Appendix 2: Memorandum from the House of Commons
Transport Committee
Letter from Mrs Gwyneth Dunwoody, Chairman of
the House of Commons Transport Committee
Thank you for inviting the Transport Committee to
comment on the draft Civil Contingencies Bill. Given the specialist
nature of our interest, we have limited ourselves to broad points
of principle, and to one specific transport point.
Firstly, we agree with the Defence Committee that
there needs to be far more detail about the way to Bill will be
applied in practice, and the nature of the regulations that will
be made under it. We are particularly concerned that the regulations
in Part 1 of the Bill will not be subject to the affirmative procedure,
even though they contain Henry VIII powers. It is not clear to
us why regulations making provision for essentially planning work
require those Henry VIII powers. Like the Defence Committee, we
will be interested to see if the Bill is intended to apply to
circumstances in which Parliament is under threat.
On a much narrower point, Category 2 Responders include:
· A
person who holds a licence under section 8 of the Railways act
1993;
· an airport
operator within the meaning of section 82 (1) of the Airports
Act 1986;
· a Harbour
authority within the meaning of section 46 (1) of the Aviation
and Maritime Security Act 1990.
They do not include those providing road based transport.
There is no explanation for this distinction, beyond a reference
in the Regulatory Impact Assessment to "the importance that
these organisations have in terms of potentially being the cause
of an emergency situation and in aiding response and recovery
in liaison with the emergency services"; it may well be that
existing police powers would be enough to deal with a road based
emergency. However, the Bill allows for regulations to require
Category 2 Responders to provide information to Category 1 Responders;
one can imagine circumstances in which those planning for an emergency
evacuation, say, would wish to know how many buses were available
in a particular district. You may wish to ask about the reason
for the exclusion of road based transport enterprises from the
list of Category 2 Responders.
You particularly asked the Committee's view on Part
2 of the Bill. Clearly, we have not held a specific inquiry into
this, but the parliamentary controls over emergency powers seem
broadly adequate.
We note that the Defence Committee suggested that
the "triple lock" over the use of emergency powers be
included on the face of the Bill. It also suggested that the proclamation
of a state of emergency might be required to be approved by Parliament.
We understand the Defence Committee's concerns, but the counter
argument is that the definition of state of emergency is already
on the face of the bill; adding the other provisions would open
the question of whether the use of the Act was appropriate further
to judicial review. If a situation is serious enough to require
immediate action, judicial review of the decision to proclaim
an emergency could cause delay, and could be seen as giving the
courts control of what is essentially a political judgement. A
state of emergency would only be proclaimed if legislative action
was needed (to do so otherwise would be pointless) and that is
subject to stringent Parliamentary control. If our understanding
that the Regulations made under the state of emergency themselves
will be judicially reviewable is correct there are already both
political and legal safeguards against government abuse of emergency
powers.
Some form of Parliamentary approval of the Government's
action in requesting the Queen to make a proclamation of a state
of emergency might be a possible compromise, although the regulations
themselves provide an opportunity for Parliament to strike down
the Government's action.
I hope these comments are useful.
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