas Alexander pointed out that the courts would be able to take review action. This offered little comfort to opponents like Richard Allan, who described the court procedures as ‘convoluted’.
Another part of the explanation of the decision to avoid a state of emergency may be a wider sense that the Civil Contingencies Act is not suitable to the threat we currently face. It is for that same reason that MPs have been sensitive to the demands for new legislation made by past governments. In 1920, the government’s powers were based in war-time legislation which was no longer appropriate. Furthermore, as Andrew Bonar Law explained when he introduced the Emergency Powers Bill, the railway strike of 1919 had shown the weakness of the country to any disruption of supplies of the ‘necessities of life’. When Douglas Alexander moved the second reading of the Civil Contingencies Bill, he emphasised to MPs the novel threats they faced from flooding, new technologies, international terrorism, chemical/biological/radiological and nuclear weapons.
The decision not to use the Civil Contingencies Act is not unusual, in fact declarations of states of emergency are rare. The Emergency Powers Act was used 12 times, the last being in 1974. The Civil Contingencies Act has never been used. Not all governments have chosen to declare a state of emergency in response to coronavirus. Exceptions include 48 states of the USA, two Canadian provinces, and Armenia, Estonia, Ethiopia, Hungary, Georgia, Japan, Italy, Latvia, Moldova, Romania, Slovakia, Spain and the Czech Republic.
The relatively small number of countries that have declared a state of emergency relates to the controversy of doing so. As Alan Greene points out, emergency powers were instrumental in the rise of Hitler and more recently have been associated with countries, like Turkey, that have poor human rights records. The term ‘emergency’ is also difficult to define. In 1920 the government’s proposed definition rested on the immediacy and size of the threat, and the necessities that were being endangered. The terms ‘immediate’, ‘threatened’, ‘substantial’ and ‘necessities of life’ were too ambiguous for Asquith’s liking. In the use of such ‘general’ terms, he warned, lurked ‘the possibilities of great danger and misunderstanding’.
Similar concerns were raised about the Civil Contingencies Bill. One point of contention was that it contained a provision allowing the government to extend the list of events classed as an emergency in case the UK faced an unforeseen threat. MPs like Douglas Hogg also questioned whether that list was right. As he argued, a riot in a single city could trigger the powers, which he felt should be more narrowly drawn so that they touched only on matters of ‘extreme gravity’.
It is useful to look to the past when thinking about the reasons why the Civil Contingencies Act was not used by the Johnson government and when considering the kinds of questions parliamentarians should ask if and when they are called upon to scrutinise measures to improve the management of a future crisis. Those laws should be relevant to the new realities we face, need to define clearly the government’s role and powers in specific circumstances, and make explicit how the government will be held to account should it ever have to exercise those powers.