Examination of Witnesses (Questions 120-128)|
9 SEPTEMBER 2003
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
Mr Davies: Just to add to that,
I remember reading in the consultation documentand this
is something I alluded to in my response in the Cabinet Office
alsomaking 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
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 payAgain, 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
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
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
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
Chairman: Thank you very much indeed.