Select Committee on Defence Seventh Report


3. The draft bill

The Consultation Process

9. The draft bill was published together with explanatory notes and a consultation document on 19 June. The public consultation period runs for twelve weeks from that date, ending on 11 September. Twelve weeks is described in the Government's Code of Practice on Consultation as the "standard minimum period for a consultation." The guidance notes to the code, however, make clear that that should be treated as a minimum. "Inadequate time for responses," it states, "is the single greatest cause of complaint over consultation by government…An otherwise adequate period may be less so if a substantial holiday period falls within it."

10. The results of the emergency planning review were published in February 2002. It has taken nearly 18 months since then for the draft bill and consultation document to be published. At the end of that period a bare 12 weeks, spanning the principal annual holiday period, is being allowed for public consultation. In March this year, we asked Sir David Omand why it was taking so long to produce a draft bill. He replied—

We have had a bill team working flat out on this but we have in the course of that work raised very fundamental issues, each one of which has required a lot of legal advice and a lot of consideration and consultation with the experts in the field. It has turned into a much bigger exercise perhaps than we had thought but it is important and we will get it done.[9]

On 13 February, however, Lord Filkin, Parliamentary Under-Secretary of State, Home Office, told the House of Lords—

We will bring forward an emergency civil contingencies Bill in good time. If the matter were of extreme urgency, we would have brought a Bill forward urgently.[10]

11. We do not wish to add to the delay in making progress with this important legislation, but we are not persuaded that a draft bill could not have been produced soon enough to have provided for a consultation period which met the spirit of the Government's Code of Practice on Consultation and allowed a fair and adequate time for interested parties to express their views. As it stands, however, and given that the Joint Committee has until the end of October to report, we believe that the public consultation period should be extended by three weeks (ie to the beginning of October).

An enabling bill

12. As the consultation document acknowledges, the draft bill is largely an enabling bill. It has two parts, the first covering civil protection and the second emergency powers. In both parts Ministers are given wide-ranging powers to make regulations. The explanatory notes describe the extent of those powers and give some examples of how they might be used. In many areas, however, they do not set out how the Government intends in practice to use its powers. The document states—

…the regulation making powers as currently set out in the bill are wide ranging. They are intended to allow the Government to set out expectations and limitations to ensure the consistency across agencies that is so vital in dealing with emergencies.[11]

13. We obviously do not expect the Government to be in a position to foresee all the eventualities with which it might be faced, but we do expect that before asking Parliament to give them these powers Ministers should describe in considerably more detail than is currently the case how they expect to use them. In the case of Part I we believe that the Government should aim to make drafts of the principal regulations available to the Joint Committee to assist its deliberations. In the case of Part II, we believe that the Joint Committee would find it helpful to have drafts of illustrative regulations available.

Definition of emergency

14. The term emergency is defined twice in the bill, at the beginning of each part. The definitions are virtually identical in substance, the principal distinction being that Part I applies only to England and Wales, whereas Part II applies to the United Kingdom as a whole. We will treat them as a single definition. An emergency is "an event or situation which presents a serious threat" to human welfare, the environment, political economic or administrative stability, or the security of the UK or part of it. It "includes a wide range of possible events or circumstances."[12] The term "serious threat" is not defined.

15. The Government's current guidance on civil contingency planning is the publication Dealing with Disaster, a revised version of which was published on the same day as the draft bill. That document uses the term 'major emergency' which it defines as—

Any event or circumstance (happening with or without warning) that causes or threatens death or injury, disruption to the community, or damage to property or to the environment on such a scale that the effects cannot be dealt with by the emergency services, local authorities and other organisations as part of their normal day-to-day activities.[13]

16. The key difference is that the latter definition requires that an event must be of a certain scale before it can constitute a major emergency (ie to exceed the normal everyday capacities of the responding agencies). For the purposes of Part I of the bill, a Minister may make regulations which define in more detail whether certain events or situations are or are not to regarded as 'emergencies.' Since Part I deals with planning against the possibility of emergencies, the absence of a scale threshold, while potentially inconvenient and unhelpful to the bodies on which duties are to be placed, may not otherwise be a serious matter.

17. For Part II, however, no equivalent regulation-making power is included. As a consequence there are no statutory provisions relating to scale. Given that this is a bill which allows Ministers to declare a state of emergency this is a matter of some concern. We discuss this issue in more detail below (see paragraphs 63-64).

18. As we have noted, Part I of the bill extends only to England and Wales, whereas Part II extends to the UK as a whole. The differences in the definitions of emergency in each part are intended to reflect this. Oddly, however, the National Assembly for Wales is explicitly referred to only in the Part II definition. And on a more parochial note, neither definition refers explicitly to Parliament, although not only the National Assembly but also the Scottish Parliament and the Northern Ireland Assembly are included in the Part II definition. In fact, it is not clear to us whether the United Kingdom Parliament is included in either definition. We recommend that the Joint Committee clarify this point.


9   Q 79 Back

10   HL Deb, 13 February 2003, col 824 Back

11   Consultation document, p18 Back

12   Explanatory Notes, paragraph 11 Back

13   Dealing with Disaster, paragraph 1.5 Back


 
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