Parliamentary Scrutiny of Emergency Powers

The government agrees that the legislative response to emergencies should be clear, well-defined and subject to the appropriate parliamentary oversight. Sunset clauses and duties to report can be useful mechanisms to ensure that this is the case. These have been successfully used with previous pieces of legislation to ensure a balance of appropriate scrutiny from parliaments alongside a need to respond in an appropriate manner to the situation at that time.

Since the Covid-19 pandemic, the government has continued to strengthen and refine the guidance on drafting and framing legislation. This includes the publication of the Delegated Powers Toolkit in the government’s 2025 Guide to making legislation which sets out considerations for the balance between primary and secondary legislation and how to appropriately construct delegated powers.

The government recognises that different emergencies will require different legislative approaches and would need to be considered on a case-by-case basis to assess the most appropriate response, including the appropriate parliamentary procedures. This would be a matter for the governments at that time.

Accepted

The Northern Ireland Executive recognises the importance of ensuring that any legislative response to emergencies is clear, proportionate and subject to appropriate oversight by the Northern Ireland Assembly. Mechanisms such as sunset clauses and reporting requirements can play a valuable role in ensuring that emergency powers remain time-limited, transparent and properly scrutinised. These approaches have been used effectively in previous legislation to maintain an appropriate balance between swift operational response and democratic accountability.

The Executive acknowledges that different types of emergencies, whether public health, environmental, civil contingencies or otherwise, may require different legislative approaches. Any future response would need to be considered on a case-by-case basis to determine the legislative mechanism appropriate to the prevailing circumstances. These decisions would fall to the Executive and Assembly of the day, which would seek to balance timely and effective action with safeguards to ensure accountability and maintain public confidence.

TEO will work to ensure effective collaboration with colleagues in the Northern Ireland Assembly by supporting clear, timely and secure flows of information. We will share material through the appropriate channels to help maintain trust between departments, Assembly officials and Members. This is a complex area and further discussion with our Assembly colleagues is required to ensure we can reflect the intent of this recommendation in future processes.

The Scottish Government accepts this recommendation. The Scottish Government agrees the draft affirmative procedure should always be the first option for making subordinate legislation in a civil emergency. Instruments should be accompanied by clear and accessible policy and explanatory notes so all those affected can clearly understand the law and how it impacts them.

In line with feedback from stakeholders, the Scottish Government also recognises the importance of consultation on the impact of proposed legislation before legislation is progressed and will seek opportunities to do so as far as is possible in the context of responding to an emergency. The Scottish Government also recognises the valuable role consultation and co-production plays in the development of any guidance resulting from such legislation and the potential value of such guidance in ensuring the implementation of legislation has the impact anticipated and does not generate unintended consequences.

If the Scottish Government considers more urgent action is required, the Scottish Government will first look to make use of an expedited version of the standard draft affirmative procedure. This would involve agreeing a shorter scrutiny timetable with the Scottish Parliament.

Only in exceptional circumstances will the Scottish Government consider making use of the made affirmative procedure. This enables measures to be brought into force immediately, but measures can only stay in force after a certain period of time if approved by Parliament. The Scottish Government agrees the expiration date of any such regulations would typically be within two months.

The made-affirmative procedure is an exceptional power in the statute book. It is only granted by Parliament in circumstances where it is clear more urgent action is required than can take place under the standard affirmative procedure. If a made-affirmative instrument is ever used, the Scottish Government will provide a full explanation as to why urgent action is necessary at the earliest possible opportunity.

Scottish Ministers understand their duty to the Scottish Parliament and the people of Scotland to account, and be held to account, for the actions they take. The Scottish Government therefore uses a variety of means to update the Scottish Parliament and engage in debate and scrutiny.

The Government recognises the need for this scrutiny to include reporting on the exercise of emergency powers as recommended by the Inquiry. It is for the Scottish Parliament to set out how and when it wishes to receive reports. The Scottish Government will respond to any requests from the Scottish Parliament on reporting.

The Government will also continue to consult with the people of Scotland as widely as possible before clearly and openly setting out its policy intentions or potential policy direction.

4.1. Responding to a pandemic or other whole-system emergency will sometimes require the introduction, via regulations, of restrictions on people’s freedoms. During Covid-19 these freedoms were at times significantly curtailed. The Welsh Government therefore agrees with the Inquiry that the legislative response to emergencies should be clear, well-defined and subject to the appropriate parliamentary oversight and scrutiny and accepts in principle recommendation 15.

4.2. During the Covid-19 pandemic the Public Health (Control of Disease) Act 1984 (“the 1984 Act”) provided the emergency procedure which enabled regulations to be made by Welsh Ministers without a draft being laid and approved by the Senedd. This is the “made affirmative” procedure referenced in the Inquiry’s Module 2 Report. The Senedd has enacted legislation in a range of areas which permit subordinate legislation to be made under this procedure recognising that at times there may be an expectation on ministers, following careful consideration and judgement, to take urgent action, for example, in relation to a severe health protection emergency such as the Covid-19 pandemic or to swiftly make changes to tax thresholds or exemptions.

4.3. Notwithstanding the need for such emergency procedures, the Welsh Government is committed to improving the accessibility, coherence and democratic oversight of Welsh law. The Welsh Government’s programme to improve the accessibility of Welsh law (‘The Future of Welsh Law, a programme for 2021 to 2026’) includes the making of the Legislation (Procedure, Publication and Repeals) (Wales) Act 2025 (“the 2025 Act”). Its purpose is to bring together and formalise the arrangements for making Welsh legislation.

4.4. Since 1 January 2026, the “made affirmative” procedure has been replaced in Welsh law by a newly created “Senedd confirmation procedure”. While this procedure continues to operate in the same way as the ”made affirmative” procedure, the “Senedd confirmation procedure” uses clearer and more accessible terminology. The name explains in plain language that the Senedd must confirm the regulations for them to remain in force, reflecting the wider policy aim of ensuring that legislative processes have straightforward titles that are easily understood by the public.

4.5. This change in terminology aligns with the broader reforms introduced by the 2025 Act bringing procedures together in one place, simplifying them into core categories, using modern drafting techniques and language, and ensuring full accessibility in both Welsh and English. This clarity is particularly valuable during fast‑moving situations, such as civil emergencies, where accessible and intuitive naming supports public understanding and effective scrutiny.

4.6. Where the Senedd confirmation procedure is the appropriate procedure, the Welsh Government agrees that the use of sunset clauses and reporting to the Senedd on the exercise of emergency powers may provide useful mechanisms to improve transparency, scrutiny and collaboration. During the Covid-19 pandemic the regulations which imposed restrictions on businesses and individuals were reviewed every 21 days in Wales and both the Chief Medical Officer’s advice and the Technical Advisory Cell summary, upon which 21-day review decisions were made, were published to ensure that Members of the Senedd and the public understood the evidence and advice supporting the Welsh Government’s decisions and decision-making process. Ministerial Written Statements issued to inform Members of the Senedd, and the public, of the making of key Covid-19-related legislation also provided regular consolidated reports to the Senedd on all Covid-19 related legislation as well as the use of the Welsh Ministers’ powers under the Coronavirus Act 2020.

4.7. It is important to recognise that different emergencies will require different legislative approaches and would need to be considered on a case-by-case basis to assess the most appropriate response, including the appropriate Senedd procedures. This would be a matter for the government at that time, when considering the balance of sufficient Senedd scrutiny against the appropriate emergency response to protect people and save lives.

No statement on delivery from Cabinet Office has been found in the sources searched. This is separate from the response above.