Joint Committee on Draft Civil Contingencies Bill Minutes of Evidence

Memorandum from Leeds City Council

  We refer to Susan Scholefield's letter dated 19 June 2003 enclosing a copy of the draft Civil Contingencies Bill together with a Consultation Document and Regulatory Impact Assessment. Please find attached our formal written response to the questions contained within the Consultation Document for your attention.

  In broad terms, Leeds City Council welcomes the publication of the draft Bill and its stated commitment for this to become law no later than the middle of 2004. We firmly believe that emergency planning requires an appropriate statutory basis and consider that this work will go some way to providing this. However, we also have a number of reservations regarding the proposed framework and offer the following comments as a supplement to our responses to the Consultation Document:

    —  The absence of detail regarding the regulations which need to be promulgated to implement the framework makes it difficult to evaluate whether the Bill is able to deliver on its objectives. For example, it is not possible to determine whether this framework will give local responders a clear and consistent set of expectations and responsibilities in relation to civil protection. An acceptance of the proposals set-out necessitates, therefore, a "leap of faith" on the part of consultees.

    —  There are a number of organisations which play a key role in local emergency responses who have either not been included within the Bill or who should be placed in a higher category. The Council is particularly concerned that the legislation focuses almost exclusively on the local response and does not subject most Central Government functions to duties under the Bill. A Bill which encompasses all of the stakeholders with a role in delivering resilience at the local, regional, and national levels would have been more welcome and this major omission detracts from the Government's claim that the legislation seeks to deliver a single framework for civil protection in the United Kingdom.

    —  The failure by the CCS to secure increased resources for the emergency planning function in local authorities has limited and will continue to restrict their ability to make a step-change in their service's effectiveness until this issue is resolved. An impartial review of emergency planning for both local authorities and its key partners needs to be instigated urgently to draw a line under this problem.

    —  We are disappointed that the CCS has not taken the opportunity to address the anomalous situation in which FCDAs undertake the off-site planning under the COMAH, PSR and REPPIR regulations rather than the Metropolitan District Councils (the responding local authorities). We believe that this undercuts the CCS's claim that the Bill aims at a consistency of arrangements and would welcome an explanation from the Cabinet Office as to why this has not been addressed.

    —  We are concerned about the use of the term "prevention" in relation to civil protection and would caution against the perception that emergencies are somehow "preventable". It may be that as a result of a process of hazard identification, risk assessment and planning, problems can be identified and action taken to reduce the risks of these arising or mitigate their effects. However, this is not the same as prevention.

  We look forward to receiving the results of the consultation exercise in due course. If you require any further clarification, please do not hesitate to contact me.

Richard Davies

Principal Emergency Planning Officer

27 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?

  The definitions of an "emergency" in both parts 1 and 2 of the draft bill appear to encompass an appropriately wide range of potential eventualities.

  However, we are concerned that there is no detailed definition of what is implied by "serious threat" and believe that this should be clarified. This could be done by drawing upon the CCS's own definition of a major incident in "Dealing With Disaster", ie an event ". . . on such a scale that the effects cannot be dealt with by the emergency services, local authorities and other organisations as part of their normal day to day activities."

  In our view the definition of 1(1)(c) and (d) should be restricted to circumstances in which there is also a concomitant threat to human welfare.


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?

  In the absence of detailed obligations which will result from regulations setting out which duties may or may not fall upon local authorities and others, it is impossible to make a full assessment of this. Moreover, the duties envisaged will not of themselves ensure operationally effective and financially efficient planning and response to emergencies at the local level, although they are important building blocks towards such aspirations.

  In our view, a number of other factors would need to be addressed before good practice is in place across the board and we offer the following suggestions to aid this process:

    —  All agencies with a stake in the local response should be subject to the duty as outlined in Q3 below.

    —  Greater consideration should be given to the issue of leadership in relation to the planning and risk assessment aspects of the Bill, as opposed to the response dimension where this is already clear.

    —  The issue of resources for emergency planning functions in local authorities and other key responding agencies needs to be addressed urgently.

    —  The issue of performance monitoring and compliance proposed should be reconsidered to enable the overall local capabilities to be considered in toto and to avoid divergent regimes operating to different standards. Benchmarking processes need to be developed at local, regional and national levels along with guidance of a standard generally lacking heretofore.

    —  Remaining anomalies (eg FCDAs preparing off-site COMAH plans, as well as PSR and REPPIR plans) should be addressed immediately.

  In the absence of the above issues being addressed, it is questionable whether the Bill offers any great advances for those areas where good practice is already largely in place.

  On a more positive note, we believe the inclusion of duties relating to BCP within organisations and its promotion in the business sector by local authorities is very welcome. As one of the few authorities currently undertaking the latter, we would emphasise that this requires a substantial injection of resources.

Q3.   Do you agree that the membership of Categories 1 and 2 is right? If not, which organisations should be added, moved or removed?

  Whilst the existing members Category 1 broadly belong in this grouping, there are a number of key organisations which need to be added. In our view, the composition of Category 2 is more problematic.


  We would suggest that Primary Care Trusts, Health Protection Agency, Strategic Health Authorities and Hospital Trusts are all included in Category 1, given that all now have a role in emergency planning and response.

Utilities and Transport

  We are concerned that the utilities and major transport providers have been consigned to Category 2 on the basis that this "reflects the importance that these organisations have in terms of potentially being the cause of an emergency situation and in aiding response and recovery". This does not seem an accurate depiction of reality given the public's dependence on utility supplies. In our view utilities and major transport providers should also be placed in Category 1 so that these organisations also have a duty to assess the risk of emergencies arising, maintain emergency and BCP plans and so forth. It appears clear to us that existing regulations for these sectors are insufficient as evidenced by:

    (1)  the recent poor performance of electricity supply companies in reconnecting large numbers of customers following storms in October 2002;

    (2)  the apparent lack of a budget for running exercises within individual Network Rail Major Stations;

    (3)  the lack of a regulatory requirement by the CAA for airport exercises airside to extend to the terminal side.

  In addition, we would strongly suggest that all major airlines, all rail freight companies (including EWS, Freightliner), passenger transport executives, and British Waterways are also covered by the legislation as Category 1 responders.

  We believe that there is a strong case to be made for the inclusion of major bus companies (eg First Bus, Stagecoach) in the Bill, possibly as Category 2 responders, given their potential role in assisting in major evacuations or transportation to rest centres.

Regulators and Safety Schemes

  From a regulatory perspective, we consider that it would be appropriate for the Coal Authority, the Met Office and agencies involved in the NAIR/RADSAFE/CHEMSAFE schemes to be included in the Bill as Category 2 responders.


  On a wider note, we remain concerned that both the central and regional arms of government are not to be subjected (with notable exceptions) to specific statutory duties. This is particularly of concern in light of the Consultation Document's claim that the Bill's purpose is to "deliver a single framework for civil protection in the United Kingdom" and the absence of any compelling reasons given by the CCS to justify this omission. We believe this should be reconsidered as, in our view, the main impetus for the original Emergency Planning Review stemmed from the shortcomings in the arrangements of Central and Regional Government. Although we remain convinced that the Lead Government Department concept is fundamentally flawed, we would like to see Lead Government Departments, together with the Regional Resilience functions, included in Category 1 as a minimum.

Representation on Local Resilience Forums

  The only major issue which arises from extending the membership of Category 1 is that it suggests that LRF meetings could become unmanageable in size. However, we would argue that this does not need to become a problem and that certain types organisations (utilities, transport companies, all NHS bodies) do not need to attend all LRF meetings at the practitioner level, as long as they are able to attend on request or at less frequent meetings which address specific issues arising from these sectors.

  The suggestion outlined conforms to the model we use in West Yorkshire currently. The emergency services, local authorities, and Environment Agency attend all meetings. Yorkshire Water is the only utility which attends all meetings and we have agreed that one of our bi-monthly meetings annually will focus on utility issues. Transport providers attend as necessary and the NHS is usually represented by the Regional Health EP Advisor or a Health Protection Agency representative. In effect, this appears to suggest the creation of a third group of responders in the shape of a Category 1 Plus (emergency services, local authorities, Environment Agency, NHS representative), who would be subject to an additional requirement to attend LRF meetings.

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.

  Given that the framework proposed lacks any real detail and is an enabling act whose implementation is dependent on the promulgation of regulations, the question of "balance" may not be entirely appropriate. Clearly the proposed framework offers significant flexibility and discretion, but the Bill does not appear to offer sufficiently strong safeguards to ensure ministers use the powers appropriately.

  An example of this can be found in paragraph 7 relating to "Urgency" which provide powers for ministers to enable them to issue regulations or directions seemingly with immediate effect. In terms of the functions covered (assessment, planning, advice, disclosure of information), this seems to suggest "overkill" and it would seem more appropriate to restrict such powers to circumstances where these are of the essence, ie in incident response. This could surely be covered under "emergency powers".

  We would suggest that further safeguards be implemented in relation to "emergency powers". The Consultation Document argues that the "triple lock" would prevent these powers being abused by Government to make unwarranted interventions, but it is noteworthy that these safeguards are not built into the Bill.

  In order to facilitate consistency it is essential that all stakeholders are made aware of what packages of regulations are proposed in the short and medium term in order to implement the duties and that they have the opportunity to comment upon proposed individual regulations as these are developed.

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 be established?

  "Local Resilience Forums" are an essential component of integrated emergency management arrangements at both the strategic senior officer and practitioner levels and, where these are not currently in place, such bodies should be implemented.

  In West Yorkshire, forums have long been in place at both levels and operate for the most part satisfactorily. We would emphasise that any regulations or guidance should be sufficiently flexible to allow for arrangements best-suited to local circumstances, but which draw upon good practice elsewhere.

  Once again, however, the mere creation of such forums will not of itself engender consistency which is dependent on a number of factors already addressed in Q2 and Q4 above. To reiterate, this requires a number of issues to be addressed including: the detail of specific regulations; performance monitoring and compliance regimes; inclusion of all key partners in appropriate responder categories; greater resources; removal of anomalies surrounding EU-derived regulations; and greater clarity of leadership in the planning process.

  On another note, it is not entirely clear from the documentation at what level the Government intends representation of the LRFs to be drawn from. The Regulatory Impact Assessment (p 41, para 62) suggests that the LRF would probably meet twice a year at a senior level, whilst the Consultation Document implies that these groups would be located at the practitioner level given that they would "bring together core and co-operating responders during the risk assessment and planning phases and help develop cross-agency policies" (p 19, para 24). This fuzziness should be resolved.

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?

  No, the Partial Regulatory Impact Assessment does not fully reflect the costs and benefits of the Bill proposals. Many of the numbers presented appear subjective or arbitrary and do not stand up to detailed scrutiny. This applies also to the contention that the current level of funding is sufficient to support the basic responsibilities for local authorities that stem from the Bill (Consultation Document, p 20, para 35), which conveniently ignores the substantial level of resources invested by local authorities over and above the Civil Defence Grant.

  In order to ensure that the issue of costs is dealt with properly once and for all, we would strongly advocate an impartial funding review be undertaken to look at resource needs and address the undertaking of the duties in all affected sectors. It is clear that local authorities are not the only organisations which require an increase in resources in the public sector and the Government needs to ensure that key privately owned organisations—utilities, train companies etc—are required to invest adequately in emergency planning.

  In terms of benefits, it is highly problematic to place a value on the development of good practice where there was formerly none and this should not be measured coldly and solely in terms of "consistency" or "co-ordination". Even areas which perceive themselves as currently effective in their emergency arrangements are capable of enhancing these, subject to an appropriate increase in funding, and this could take many forms.

  We would argue that there is huge scope for additional training and exercising and better informing and educating the public, the possible breadth of which the Bill can only hint at. Moreover, in many ways we are a long way behind other countries in emergency preparedness and should be looking towards building genuinely resilient communities as well as resilient infrastructures. This requires a significant cultural shift which would have to be supported by a greater degree of leadership at the national regional and local levels as well as a large investment of resources.

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?

  We welcome this move on the grounds that it should help bring emergency planning closer to the mainstream, but would urge that such funding is clearly identifiable within the Revenue Support Grant settlement.

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.

  In our view, the current funding for emergency planning for local authorities is completely inadequate to cover existing responsibilities and requires a substantial increase in resources to meet both these and additional challenges posed by proposed new duties. An impartial comprehensive funding review should be set-up to consider resource needs in all sectors affected by the duty.

  We believe that government should finance the full range of responsibilities deriving from the Bill, as opposed to making a "contribution", in order to ensure that all the duties can be properly implemented rather than so-called "new burdens". If the Government is serious about the development of "Resilience", then substantial additional new resources need to be invested, particularly in terms of emergency resources and supplies, training and exercising, risk assessment and "prevention", business continuity management, and informing and educating the public.

  On a more specific note, we feel that it would be appropriate if "regional capitals" like Leeds receive a higher level of funding to enable them to develop a resilience commensurate with this status, given that they are the hubs of the regional financial/legal/health infrastructure upon which other areas are dependent.

  Finally, in contrast to former arrangements under the Civil Defence Act, it appears that the Government is not proposing to introduce a new system of capital grants which could be used to implement an infrastructure appropriate to an effective emergency response in the twenty-first century. This would imply that the costs associated with the development of control centres, radio systems, forward control vehicles and so forth would have to be borne by the authorities directly.

  We are disappointed that the Bill also does not propose to encompass the Bellwin Scheme for compensating local authorities post-disasters, which again seems to militate against this framework becoming a "single framework for civil protection".

Q9.   Do you agree that performance should be audited through existing mechanisms? If not, what mechanism would you like to see established?

  The Government's view that existing mechanisms are adequate for ensuring consistency of performance suggest a reluctance to address this issue fundamentally, but it is also a consequence of the decision not to create of an overarching national agency responsible for emergency planning policy and standards (as in Australia, Canada, USA, and much of western Europe).

  These proposals are somewhat disappointing and will not progress the development of Integrated Emergency Management as effectively as other alternatives. The proposed approach of each type of organisation being monitored by their own inspectorates (each reporting to different government departments) fails to address how all of this could be assessed to ensure that the overall planning and response capabilities are integrated and effective across the local level. As such this policy is likely to lead to continuing inconsistencies.

  In terms of local authorities specifically, we are concerned that the Audit Commission may not be able to devote the resources or develop the expertise necessary to such a small, but specialised discipline. Moreover, the relatively low expenditure associated with emergency planning brings into question whether it would be viable for consideration under CPA.

  An alternative vision might see the creation of a dedicted inter-disciplinary monitoring capability operating under the auspices of the CCS (possibly based at the Emergency Planning College or Regional Government Offices) which would be able to look at the totality of resilience arrangements in a given area. This would allow systemic weaknesses to become more apparent and identify where capabilities and leadership needed to be developed more effectively.

  Finally, it is vital that the development of any standards or guidance supporting performance management is assembled through a process of true partnership working and results in standards which could provide the basis of continuous improvement in contrast to previous publications dealing with this area.


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?

  In principle, the creation of a Regional Nominated Co-ordinator (RNC) on a statutory basis is welcomed, as is the suggestion that they should be pre-nominated at Regional Resilience Forum level. It is clear that further work is required, however, to elaborate upon the role and responsibilities of the position, particularly with regard to how this person would liaise with local responders and Government Departments.

  Beyond this a number of important questions remain.

  Firstly, according to the Consultation Document (p 24, para 19), the RNC would not be appointed until a level 3 emergency had been reached and special legislative measures invoked. However, it is stated elsewhere (p 23, para 13) that the RNC would chair Level 2 emergency meetings and this inconsistency needs to be addressed.

  Secondly, the Consultation Document (p 24, para 18) suggests that the choice of RNC would not be fixed and depends on the nature of the incident and which organisations was leading. This approach mirrors the weaknesses inherent in the "Lead Government Department" concept and contrasts markedly with the accepted best practice of local responders in which control arrangements are based upon the leadership abilities of the team manager rather than their detailed expertise. This policy also means that no single individual is able to build up their knowledge of the command and control needs of emergency response.

  We would recommend that the RNC post is made a fixed responsibility of either Directors of Regional Resilience or Directors of Regional Government Offices and that they are given appropriate training to be able to fulfil this role.

Q11.   Do you agree with the principle of applying special legislative measures on a regional basis? Please explain your answer.

  Yes, subject to the caveats expressed in Q1 and Q4. We believe it would be appropriate to incorporate further safeguards—ie the so-called "triple lock"—into the Bill in relation to "emergency powers".


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.

  Yes, but with adequate safeguards built-in to ensure that government interventions are justified and human rights concerns addressed in line with the responses to Q1 and Q4.

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 stablity of the UK and to threats to its security resulting from war or terrorism? If not, how would you like to see the circumstances narrowed or extended?

  The list of potential threats set out at p 28, para 17 appears reasonable as long as this is safeguarded by the "triple lock".

Q14.   Do you agree that the use of special legislative measures should be possible on a sub-UK basis? If not, please explain.

  Yes, in line with the responses to Q11 and Q13 above.

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, with whom should it sit?

  Yes, in line with the responses to Q11 and Q13 above.

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, given that no adequate justification has been given as to why this would be necessary.

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, we do not believe that emergency regulations should be treated as primary legislation for the purposes of the Human Rights Act. In the first instance, regulations are in fact secondary rather than primary legislation and should be handled in the same fashion as like regulations. The courts should be able to strike down regulations which run counter to human rights safeguards, where appropriate. More importantly, the Consultation Document makes clear there is already a procedure which allows derogation from the Human Rights Act and this is surely sufficient.


Q18.   Do you agree that that arrangements proposed for Scotland strike the right balance between reflecting the devolution settlement and ensuring consistency across the UK? If not, what changes are necessary?

  We do not feel it is appropriate for this authority to comment on this matter.

Q19.   Do you agree that the arrangements proposed for Wales strike the right balance between reflecting the devolution settlement and ensuring consistency across the UK? If not, what changes are necessary?

  We do not feel it is appropriate for this authority to comment on this matter.

Q20.   Do you agree that the arrangements proposed for Northern Ireland strike the right balance between reflecting the devolution settlement and ensuring consistency across the UK? If not, what changes are necessary?

  We do not feel it is appropriate for this authority to comment on this matter.

Q21.   Do you agree that the role and accountability of the Emergency Co-ordinator in a devolved country should be flexible to reflect different types of emergency? If not, what alternative role should the Emergency Co-ordinator have?

  We do not feel it is appropriate for this authority to comment on this matter.

Q22.   Do you agree that the devolved administrations should be able to declare that special legislative measures are necessary, and take action accordingly? If not, please explain why.

  We do not feel it is appropriate for this authority to comment on this matter.


Q23.   Do you agree that London should have different arrangements for co-operation, and that the proposals set out are the right way to deliver this? If not, what arrangements should be put in place?

  We do not feel it is appropriate for this authority to comment on this matter.

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