Joint Committee on Draft Civil Contingencies Bill Written Evidence

Memorandum from the National Council for Civil Protection (NCCP)

Q1.   Is the definition of emergency right?

  No. It is a long, cumbersome blend of the general and the specific, which runs the risk of leaving unintended loopholes only to be discovered in a future court case. We believe the simple, single paragraph definition from the Government's guidance pamphlet "Dealing with Disaster" is perfectly adequate. We can think of no situation, listed in the Bill's definition, which it could not readily be deemed to cover

  An example of a potential loophole is the specific reference to fuel oils in 1(3)(a)(ii) which raises the question of the status of other oils, such as lubricating oils and edible oils.

  Also, although it is probably implicit that the Bill applies to the UK's territorial waters, there is no specific reference to seawater.

  Finally, whilst not strictly part of the question, it is arguable that the single sentence preamble to the Bill would benefit from expansion.

Q2.   Are the Category 1 and 2 duties correct for the local level?

  Yes, to a certain extent. The vast majority are simply a regularisation of existing best practice, but some new duties are included.

  Business Continuity planning is a not unreasonable addition. Not only is it essential if an organisation is to have confidence that it will be able to continue to deliver its own services, but the disciplines involved have clear links with the wider role of planning for external emergencies, so it is appropriate that the functions are carried out in concert. It is important, however, that, either in the Bill or the Regulations, "promotion of business continuity" is defined in terms of extent and degree of effort.

  On the other hand, risk assessment and risk prevention are not part of the emergency planning role. Obviously, emergency planners must take note of the potential hazards which may give rise to an emergency, but their whole raison-d'etre is to have plans in place to deal with emergencies which occur despite the best efforts at risk assessment and risk prevention of a whole range of other regulatory and enforcement bodies.

  There are plenty of examples of these in local authorities: environmental health; building control; trading standards; social services; highway authorities. There are many more outside. The emergency services have an existing risk assessment and prevention role. The Environment Agency assesses the risk of flooding and does its best, within budgetary constraints, to protect against it. The HSE has this role in relation to much of industry, the MCA in relation to shipping, the CAA in relation to air travel, the Department of Health in relation to infectious disease.

  It simply is not appropriate for emergency planners, with no technical expertise, to attempt to second guess these bodies. They should sit outside, remaining slightly sceptical, and point to the evidence of the "unsinkable" Titanic, which conformed to the entire risk assessment and preventative regulatory framework of the day!

  If, in fact, what is actually meat is "hazard identification" rather than risk assessment, then it is reasonable for it to be left in, but in any case the term must be properly defined.

  If risk assessment is not removed, then it must also be made clear that organisations are only responsible for assessing risks which fall within their degree of competence, so that they are not exposed to inappropriate claims of liability.

  NCCP remains clear that the duty to "prevent" should be removed.

  Regarding the duty to warn and inform the public, the NCCP wishes to emphasise that this very important issue is one on which Central Government should establish the policy and take the lead. A national programme to educate the public in these matters is long overdue.

  One aspect which is not considered in the Bill, but might, perhaps, be included in the Regulations, is a formalisation of which agency is responsible for co-ordination of the joint response. NCCP recognises that this will not be easy to set down, since minor variations in the scenario of the emergency concerned, or the stage it has reached, may affect views as to the most appropriate co-ordinating body.

  The final point one might query under this question, is whether the Category 2 role is correct at all. The lack of clarity over exactly what it will involve, and whether it will be onerous enough, is certainly a matter of concern to the House of Commons Defence Committee, which has already reported on the Draft Bill (HC 557)

  Practical experience shows that a number of organisations currently involved in contributing to multi-agency plans eg utilities, operators of major shopping, leisure or sporting complexes, facilities, and operators of major components of the national transport infrastructure, do vastly more in terms of emergency planning than might be considered to be required under Category 2.

  It would be unfortunate if organisations, which hitherto co-operated fully, were able to point to the legislation as a licence to reduce their input.

  NCCP believes there should just be one category.

Q3.   Is membership of Category 1 and 2 right?

  No, there are a number of notable omissions.

  The most significant is the failure to impose these duties on any central government Departments and also the vast majority of central government Agencies, eg Food Standards Agency, Highways Agency, Benefits Agency.

  This is despite the fact that, by and large, the "local" response is pretty well sorted. Where things fall down is when the scale or impact of the emergency requires the involvement of central government resource, prime recent example being the fuel crisis and the Foot and Mouth outbreak.

  This failure is a direct result of the fact that central government emergency planning, training and exercising (if it takes place at all!) is not integrated with that of local organisations.

  The Civil Contingencies Secretariat's stance on this omission is that: "It is unusual to impose duties on central government departments, because Ministers can agree to do things, and an auditing regime will be established to see that required standards are met".

  Interestingly, the House of Commons Defence Committee is clear that formal duties should be imposed on Central Government.

  The consultation document asks specifically for comments on which elements of the health service should have a duty. We suggest: Strategic Health Authorities, Acute Hospital Trusts, Primary Care Trusts and the Health Protection Agency. (Ambulance Trusts are, of course, already included as emergency services.)

  Moving to Category 2, there are a number of striking general omissions. Broadcasters, bus and coach companies (a vital component of most evacuation plans) the entire food distribution and sales industry, the petrol and diesel distribution industry, are not included. The rail freight company EWS Railways is absent. Some airports, including Manston, are not on the list. The national chemical and radiological hazard identification and response schemes NAIR, Radsafe and Chemsafe are missing.

  In addition, in any specific locality, there are likely also to be particular organisations whose co-operation may be vital to comprehensive planning, such as the operators of major shopping, leisure and sporting complexes already referred to in the answer to question 2 above.

  Equally, the co-operation of the organisers of major public events is vital. The Open Golf, the London Marathon, the Commonwealth Games and, of course, the Olympics, spring to mind.

  It would probably be far better to copy the existing Community Safety legislation, which enables a local authority to require the co-operation of any organisation which it considers has a role to play.

Q4.   Is the balance of regulation powers right?


Q5.   Should consistent multi-agency arrangements be established through Local Resilience Forums?

  Yes, and these exist virtually everywhere already. But the rules regarding membership, chairmanship, frequency of meetings should, as now, remain flexible. This flexibility should include the freedom to retain the existing names of the groups. It must also be recognised that the real work of multi-agency planning does not happen at these forums but through day-to-day partnership working by many staff who never actually sit on the forum.

Q6.   Does the partial Regulatory Impact Assessment accurately reflect costs and benefits?

  No. It certainly does not reflect the benefits, or consider the full financial implications.

  For example, with regard to the industrial concerns designated as Category 2 responders it makes the sweeping assumption that all of them, regardless of their size and the complexity of their operations, will employ the same resource at the same cost. Practical knowledge and experience of NCCP's members who work in industry or with industry, demonstrates how incorrect this assumption is.

  The costs for other bits of industry affected by the Bill are not considered either.

  The impression given is that the drafters of the Bill are desperate to prove that emergency planning can be delivered at minimal cost.

Q7.   Should Civil Defence Grant be transferred to RSG?

  NCCP's members do not have a uniform view on this specific question. They are clear, however, that however local authorities are funded, there must be sufficient emphasis on the importance of the function to ensure that the funds are directed to it, within the Corporate Performance Assessment (CPA).

Q8.   Is the level of funding sufficient?

  No. It has for years been claimed that the Civil Defence Grant is insufficient, and this is demonstrated by the fact that many local authorities supplement it from their own resources. The LGA calculated this year that expenditure in England and Wales was £32 million, as against a grant of only £19 million. The government always argued that this was appropriate, since, strictly speaking, Civil Defence grant was not expected to cover all aspects of emergency planning.

  Therefore, it is now completely illogical to assert that the same level of funding is capable of supporting not only all the previous emergency planning tasks but also Business Continuity and elements of risk assessment and risk prevention.

  It is significant that following the Emergency Planning Review, carried out in 2001 as a precursor to this draft bill, there was an explicit statement from Central Government that Business Continuity was a new task which would require additional funding, but this appears to have been quietly forgotten.

  A proper local programme of educating, warning and informing the public, building on the national policy which NCCP is calling on central government to deliver, would also require additional expenditure.

  Planning for oil pollution has never been claimable under the Civil Defence Grant and has never been mandatory, so it will be a new cost for many.

  Finally, contributing to a Regional Tier is another innovation.

  Overall, therefore NCCP seeks a substantial increase in funding, together with a severe audit regime to ensure that expenditure is appropriate.

Q9.   Should performance be audited through existing mechanisms?

  Yes. The over-riding requirement is that the auditors should be competent and the audit rigorous.

  The emergency services already have an effective inspection mechanism and it would not make sense for this specific aspect of their work to be audited by another body. As far as local authorities are concerned, neither the Civil Contingencies Secretariat nor its predecessor, the Emergency Planning Division of the Home Office ever demonstrated any ability to inspect or audit, so it would be sensible to pass the task to the Audit Commission, which checks other services successfully. The Audit Commission will, however, need to devote time and resource to developing the necessary understanding of the function.

  It would also be useful to emphasise the importance of the function to local authorities by including it within the Corporate Performance Assessment (CPA).

  One issue which must be considered, however, is the potential conflict of interest between the Audit Commission, auditing Local Authorities in general, and the HSE, which is responsible for auditing the COMAH, REPPIR and Hazardous Pipelines plans prepared by local authorities.

  It must also be remembered that a possible downside of continuing with the existing range of audit mechanisms is that the very important aspect of the integration of individual agency's efforts into a single co-ordinated response may not be judged.

Q10.   Do you agree with the role of the Regional Nominated Co-ordinator?

  No. If the emergency is affecting the region so severely that Minister's have decided it is necessary to apply Emergency Powers, then it should be a democratically elected Minister who chairs the strategic decision making group and is subsequently accountable for the actions taken, rather than an appointed official such as a Chief Constable.

  This is in line with existing "Lead Government Department" arrangements for central government's involvement in emergencies, which are proposed to continue. If Emergency Powers are declared, then it follows that central government is involved, so the appropriate government department must be leading, and at the head of each government department is a Minister.

  In any case, the whole concept of a regional tier is flawed, primarily because the Government Offices of the Regions do not, in fact, have direct day-to-day control of central government resources to bring to the response. This point is enlarged upon in the answer to question 11.

Q11.   Should special legislative measures be able to be applied on a regional basis?

  A qualified no. They should be able to be applied to the area affected, which may be a part of one Region or parts of several. For example, an outbreak of Smallpox in a single town, may require very special measures restricting movement of people in that particular town and it's immediate surrounding area, but not across the whole region in which it is situated. On the other hand, very severe flooding in the Thames Estuary, coupled with a failure of the Thames Barrier, would affect Kent, Essex and London ie three Regions.

  As stated in the answer to question 10 above, the concept of the regional tier is flawed. NCCP can only think of two examples of existing plans and arrangements where, unusually, there is already significant integration of central government and local resources, and central government participates in joint training and exercising. The first of these is for a significant release of radiation from a nuclear power station. The second is for a major terrorist/hostage situation, which the military assist in resolving. In both cases, central government involvement is directed from the Cabinet Office Briefing Room (COBR) in Whitehall. There is no "regional" role at all.

  In that case, it beggars belief to suppose that, should the severity of one of these events, or any other, reach the extent that Emergency Powers are required, then those powers would be directed from anywhere else but Whitehall.

QQ12.-16.   Emergency Powers

  Yes—with, in relation to 14, the proviso outlined in the answer to 11 above.

Q17.   Emergency Powers and Human Rights

  If the emergency regulations are not treated as primary legislation for the purpose of the Human Rights Act then they can be subject to legal challenge, which might delay their implementation. Two of the likeliest sanctions which might be imposed in emergencies, would be to restrict peoples rights to obtain more than a reasonable share of a scarce, vital resource, ie rationing, or to restrict infected peoples rights to free movement amongst other of the population. In either case, time would be of the essence. The delays caused by a legal challenge, in due course dismissed as being without merit, might have very regrettable consequences.

QQ18.-22.   Scotland, Wales and Northern Ireland

  It is entirely appropriate that Scotland, Wales and Northern Ireland should be treated by the Bill in a manner commensurate with the degree of autonomy those countries possess.

  It must be recognised, however, that emergencies do not respect national boundaries, so it is vital that nothing is agreed which will affect the ability of authorities and agencies either side of a border to work together in responding to an emergency which crosses it.

Q23.   Should London's arrangements for co-operation be different?

  NCCP does not actually accept that the proposals for London are different. For every Government Region there is to be Regional Resilience Forum, which co-ordinates across the Region, whilst constituent local authorities handle local planning.

  The key difference for London, is that these things are already in place and have, apparently, been working successfully. In particular, this is another of those very rare instances of actual integration of elements of Central Government and local arrangements.

  In this respect, London should not be seen as different, but should be the model.

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Prepared 28 November 2003