Memorandum from Brent Council
I have pleasure in enclosing comments from Brent
Council on the draft Bill in line with the format and timetable
set out in the consultation process.
We have welcomed the opportunity to comment
and have sought views and comments from specialist officers within
the authority including Legal, Finance and Emergency Planning.
We have also sought views from Elected Members and from "Partner"
organisations. Finally, we have reviewed our comments alongside
those of other professional body responders.
I am sure you will take the time to evaluate
our comments; however, in summary we feel strongly that the need
for modern and robust legislation is long overdue, nevertheless
the proposals whilst well intentioned appear confused, not properly
explained, and in general somewhat draconian.
Simplistically, they are too detailed for enabling
legislation but stop short of real clarity, particularly as we
have no indication as to the likely requirements of the detail
or direction of regulations, etc that will follow.
That said, we will watch with interest the outcome
of the consultation process, and will support the principles of
improved standards and improved protection to our citizens.
26 August 2003
Q1. Is the definition of emergency the right
one? If not, in what ways should it be tightened or expanded to
exclude certain classes of event or situation?
1. The issue of definition of all aspects
contained within the draft Bill require careful consideration:
in legal terms these would be held to be binding, thus leaving
potential loopholes at a later date. An adequate definition exists
in the latest edition of "Dealing with Disaster" which
it is assumed has been tested before general publication. The
proposed definition appears to be unduly wide and could catch
a power failure of fairly minor proportions.
2. In 1 (1) a-d "in/of a place"
needs to be clearly defined, particularly in relation to United
Kingdom waters. Clarification should be sought that, in law, "water"
includes seawater. If it does not, then an appropriate definition
needs to be included.
Q2. Do you agree that the obligations imposed
on both Category 1 and 2 responders by or under the new framework
will ensure operationally effective and financially efficient
planning and response to emergencies at the local level? If not,
how should these obligations be increased or reduced?
There can be no doubt that duties imposed on
both Cat 1 and Cat 2 responders by or under the new framework
have the potential to improve operational effectiveness if they
complement, build on and improve existing multi-agency arrangements
and plans at a local level. To a large degree the proposals are
a "capture" of current and best practice. However, further
definition of Category 1 responders, particularly in two tier
areas would clarify the functions of each tier with respect to
Chapter three is entitled:Chapter 3Clear
Roles and Responsibilities at the Local Level. There is however
some confusion which suggests that roles and responsibilities
are not clear. The confusion concerns the inclusion of both Country
Councils and Shire District Councils as Category responders. Whilst
this does not affect London directly there could be difficulties
associated with interface between authorities outside but adjacent
to London. There also needs to be clarification as to the (albeit
limited) local authority role of LFEPA. Their role should be limited
to support to the Fire Service and removed from "Pan London"
issues including CIMAH/COMAH/Pipelines/Radiation, etc.
Robust and fair performance management of civil
protection is essential, although this should build on National
Standards of preparedness and performance and must have a consistent
and recognized framework of operation. However, there needs to
be more clarity regarding the relationship between all responders,
there is no inclusion of the roles and responsibilities of national
government in the draft bill. Whilst it is perhaps unusual in
English Law for statutory responsibilities to be placed on central
government departments, history has shown that the lead government
department concept has rarely worked in practice and that civil
protection is too important an area of public life for statutory
responsibilities not to be imposed on any of the agencies which
have key roles in contributing to creating a robust culture of
resilience in the United Kingdom.
It is pleasing that at last that business continuity
planning is recognised in the Bill as a valid and necessary part
of the civil protection process. However as with the rest of the
functions contained within the Bill, this duty should be held
on all responders.
Risk assessment and risk prevention are categories
best left to professional organisations that are competent and
instructed in their approach. Examples include the HSE and the
Environment Agency. Generic emergency planners are not generally
qualified for this role.
Q3. Do you agree that the membership of categories
1 and 2 is right? If not, which organisations should be added,
moved or removed?
NHS primary care trusts and hospitals should
also be included under Category 1 responders, and "police
forces" should also include the British Transport Police,
the UKAEA Constabulary, and Ministry of Defence Police. The most
glaring omission is that of central government who should be integrated
with the local response and planning organisation but not necessarily
superior to it.
With regard to category 2 responders there is
no reference to organisations which have an emergency response
in the following national schemes; National Arrangements for Incidents
Involving Radioactivity (NAIR), RADSAFEthese are emergency
responders and should be involved within the local planning process
and have a statuary requirement for membership of local resilience
forums, and be added to the list of category 2 responders. Furthermore,
there is no reference to bus and coach companies, infrastructure
reliant industries (food/fuel distribution for example) and broadcasters.
Q4. Do you agree that the Bill gives the
Government the right balance of regulation making powers to meet
its aims of consistency and flexibility? If not, please explain
how the powers should be expanded or constrained.
The balance at first sight appears to be sufficient.
However, given the pivotal role of Regulations in the Bill, it
is important that proper consultation that allows for full consideration
of the draft Regulations before their implementation is factored
in. Although not specifically referred to in the consultation,
the same point is made regarding Orders (Clause 5) and Guidance
(Clause 3). Time for full consultation is vital.
Q5. Do you agree that consistent arrangements
for multi-agency working should be established through the creation
of Local Resilience Forums? If not, how else should consistency
The use of the term "Local Resilience Forums"
may well cause confusion especially where local arrangements have
already been in place for some years. If there is to be a change
in order to bring uniformity across the country then it will need
to be clearly stated in either the Act or, more probably, the
Regulations made under that Act. Where joint working arrangements
exist they should be encouraged to continue. Funding should be
made available to introduce trials across the country in order
to establish a common approach or to be comfortable with local
variations, particularly as it is generally at staff levels below
potential forum membership where the bulk of the planning and
integration process happens.
Q6. Do you agree that the partial Regulatory
Impact Assessment accurately reflects the costs and benefits of
the Bill proposals? If not, how should it be changed?
The Regulatory Impact Assessment (RIA) does
not accurately reflect the cost/benefit arising from the Bill
proposals. Rather than the proposed RIA direction, resource requirements
should be assessed following a thoroughly investigated funding
review which takes account of the fact that whatever definition
of emergency and other terms is used, it will take civil protection
far beyond current expectations. It appears at first sight that
the drafting team are trying to establish/prove that emergency
planning can always be delivered at a uniform and minimal cost.
Q7. Do you agree that funding for Category
1 local authorities should be transferred from specific grant
(Civil Defence Grant) to Revenue Support Grant? If not, why should
specific grant be retained?
A much greater level of funding must be allocated
to emergency planning than that which is currently the case. The
prospect of legislation placing significant civil protection duties
on local authorities, combined with the proposals for "robust"
performance management will require local authorities to ensure
that the funding provided via revenue support grant is directed
to the emergency planning service.
In Scotland, specific CD grant has been replaced
by civil protection grant aided expenditure. In a recent survey
of Scottish Emergency Planning Officers the majority agreed that
there has been no significant effect on funding levels as a result
of the change. However, it was noted that Emergency Planning Officers
were now subject to routine budget bidding and cost saving exercises
and that the introduction of specific civil protection duties
should assist EP Officers in ensuring that funding bids could
be quantified and justified. The Government would be remiss if
robust transitional arrangements were not made during the change
It is important to distinguish between the costs
associated with the planning and preparation for disasters/emergencies,
etc. and that needed by the community to deal with the problem
on the day. Furthermore, the recovery issues and the underwriting
needed to cover complex and lengthy legal processes which unfortunately
feature heavily post any disaster will require serious funding.
If costs for the former are met by an addition to FSS, then it
will be difficult to identify any specific sum to pay for the
obligations. Indeed many authorities (eg those caught by floors
of ceilings) will not get any money at all because of the vagaries
of the RSG system. If funding is to come by way of specific grant,
then the critical issues will be the basis of distribution, the
total to be distributed and, of course, the additional as yet
Costs for the latter will require vastly more
sophistication than the current "Bellwin" scheme, local
variation and of course considerable funding and/or reserves.
Irrespective of the above points, it must be made clear to all
involved in the process, from the outset, of the vital importance
of the function and the need to protect it from inter-departmental
Q8. Do you agree that the level of funding
to support the Bill is sufficient? If not, please explain why
you believe it to be too high or too low.
The current level of funding (£19 million
Civil Defence Grant) is woefully insufficient to support even
the current level of local authority civil protection activities;
furthermore the distribution formula is confused at best. There
appears to be no acknowledgement of new and additional burdens
to be imposed by the Civil Contingencies Bill. Furthermore, the
draft Bill raises the overall aspirations for improved resilience
(and raises public expectations) without recognising the costs
that this will involve. Accordingly, a very large increase in
funding is necessary to support the basic responsibilities for
local authorities that flow from the forthcoming Bill.
The government has long insisted that the Civil
Defence Grant is only a contribution to local emergency planning,
and that local authorities are expected to supplement the grant
in order to fulfil their emergency planning duties. Consequently
local authorities have had to use money that would otherwise have
been spent on other local services in order to ensure emergency
planning is adequately resourced. Thus, the actual cost of current
arrangements greatly exceeds the current level of central government
funding. The new and additional burdens flowing from the forthcoming
Bill, which require additional funding, arises from: Promoting
Business Continuity Management; Greater emphasis on risk assessment
work; preventing emergencies from occurring; Warning and informing
the public; Participation in initiatives arising from the new
Regional tier of resilience.
In addition, it is relevant to note that public
expectation of how they will be looked after during an emergency
is rising all the time. It is reasonable, for example, to assume
that people evacuated from the homes in an emergency will be content
with the basic provision of shelter and sustenance provided for
in most Rest Centre Plans? Is it not more reasonable to expect
the public to demand more substantial and comfortable accommodation,
which is beyond the capability of local authorities to plan for
with current resources and in the absence of regional stockpiles
of resources? Funding of other category 1 responders should also
be significantly higher than at present, particularly as in order
to comply with the new Bill, all responder organisations will
have to employ new or additional staff. It is also obvious that
the introduction of standards and monitoring process will generate
a much greater level of planning and training activities than
is currently the case.
Q9. Do you agree that performance should
be audited through existing mechanisms? If not, what mechanism
would you like to see established?
Yes, where auditing mechanisms already exist.
In the Consultation Document, chapter three, paragraph 37 deals
with "Performance Management". It is suggested that
performance could be monitored by existing bodies such as the
Audit Commission, the emergency services' inspectorates and utility
regulators. In terms of local authorities it is expected the Audit
Commission will audit the service under the Comprehensive Performance
Assessment process. However, if auditing takes place under the
existing Comprehensive Performance Assessment the weighting for,
what would be modest expenditure by local authority standards,
would mean that there would be only a little incentive to improve
emergency planning performance. It will be essential that the
weighting attached to civil protection should also take into account
the absolutely huge costs to local authorities of responding to
emergencies, and the potentially huge costs that will occur if
local authorities are not adequately prepared.
There is also concern that existing audit processes
may not address the qualitative issues that need to be addressed
in emergency planning. There needs to be an audit regime that
is able to measure capacity and competence that is not readily
quantified. We would therefore expect to see personnel performing
audits on behalf of the existing bodies to include appropriately
qualified or experienced staff.
A NEW REGIONAL
Q10. Do you agree with the role of Regional
Nominated Co-ordinator? If not, who should take responsibility
at the regional level, and with what responsibilities?
No, were an emergency to be of such a nature
as to affect a region or greater then it should be a democratically
elected minister who chairs the strategic decision making process,
not an appointed official. This is in line with the existing "Lead
Government Department" principle outlined in Dealing with
Q11. Do you agree with the principle of applying
special legislative measures on a Regional basis? Please explain
Clearly, there is a need to be able to apply
"special legislative measures" in certain circumstances.
The reasons for repealing the Emergency Powers Act 1920 etc and
replacing and enlarging those powers with something more relevant
are understood. However, the general concept of regional tier
is terminally flawed because the Government Offices for the Regions
do not have day to day control of either local or more importantly,
central government resources to bring to the response. It is also
difficult to understand how, if an incident was of such a size
as to involve a regional response, it would not be controlled
totally from Whitehall! Furthermore, the issues may be subject
based rather than geographic such as during the fuel crisis.
Q12. Do you agree that the current emergency
powers framework is outdated and needs to be replaced? If you
do not think it should be replaced, please explain why.
Q13. Do you agree that the circumstances
in which special legislative measures may be taken should be widened
from limited threats to public welfare to include threats to the
environment, to the political, administrative and economic stability
of the United Kingdom and to threats to its security resulting
from war or terrorism? If not, how would you like to see the circumstances
narrowed or extended?
Q14. Do you agree that the use of special
legislative measures should be possible on a sub-UK basis? If
not, please explain.
Q15. Do you agree that authority to declare
that special legislative measures are necessary should remain
with The Queen as Head of State, acting on the advice of Ministers?
If not, who should it sit with?
Q16. Do you agree that in the event the process
of making a Royal Proclamation would cause a delay which might
result in significant damage or harm, a Secretary of State should
be able to make the declaration in the place of The Queen as Head
of State, acting on the advice of Ministers? If not, is delay
acceptable or is there another alternative mechanism?
No. This would give rise to a major constitutional
change and is not necessary for this Bill to work. We have concerns
regarding the power for a secretary of state or minister to make
an oral direction and can conceive of no situation where an order
should not be in writing or in some recordable formif order
has broken down to that extent there is little point in continuingthis
is more appropriate to the battlefield than a civil emergency.
Q17. Do you agree that emergency regulations
should be treated as primary legislation for the purposes of the
Human Rights Act? If not, please explain why.
No. Circumstances that require immediate decisions
and action are not privy to the benefit of hindsight. Subsequent
legal challenges may complicate and hamstring future operations.
Any incident that warrants an enquiry, public or otherwise will
produce recommendations based upon contextual evaluation which
can then be implemented. As primary legislation under the HRA,
such enquiry results may be irrelevant in law as the HRA enacts
EU legislation. However, this is a prime example of the confused
nature of the draft legislation in that with a power to make orders
in Council, even though in theory they only run for 30 days, it
seems the orders can override legislation and of course there
is no debate about them. If then the Government can override legislation,
they can suspend the Human Rights Act. That must not happen and
the HRA must be protected within the provisions of this proposed
Q23. Do you agree that London should have
different arrangements for cooperation, and that the proposals
set out are the right way to deliver this? If not, what arrangements
should be put in place?
The make up of local government in London demands
that the local authority arrangements be different. The London
Resilience Forum is an established body and seems to function
efficiently. The question of local resilience forums needs more
clarification. Each London borough currently meets with its won
emergency services and NHS Trusts and plans for local resilience.
In order to include the utilities and others in Category 2 use
should be made of the existing five Mutual Aid Groups in London
otherwise the meeting burden and logistics would be unworkable.
It is believed that if the Groups were put on to a legal footing
they would provide a practical solution, allowing the co-operation
envisaged in the Bill.
The London Fire and Emergency Planning Authority
(LFEPA) emergency planning unit should be taken out of the Local
Government Emergency Planning loop and be responsible for Fire
Service Emergency Planning issues only. All tasks undertaken by
them should be passed to the Boroughs. This is the case in all
Local Government except former Metropolitan authorities and adds
unnecessary layers to the liaison process. This is further confused
by the plan in the Bill to make the existing London Resilience
Forum (LRF) the same status as the planned Regional Resilience
Forums (RRF), and to create a new LRF from the London Boroughs
and LFEPA. The question here must by why?!
A stronger championing of the role/responsibilities
and primacy of Local Authorities in London in relation to civil
protection, particularly in the planning, preparation and execution
of those responsibilities should be undertaken. This needs to
be understood by the emergency services, utilities and others
involved in the process, and underpinned by statute/regulation