Thursday 23 September 2021
Update on Workstreams
As I said during question time at the last States' Meeting, I have asked permission of the Presiding Officer to make a statement to the Assembly to provide an update on the Civil Contingency Authority's work to move us from an emergency to living with COVID.
Before setting out how we may change our legal structures to move from an emergency to living responsibly with COVID, it is important for Members to understand the Authority's current powers and the safeguards in place.
Under the Civil Contingencies Law the Authority has two important functions. The first and ongoing one is a preventative and planning role. This involves assessing the risks of an emergency occurring, including ensuring that appropriate risk assessments are undertaken and plans are in place to prevent, reduce, control or mitigate the effects if an emergency occurs. This ensures that business as usual can continue or be restored as soon as possible after an emergency event.
The second is the Authority's response when an emergency has occurred, is occurring or is about to occur. Over the last 18 months, its role in an on-going emergency situation of a pandemic has predominated, as it has sought to prevent, control and mitigate the impact of COVID in our community.
The Law provides the Authority with wide Regulation-making powers, including making temporary amendments primary legislation which, outside of an emergency, would require States' approval of a new Projet.
These wide law-making powers have several safeguards in place to ensure that any Regulations are proportionate; that is they bring in measures that are no more than necessary, and relate to the emergency itself or an effect of it. These safeguards are set out in section 13 and provide a four-fold lock which must be considered each and every time the Authority makes Regulations.
These four conditions are:
(1) That an emergency has occurred, is occurring or is about to occur;
(2) That the Regulations are necessary for the purpose of preventing, controlling or mitigating the emergency or any aspect or effect of it;
(3) That the need for regulations is urgent, i.e. it is not possible for the usual process to be followed in amending legislation through this Assembly; and
(4) That Her Majesty's Procureur has advised the Authority about the proportionality of making the Regulations.
Only if each of these conditions is met, can the Authority lawfully make the Regulations.
The Authority started to consider as early as last summer how the transition from an emergency status to returning to normal could be managed. However, the second wave over last winter and the need for the Bailiwick to enter a second lockdown in January this year demonstrated the fastmoving dynamic of this emergency.
The need to protect health services across the Bailiwick has been and remains at the core of the measures to control, mitigate and prevent COVID causing serious harm to the welfare of Bailiwick residents while minimising adverse impact to our economy.
As we have more recently moved through the stages out of lockdown, the Authority has again turned its attention to what statutory provision might be put in place by the Bailiwick legislatures to manage the effects of COVID, as an alternative to the use of Emergency Regulations. In relation to that, it will make arrangements for a policy letter to be brought to this Assembly so that it may decide how the Bailiwick manages the epidemic. And it will do so soon.
The Authority has already concluded that there are 2 discrete areas where powers to regulate outside the Civil Contingencies Law are needed.
First, there is a need for statutory provision to be in place in order that, for example, the Medical Officer of Health (MOH) may control the movements within the Bailiwick of individuals who are infected or who may be infected with COVID. These are health related provisions which the Authority believes are best given to the MOH and her team to use.
With that in mind, the Authority is exploring the potential to provide for the current MOH powers in the Emergency Regulations to be inserted into extant Public Health legislation on a permanent basis and removing the need for ongoing provision to be made by way of Emergency Regulations. The relevant Emergency Regulations powers have changed remarkably little since the very first iterations of the Regulations; and importantly, they are likely to be needed in essentially the same form for several years to come at least.
Second, there is a need to have in place restrictions based on place of origin that may be necessary to impose on those arriving legally into the Bailiwick, and associated powers, both subject to variation on advice from the MOH. There are a number of alternatives to creating appropriate restrictions under Emergency Regulations, but currently no Committee has the necessary authority to create and enforce those restrictions.
These are the provisions that have been subject to the greatest change over the course of the pandemic. Because of the more limited scope of any regulatory regime addressing this issue, it would probably be more appropriate to create suitable powers under a new Projet, rather than by way of a Projet amending the Civil Contingencies Law.
The Authority is currently discussing where those powers should rest. Clearly a number of factors would need to be considered when making any Regulations under a new Projet. A practical solution would be for the Policy & Resources Committee, as advised by the MOH and a Policy & Resources sub-committee of Principal Committee Presidents and the Presidents of Alderney's Policy and Finance Committee and Sark's Policy & Finance Committee. Principal Committee Presidents would proffer advice in the context of the policy mandates as delegated to them by their Committees akin to the successful model adopted during Brexit negotiations.
The Authority will consult with other Committees and the governments in Alderney and Sark to develop its final set of proposals for the Assembly and intends to seek permission to lodge them as an additional Billet for debate at the States' Meeting on 25th November 2021. This timeframe will also provide adequate time for legal advice and possibly to bring forward draft legislation should that be the recommended option.
Finally, Members must be aware and should be reassured that whichever of the options they resolve, the Authority will continue to discharge its monitoring and preventative role. It will, in particular, assess the risk of the "COVID emergency" re-occurring which may necessitate the Authority again making Emergency Regulations. The triggers it will monitor will include rates of infection, disruption to critical services and deaths such as may transpire from a naturally occurring new variant of concern which is vaccine resistant.
If this does occur, it does not mean that any new structure will cease to act but rather the Authority will work alongside the new structure to ensure that any significant Regulations which may be necessary to prevent, control or mitigate any aspect or effect of the new emergency can be made urgently if needed.
