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These notes refer to the Civil Contingencies Bill as introduced in the House of Commons on 7 January 2004 [Bill 14] CIVIL CONTINGENCIES BILLEXPLANATORY NOTESINTRODUCTION 1. These explanatory notes relate to the Civil Contingencies Bill as introduced in the House of Commons on 7 January 2004. They have been prepared by the Cabinet Office in order to assist the reader of the Bill and help inform debate on it. They do not form part of the Bill and have not been endorsed by Parliament. 2. The notes need to be read in conjunction with the Bill. They are not, and are not meant to be, a comprehensive description of the Bill. So where a clause or part of a clause does not seem to require any explanation or comment, none is given. SUMMARY AND BACKGROUND Part 1: local arrangements for civil protection 3. Existing legislation relating to civil protection at the local level (the Civil Defence Act 1948 and its Northern Ireland counterpart, the Civil Defence Act (Northern Ireland) 1950) relate solely to "civil defence". "Civil defence" is defined as measures, other than actual combat, for affording defence against a hostile attack by a foreign power. The focus on civil defence reflects the concerns which were current when the legislation was enacted. 4. The existing legislation also relates to local authorities, police authorities and certain fire authorities only. 5. The Bill repeals in their entirety the Civil Defence Act 1948 and the Civil Defence Act (Northern Ireland) 1950. Part 1 of the Bill creates a new concept of [Bill 14-EN] 53/3 an "emergency". This term is broadly defined. It includes events which would have engaged the existing civil defence legislation (war or attack by a foreign power). It also includes other events which pose threats to the security of a place in the United Kingdom such as terrorism and events which threaten serious damage to human welfare in a place in the United Kingdom or to the environment of a place in the United Kingdom. 6. The Bill imposes a series of duties on local bodies in England and Wales, Scotland and Northern Ireland (to be known as "Category 1 responders"). These duties include the duty to assess the risk of an emergency occurring and to maintain plans for the purposes of responding to an emergency. The range of bodies which are to be Category 1 responders is broader than the range of local bodies which are subject to the existing legislation. It includes certain bodies with functions which relate to health, the Environment Agency and the Secretary of State, in so far as his functions relate to maritime and coastal matters. 7. The Bill also provides the mechanism to impose duties on other local bodies (to be known as "Category 2 responders") to co-operate with, and to provide information to, Category 1 responders in connection with their civil protection duties. 8. Part 1 of the Bill also enables a Minister of the Crown (or, for certain purposes in Scotland, the Scottish Ministers) to require a Category 1 responder to perform a function for the purposes of preventing an emergency, reducing, controlling or mitigating the effects of an emergency or taking other action in connection with an emergency. Part 2: emergency powers 9. The Emergency Powers Act 1920 (and, in Northern Ireland, the Emergency Powers Act (Northern Ireland) 1926) currently enables Her Majesty to proclaim that a state of emergency exists and to make regulations to deal with the emergency. Before these emergency powers can be exercised, there must be (or there must be about to be) an interference with the supply or distribution of food, water, fuel, light or the means of locomotion which deprives the community or part of it of the "essentials of life". The powers have not been amended since the enactment of the devolution settlements or the Human Rights Act 1998. 10. The Bill repeals the existing legislation (the Emergency Powers Act 1920 and the Emergency Powers Act (Northern Ireland) 1926). It confers a power on Her Majesty (or in certain very limited circumstances, a senior Minister of the Crown) to make regulations if an "emergency" has occurred or is about to occur. "Emergency" is defined broadly to include events and situations which threaten serious damage to human welfare in the United Kingdom, a Part or a region, or to the environment or security of the United Kingdom, a Part or a region. The Bill gives further detail as to what provision may (and may not) be included in emergency regulations. The Bill expressly allows for emergency powers to have effect in a Part or region of the United Kingdom only. The Bill also makes provision for consultation with, and the conferral of functions on, the devolved administrations. OVERVIEW 11. The Bill is separated into two substantive parts. Part 1 (local arrangements for civil protection) is made up of clauses 1 to 17. Schedule 1 to the Bill lists those persons and bodies which are to be subject to duties imposed under, or by virtue of, Part 1 of the Bill. Part 2 of the Bill (emergency powers) is made up of clauses 18 to 30. Part 3 (clauses 31 to 35) covers general provisions including commencement. Schedules 2 and 3 deal with minor and consequential amendments and repeals and revocations which are consequential on the Bill. COMMENTARY ON CLAUSES Clause 1: Meaning of "emergency" 12. Subsection (1) defines "emergency" for the purposes of Part 1. Events such as flooding, a terrorist attack, disruption of fuel supplies, an oil-spill and an epidemic could satisfy the definition, should they reach the required level of seriousness. 13. Subsections (2) to (4) specify exhaustively the kinds of event or situation which may threaten damage to human welfare, the environment or security. In order to satisfy the definition of "emergency", the event or situation must also threaten serious damage to human welfare in, or the environment or security of, a place in the United Kingdom. This definition differs from the definition of "emergency" for the purposes of Part 2 of the Bill in that, for the purposes of Part 2, the situation must threaten serious damage in the United Kingdom or in a Part or region (rather than a place in the United Kingdom). 14. Subsection (5) enables a Minister of the Crown (or, in Scotland, the Scottish Ministers) to provide by order that a particular event or situation (or class of event or situation) is to be treated as falling within (or outside) the definition of emergency. This subsection also enables a Minister of the Crown to amend the list of events or situations which may threaten damage to human welfare by providing that disruption of a specified supply, system, facility or service is (or is not) to be treated as threatening damage to human welfare. This power is designed to ensure that should a new supply, system, facility or service become so essential that the civil protection duties of Category 1 responders should apply in relation to disruption of that supply, system, facility or service, the Bill can be amended accordingly. Any orders under subsection (5) are subject to the affirmative procedure. Clause 2: Duty to assess, plan and advise 15. Subsection (1) imposes a series of duties on Category 1 responders in relation to contingency planning. In broad terms, these duties require Category 1 responders to assess the risk of an emergency occurring, to maintain plans to respond to an emergency, to publish the assessments and plans in so far as this is necessary or desirable to deal with an emergency and to maintain arrangements to warn, inform and advise members of the public in the event of an emergency. 16. Subsection (2) provides that the duties under subsection (1) only apply in relation to an emergency if the emergency would be likely seriously to obstruct a Category 1 responder in the performance of its functions or the responder would be unable to take action in relation to the emergency without changing the deployment of its resources or acquiring additional responses. One effect of this provision is that whether the contingency planning duties of a Category 1 responder apply in relation to an emergency of a particular kind will depend upon the functions of the particular Category 1 responder and the way in which the responder exercises those functions. 17. Subsections (3) and (4) enable the Minister of the Crown and, in relation to certain Category 1 responders in Scotland (those listed in Part 2 of Schedule 1 - "Scottish Category 1 responders"), the Scottish Ministers, to make regulations about the extent of a duty under subsection (1) and the manner in which such a duty is to be performed. 18. Subsection (5) specifies particular provisions which may be included in regulations under subsection (3). The list of provisions is not exhaustive. In particular, the effect of paragraphs (a) and (b) of subsection (5) is that regulations under subsection (3) may cut back the extent of a duty imposed by subsection (1). Paragraphs (h) and (i) enable regulations to impose duties on Category 2 responders to co-operate with, or to provide information to, Category 1 responders in connection with the performance of a duty under subsection (1). 19. Subsection (6) provides that subsection (5) has effect in relation to subsection (4), subject to certain modifications. Clause 3: Section 2: supplemental 20. Subsection (1) provides for guidance to be issued by a Minister of the Crown to Category 1 and Category 2 responders about the extent of the duties imposed under clause 2(1), the manner in which such duties are to be performed and regulations made under clause 2(3). Subsection (2) enables the Scottish Ministers to issue guidance to Scottish Category 1 responders and Scottish Category 2 responders (those persons and bodies listed in Part 4 of Schedule 1) about the extent of the duties imposed under clause 2(1), the manner in which such duties are to be performed and regulations made under clause 2(4). Clause 4: Advice and assistance to business 21. Subsection (1) imposes a duty to give advice and assistance to the public in connection with the making of arrangements for the continuance of commercial activities should an emergency occur. Only Category 1 responders which are local authorities (but not port health authorities) are subject to this duty. 22. Subsections (2) and (3) enable a Minister of the Crown and, in relation to such local authorities in Scotland, the Scottish Ministers, to make regulations about the extent of the duty and the manner in which it is to be performed. Subsection (4) provides that provision of the kind which may be made by regulations under clause 2(5) may be made in regulations made under subsection (2) or (3) (with the exclusion of certain provisions which are specific to regulations made under clause 2). Subsection (4) also enables the regulations under subsection (2) or (3) to contain provision as to charging. Subsection (5) imposes limits on the amount which a local authority may be permitted to charge for advice and assistance provided pursuant to clause 4. Subsections (6) and (7) enable a Minister of the Crown and, in relation to Scottish local authorities, the Scottish Ministers, to issue guidance about the extent of the duties imposed under subsection (1), the manner in which such duties are to be performed and regulations made under subsection (2) or (3). Clause 5: General measures 23. Subsections (1) and (2) enable a Minister of the Crown and, in relation to Scottish Category 1 responders, the Scottish Ministers, to require a Category 1 responder to perform a function for a purpose relating to an emergency. This provision does not permit the conferral of additional functions on a Category 1 responder although subsections (4) and (5) enable provision to be made as to the manner in which the responder should exercise its function. Clause 6: Disclosure of information 24. Subsections (1) and (2) enable a Minister of the Crown and, in relation to Scottish Category 1 responders or Scottish Category 2 responders (those Category 2 responders listed in Part 4 of Schedule 1 to the Bill), the Scottish Ministers, to make regulations which require or permit information sharing between Category 1 responders and Category 2 responders. Such provision may only be made in connection with a function of a responder which relates to emergencies. This reflects the fact that Category 1 and 2 responders may have functions under other legislation or legal provisions which relate to emergencies. Clause 7: Urgency 25. Subsection (1) enables action to be taken by a Minister of the Crown under Part 1 of the Bill by way of direction where there is insufficient time for secondary legislation to be made. Directions may be written or oral. Subsection (4) makes further provision as to the powers and duties of the Minister to revoke or vary directions and the duration of a direction. In particular, directions cease to have effect 21 days after they have been made. Subsection (5) makes provision as to oral directions. Clause 8: Urgency: Scotland 26. Subsection (1) enables action to be taken by the Scottish Ministers under Part 1 of the Bill by way of direction where there is insufficient time for secondary legislation to be made. Directions may be written or oral. Subsection (4) makes further provision as to the powers and duties of the Scottish Ministers to revoke or vary directions and the duration of a direction. In particular, directions cease to have effect 21 days after they have been made. Subsection (5) makes provision as to oral directions. Clause 9: Monitoring by Government 27. Subsections (1) and (2) enable a Minister of the Crown and, in relation to Scottish Category 1 and 2 responders, the Scottish Ministers, to require a Category 1 or Category 2 responder to provide information which relates to the performance of their functions under Part 1 of the Bill. It is likely that this power will be used to support the functions of making secondary legislation under Part 1 and of taking enforcement action under clauses 10 and 11. Clause 10: Enforcement 28. Subsection (1) enables a Minister of the Crown, a Category 1 responder listed in Part 1 of Schedule 1 or a Category 2 responder listed in Part 3 of Schedule 1 to enforce duties under the Bill by way of proceedings in the High Court or the Court of Session. By virtue of subsection (2), the High Court or Court of Session may grant any relief or make any order that it thinks appropriate. Clause 11: Enforcement: Scotland 29. Subsection (1) enables the Scottish Ministers, a Scottish Category 1 responder or a Scottish Category 2 responder to enforce duties under the Bill by way of proceedings in the Court of Session. By virtue of subsection (2), the Court of Session may grant any relief or make any order that it thinks appropriate. Clause 12: Provision of information 30. Clause 12 specifies in more detail the kind of provision which may be included in secondary legislation made under Part 1 of the Bill which relates to the provision of information. Clause 13: Amendment of lists of responders 31. Subsection (1) enables a Minister of the Crown to amend the lists of Category 1 and Category 2 responders in Parts 1 and 3 of Schedule 1. Subsection (2) enables the Scottish Ministers to amend the list of Scottish Category 1 and 2 responders in Parts 2 and 4 of Schedule 1. In connection with any such amendment, subsection (3) enables the Minister and the Scottish Ministers to amend any other enactment (including the Bill itself). For example, should a body which has functions in Wales be added to the list of Category 1 responders, it may be appropriate to amend clause 15 (which provides for the involvement of the National Assembly for Wales in action under Part 1 of the Bill). A person or body may be added either generally or in relation to specified functions only. Clause 14: Scotland: consultation 32. Subsection (1) requires a Minister of the Crown to consult the Scottish Ministers before making regulations or an order under Part 1 of the Bill in relation to a Category 1 or 2 responder which has functions which are exercisable in relation to Scotland. Subsection (2) requires the Scottish Ministers to consult a Minister of the Crown before making regulations under Part 1 in relation to certain Scottish Category 2 responders. Clause 15: National Assembly for Wales 33. Subsections (1) and (2) provide for the National Assembly for Wales to be involved where action is taken under Part 1 of the Bill in relation to Wales or in relation to a body or person in relation to which the Assembly has functions. In the former case (action relating to Wales), the Assembly must be consulted. In the latter case (action relating to a body or person in relation to which the Assembly has functions - such bodies are specified in subsection (4)), the Assembly must give its consent. Clause 16: Regulations and orders 34. Subsections (1) to (5) set out the procedural requirements for secondary legislation made under Part 1 of the Bill. Clause 18: Meaning of "emergency" 35. Subsection (1) defines 'emergency' for the purposes of Part 2. Events such as flooding, a terrorist attack, disruption of fuel supplies, an oil-spill and an epidemic could satisfy the definition, should they reach the required level of seriousness. 36. Subsections (2) to (4) specify exhaustively the kinds of event or situation which may threaten damage to human welfare, the environment or security. In order to satisfy the definition of "emergency", the event or situation must threaten serious damage to human welfare in, or the environment or security of, the United Kingdom (or a Part or region) 1. This definition differs to the definition of "emergency" for the purposes of Part 1 of the Bill in that, for Part 1, the situation must threaten serious damage in a place in the United Kingdom (rather than in the United Kingdom or in a Part or region). 1 "Regions" are those regions specified in Schedule 1 to the Regional Development Agencies Act 1998. There are 9 such regions; East Midlands, Eastern, London, North East, North West, South East, South West, West Midlands and Yorkshire and the Humber.37. Subsection (5) enables the Secretary of State to provide by order that a particular event or situation (or class of event or situation) falls within the definition of emergency. This subsection also enables the Secretary of State to amend the list of events or situations which may threaten damage to human welfare. This is designed to ensure that should a supply, system, facility or service become so essential that disruption of it would warrant the exercise of emergency powers, the Bill can be amended accordingly. Subsection (6) provides that no such order may be made unless a draft has been laid before and approved by each House of Parliament. Clause 19: Power to make emergency regulations 38. Subsection (1) enables Her Majesty to make emergency regulations by Order in Council if satisfied that the conditions set out in clause 20 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. 39. 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. 40. 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. 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. Clause 20: conditions for making emergency regulations 41. Clause 20 sets out the conditions which Her Majesty (or a senior Minister of the Crown) must be satisfied have been met before making emergency regulations. 42. The three conditions are that an emergency has occurred, is occurring or is about to occur (subsection (2)); it is necessary to make provision for the purpose of dealing with the emergency (subsection (3)); and the need for the provision is urgent (subsection (4)). Subsections (5) and (6) specify that it is necessary to make provision which is the same as an enactment, or provision which could be made under an enactment, in particular if the existing legislation cannot be relied upon without the risk of serious delay, it is not possible without the risk of serious delay to ascertain whether the existing legislation can be relied upon or the existing legislation might be insufficiently effective. This reflects the presumption that emergency regulations will not be made where existing legislation is (or provision can be made under existing legislation which is) adequate to deal with the emergency. Clause 21: Scope of emergency regulations 43. Subsection (1) provides that emergency regulations may make any provision which the person making the regulations considers is for the purpose of dealing with an aspect or effect of the emergency. 44. Subsection (2) specifies certain purposes for which provision may be included in emergency regulations. This list is not exhaustive. In broad terms, the particular purposes specified in subsection (2) reflect the definition of "emergency" in clause 18. For example, an event or situation which causes or may cause serious human illness in the United Kingdom may be an emergency under clause 18. Provision may be included in emergency regulations for the purpose of treating human illness (paragraph (b)). In addition, provision may be made for the purpose of protecting or restoring the activities of banks or other financial institutions (paragraph (h)), protecting or restoring activities of Her Majesty's Government, Parliament or any of the devolved legislatures (paragraphs (l) and (m)) or protecting or restoring the performance of public functions (paragraph (n)). Disruption of these activities does not necessarily constitute an emergency. 45. Subsection (3) specifies provisions which may be included in emergency regulations. The list is not exhaustive. In particular, emergency regulations may confer functions on a Minister of the Crown or the devolved administrations, provide for the requisition or confiscation of property (with or without compensation), create criminal offences related to the failure to comply with a provision of the regulations (or a direction or order under the regulations) and disapply or modify an enactment. Clause 22: Limitations of emergency regulations 46. Subsections (1), (3) and (4) impose limits on the provisions which may be included in emergency regulations. In particular, subsection (1)(b) provides that the effect of each provision of emergency regulations must be in due proportion to the aspect or effect of the emergency which the provision is intended to prevent, control or mitigate. 47. Subsection (2) provides that emergency regulations must specify the Parts of the United Kingdom or regions in relation to which the regulations have effect. Regulations may have effect only in a limited area. This provision, taken in conjunction with subsection (1)(b) (emergency regulations may make provision only if and in so far as the effect of the provision is in due proportion to an aspect or effect of the emergency) means that the emergency regulations will have effect in a Part of the United Kingdom or a region only if it is in due proportion to an aspect or effect of the emergency to do so. Clause 23: Regional and Emergency Coordinators 48. Subsection (1) requires emergency regulations to require a senior Minister of the Crown to appoint a Regional Nominated Coordinator for each of the regions in England in relation to which the regulations make provision. An Emergency Coordinator must be appointed for each Part of the United Kingdom (other than England) in relation to which the regulations make provision. 49. Subsection (3) provides that the principal purpose of the appointment shall be to facilitate coordination of activities under the emergency regulations. Clause 21(3)(a) provides that emergency regulations may also confer a function on the coordinator. Subsection (4) enables a senior Minister of the Crown to issue directions and guidance to the coordinator. |
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