Memorandum from the Local Government Association
1.1 The Local Government Association (LGA)
is the national voice for local communities, speaking for nearly
500 local authorities in England and Wales representing over 50
million people and spending £65 billion a year on local services.
This includes the 178 Principal Councils and Fire and Civil Defence
Authorities in receipt of Civil Defence Grant in England and Wales.
1.2 The Association welcomes the opportunity
to give both written and oral evidence to the Committee. This
memorandum of evidence develops further the issues in the Association's
submission to the Defence Committee dated 25 April 2003, a copy
of which is attached at Appendix 1. On this occasion, the Welsh
Local Government Association (WLGA) has decided that it will not
make a separate submission to the Committee. The memorandum therefore
highlights the WLGA's views where arrangements vary between England
1.3 The LGA supports the Government's intention
to improve resilience, drive up standards and assist in the development
of a proper management structure for emergency planning. However,
whilst the content of the draft Bill appears to be in line with
many of the aspirations of local government, there are a number
of areas of concern, both on the face of the draft Bill and arising
out of it; these are outlined below. Without sight of the draft
secondary legislation or guidance, the overriding caveat of this
evidence is that we must reserve our detailed comments until these
documents are seen. It is our hope that there will be full stakeholder
consultation in the development of these crucial items.
1.4 Where applicable, the LGA is working
with the Civil Contingencies Secretariat Issues Resolution Team
to move forward problematic areas.
2.1 Whilst there are political differences
over the merits or otherwise of regional devolution, it is the
LGA's general policy to support the provision of services at the
local level, to ensure accountability to the local community and
to accord with the democratic process.
2.2 Therefore, the LGA is not opposed to
the regional resilience tier proposed in the draft Bill. It considers,
however, that there is a lack of clarity about the proposed roles
and responsibilities and the involvement of local authorities.
The consultation document that accompanies the draft Bill sets
out the objectives for the regional tier, which include improving
co-ordination, supporting planning, leading a regional response
and assisting with recovery. It is hard to see how this can be
achieved on a non-statutory basis and could lead to a confusion
of roles and responsibilities.
2.3 There is a balance to be struck between
co-ordinating and directing, supporting and intervening, national
policy and local felxibility. The draft Bill places duties on
local responders but there are no equivalent duties for regional
resilience teams and forums.
2.4 The regional tier must also show that
it can add value to the process. It would be interesting to speculate
on the contribution the regional tier could have made to the 2001
outbreak of Foot and Mouth Disease, for example. Working well,
the regional tier could be the key to a successful emergency response;
however, if it worked poorly it could make a serious situation
2.5 The LGA believes that:
The role of the regional tier should
be detailed in statute to ensure improved liaison and consistency
between regions, local responders and other agencies. The LGA
considers it essential that this should appear on the face of
The regional tier should be subject
to the same range of performance criteria as local reponders.
As regional structures evolve, the
definition of the regional tier should include the Welsh Assembly
and any future regional assembly. The role of democratically elected
members on the regional bodies, such as the Mayor of London's
role on the London Resilience Forum, should be consistent across
3. THE GOVERNMENT'S
3.1.1 Notwithstanding the potential for
confusion between local responders and the regional tier in relation
to their respective roles, there is also possible confusion arising
out of the "meaning of emergency" in clause 1.
3.1.2 It is important that the supporting
Regulations clarify where the various Category 1 responders would
have responsibilities and how that definition links to current
guidance such as "Dealing with Disaster". Thus the LGA
believes that there needs to be a "de minimis" definition
of an emergencya trigger level or threshold below which
local authorities, as Category 1 responders, would not be expected
to respond (such as the declaration of a major incident).
3.1.3 There is also no indication in clause
1 of what scale of incident would trigger the involvement of the
Regional Resilience Committees. Local authorities need a clear
definition of that trigger level to allow them to have a measure
against which to plan properly.
3.2 Clause 2
3.2.1 This clause contains a range of duties
way above local authorities' current activities that will involve
new approaches and new burdens on resources and will form a key
area of concern for the LGA's member authorities. For example,
the duty to warn and advise the public, whilst a key task in a
successful emergency response, is impossible to carry out without
specific advice from the regional and central tiers, to ensure
correct and consistent information, particularly as the duty holder
may vary according to the incident. It is important therefore
that the extent of local authorities' "risk assessment"
and "risk management" duties is made clear. There should
also be duties on the regional and central tiers, to assist local
responders where necessary.
3.2.2 For the avoidance of confusion, the
LGA believes that the terminology should be changed, from "risk
assessment"/"risk management" to "hazard analysis".
3.3 Clause 4
3.3.1 Following an incident, a rapid return
to normality for the whole community is highly desirable. However,
the duty to give advice and assistance to business is worryingly
open-ended. The current proposal is for a mandatory requirement
for local authorities to give advice and assistance "to the
public" (although the stated aim of the duty is that local
authorities will promote business continuity management (BCM)
to those in the commercial sector and it is believed that the
most likely recipients would be commercial business operators
rather than members of the general public). Clause 4(3) provides
for authorities to be able to make a charge for the provision
of such advice only if they receive a specific request for it.
3.3.2 It is therefore suggested that the
mandatory requirement to provide BCM advice should be amended
to a discretionary power. Also, the potential for charging needs
to be explored carefully and guidance given to local authorities
on how to set those charges in order to recover their costs, as
3.3.3 It will be essential for the application
of this clause to be clearly detailed in the supporting Regulations.
3.4 Clause 5
3.4.1 The measures in clause 5 are insufficiently
robust to ensure that all local responders play a full part in
the new arrangements. Local Resilience Forums should therefore
be given statutory powers and duties, which should appear on the
face of the Bill, to ensure improved liaison between Districts
and Counties and other agencies.
3.5 Clause 8
3.5.1 Local authorities are no strangers
to the concepts of performance management and continuous improvement.
Their activities are already monitored and measured in a number
of ways and through a variety of bodies. The LGA is currently
in discussion with the Audit Commission as to possible performance
standards for these new duties.
3.5.2 The LGA believes that performance
against agreed indicators should be carried out by self-assessment
and peer review. However, there should be a timely review of the
mechanism and the performance indicators after three years.
3.5.3 We also suggest that there should
be some indicators that are consistent across all local responders,
such as attendance at Local Resilience Forum meetings and levels
of training and exercise.
4.1 Levels of Current and Future Expenditure
4.1.1 Currently, top tier local authority
responders (Counties, Unitaries, Metropolitan Boroughs and London
Boroughs) receive ring-fenced funding totalling £19,038 million
per annum through the Civil Defence Grant, distributed according
to an agreed formula. No local authorities have received any extra
funding for the additional work currently expected of them by
Government, post September 11. The recent LGA survey of top tier
Emergency Planning authorities shows that the total expenditure
of these authorities is over £32 million for England and
Wales; thus top tier authorities contribute in excess of £13
million over and above the Grant they receive for their current
activities. A copy of the report of the survey of top tier authorities
is attached at Appendix 2.
4.1.2 The LGA has conducted a separate survey
of Shire District Councils. Initial evaluation of the responses
shows that, although they do not receive Civil Defence Grant,
virtually all Shire District Councils nevertheless undertake emergency
planning functions and currently contribute a total of just under
£4 million to fund this work. (The report of the LGA's Shire
Districts survey is currently being finalised; a copy will be
forwarded to the Committee as soon as it is available.)
4.1.3 In total, therefore, local authorities
at present contribute an extra £17 million over and above
the Grant of £19 million. It is clear that the scale of new
duties under this draft Bill, epecially when extended to Shire
District Councils for the first time, will require a wholesale
review of the funding provision.
4.1.4 The draft Bill will be an important
step forward but it is essential that the Government is absolutely
clear as to its expectations of partners involved in delivering
integrated emergency management and the level of funding and resources
to be made available to them to undertake these ever increasing
functions. Such funding should be sufficient also to cover start
up costs. LGA members would be very concerned to find themselves
with new obligations that they would only be able to fulfil by
diverting resources from other priority areas.
4.1.5 It is accepted that the level of risk
in London would make it a special case in terms of resources but
this should not be to the detriment of other parts of the country.
4.2 The Civil Defence Grant
4.2.1 The LGA understands the intention
is that the Civil Defence Grant will be phased out and Emergency
Planning funding will be included in the new Formula Spending
Share for local authorities. At present, the allocation of the
Civil Defence Grant to authorities guarantees a minimum level
of emergency planning service in all areas of the country. If
the Grant is transferred to the new Formula Spending Share, resource
demand pressures from other services could potentially overwhelm
the emergency planning service. However, if the Grant is indeed
to be phased out, then the LGA believes, in common with many local
authority Chief Executives, that there should be transitional
arrangements for Emergency Planning funding to be ring-fenced
or identified as a line in the EPCS grant, say for 2-3 years,
to allow this funding to be fully established in local authority
expenditure plans and thus, we would hope, to enable the service
to measure up to public expectation.
4.2.2 Within Wales, local authorities are
funded through the National Assembly, which has direct control
of the block grant system, but the Bill makes no provision for
the transference of the emergency planning service from the Cabinet
Office to the National Assembly. The WLGA considers that evidence
of such a transfer is essential to ensure future funding streams
for local authorities in Wales. It should be noted that the block
grant system in Wales differs significantly from that in England
and consideration will need to be given by the Assembly, in conjunction
with the ODPM, as to how funding can be distributed and monitored
in Wales. Similarly, information upon the calculation to be utilised,
to facilitate that transfer, is important. Local authorities within
Wales would argue that they should retain as a minimum the existing
levels of Government funding.
4.2.3 It is suggested that perhaps research
should be carried out to determine whether the level of grant
might be able to be linked to risks in a particular area.
4.3 The Bellwin Scheme
4.3.1 Under the discretionary Bellwin Scheme,
the Government makes financial assistance available to local authorities
for costs of response and recovery following an emergency or disaster
involving destruction of, or danger to, life and property. The
operation of the scheme was reviewed in 2001, following the severe
floods of 2000. However, that Review was carried out pre-September
11 2001 and the report of the Review, published the following
month, made no reference to that incident. Whilst payments have
been made over the years under Bellwin to reimburse authorities
for costs expended in the immediate aftermath of smaller scale
emergencies such as flooding, we are concerned that the scheme
is not particularly appropriate in the current climate. To date
the scheme has not paid out for the costs of dealing with a terrorist
incident and could probably not be used in the event, say, of
a major September 11 type incident (indeed, Bellwin was not considered
to be appropriate following the Docklands and Manchester bombs
in 1996, when special grant payments were made).
4.3.2 We are aware that alternative grant-making
powers are under consideration by Government and that the Local
Government Bill currently before Parliament includes provision
to allow Ministers to make special grants to local authorities.
4.4.3 Nevertheless, the LGA believes that
the fact that there is currently no statutory central contingency
fund is a major disadvantage. The joint DTLR/LGA Bellwin Review
Group in October 2001 recommended the establishment of such a
fund, which could be carried forward from one year to the next
if not used (recommendation (vi) in the Review report). Furthermore,
the local government White Paper "Strong Local LeadershipQuality
Public Services" sated, in Chapter 6 "Investing for
Improvement", paragraph 6.16, "we will reform the [Bellwin]
scheme along the lines recommended by the joint DTLR/local government
review group, by setting its funding on a sounder footing . .
. ".) The LGA considers that the Government should now give
serious consideration to the establishment of a central contingency
4.4 The Partial Regulatory Impact Assessment
(RIA) (Local Responders)
4.4.1 The Partial RIA relating to local
responders (circulated with the draft Bill) mainly concerns itself
with costs to businesses (for example, of attending meetings,
training and exercises). No account is taken of the likely costs
to Category 1 responders (such as local authorities, or the emergency
services) of undertaking the same activities, or for meeting the
requirements to undertake risk assessment (hazard analysis), prevention
and education planning, or internal business continuity planning,
or to provide public warning and information and commercial business
continuity advice and assistance. Furthermore, the establishment
of the Regional Resilience Team will require an assessment of
regional capabilities, including planning, training, exercises
It is suggested that the costs on all Category
1 and 2 responders should be assessed, taking into account the
new and additional burdens placed on them by this legislation.
5.1 The list of Category 1 responders inlcudes
NHS Ambulance Trusts. It is considered that the list should also
include other health agencies that have an input into local emergencies,
such as Primary Care Trusts and Strategic Health Authorities.
5.2 Additionally, Government itself should
have a duty to carry out risk assessment (hazard analysis) of
regional or national emergencies, such as an outbreak of foot
and mouth disease. Regional representatives will sit on local
resilience forums; all other members of these forums will have
such a duty, so perhaps the Government representatives should
have a similar duty.
6.1 The LGA concurs with the generally held
view that the content of the Emergency Powers Act 1920 no longer
reflects the realities of the early 21st century and supports
the need for revision of the Act. However, this has been an area
where there has been little consultation with local government.
6.2 The LGA agrees with the proposal that
the circumstances in which special legislative measures may be
taken should be expanded from limited threats to public welfare,
to include threats to the environment and to the political, administrative
and economic stability of the UK and threats to its security resulting
from war or terrorism.
6.3 The LGA also agrees that the use of
special legislative measures should be possible on a sub-UK basis,
provided that the "triple lock" (as defined in the Defence
Select Committee's Report) is in place.
6.4 With regard to the formal declaration
of an emergency, the fact that the Monarch must make a Royal Proclamation
is an important check and underlines in the public's mind the
seriousness of the situation. The LGA would therefore oppose the
proposal that the Secretary of State might be empowered to make
such a declaration. It is not considered that there would be much
risk of a delay; in this age of new technology and high speed
communication, surely the Monarch can be available at all times,
if only in the "virtual" sense.
6.5 The WLGA points out that, if it is possible
for the nature of an emergency to fall wholly within the terms
of the devolution settlement, it may be arguable that the National
Assembly should have such powers. The WLGA considers that if these
powers were to be granted, measures to ensure a consistent approach
would be vital. Cross-border issues, with the potential for conflicting
policies and arrangements for the involvement of other branches
of government, not addressed in the Cabinet Office consultation
paper, would need to be clear to all parties. Issues around the
accountability of services such as the Police, the Magistrates'
Courts Authority and others normally accountable to the other
government departments need addressing. Further research upon
a range of such issues must be conducted and published before
Parliament considers such an option. The WLGA believes that since
most scenarios would involve other Government Departments, usually
in a lead role context, the logic of a Whitehall Minister seeking
such a declaration remains more apparent and more immediately
capable of implementation. There is no doubt that this matter
will have to remain under review as the scope of the Assembly's
remit is widened but at present too many unanswered questions
6.6 The proposed emergency powers to requisition
property, order its destruction and regulate the movement and
relocation of the general population are draconian in nature.
With regard to any potential civil liberties concerns surrounding
these powers, the LGA recognises clearly that the Government needs
to have power to act in a variety of ways in an emergency for
the common good and has no argument with the powers themselves,
provided that all reasonable checks and balances are in place.
However, the draft Bill proposes that Government be given these
powers to act "with or without compensation". We would
query why there should be no liability to pay compensation in
circumstances where property, including domestic premises, is
seized and destroyed.
7. COASTAL POLLUTION
7.1 The draft Bill does not give sufficient
weight to the issue of coastal pollution. For example, the definition
of contaminants should include all oils. Also, Principal Councils
whose areas include areas of coastline should be given the duty
to plan and co-ordinate the response to coastal pollution.
8. FIRE AND
8.1 The LGA supports current proposals that
there should be greater freedoms and flexibilities for local authorities.
Under existing legislation, there is provision for Principal Councils
to be able to contract out all or some of their emergency planning
work to fire authorities and others who may be better placed to
undertake this work in terms of skills and experience. The LGA
will be seeking confirmation that the proposed legislation will
impose no constraints upon any Principal Councils wishing to make
joint arrangements with any other authorities, including fire
9. ISSUES SPECIFIC
9.1 Generally speaking, it is agreed that
the arrangements proposed for Wales strike the right balance between
reflecting the devolution settlement and ensuring consistency
across the UK, with the following provisos:
There must be provisions for the
transfer of funding for the emergency planning service to the
National Assembly, as addressed in paragraph 4.2.2 above.
With regard to the issue of responsibility
at regional level, in a Welsh context the Assembly is well placed
to provide the advantage of regional accountability, although
difficulties may arise from the fact it is not, in many circumstances,
the lead Government Department. There is therefore the potential
for a conflict of accountability, since it is perceived that the
Regional National Co-ordinator will report to the lead Government
Department Minister. This issue requires closer examination in
the Welsh context to examine the potential options with partner
agencies to ensure that the proposed outcome has credibility in
operational, legal and political contexts.
It is considered that the question
of the declaration of special emergency legislation may impact
upon the potential roles and responsibilities of the National
Further clarity is essential on these points
before more specific agreement can be given.
9.2 It is agreed that the Emergency Co-ordinator
in a devolved country should be flexible to reflect different
types of emergency, subject to ensuring that whoever performs
this role has the appropriate powers available to them and has
direct accountability to the relevant lead Government Minister.
1 September 2003