Examination of Witnesses (Questions 129-139)|
16 SEPTEMBER 2003
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 purposebut
unfortunately for other purposeswe 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 aboutmartial 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out of date.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
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 administrationsif
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
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
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 thatin 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 expectationthat 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
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
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 healththe
ambulance service and so onare 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.