Joint Committee on Draft Civil Contingencies Bill Minutes of Evidence

Examination of Witnesses (Questions 129-139)



  Q129  Chairman: Good morning, gentlemen. Could I start by asking you if you consider that the new legislation to deal with emergencies is necessary? Do you think that the definition of emergency in the Bill is adequate?

  Mr Morgan: Is any legislation strictly necessary? I suppose you could say that using old legislation and being very British you can always make it work. Your experience is that the inadequacy or the outdatedness of the legislation is almost a challenge to your ability to make it work when there is an actual emergency. Fortunately for this purpose—but unfortunately for other purposes—we have had quite a few emergencies during the brief life of the Assembly, foot and mouth most notably but also the fuel and fire dispute and so on. We did make it work. Therefore you could say that no legislation is necessary but that would be grossly oversimplified. We would take the view that, from our experience, you could have improved and modernised legislation. There are other issues that are not for us. Clearly people will say to us, and we pick this up, that these are calls for UK ministers and not for us; that the old legislation really has completely the wrong flavour to it in terms of the foreign powers putting Britain under attack. That is not what it is about—martial law. Are we ever going to declare martial law again? No. Why does legislation provide for it? Completely out of date. Those are not matters for us: those are matters for the UK.

  Mr Henry: I think it is obvious that the current legislation is designed for a different time and for a different world. The events of the last few years in particular have changed not only the way that all of us think, but the way all of us have to organise and react. I think it is appropriate we do update our legislation to reflect our changed circumstances so we can be confident we are able to act appropriately. I would argue, and the Scottish Executive would argue, there is a need for new updated modern legislation that prepares us for whatever contingency might occur.

  Q130  Chairman: A view has been expressed in some of our responses that it is perhaps inappropriate to have a Bill with local responsibilities, civil contingencies and emergency powers in it. Do you have any views on that?

  Mr Henry: I think they are both adequately covered. Whatever happens, there needs to be consistency across all the sectors. I do not see any great difficult with what has been proposed.

  Q131  Mr Clappison: Do you think the new legislation will promote resilience in Scotland and Wales? Do you think the legislation will ensure that the entire UK receives the same degree of civil protection?

  Mr Morgan: Yes, civil protection will be equalised as far as you ever can, given the unpredictable nature of emergencies. It will provide for the ability of either regional officers in England or devolved administrations to take an appropriate degree of tweaking in their own local area. It does not mean administration of an emergency will be identical in every area. Our experience is that it is always likely within a local administration (whether it is a regional government office for the regions in England or even future regional devolved administrations—if we ever get to that) you would expect there to be tweaking of it in the event. How do you respond to an emergency? You play the cards as they are presented to you, by the nature of the emergency as it is impacting. We did administer foot and mouth disease, even though we had no powers at all. The way we responded to the foot and mouth emergency in Wales was in a slightly different way, and we took political responsibility for doing that.

  Q132  Mr Clappison: What is the case in Scotland?

  Mr Henry: In our view the legislation provides the framework. The legislation in and of itself would not be sufficient; much depends on local organisation and local leadership. We think that what has been proposed would enhance the ability of those who have responsibility locally and would give a greater degree of resilience. We have already got in Scotland, we would argue, a uniform structure which allows multi-agency working largely based on police force areas. If we had a more formalised structure, a more formalised setting, it would ensure clearer arrangements, better communication and precise understanding of the responsibilities. As far as the UK dimension is concerned, it would be important for us to have consistency across the UK. While there would always be local emergencies we would have to respond to, referring back to events of recent years, we know there will be things which happen which touch us all; and we would be worried if there were greater levels of cover and ability to act in certain areas compared to other areas.

  Q133  Mr Clappison: Given that the definition of emergency would be drawn more widely than in earlier legislation, do you see any need to have a "lock" in the legislation to prevent the government in London using the special powers regulations in the event, say, of a serious breakdown in relations between the Westminster government and a devolved administration, to override or suspend a devolved administration?

  Mr Henry: Obviously the Scotland Act is a matter reserved to Westminster. I do not think it is appropriate within the context of this discussion to start unpicking some of the constitutional arrangements which we are all signed up to. I think it would be hard to imagine an emergency that would lead to the UK government suspending one of the institutions that not only it has created but which also has the closest ties to those who would be required to respond in an emergency situation. While in theory, yes, that could happen; I would argue that in practice if we wanted local response to national emergencies then institutions such as our own would be best placed to organise it.

  Mr Morgan: We are continuing to discuss with the Cabinet Office exactly what the position of the Assembly ought to be in general pre-dating this Bill or roughly going back to the very earliest consultation on the Bill. We have said we believe we should have a coordination responsibility for emergency planning, which Scotland already does have and we do not have; but, based on our experience with the emergencies which came thick and fast in 2000 and 2001, de facto we found ourselves having to do it anyway. We would like something which formalised that. Okay, but are there certain types of emergencies which would, nevertheless, cause the UK government to have to override? We accept that—in the same way that in the foot and mouth disease we had to do the reverse. In other words, we had to take de facto powers which we did not have and operate in a way which did not have legal backing, because that was the necessity of the situation. If anybody had challenged us, fair enough, there would have been great difficulty. Nobody did because that is how emergencies are. You get on with it and do it, rather than worry about the exact legal position. Yes, we accept there will be some emergencies where it will be perfectly appropriate for the UK to appear to override Assembly legislation, as in the case of foot and mouth where we overrode Westminster legislation and did our own thing, in our own way, without legal backing. Nobody challenged it because commonsense and the exigencies of an emergency caused you to do that.

  Q134  Mr Llwyd: I am interested in what was just said. Whilst everybody accepts that the Assembly did its very best to treat the foot and mouth outbreak. When you compare it with what happened in Scotland it became glaringly obvious that there were problems because the Assembly was doing one thing and Defra was doing another, but it is all inhouse in Scotland. Does that experience in fact not underline the need for this Bill?

  Mr Morgan: I think that the experiences of the foot and mouth disease, the fuel crisis and the fire strike underline the need that modernised legislation is better than ancient legislation certainly. In the comparison between Wales and Scotland which I am sure we could argue about for hours as regards foot and mouth and it was not the exact cause and effect you are saying now. I do not think Scotland was able to actually do more because it had greater powers, because we took the powers that we needed to do what we needed to do and we did it. We did not hesitate to do it, despite the fact that animal health powers were not transferred to Wales, although we have asked for them to be transferred to Wales. We did not have animal health powers but we acted pretty well as though we did.

  Q135  Lord Archer of Sandwell: Could we distinguish between declaring an emergency and using the powers which that would trigger. I understand you are saying that in the localities people might be using powers in different ways. Does it trouble you that the actual declaration of an emergency would be by the Queen? Or do you think that there should be either power in the assemblies to declare an emergency, or power to exclude the emergency from Scotland and Wales?

  Mr Morgan: That is an absolutely crucial distinction, because operationally it is very hard to imagine how an emergency would be handled in Wales without the Assembly and our governmental institutions having the lead role. You are right about the declaration of an emergency, and the formalities of a proclamation and having to talk to the Speaker of the House of Commons, and the Lord Chancellor or the successor office to it in the House of Lords etc. That is how the declaration is done. I would not exclude that coming up in the discussions we are continuing to have with the Cabinet Office, but I think that is of much less interest to us than the operational side of it. Our experience is that after devolution it is not a matter of what the law says, it is a matter of public expectation—that if there is a fuel crisis we have no powers in relation to fuel supplies but people still expect us to solve the problem anyway because the finger of the Welsh public points to us. What is that Assembly for if it is not to solve this crisis? Likewise with foot and mouth, okay, we did not have animal health powers but everybody knows we are broadly in charge of agriculture. Mostly there is a very strong public expectation that you would be handling it, even if you had not been involved in the declaration.

  Mr Henry: As far as we are concerned, we would want to see legislation which is able, so far as conceivable, to respond to any potential emergency. There will be circumstances where the emergency is very localised but there will be other times when there is clearly something affecting the whole of the United Kingdom. One of the difficulties we all tussle with is, if you frame legislation that gives, for example, the Scottish Executive the power to invoke the emergency and then you find yourself in a UK crisis, does that then cause complications? Alternatively, if you have legislation which means we have to come back to the UK government but the emergency is very localised, does that cause delay, does it cause tensions? It is something we are still thinking about, and which we have consulted on. We should also remain alive to the possibility of ensuring the concordats are very clearly written and very clearly understood. I recognise there are opportunities, notwithstanding the legislation might still rest elsewhere, for us both to influence what happens and, probably just as important, to be consulted on what happens. We have not come to a firm conclusion as yet.

  Mr Morgan: Nor us.

  Q136  Lord Roper: If you were to come to any further conclusions while this Committee was still considering the Bill it would obviously be very useful if you could send them to us.

  Mr Henry: Absolutely.

  Mr Morgan: We will do that.

  Q137  Lord Lucas of Crudwell and Dingwall: Are you content that it is only the Secretary of State who can have the initiative under Part 2 of the Bill? Do you want for the Executive or the Assembly the right to require the Secretary of State to promulgate regulation under Part 2 when you require it for a local emergency?

  Mr Henry: I think it comes back to the answer I have just given. We would expect in any circumstances that affected Scotland at the very least to be consulted. If we did not have that, if we had our own power to do that rather than with the Secretary of State, there could conceivably be situations with a UK emergency that might cause delays if the Secretary of State then had to come to us. It works both ways. I think the main thing is to ensure that the lines of communication are very clear, that they are effective and they are efficient. As long as we both understand our respective responsibilities and roles and we respect each other then that would probably give me and the Executive the confidence we are looking for. We will eventually give you a clearer indication.

  Mr Morgan: That is still under discussion for us as well.

  Q138  Chairman: You agree that it should be a two-way communication?

  Mr Henry: Absolutely.

  Q139  Mr Llwyd: This question leads on from the last one. Part 1 of the draft Bill, which deals with local arrangements for civil protection, applies to Wales as we know. Clause 12 would require a Minister making regulations to consult with the National Assembly and, in certain cases, obtain the permission or consent of the Assembly. Some of these requirements could be set aside if matters were urgent, and failure to consult would not thereby invalidate the regulations. Do you consider these arrangements to be workable and satisfactory?

  Mr Morgan: We are trying to make them as workable as we can in discussions that are going on. It is important that we should be consulted, but also we do have reservations about the override mechanism, the disapplication mechanism at the end of that clause. You could say roughly half of the relevant areas of competence are devolved and some are not, or some are on the way to being devolved, like fire which at the moment is not devolved but there is an agreement on both sides that it will be devolved as soon as practicable. The police are not, and the police are perhaps the key body and they are still with the Home Office. Health and public health—the ambulance service and so on—are with us. In general, we accept that UK ministers could find themselves in a position of having to disapply the consultation because the exigencies of the emergency demanded it. That would be their judgment and we might, in certain circumstances, contest that judgment. It is useless to try and think of circumstances in which that might occur, but you have to accept that theoretical possibility that there could be some sort of row over whether it was right for them to disapply the main intent of clause 12 to consult. They could say, "We didn't have time to consult", and we would say, "You could have, if you had really tried". This is where trust between different branches of government has to be built up over time. It has been very, very good so far and not a problem; but you try to think, could it be a problem? In what circumstances could it be a problem? If so, how do you guard against that? Inter-party differences, in the end, are not going to make that much difference. I would like to think it is not going to be a problem, not over the next 25 years.

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