Dijen Basu QC speaks about the Civil Contingencies Act 2004. If the Emergency Regulation must come into effect immediately upon creation, it may be some time before those subject to the criminal sanction become aware of its existence. Section 51Q(3) provides that a regulation “may come into operation without first being approved by Tynwald if it contains a declaration that the person making it is of the opinion that, by reason of urgency, it is necessary for it to come into operation before it is approved”.If some power to create Emergency Regulations which have legal effect before Tynwald has approved them is to be retained, there is a further point to consider.
These measures must be reviewed after 21 days and end as soon as no longer necessary. Nonetheless, the principal is widely accepted: serious exercise of government power requires democratic legitimacy, which at the national level is focussed in Tynwald.I have already noted a concern that the Bill gives legislative power to a single member of the Council of Ministers, rather than to the Council of Ministers itself. If MPs are able to vote and vote to stop against keeping the provisions of the Act in force, the government must make regulations to prevent provisions having effect within 21 days. In Scotland, the Public Health etc. The Cabinet Office may then proceed to make Emergency Regulations if: satisfied that an emergency has occurred, is occurring, or is about to occur (clause 8(2)); the Regulation is necessary to prevent, control, or mitigate the emergency (clause 8(3)); and is needed urgently (clause 8(4)).This emphasis on democratic oversight might justify the approval not by Tynwald as a whole, but instead by the House of Keys, who are the directly elected component of the Manx constitution. In Northern Ireland, the Public Health Act (Northern Ireland) 1967.
Breach of these restrictions is enforceable by a fine, with the level of fine increasing for subsequent breaches. The CCA stipulates that emergency regulations which relate wholly or partly to Scotland, Wales or Northern Ireland may not be made unless a senior minister of the Crown has consulted the relevant devolved administrations. The Bill states that all Emergency Regulations are to come into effect as soon as created, rather than being able to specify a date and time at which they come into effect; as was the case under the EPA (see clause 11(1)(a)). Part of the government response to this was to continue to make EPRs after the end of the state of Emergency, creating a dynamic period of continued executive legislative power to engage with the challenges of shifting border control – a period whose legality I have questioned.
It is possible for an Emergency Regulation to change the composition of Tynwald, and then secure approval for the modification by the modified Tynwald. Tight time limits on emergency measures have been built into previous legislation. On 26 March, the government replaced these regulations with the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 under the Public health (Control of Diseases) Act 1984, which outline rules on business closures and movement restrictions (announced by the prime minister on 23 March).
MPs may also have an opportunity to express a view on the continued operation of the Act’s temporary provisions every six months. This means powers under the CCA could lapse if parliament has to stop sitting during the coronavirus issues.
Its remit includes “leading the development, co-ordination and application of policies that will affect more than one department”, and “giving impartial advice and services to the Chief Minister, the Council of Ministers, and to his Excellency the Lieutenant Governor”. Although it does not guarantee it, this helps to contain emergency powers to a period of emergency.The importance of demarcation between an emergency and normalcy is strongly demonstrated by the Manx experience towards, and after the end of, the 2020 Emergency.
Where the legislation has been in effect for some time, it may be possible to draw upon insights from how it has worked in practice, or a body of commentary on the strengths and weaknesses of the legislation, in developing the Manx version. The Emergency came to an end following clear signs that a growing proportion of Tynwald were concerned that EPRs were being made unnecessarily, and that the necessity for continuing emergency powers no longer existed.
The President of Tynwald, already given a role under the Bill, may be an appropriate choice.
The Emergency Powers Act 1920 was invoked on 12 occasions, in each case during periods of industrial action. The most extensive piece of legislation covering emergency powers is part two of the Civil Contingencies Act 2004 (CCA), which replaced the Emergency Powers Act 1920.This is designed to provide powers to the government to act in the event of a catastrophic emergency. Speaking on our The government has chosen to bring forward new legislation to deal with the Covid-19 crisis, rather than using existing legislation. There is a live debate over the extent to which this development is complete – demonstrated recently by debates over the voting rights of the Lord Bishop of Sodor and Man, the role of MLCs as Departmental Members, and the transfer of control of the Council of Ministers from Tynwald to the House of Keys. Other measures must be taken by statutory instrument – requiring parliamentary approval. Under the Coronavirus Act 2020, directions made by a minister relating to potentially infectious people and to limit events and gatherings do not need to be put before parliament.
Instead, it takes the UK approach of allowing emergency powers to be exercised at any time. Early in the crisis there were complaints that the legislators were not being given sufficient time to consider EPRs before they were debated, leading the President of Tynwald to express concern to CoMin.
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