Joint Committee on Draft Civil Contingencies Bill Minutes of Evidence

Examination of Witnesses (Questions 120-128)



  Q120  Chairman: The draft Bill proposes that regulations drafted under the Bill should be treated as primary legislation, which cannot be struck down by the courts if challenged. Do you believe that this is a necessary or useful proposal and, if so, why? What human rights implications does it have? Have you any alternative suggestions? We are all looking at the lawyer!

  Ms Lowton: You are all looking at the lawyer! I think there are issues about changing the nature generally of regulations, which are perceived I could not say by the man in the street as secondary legislation but I think amongst those of us who deal with legislation on a regular basis as a difficulty. I think that the message that it sends in terms of human rights, even if the regulations themselves did not transgress human rights, is not a good one because it suggests if they cannot be struck down by the courts on human rights grounds that there is something that goes against human rights even if there is not. I do not see that it would necessarily be a hindrance for them to be challengeable on human rights grounds because in an immediate emergency which would require the kind of regulation that might lead to a human rights challenge, that challenge would be dealt with after the event, in all honesty, and would not inhibit the activity at the time, and so I do not think that anything is gained by making the regulations primary legislation. It just does not seem to me to add anything and certainly could cause an illusion that they are against human rights themselves even when they are not.

  Mr Davies: Just to add to that, I remember reading in the consultation document—and this is something I alluded to in my response in the Cabinet Office also—making the case and actually pointing out that there was already a procedure which allowed a derogation from the Human Rights Act anyway and I thought, "So what are you adding with this?" It did not seem to make sense to me.

  Q121  Kali Mountford: Can I just take you back quite a way to such an emphatic answer to compensation which you did not expand on at all but which has left questions in my mind. While I can see that if a sheep is shot then we pay for the sheep and that is a very easy way of dealing with things, would there be no limits to that?

  Ms Lowton: The question was whether there should be a presumption that compensation should be paid rather than not, not should compensation be paid every time, and I was saying yes to the presumption.

  Q122  Kali Mountford: A good lawyer's answer! What about the others because there are good reasons why compensation might be paid but would you always have compensation? You were so emphatic that I was left with the impression that you would.

  Mr Davies: Certainly from my perspective it was a very broad brush response. If you could any of an instance where it might not make sense to pay—Again, I think there is a presumption that they should be compensated for this sort of damage. Off the top of my head I cannot think of a situation where you would not want to pay compensation.

  Q123  Kali Mountford: The problem is trying to see the unforeseen and if a state of emergency were such it may not be the first call on public resources to give compensation where there might be more important and pressing matters to deal with. I did not want to be left with the impression that compensation was a first port of call on public resources as a priority.

  Mr Davies: That sounds like a politician's choice and I think I am probably going to pass the buck on that one.

  Kali Mountford: I see.

  Q124  Lord Brooke of Alverthorpe: Could I just come back again and go back over earlier ground well trodden. I was a bit surprised by your responses on the nature of your relationship with the military where with the kind of threats that we are now facing it seems increasingly that you would have the possibility that the military would be involved in one form or another. Do I get the impression that because the military indicate to you (at least in the Durham area) that they have not got the resources and you could not count on them, that you do not therefore take it into account in your planning for the kind of scenarios that you may be faced with that the military would be involved with?

  Mr Cunningham: If I can clarify that because I think I have given you the wrong impression. In terms of planning for CBRN and terrorist incidents we are heavily involved in working with the military on plans to deal with that. I was referring to things like localised flooding and foot and mouth where we have used the military before and where they are tried and tested but we cannot rely on using them again. In terms of terrorist incident we are working with the military there is a distinction there, and I am sorry if I have misled you on that one.

  Ms Lowton: We certainly would expect as one of the 33 London boroughs that we would anticipate military involvement at the regional level rather than the local level, but it is certainly true when we have had table-top exercises, depending on the scenario, that the military have been involved and that has been at a London borough level, so I would not want you to think that they were not involved. It is difficult to get them involved on a day-to-day planning basis because obviously their priorities are very different.

  Q125  Lord Brooke of Alverthorpe: Can I come on to this secondary level then, which is probably not quite as fearsome as the first category, that is where they opt out and that is where your planning disregards them because there are no guarantees that they can be with you.

  Mr Cunningham: We do not disregard them totally. For example, in our flood plan in a check list for the chief executive there is "consider calling for military aid", but we phrased it in that way rather than saying "call for military aid" and making the presumption that it will always be there. On the flooding that has occurred in this country over the last few years we know in County Durham that if the military are going to aid in flooding they are more likely to be at York aiding the citizens of York than have the resources to come to Durham to do it, and we have to take account of that when we are doing our plans. What I am trying to say is we cannot rely on the very great service that the military can give us, we have to look for a range of options, but that is certainly one of the options.

  Q126  Lord Brooke of Alverthorpe: Would you like to see greater mention of it in the legislation?

  Mr Cunningham: I think personally that the military are a great resource so yes I would like to see more mention of them in the legislation but my understanding from what other people have told me is that that might create problems for the military themselves.

  Mr Davies: I think that is right. We do not have a problem with the idea; it is just because of our experiences we know that there is not going to be much resource there for us to call upon.

  Q127  Mr Jones: There is though because they have set up these regional 500 volunteers. It does not seem to be working on the ground if you do not know for example who the military co-ordinator is or how you could use these 500 people.

  Mr Davies: We do know who they are and we work very well with them given how stretched they are. Again as Patrick said, in our patch we know that if we have got county-wide flooding they are going to be in York first because that is where the barracks are.

  Mr Cunningham: My understanding of that body of people is that they are there to help us mainly with terrorist-type incidents rather than the other type of contingency planning that we do. Perhaps that is a misunderstanding on our part. We are certainly going to have to go away and explore that one.

  Ms Lowton: Maybe the answer is goes back to one of the very first questions about trigger levels and the type of agencies that are involved at different levels. Maybe in some form of guidance or whatever or even on the face of the Bill it could indicate the kind of emergencies that the military would be involved in and then that would provide clarity for us because I do not think in the normal course of events at a local London borough level we would assume that the military would be involved. Obviously if there were a major incident, say at King's Cross, then they probably would be but as a general run of the mill we would not anticipate involving the military in our emergency planning.

  Q128  Chairman: Is there anything that you would like to add or any particular aspect of the Bill that distresses you?

  Mr Cunningham: I think it is a very good Bill and I think that it will be a huge step forward in making the country a lot more resilient than it is at the moment but the Bill in itself will not be able to do that, there are the other things I mentioned that need to work alongside the Bill.

  Mr Davies: I am probably a little more cautious than Patrick. I do not think it is a very good Bill, I think it is a good Bill and it provides a good foundation for us to move forward. In our response I described this as a "leap of faith" on our part because we cannot judge the legislation until we see the content of the regulations and also the funding, which has been mentioned time and again throughout our presentations.

  Ms Lowton: I will just endorse that.

  Chairman: Thank you very much indeed.

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