Memorandum from Oxfordshire County Council
1. Thank you for the opportunity to respond
the consultation document. Firstly I would say that the release
of the document was botched through unnecessary secrecy, particularly
as much of the content had already been widely reported in the
national media in previous weeks. At local level we had some twenty
minutes to read the full bill and consultation document before
national media were looking for informed comments. Perhaps this
will explain why the national response through the media was less
than complimentary to the Bill.
2. I would suggest that embargoed and Confidential
copies should have been sent to Chief Executives for the sight
of the relevant local authority officers so that there could have
been some attempt to provide an united view to the media. Instead
the Bill was already subject to criticism from emergency planning
3. This is just another example of the poor
relationship between the present CCS officials and local emergency
4. I will now deal with specific concerns
within the text of the draft Bill and then deal with the Explanatory
Notes and Consultation document with its associated questions:
5. Meaning of Emergency
I believe that this covers too many and too
varied aspects of normal life and there is a danger that Governments
will use these powers for events below the definition in paragraph
1(1) of a serious threat. This has already been reduced to a mere
threat in paragraph 2. In paragraph 3 it appears to allow an emergency
to be declared if there is a threat to plant life and this may
be seen as a reduction in civil liberties by those who feel that
they have a legitimate right to take action against GM crops.
This is hardly a threat to the national interest but a form of
civil protest best dealt with under the criminal law.
6. Duty to Assess, Plan and Advise
In paragraph 2(1)(d) Schedule 1 responders appear
to be given a duty to prevent an emergency. During the review
of Emergency Planning Consultation many responders felt that it
was impossible for local authorities to prevent emergencies, particularly
those starting outside their area and this paragraph should be
removed. The ability to mitigate is already included in the Bill
and this is more achievable.
7. Paragraph 2(1)(f) gives the duty to publish
all or part of plans. This is contrary to recent Security Service
advice against the publication of any plans, which would be of
use to a terrorist such as the Pipeline Safety Plans. This needs
re-wording to take into account this security advice.
8. Paragraph 2(1)(g) will need to be supported
by extra central funding which explanatory notes elsewhere make
clear will not be available.
9. Paragraph 2(3)(e) is a sensible precaution
but creates confusion, which is not dispelled by later notes on
"for the time being."
10. Paragraph 2(3)(h) requires the provision
of information, which may be protected under the Data Protection
Act. We already have difficulties over the provision of such data
on vulnerable persons between the Health Economy and local authorities
and this Act is unlikely to override the Data Protection Act.
Partners would still be able to refuse to supply information on
those vulnerable people protected by the Data Protection Act.
11. Paragraph 2(3)(i) does not seem to make
any provision of non or poor performance from partners on whom
another body relies for data/plans.
12. I repeat the comments on prevention
and data protection.
Monitoring by Government
13. The provision of information needs to
be two way and Government departments should not shelter behind
the over classification of information and material.
Provision of Information
14. The Data protection Act may apply to
PART 2 EMERGENCY
15. It is wholly appropriate that the declaration
of an emergency remains entirely with her Majesty. (Paragraph
Declaration by the Secretary of State
16. It is entirely inappropriate that such
wide-ranging powers remain with the Secretary of State who may
be motivated by purely political reasons. (Paragraph 19).
Power to make emergency regulations
17. Delete paragraph 20(1)(b) and (2)(b).
Scope of Regulations
18. In paragraph 21(3). All reference to
"without compensation" should be removed. Such draconian
powers will only lead to unnecessary civil unrest and lack of
co-operation, which will hamper the local recovery effort. This
paragraph seems to have been based on the Government's unfortunate
experiences during the Foot and Mouth (FMD) debacle where individuals
were seen successfully to defy poor central edicts. Such draconian
measures as outlined in this paragraph would be intolerable to
the people except in times of all-out war against this country
such as that envisaged in the Cold War. Even during that period
most professional emergency planners and responders saw that such
draconian measures would not work. This comment also applies to
sub paragraph (4).
Regional and Emergency Co-ordinators
19. These provisions pre-empt any public
referendum on more formal regionalisation in England and should
not be part of the Bill. They also become an unnecessary tier,
as elsewhere in the notes they are not given any operational role.
There is a well tried and tested military view that, "you
should go to war with your existing peacetime formations."
The bolt-on regional tiers appear to add nothing to the delivery
of emergency response but are merely a ministerial means of enforcing
20. This seems to have been added as a sop
to parliament and at least the notes admit to the planned demise
of the Lord Chancellor's office. However paragraphs 3-5 take the
sensible precaution of setting rules for the recall of Parliament
in the event of a declaration of an emergency.
Human Rights Act 1998
21. I remain unconvinced that the draconian
powers within this Bill should not be subject to Human Rights
legislation challenge during the imposition of an emergency but
I am sure suitably qualified legal staff will make the necessary
Repeals and Revocations
22. The Civil Defence (Grant) Act repeal
seems to pre-empt the questions on RSG versus Specific grant in
the Consultation Paper.
23. In summary the Bill is draconian, centralising,
pandering to Government "control freakery", attempting
to impose regionalisation by the back door without due democratic
process. It does little to improve the operational response particularly
as the explanatory notes make various mentions of the cost neutrality
of the Bill. The manner of its publication seemed to continue
the Cabinet Office's desire for secrecy and an apparent attempt
to wrong foot professional emergency planners and responders.
Part 1: Local arrangements for civil protection
24. Paragraph 8. The Bill causes confusion
over the County Councils and the District Council being placed
in the same category but with a time frame of "for the time
being". This time frame needs to be explained and the confusion
over different tiers with different resources being given the
Clauses 2(1) Duty to assess plan and advise
25. Paragraphs 12-13. No indication is given
of the area for which a responder is responsible.
26. Paragraph 15. Yet again I make the point
that a responder cannot in most cases prevent the occurrence of
emergencies. The terminology is vague as responders presently
work to Major Incident definitions and emergencies could be individual,
low level incidents not requiring the response envisaged in this
27. Paragraph 18. This begins to clarify
my earlier concerns over the security of information published
but the Bill should make clear that we are only required to publish
information on the advice of the Security Service or the police.
We should not be left open to vicarious charges of failing to
publish when we retain information on security grounds. This clause
must be re-drafted to give some clarity and prevent the publication
of sensitive information.
Clause 2(2)-(3) Duty to assess, plan and advise
28. Paragraph 21 gives Ministers the right
to prescribe the type of plans to be made or not to be made but
there needs to be some local flexibility as the Bill is placing
on responders a duty to risk assess threats and it must therefore
be left to local responders to write and maintain plans beyond
that required by a Minister.
29. Paragraph 23 gives the County Councils
the duty to carry out the totality of planning under the to be
repealed 1948 Civil Defence Act but seems to mix the old Civil
Defence duties with the term emergency planning. There must be
clarity in terms.
Clause 4: Advice and assistance to business
30. Paragraph 30 highlights the confusion
on BCM when County Councils and Districts have both been placed
in Category one. The business community will be rightly aggrieved
if approached by two authorities and billed by both authorities
Clause 6: Disclosure of information
31. Paragraph 32 highlights the obligations
of both categories of responders, which may conflict with both
the Data Protection Act and Security Services Advice. The final
version of the Bill should reflect this.
Clause 8: Monitoring by Government
32. Paragraph 34 lays our requirements for
both Categories of responders to provide the Minister with information.
In the interests of collaboration and partnership the final version
of the Bill must provide for a two-way flow of information to
and from local Government and all categories of responder.
Clause 11: Amendment of list of responders
33. Paragraph 36 allows for amendment to
the list of responders and this should be used to bring clarity
to the anomaly of both County and District as category 1 responders.
This will cause confusion and duplication of effort. There is
further confusion caused by words such as "for the time being"
and by the mixing of Civil Defence duties and emergency planning
as a role for Counties.
Clauses 18 and 19: Royal Proclamation and Declaration
by the Secretary of State
34. Paragraph 42 deals with the Monarch's
powers and such proclamations should remain entirely with the
Monarch in order to prevent political opportunism. In Paragraph
43 the regionalisation issue is raised by the back door and the
final Bill should not permit a region by region emergency declaration
as such formal regions do not really exist in England. It is important
to retain the UK wide declaration of an emergency as this acts
as a check and balance on Government power. The UK is too small
to need "Regional Governors" powers as in America.
35. The US model is only valid if the financial
advantages of a regional State of Emergency were to apply. However
in the UK the Bellwin Rules are still likely to apply for a claim
after an emergency and this bill does not appear to give the advantages
of the US emergency financial aid provision.
36. It was clear during Operation Keir that
Government Officials from the Home Office viewed this Council's
claim for support under the Bellwin Scheme as untenable as "the
war was not unexpected" and therefore financial aid for Operation
Keir was not appropriate. Even under the CCB it is unlikely that
a regional State of Emergency would improve the Bellwin Scheme
Clause 22: Regional and Emergency Co-ordinators
37. Paragraph 49 adds another tier without
clear resources or a pre-incident role and is likely to cause
confusion as did the late involvement of Government Offices of
the Regions in the Fuel Crisis.
38. Paragraph 8 only alludes to funding
but funding is an extremely important part to the success of the
Bill. Without ring fencing as in Specific Grant dedicated units
are likely to become subject to predatory action. Any funding
through RSG will not be transparent. More importantly local authorities
are already setting next year's budget and a very early indication
of any new or reduced funding mechanism must be made clear long
before the normal period of December of the current year. If the
funding mechanism is to be altered drastically at least a three-year
change over period should be agreed.
39. Paragraph 21 does not mention Voluntary
Aid Societies (VAS) although reasons are given elsewhere in the
supporting papers. If the VAS are to continue to form an important
part of any response, they should be included in Category two
to ensure the proper flow of information. They should not be subject
to a financial charge from compliance with the Bill.
Option 1: Continuation of current permissive regime
40. Paragraph 29 again mentions prevention
as one of the civil protection activities and I again make the
point that there is very little that most responders can do to
prevent an emergency. The promotion of BCM gives liabilities to
local authorities in the event of failure of any BCM, which they
Options 2: Duty on a limited range of organisations
41. Paragraph 31 discusses the meetings
of Local Resilience Forums (LRFs) during emergencies. This is
impractical as at this stage the operational command structure
has been formed and there is no need for administrative talking
shops. In fact their meeting at this stage will confuse the Chain
of Command supported by all responding partners.
Options 3: Duty on a larger range of partners
42. Paragraph 33(ii) suggests bringing a
larger range of groups into category two and I would support the
inclusion of the VAS in this option.
43. Paragraphs 45-52 deal with the costs
and timings of compliance and the setting of the timings of meetings.
These are too prescriptive and will lead to charges of centralisation,
control and "one-fits-all" model.
44. Paragraph 64 is vague on the amounts
to be transferred into the local government settlement and is
at odds with the costs neutral comments elsewhere in the documents.
There needs to be clarity in funding and an early indication of
the funding settlement. The timing of the Bill and its possible
implementation in 2004 does not give local authorities time to
adjust to or allow for new funding methods.
45. Paragraph 70 supports the retention
of existing monitoring procedures, with which I agree.
46. Before dealing with individual questions
I have to record that the questions tabled are in the main closed
questions. They should have been posed in an open manner to ensure
valid and worthwhile responses. The types of questions posed tend
to give the impression that this consultation exercise is for
the sake of consultation rather than a valid outcome. The short
timescale for response over the Parliamentary recess and Council
recesses rather support this view.
47. Q1. I have already made the point on
a number of occasions in my response that the Bill is too prescriptive,
centralising and seeking control from the centre. The definition
is too wide and may lead to challenges on such aspects as normal
homelessness and damage to property resulting from events less
than an emergency. The definition of an emergency will have little
effect on the local response and is more geared to the response
at central government level. It is all about process rather than
substance and it will not alter the already effective response
at local level.
48. Q2. The new framework merely builds
on the excellent local and sub-regional practices and without
proper funding there will be little improvement in areas which
have not already put these practices in place. The whole tone
of the Bill is aimed at central control and auditing without similar
scrutiny on poor central departmental procedures. The Bill creates
confusion within local government over the placing of two tiers
of local government in the same category with additional confusion
over timescale and the mixing of Civil Defence terms and emergency
49. Q3. In two local government areas both
tiers should not be in the same category. If they are to remain
in the same tier, clear direction must be given to avoid confusion
over roles. VAS should be added to category 2.
50. Q4. I have already covered the centralising
and controlling aspects of this Bill, which will affect the existing
local response. The Bill is too inflexible based on a one-fits-all
concept. The regional tier responsibilities should be removed,
as they appear to have no added operational value but merely act
as non-operational sounding board for central government.
51. Q5. There is no need for these LRFs
nor is there a need for inflexible inconsistency. Again a one-fits-all
policy is not suitable for the democratic and operational organisations
involved in response to a major incident.
52. Q6. I believe that the partial Regulatory
Impact Assessment errs on the low side and that all organisations
will find that the cost of implementing these inflexible procedures
will increase their costs. It appears to be aimed as reducing
the need for extra funding or even the proper funding of a service
which has had its funding reduced by half since the end of the
53. Q7. Category 1 local authorities should
continue to be funded through specific grant, as the service needs
to be protected and ring-fenced. With all the other demands on
local authorities civil contingencies funding will be absorbed
into other services or functions unless protected. Funding through
RSG will not be transparent. It is also critical that funding
be increased and that details of funding be made known to all
local authorities much earlier in the financial planning cycle.
My authority has been planning next year's budget from this spring
and would not wish to receive the usual late settlement for emergency
54. Q8. This is partially answered in Q7
but we need to see a real increase in funding if this Bill is
to be more than mere process, which it appears at present. Not
only have local budgets been cut by half since the end of the
Cold War but also local authorities have not received any increases
for inflation since about 1993.
55. Civil Contingencies should be no less
well funded than the Fire Service. Although my authority funds
the service well, there is unlikely to be any increased funding
for the increased duties, particularly as much of the emergency
work is now seen as national Civil Defence. It is ironic that
during the Cold War the service was well funded to provide staff
in both County Councils and Districts when the threat was considerably
less than at this time. In addition the CCB will impose duties
on Shire Districts which must be funded at least to the level
of the old Cold War days when the budget for Oxfordshire was approximately
56. For this Bill to be successful in terms
of outcomes and increased public safety there needs to be an increase
in funding and probably not only to local authorities. Without
proper funding it will merely become a process and an audit tool
for central Government which itself will not be subject to such
57. Q9. I remain content with the existing
audit mechanisms and would caution against the added expense of
a separate Inspectorate, which would produce little added value
and would be another source of friction between local and central
58. Q10. I do not agree with a separate
salaried Regional Nominated Co-ordinator. If there is to be a
need for such co-ordination the old Civil Defence mechanism of
a Regional Controller from within the Government regions will
suffice. This dormant appoint should be mirrored in the Chief
Executives of the County Councils as a dormant controller post
for the Counties. The response should be kept local and neither
the public nor the media will pay little attention to some distant
civil servant from a non-operational office.
59. Q11. I disagree with applying special
legislative measures on a regional basis, as this is unnecessary
in such a small country. This model would appear to mirror much
larger countries such as America where such legislative measures
are supported by immediate finance based on the declaration of
60. Such regional legislative measures are
also a danger to democracy, as a national declaration of emergency
should involve the Monarch and Parliament and can act as a check
61. Q12. I remain unconvinced that the present
legislation is outdated. The permissive regime works well for
most organisations and most of the desire for consistency could
have been achieved by up dating the 1993 Regulations with a work
programme. A statutory duty is unlikely to bring with it the necessary
level of funding. Responders will therefore be faced with a highly
bureaucratic framework without the necessary financial support.
62. Q13. The special legislative measures
should remain narrow and focused and not be a catchall for the
apportioning of blame after an event. Such wide-ranging legislation
is always dangerous to democracy. We should not widen the legislation
beyond dealing with a limited threat to public welfare. Such a
widening may cover legitimate protest on a variety of environmental
and other government policies. The Draft Bill is too wide ranging,
covering major incidents to the terrorist threat. Legislation
covering such a wide spectrum is bad law and will attract poor
publicity. Such measures as the destruction of property, plant
and animal life; control of movement; prohibition of travel; prohibition
of assemblies and hefty fines have no place in emergency planning
legislation. These are public order issues and should be included
in Public Order or Criminal Justice Acts.
63. The draft act remains too draconian
and some of its provision will interfere with gaining the confidence
of the British public, which is unlikely to support such legislation.
It is also not clear that those charged with dealing with a response
would support such measures.
64. Any final act must separate the terrorist
and wartime threat from civil emergency legislation.
65. Q14. Use of special legislative powers
on a sub-UK basis is dangerous and pre-empts any Regionalisation
debate. There need to be the checks and balances of an UK wide
66. Q15. Special legislative measure declaration
should only remain with the Monarch, as such a toll should not
be placed in the hands of central Government.
67. Q16. There is no need to give Ministers
such powers as outlined in Q15. There is unlikely to be such a
severe incident that delay would not be acceptable. It will take
time to mobilise any response from outside the local area and
local responders will cope with the immediate emergency. Existing
legislation and Royal procedures presumably already take into
account any incapacity of the Monarch or lack of immediate access.
There would therefore not be any significant delay in seeking
a royal Proclamation. This question just confirms the centralising
and controlling aspects of this Bill, which are dangerous to democracy.
68. Q17. My inclination is that the Human
Rights Act should be able to mount a challenge to the emergency
regulations at all stages. The Human Rights Act should be able
to override any emergency regulations to ensure checks and balances
on this very wide-ranging legislation.
69. Q18-23. I make no comment on these questions
as they are better suited to organisations within Devolved Administrations
and London but the legislation should not differ significantly
to that agreed for England.
70. This Bill adds little to the present
permissive regime however the consultation papers have been valuable
and on the whole well constructed. Much of the content is too
full of jargon and not easily understood by those not in responding
71. The whole intention of the Bill appears
to be one of centralisation with control of local responders.
It still talks about the need to prevent incidents which in most
cases is not possible and it sets severe penalties for what many
may see as legitimate democratic protest.
72. This Bill is likely to produce bad law,
as it will be "sweeper" legislation to catch all the
various activities not covered by existing criminal justice legislation.
It appears to be a Government reaction to the failure of central
departments and Ministries during the Fuel Crisis and the Foot
and Mouth outbreaks.
73. The proposed ability for legal challenges
if partners do not provide information will only sour existing
partnership relations. Local Authorities will be unable to fund
such challenges especially against privatised industries. The
security aspects of classified information as well as Data Protected
information and the difficulties of sharing these openly between
responders have been resolved in this Bill or the explanatory
74. The supposition throughout the explanatory
notes that such legislation will be largely cost neutral will
not be borne out. Even with the limited preparations made by local
authorities in response to the present alleged terrorist threat,
extra costs beyond specific grant have been incurred for national
Civil Defence, ie temporary mortuary contracts, exercising and
Recovery Working Group retainer contracts.
75. The every detailed duties placed on
responders in this Bill will incur staffing, training and response
costs. Much of the present emergency planning work will suffer
if this small service is not protected by specific grant or by
some kind of ring fencing of funding. The proposed funding through
RSG will not be sufficiently transparent: will be subject to predators.
76. The likely timing of any late financial
settlement after a Bill in the autumn will seriously affect local
authorities' budget setting which in the case of my authority
is already well advanced.
County Emergency Planning Officer
30 June 2003