Joint Committee on Draft Civil Contingencies Bill

Joint Committee on Draft Civil Contingencies Bill First Report

9 Summary of Recommendations

271. The two Parts of the draft Bill serve different purposes and provide for qualitatively different action. We recommend that the Government include, in a sufficiently robust and objective clause, an additional set of criteria which must be satisfied before a declaration of emergency under Part 2 can be made. This would be in addition to the 'triple lock' test. (paragraph 28)

272. The current definition of emergency is so wide as to encompass events which are already routinely dealt with by emergency services We concur with the conclusion of the House of Lords Select Committee on the Constitution that the current definition is unduly broad.[287] (paragraph 32)

273. We have heard from the Government that the triple lock is reflected in various clauses throughout Part 2, including clauses 17, 18, 19 and 21. We recommend that the triple lock should be explicitly stated in a single or adjoining clauses on the face of the Bill, rather than mentioned in discrete sections. It should be a statutory condition that the triple lock test is applied before a declaration of emergency can be made. (paragraph 37)

274. We conclude that the triple lock mechanism requires significant strengthening if it is to provide an adequate safeguard against misuse. We recommend that the triple lock include a test which measures whether the use of powers is proportionate to the nature of the emergency, as well as providing for geographical proportionality. The term "reasonableness" should be inserted into the triple lock. The "seriousness" test should be made more robust, given that "serious" is not defined anywhere in the Bill. The opening phrase in clause 21(4), "without prejudice to the generality of subsection (1)(a)" should be removed.[288] It is confusing and can only undermine what is otherwise the clear intent of clause 21(4). (paragraph 39)

275. We welcome the comment by the Minister in charge of the Bill that the Government is considering putting a more explicit trigger on the face of the Bill. While we acknowledge the concept of a triple lock as an additional threshold, it cannot replace the need for a clear, objective and proportionate definition of an emergency. (paragraph 42)

276. In Part 2, the definition of emergency refers to a serious threat to "welfare", rather than "human welfare". We recommend that the term "human welfare" be explicitly incorporated into the definition of emergency in both Parts of the Bill. (paragraph 44)

277. The draft Bill significantly widens the definition of emergency in the Emergency Powers Act 1920; a threat to human welfare constitutes but one of many components, and is not a prerequisite for all eventualities. We recommend that the definition of an emergency is re-drafted to reflect that an emergency is a situation which presents a threat to human welfare. (paragraph 48)

278. Clauses 1(1)(c) and 17(1)(b) extend the definition of an emergency to include an event or situation which presents a threat to political, administrative or economic stability. We have grave reservations about allowing enabling legislation to contain exploitable opportunities that could give the government of the day the power to protect its own existence when there may be no other threat to human welfare. We recommend that this clause should only remain in the Bill if it can be demonstrated that situations occurring under it will also present a threat to human welfare or safety. It should only cover those threats to human welfare caused by disruption to essential services. (paragraph 52)

279. One of the threats to human welfare is identified as one that causes or may cause disruption of educational services. While education is an important service, we can see no reason why a threat to educational services should, of itself, warrant the use of extensive emergency powers. We therefore recommend that educational services should be removed from clauses 1(2)(h) and 17(2)(h). (paragraph 54)

280. As the draft Bill currently reads, the existence of an emergency is judged according to the seriousness of a "threat", rather than the seriousness of a potential outcome. We recommend that the Bill makes explicit that the test of the existence of an emergency is judged according to the seriousness of its potential or actual consequences to human welfare. (paragraph 57)

281. An emergency is deemed to exist according to whether a threat is "serious", yet the draft Bill does not provide any explanation of what "serious" is held to mean. We recommend that the Dealing with Disaster definition of a 'major emergency' be inserted into the Bill as one definition of the term 'serious'. (paragraph 62)

282. Under the draft Bill, an emergency can be declared if there is a threat to political, administrative or economic stability. We have heard that the term "stability" is inadequate for creating a clear and objective threshold. We recommend that "stability" is defined within the Bill, with reference to our recommendation that the core of an emergency is the threat to human welfare. (paragraph 65)

283. Under Part 2, the phrase "in particular" is inserted into the list of possible scenarios that could trigger a declaration of emergency, leaving the definition open-ended and subject to interpretation. We are not convinced that the definition of emergency should incorporate such a degree of latitude, or that the safeguards are robust enough to protect against possible misuse. We therefore recommend that the words "in particular" be removed from clause 17(2). (paragraph 69)

284. Under the draft Bill, emergency powers can be triggered by a threat to "another essential commodity" and "other essential services". These terms are not defined in the draft Bill and seem dependent on Ministerial interpretation. While we recognise that the Government wishes to leave the definition wide enough to "cover the full spectrum of current and future events and situations",[289] we suggest that this degree of latitude leaves the Bill wide open to possible misuse. The phrases "another essential commodity" and "other essential services" should be removed from the Bill. Any amendments to the Bill which may become necessary in the event of future, unforeseen events, should be enacted through proper parliamentary procedure, not left to the discretion of the Government of the day. (paragraph 72)

285. Utility companies have raised concerns about the risk of overlap between Category 1 Responders' duties and their own statutory responsibilities, outlined in other legislation. We recommend that the existing statutory responsibilities of the utility organisations are cross referenced in accompanying regulations, to ensure that there is no ambiguity or overlap in emergency responses. (paragraph 75)

286. The definition of public functions in Part 2 does not include the UK Parliament, although it includes Ministers and the devolved administrations. We recommend that the UK Parliament should be included in Part 2 and the National Assembly for Wales and the UK Parliament be included in Part 1. (paragraph 77)

287. Under the Bill an event may present a threat to the environment if it causes, or may cause, contamination of land, water or air with fuel oils. Concern has been raised that these terms are overly restrictive or inadequately defined. We recommend that the Cabinet Office consider making clearer the definition of oil and water, in light of the concerns that the Committee has heard. (paragraph 81)

Category 1 and 2 Responders

288. We recommend that Category 1 Responders should be able to require any person or organisation to cooperate in planning or training for a response to an emergency. This requirement should be reasonable, necessary, and only be imposed on those most conveniently placed to deal with an emergency, while not creating substantial burdens relative to the resources of any person. Any resources or services required by a person under this section should be paid for by the Category 1 Responder on the most favourable (to the Category 1 responder) commercial terms. (paragraph 90)

289. Apart from functions related to maritime and coastal matters, central government departments and the regional tier are not given any statutory duties, and have no formal status in the process of contingency planning set out in Part 1. We recommend that the role and responsibilities of Government Departments, the National Assembly for Wales and regional government offices are outlined on the face of the Bill and that they are given a statutory duty to undertake their responsibilities. (paragraph 102)

290. County councils and Shire district councils are both included as Category 1 Responders, which in effect accords them the same duties and responsibilities. We recommend that the responsibilities, in England, of County councils and Shire District councils should be explicitly set out on the face of the Bill. (paragraph 105)

291. Under the draft Bill, Fire and Civil Defence Authorities seem likely to be prevented from undertaking emergency planning arrangements on behalf of local authorities. We recommend that the Government re-examine its stance and consider whether successful existing arrangements, such as Fire and Civil Defence Authorities, should be left in place. (paragraph 107)

292. We recommend that Category 1 also include (in England) Strategic Health Authorities, Primary Care Trusts, Acute Hospital Trusts, (in Wales) Local Health Boards, Public Health Services and the National Public Health Service for Wales. (paragraph 113)

293. We recommend that the Health Protection Agency, National Blood Service and Welsh Blood Service be included as Category 2 Responders. (paragraph 114)

294. The requirement for Category 2 Responders to provide information to all Category 1 Responders would cause utility companies practical and financial difficulty if it means that every local authority can request information. We recommend that the Government's proposal to involve utilities at local resilience forum level represents a practical compromise. (paragraph 119)

295. We recommend that a statutory duty be placed upon Category 1 Responders to consult with and involve relevant voluntary organisations in civil contingency planning. (paragraph 128)

296. Given the plethora of voluntary organisations and the individual requirements of local areas, we recommend that Category 1 Responders be given flexibility to identify and consult with the most relevant voluntary organisations in their area. (paragraph 129)

297. Given their potential to cause, as well as their ability to respond to a major disaster, we recommend that the Government consider whether to include in Category 2 all operators of establishments subject to the Control of Major Accident Hazards (COMAH) Regulations and organisations that have an emergency response through national schemes, including the National Arrangements for Incidents involving Radioactivity (NAIR), RADSAFE and CHEMSAFE. (paragraph 131)

298. We have heard evidence proposing that road based transport enterprises, the food and drink industry and private security firms should be included as Category 1 or 2 Responders. We have not had an opportunity to take oral evidence from these sectors and therefore have not had time to explore these areas in great depth. We recommend that the Government consider whether to include the Highways Agency, transport enterprises, fuel suppliers, the food sector and private security firms as Category 1 or 2 Responders. (paragraph 136)

Human Rights Issues

299. We conclude that the Government has not demonstrated a clear and compelling need to treat regulations under the Civil Contingencies Bill as having the status of Acts of Parliament for the purposes of the Human Rights Act. At most, there may be a need for some procedural changes, such as a fast track process within a higher court, plus a compulsory stay on the enforcement of any court order until the appeal is exhausted. We welcome the Government's willingness to reconsider this matter. (paragraph 156)

300. We recommend that the Bill should provide that regulations shall not alter any existing procedure in criminal cases in any way which is inconsistent with Article 6 in the Human Rights Act. (paragraph 164)

301. We recommend that the Cabinet Office put in place arrangements to ensure that the Council on Tribunals is properly consulted about clause 21(3)(l) and that the arrangements to create possible new courts or tribunals are set out in detail in regulations published in draft. (paragraph 166)

302. The draft Bill contains some protection for human rights which can legally be suspended in an emergency but, aside from the partial protection for article 4 (on forced labour), not for those from which member States cannot derogate under the European Convention, article 15. We conclude that the intention of the draft legislation would be clearer if clause 21(4) included among the prohibitions on the making of regulations a prohibition on regulations which would breach any of the Convention rights from which it is not possible to derogate or any provision in the Geneva Conventions of 1949 and Protocols thereto of 1977. (paragraph 168)

303. The draft Bill provides for the requisition, confiscation or destruction of property, animal life or plant life with or without compensation (clause 21(3)(b)). We conclude that if property is to be taken without compensation, then it should be specified that (i) the taking is still in compliance with Article 1 of Protocol 1 of the European Convention and (ii) that steps are taken to ensure that insurance is available for any loss. (paragraph 176)

Constitutional Matters

304. We recommend that the Acts of Parliament listed in paragraph 183 should appear on the face of the Bill as not being liable to modification or disapplication under clause 21(3)(j). (paragraph 187)

305. We recommend that, where because of urgency the Minister issues directions, in substitution for regulations, under clause 7(2) or regulations under clause 12(2) without consulting the National Assembly for Wales, such directions or regulations should expire after 21 days. This would allow the Minister time to make, if necessary, regulations which meet the normal requirements of scrutiny by Parliament and for consultation with the National Assembly for Wales. (paragraph 192)

306. We recommend that draft regulations under Part 2 and guidance to them be published from time to time. The drafts should be published not just for the purposes of Parliamentary deliberation on the legislation but in the interests of open government. (paragraph 196)

307. We recommend that regulations made under Part 2 of the Bill should be subject to the same safeguards as primary legislation in that Ministers should be required to make a human rights statement under section 19 of the Human Rights Act 1998 and that the individual regulations should be subject to textual amendment in Parliament. (paragraph 199)

308. We recommend that the powers in Part 2 should expire every five years from Royal Assent unless renewed beforehand by an order subject to the affirmative procedure and laid by a Secretary of State following a report by a Select Committee on the operation of the Act. (paragraph 201)

309. In relation to the ability of a Secretary of State to declare an emergency on his or her own, we consider there should be two additional safeguards:

the wording of clause 19 should be altered by adding the condition of reasonableness to the finding of satisfaction of the Secretary of State.

A declaration under clause 19 should lapse if not confirmed by Parliament within seven days as under clause 24. (paragraph 208)

Resource Implications

310. We have heard that the Partial Regulatory Impact Assessment does not present an accurate picture of the impact of the draft Bill. We recommend that the Regulatory Impact Assessment (Local Responders) be redrafted in order to address the concerns voiced by business and to ensure that it meets the rigorous requirements of Better Policy Making: A Guide to Regulatory Impact Assessment. It needs to set out in much more detail, with supporting evidence, the costs and benefits of the options and to review the options comprehensively in the light of the regulations to Part 1, which are now due to published with the Bill.[290] (paragraph 218)

311. We recommend that the definitive version of the Bill should contain, in the explanatory notes, a detailed analysis of the current and projected costs of providing the emergency planning service. (paragraph 222)

312. We recommend that in future all enabling Bills published in draft should be accompanied by a comprehensive set of draft secondary legislation, to form the basis of an analysis of the financial and public service manpower effects of the proposed legislation. In the case of this Bill we recommend that both Houses only consider it if the explanatory notes published with the Civil Contingencies Bill contain a clear statement of the effects on financial and public service manpower and the explanatory notes address the shortcomings we have identified. (paragraph 226)

313. The Government's consultation process was seriously flawed by the absence of draft regulations, making it impossible for Responders to estimate the costs of the proposals in Part 1 the Bill. In these circumstances we recommend that the Cabinet Office, once it has revised its analysis of costs as suggested above, should publish at the conclusion of the Spending Review 2004 the resources the Government has agreed to implement the Bill fully and effectively. (paragraph 228)

314. The Government proposes that funding for local contingency planning should be moved from a specific grant - Civil Defence Grant - to general grant, currently Revenue Support Grant. We recommend, at the very least, that serious consideration be given to the introduction of transitional arrangements, for example a temporary ring fencing of existing grant levels until such time as the new legislation beds down, appropriate infrastructures are established, and new funding streams identified. Alternatively, the Government should consider delaying the abolition of Civil Defence Grant for at least two years after the new arrangements commence to ensure that planning for and implementation of the provisions at Part 1 of the Bill are adequately resourced. (paragraph 233)

315. As well as local arrangements for civil protection, the Government intends "to generate a resilience culture at the local level" and to require local authorities to promote business continuity management within their areas. We recommend that the principal elements of the proposed business continuity management service be set out in detail in the explanatory notes published with the Civil Contingencies Bill. It should include a business plan for the operation of the service in a typical local authority. (paragraph 237)

316. We recommend that the Government produces a revised and expanded Regulatory Impact Assessment of the emergency powers at Part 2 of the draft Bill. (paragraph 240)

317. A review of the Bellwin Scheme was conducted in 2001, following which the Government concluded that a change to the statutory basis of the Scheme would not be appropriate.[291] We would recommend that the Government, when it comes to finalise the Bill and its supporting documentation, explains the part which the Bellwin scheme plays in resilience and how it fits within the new framework. (paragraph 244)

Audit and Management

318. The Government has considered establishing a new mechanism for performance management, possibly through an inspectorate, but believes that the use of existing mechanisms will achieve its aims of ensuring consistency of performance and bringing civil protection into the mainstream. Because of the importance of ensuring public confidence in the system, we recommend that the Cabinet Office examines the feasibility of a dedicated inspectorate to oversee performance management of civil protection activity, to ensure operational effectiveness and financial efficiency. Such a dedicated inspectorate might be based within a Civil Contingencies Agency. (paragraph 250)

319. In his evidence, the Minister in charge of the Bill firmly rejected the concept of an "Emergencies" super Ministry, along the lines of the Department for Homeland Security in the United States. We recommend that the Government gives careful consideration to the establishment of a Civil Contingencies Agency which, like other Agencies, would have both advisory and supervisory responsibilities. (paragraph 260)

The Regional Tier

320. We recommend that:

Part 1 of the Bill should clarify the respective planning responsibilities of the local authorities and the regional tier, and include a statutory duty for civil protection at the regional level.

The regional tier should be simplified in terms of structure.

The chain of command and communication between national and regional tiers needs to be clarified, and linked to the proposed Civil Contingency Agency.

Part 2 of the Bill should include the flexibility to proclaim emergencies in geographical rather than administrative areas in circumstances which so dictate. (paragraph 270)

287 Memorandum from the House of Lords Select Committee on the Constitution, Appendix 1. Back

288 Memorandum from David Bonner, Ev 178, para 15. Back

289 Consultation Document, chapter 2, para 7, p 13. Back