Countdown to Brexit: 5 days - “Operation Yellowhammer” - ‘no-deal Brexit’ contingency and emergency plan comes into force today

We have previously reported on the Governments ‘no-deal’ emergency planning – codenamed ‘Operation Yellowhammer’.  The Guardian newspaper reports the leak of a classified ‘Contingency Operations’ document issued to Central and Local Government as part of Yellowhammer.

Countdown to Brexit: 61 days – Brexit gets animal as Yellowhammer challenges Cobra

 Although preparations for a no-deal have been ramped up, the situation is described as ‘rudderless - and appears to be highly chaotic’.

Publication of the ‘Con-ops’ document coincides with two parallel briefings on two Parliamentary briefings this weekend on ‘civil contingency and emergency planning powers’.  We look at key aspects of the briefings and there are links to the full Parliamentary briefings referenced below.

The Parliamentary briefing to MPs confirms that COBRA now has control of no-deal planning and – unless a deal was in place – “would be implementing contingency measures from 24 March 2019”.

Military aid to the civil authorities

The Defence Secretary has 3,500 troops held in readiness to support any Government department with contingency needs.  The Government has rejected suggestions there are plans for military personnel to be used for ‘public order’ post-Brexit.  

30 military planners have been posted to other departments to assist with contingency planning.

The Ministry Of Defence has formally issued a ‘Call-Out’ order allowing placement of all Reservists into full-time service ‘in support of Government contingency planning for a no-deal exit’.

There is an established process - known as Military Aid to the Civil Authorities (MACA) - for deploying the armed forces in the UK if it is requested by central or local ‘civil authorities’.  Ministerial approval is required in order to respond to any such request for assistance.

MACA is governed by: the Civil Contingencies Act 2004 Act; and the Emergency Powers Act 1964 (Section 2).

In extreme situations, service personnel can deploy for military tasks under ‘Royal Prerogative’.

Civil contingency planning for a no-deal Brexit

Permanent Secretary at the Department for Exiting the European Union, Philip Rycroft, in a letter in to the Public Accounts Committee, said that the Cabinet Office had 10 workstreams relating to Brexit - one of which related to civil contingencies.

Cabinet Office Minister, David Lidington, told Parliament that the ‘Civil Contingencies Secretariat’ in the Cabinet Office was taking “an active part” in contingency planning.

Chancellor of the Exchequer, Philip Hammond, said in January that he had made “arrangements to ensure that Departments and the devolved Administrations can fund measures to address urgent civil contingencies in a no-deal scenario”.

Media reports later that month, suggested that Ministers were considering use of emergency powers - possibly including martial law - to deal with potential civil unrest after Brexit.

Cabinet Secretary and National Security Adviser, Sir Mark Sedwill, in evidence to the Joint Select Committee on the National Security Strategy, dismissed talk of martial law in the event of no-deal.  Asked if there might be emergency regulations, he drew attention to the Civil Contingencies Act 2004 - which provides for certain emergency powers and which he said might be a “bridging solution” if, for example, ‘secondary legislation’ had not gone through, or powers were unclear.  He said there was no expectation that it would need to be used.  

Sedwill confirmed that the Government was doing all the contingency planning that it could - but there would be a “significant economic and, indeed, logistic impact” immediately after a no-deal Brexit - and then in the months afterwards.

Code-named “Operation Yellowhammer” and addressing key elements of Government departments’ contingency planning, it is coordinated by the ‘Civil Contingencies Secretariat’.  Earlier this month, the National Audit Office published its report on Operation Yellowhammer - drawing attention to: the scale of contingency planning required; the number of areas of risk; and number of bodies which might be involved in any emergency response.

In a serious or catastrophic ‘emergency’, command and control of the response for the nation shifts to the Cabinet Office.  Historically, the team managing the highest-level emergencies were allocated to ‘Briefing Room A’.  Cabinet Office Briefing Room A – “COBRA” - is now an established part of UK Government role in dealing with contingencies and emergencies.    

The Cabinet Office’s guidance on the UK central government response to emergencies identifies three levels of emergency: significant emergency (level 1), serious emergency (level 2) and catastrophic emergency (level 3).  Only the last of these (the guidance suggests) might require use of the 2004 Act’s emergency powers provisions.  The guidance goes on to say that the central response framework - including COBRA - would be activated in the event of a level 2 or 3 emergency.

In March 2019, COBRA took control of no-deal planning and – unless a deal was in place - will be implementing contingency measures from 24 March 2019.

Meanwhile, the Sunday Times, today, reports that the Government is drawing up plans to evacuate the Queen and other members of the royal family from London in the event of rioting or major public disorder, triggered by a no-deal Brexit.

The plans are a "repurposed" version of proposals drawn up to rescue the royal family during the Cold War – and would see the Queen and Prince Philip taken to a secret location.

A second parliamentary briefing to the House of Lords addresses the constitutional aspects of the Government’s civil contingencies planning in the event of the UK leaving the EU without having ratified a negotiated withdrawal agreement - a ‘no-deal’ Brexit.

The use of emergency powers – for instance, the creation of temporary legislation - is set out in part 2 of the Civil Contingencies Act 2004 (CCA 2004).  The Act provides the Government with powers to create emergency regulations to deal with emergencies that threaten “serious damage to human welfare”, or that threaten damage to the environment or the security of the UK.

Damage to human welfare is defined in the Act to include disruption to transport networks or to the supply of food, money, energy, or health services.

The CCA 2004 provides powers for the Monarch or a senior Minister of the Crown to make emergency regulations, under certain circumstances, to deal with the most serious emergencies.

In practice, such regulations are drafted and their substance determined by the Government.  The powers are wide-ranging, providing the Government with the power to make any provision that could be made by an Act of Parliament or through the use of the royal prerogative.  The regulations must be laid before Parliament as soon as is practicable, and they would lapse after seven days if not approved by both Houses of Parliament.

This briefing summarises the circumstances in which emergency powers can be used, the procedure for creating emergency regulations, and the provisions for parliamentary scrutiny of the regulations.

A full copy can be found using the link, below.

Yellowhammer – Contingency Operations

There are 12 ‘high risk’ areas identified as a particular concern, including healthcare services and national security:

1.       Disruption to the transport system

2.       Disruption to people crossing borders

3.       Disruption of key goods crossing borders

4.       Healthcare services

5.       Energy and critical industry

6.       Food and water

7.       Impacts on British nationals overseas

8.       Law enforcement data/ Law enforcement database access

9.       Banking and industry services

10.   Cumulative impact of all challenges on Northern Ireland

11.   Overseas territories and Crown Dependencies (including Gibraltar)

12.   National Security

COBRA will have ‘sweeping powers’ to deal with and order emergency measures, which could include mobilising the military.  The classified document states that: “the committee will be available to take an overview of the situation and make any relevant decisions including on the following areas but not limited to: legislation, identifying funding opportunities, allocation of national level resources (such as military, law enforcement or civil service resources, direction of government bodies and relaxation of regulations required at the ministerial level.”

Local authorities are also being told prioritise what needs to be done in their communities.

The Guardian quotes one local authority source as saying that “central government is not providing leadership.”


What emergency powers does the Government have?

The statutory framework for planning for and dealing with civil contingencies derives from the 2004 Act.  Under Part 2 of the 2004 Act, the Government has the power to make emergency regulations, as outlined in the Act’s Explanatory Notes, and so this briefing focuses primarily on those powers.

The Civil Contingencies Act 2004 (Contingency Planning) Regulations 2005 (as amended) add further detail to the emergency planning regime.

The legal authority to use Service personnel in operations under Military Aid to the Civil Authorities (MACA) is governed by the 2004 Act and the Emergency Powers Act 1964 (Section 2).


The UK central government response to emergencies (including the procedure for invoking emergency powers) is also discussed in the House of Lords Library briefing Civil contingencies, Emergency Powers and No-Deal Brexit (LLN-2019-0034, 19 March 2019)

Dealing with civil contingencies: emergency planning in the UK (CBP 08016, 11 July 2017) looks more broadly at emergency planning.

The Commons Library briefing Military Aid to the Civil Authorities (CBP 08074, 18 August 2017) provides a more detailed examination of using the armed forces.

John ShuttleworthComment