Commentary on Sections Section 20: Power to make emergency regulations
42.Subsection (1) enables Her Majesty to make emergency regulations by Order in Council if satisfied that the conditions set out in section 21 are satisfied. In exercising this power, Her Majesty would act on the advice of her Ministers, principally the Secretary of State for the Home Department as the member of the Cabinet with responsibility for domestic security and resilience.
43.Subsection (2) enables a senior Minister of the Crown to make emergency regulations if it would not be possible without serious delay to arrange for an Order in Council under subsection (1). “Senior Minister of the Crown” is defined by subsection (3) to mean the First Lord of the Treasury (the Prime Minister), any of Her Majesty’s Principal Secretaries of State and the Commissioners of Her Majesty’s Treasury (the functions of the Treasury are customarily carried out by the Commissioners). In practice, the exercise of these powers will principally be the responsibility of the Secretary of State for the Home Department as the member of the Cabinet with responsibility for domestic security and resilience, acting by collective agreement. Should the Secretary of State for the Home Department not be able to make the emergency regulations, or if the emergency is focused on a particular sector which is outside the responsibilities of that Department (for example, an emergency relating solely to animal health), it may be appropriate for the lead responsibility to pass to another Minister.
44.Subsection (5) provides that regulations must be prefaced with a statement that the maker of the regulations is satisfied of various matters, including that an emergency has occurred, is occurring or is about to occur. The statement must also provide that the maker of the regulations is satisfied that the regulations are compatible with the Convention rights (within the meaning of the Human Rights Act 1998). This symbolic statement reflects in part the procedure under the existing legislation (the Emergency Powers Act 1920 and its Northern Ireland equivalent) which requires Her Majesty to proclaim that a state of emergency exists before making emergency regulations.