Examination of Witnesses (Questions 140-159)|
16 SEPTEMBER 2003
Q140 Mr Llwyd: Have you consulted
with ministers in London about this subject?
Mr Morgan: Yes, this is all part
of this ongoing consultation with the Cabinet Office at the moment
about how to make this workable. We do not want to restrict the
ability of UK government ministers to act in a tearing hurry if
the exigency of the emergency requires action in a tearing hurryno
time to consult etc. On the other hand, we do not want them to
use it as an excuse to be lazy and cut us out of a process, because
we know they would be coming back to us to ask us to implement
and do most of the donkeywork anyway. Trying to get the balance
right is what we are doing in ongoing discussions.
Q141 Baroness Ramsey of Cartvale:
Clause 26 of the draft Bill makes provision for the Government
to consult Scottish ministers and the National Assembly for Wales
before making regulations under the special powers. I wondered
if you thought the proposals were workable and adequate. Especially
in regard to Scotland, are you comfortable with clauses 21(3)(j)
and 28(1) which empowers the Government through the special powers
regulations to either modify Scottish legislation or decide that
certain bits of Scottish legislation do not apply?
Mr Henry: We do not believe that
the Bill changes the relationship between Scotland and Westminster
as set out in the Act. Those are very clearly defined. I do not
think what has been proposed would be that significantly different.
As far as clause 26 is concerned, we have already touched on some
of those points. We accept there could be exceptional circumstances
that do make consultation unpractical, so no-one would rule out
that sometimes something has got to happen immediately. Life is
not always predictable. Generally, we would still suggest that
the communication, the consultation and, as the Chairman suggested,
the two-way process has got to be recognised and respected. We
think that the concordats could be a way of doing that while still
reserving our final position.
Mr Morgan: I would repeat almost
those words entirely. Basically clause 12 and clause 26 have exactly
the same structure.
Q142 David Cairns: These are a few
questions specifically for Hugh Henry. Part 1 of the Bill deals
with some contingency measures in England and Wales and obviously
there will be separate measures for Scotland. I wonder if you
could share with us the thinking of the Scottish Executive on
what the proposals might be, with particular reference to where
they might differ from what is in Part 1 of the Bill?
Mr Henry: I think there is some
value in having a statutory framework across the UK. The responses
we have had from within Scotland have generally supported that
view. Obviously we would need to think about how we took forward
any specific issues which were part of our legislative competencethinking
about whether we do it ourselves or through the sewel mechanism
making an arrangement with Westminster. We are already trying
to strengthen our existing regional structures, having more strategic
guidance on resilience through the Scottish Emergencies Coordinating
Committee, and trying to move that body from being a reactive
body to one that takes a more active role in setting a resilience
agenda within Scotland. That body is now trying to coordinate
work in a more active way. We are also looking at developing a
programme to develop our capability to deal with an emergency
from whatever source, and that would tie in with some of the work
being done at a UK level by the Civil Contingency Secretariat.
We have already taken some action on putting in additional money
within the Scottish Executive, including setting up a civil contingencies
division. We have put in funding for new equipment for emergency
services, andincluding police, fire and ambulance including
mobile decontamination units and mass decontamination facilities.
We have been looking at introducing practical programmes on strategic
and operational issueschemical, biological, radiological
and nuclear scenarios. We have established a range of guidance
which has been done in conjunction with our partners at a local
level. We have done some work on how to deal with hazardous substances.
We have tried to look at the organisational structure, and tried
to look at how we deal with it on a practical level. As far as
the legislative aspects are concerned, we do recognise the difference
in responsibilities means that we will have to consider what we
do, whether through our own legislative programme or in partnership
with the UK government.
Q143 David Cairns: There is a possibility
then that for the bulk of the legislative stuff in here that you
do it by Sewell motion?
Mr Henry: There is. The response
we have had from local providers has been very good. People have
recognised that what has been proposed is long overdue, is sensible
and, the point I made earlier, they also recognise there is a
need to ensure consistency and it may well be that the sewel mechanism
is the appropriate way to do it.
Q144 David Cairns: If you do it via
that mechanism you still have to pay for it obviously. There has
been some difference of opinion among the witnesses we have seen
so far from local government as to the mechanism for the retention
of specific grant, which is abolished in the draft Bill. Others
want it mainstreamed or put in through the various programmes.
They all agree that it will mean more money and they think central
government should stump up. I was wondering how you as a former
council leader viewed these issues, as to whether or not you think
local government will have to have more responsibilities and whether
it will cost them more, and whether or not the Scottish Executive
is minded to fund them
Mr Henry: It is always one of
the interesting dichotomies in local government between demanding
more of the centre and demanding to be allowed to make your decisions.
We have already devolved much of our responsibility down to a
local authority level at their request. There are still things
we are discussing with local authorities at the moment. We are
discussing a review of the Bellwin formula for putting money into
local authorities. Local government will always tell you that
more money is requiredI have done it myself. We think we
are funding reasonably and responsibly but, clearly, it would
be incumbent on us all to stay alive to whatever happens. It would
be unacceptable if there were emergencies which were unable to
be properly funded. We are not convinced at the moment that the
funding arrangement is not working. We think we have responded
properly. We will try to retain that balance between making decisions
which have got to be made centrally but allow local government
partners to exercise what they see as their proper responsibility.
Q145 David Cairns: Could I direct
the same question towards Rhodri. The relationship between the
Assembly and local government is different in Scotland, but do
you have a view on whether or not these measures will require
more from local government and that will cost them more money?
Do you have a view about how that could be funded?
Mr Morgan: This did come up at
the last meeting a week or so ago of the high level group at which
the Welsh Local Government Association is represented. Partially
Welsh local government responds in exactly the same way as Scottish
local government and probably local government worldwide. They
do not think that the settlement reflects any additional responsibilities,
which is the straw that breaks the camel's back. They need more
money in the settlement if they are going to be asked to carry
out more emergency planning duties. On the other hand, they also
take the view, as Hugh said, that they do not like hypothecated
or ring-fenced funding. They want it to be in the general settlement
and for them to make their own decisions on priorities. Therefore,
how can you be sure, even if you did provide them with more resources,
that more resources in principle for emergency planning would
actually flow into emergency planning? When they were asked the
specifics about what they would actually need the money for, it
is mostly actually for bodiesin other words, additional
people in the emergency planning departments. Nick Patel can remind
me if my memory is correct. They said that the emergency planning
funding in the eight counties (which was a county function in
the 20-year period of county level two-tier local government in
Wales between 1974 and 1996) had quite a high priority and that
had gradually eroded; and when we replaced eight countries and
37 districts with 22 unitary authorities in 1996, the emergency
planning function had not survived terribly well and did not have
the same priority as when it was in the eight counties; therefore
the staffing of the emergency planning departments was not as
good as should be.
Mr Patel: That is broadly correct.
Q146 David Cairns: Finally, given
that defence is a reserved matter, do you think if we do not go
down the sole route and had your own legislative approach or civil
contingencies, do you think that could present a problem down
the line if you have a separate framework for England and Wales,
and the Army is playing a role in England and Wales which is being
directed at a UK level? Could there be problems there?
Mr Henry: Given we still have
not come to a final conclusion, it may be a bit difficult to be
specific on that. Generally I think our arrangements with the
military work well. We have been very well served by them in some
of the recent emergencies. We do accept that, irrespective of
whether we legislate on our own or make our own decisions, there
could still well be matters which would be beyond our competence
and would have to be handled at a UK level in any case. I do not
think it is an insurmountable problem. I think that our experience
to date has been a positive one, and I see no reason why it would
be any different in the future.
Q147 Mr Llwyd: Mr Morgan, are you
content that the list of all local responders includes all those
necessary to handle emergencies in Wales?
Mr Morgan: Not really, not yet,
no. We are continuing to press for some additional bodies to be
added to the list of local responders. For instance, we are not
happy with respect to the National Health Service that the current
proposals are only for the uniformed service (the blue light service,
namely the ambulance service) to be listed. With the experience
of the SARS emergency, which was a world emergency rather than
a British emergency, I do not think in the end there was a confirmed
case in the UK but if there had been it would have been a major
threat. It is the national public health service that would have
had to deal with it, and did deal with it but on an international
basis by contributing to the international efforts to control
SARSso the national public health service. Indeed, we think
that primary care and community health services should also be
in there as well.- health emergencies, some of which could be
terrorism-linked but quite possibly will not be terrorism-linked
at all. We do not think that is an exhaustive list for health,
certainly. The Blood Transfusion Service, the Health Protection
Agency, the Food Standards Agencywe think there is a case
for a much longer list as regards health, and health-related emergencies.
Q148 Lord Bradshaw: Have you considered
whether there is a place for a voluntary sector, such as the Red
Cross, in the list of responderswe have had some representation
that they might be includedor St John's or the Salvation
Mr Morgan: The WRVS, yes, I am
sure one could come up with a quite substantial list of voluntary
bodies which have a virtually statutory role, like the Red Cross
or the WRVS and some of the others you mentioned. As I say, we
are mostly trying to look after what we feel is missing from the
Welsh list, but there are UK implications to that. If it is right
for the Blood Transfusion Service to be mentioned in Wales then
probably it is right in Scotland and England as well. It is part
of that argument you get now with multi-tiered government. In
the United Kingdom you do not have one sole source of advice from
the Cabinet Office and UK departments. Those are the suggestions
we are making. We have not actually put forward the voluntary
bodies, but there is no reason why they should not be put forward.
Q149 Lord Lucas of Crudwell and Dingwall:
Do you think you should the general right to require any local
authority enterprise that you would like to participate in training
and planning to do so? For instance, local coach operators or
whoever else you might produce should be put on the list. Why
should it be a restricted list? Should you not go back to having
a general power so that you can run training exercises which really
involve the whole community?
Mr Morgan: The list of responders
is not yet fixed. We are continuing to be heavily involved in
the discussion. The issue is, how do you help as well to vary
this over time? I do not think this list should be fixed. You
like to think that the validity of updated legislation (if you
are doing your job properly and Parliament more widely is doing
its job properly), that the shelf life of the legislation, is
going to be a good 30 or 40 years. We know that circumstances
will change over those 40 years. Therefore, you do not want to
see the list being completely definitive and can never evolve.
I believe the Bill does allow for that, but in what way you then
update it in the light of some sort of future experience, I am
not absolutely clear about that.
Mr Henry: If I could add to that.
We have certainly had responses in Scotland as far as category
one responders are concerned that the NHS should be considered.
Similarly, we have had the same sort of comments that in category
two certainly voluntary organisations should also be considered.
As far as the last question is concerned, there are other aspects
that would need to be very carefully considered, and you may come
to this later on. There are issues to do with compensation
which flow from the requirements you place on private sector organisations
and how that might eventually pan out.
Q150 Mr Llwyd: It just strikes me
that one way of ensuring that the legislation is updated is if
a Statutory Instrument were tabled after consultation with the
National Assembly and then placed before the National Assembly
Mr Morgan: We certainly envisage
that there will be discussion in the Assembly in some way or another
Q151 Mr Llwyd: In due course. You
made the point that we do not know how it will be updated in the
future, It will not be an exhaustive list at this stage, I suspect,
so 12 months down the road we will realise there should be somebody
else on that list. It seems to me if the legislation is framed
properly it could be varied in that way?
Mr Morgan: Yes. Certainly the
Statutory Instruments are probably going to be more important
than the wording of the Bill itself. This is one of those Bills
that is mostly framework. It is one of those 20:80 Bills. 80%
of the material in this Bill that is actually going to impact
on the ground, will be in the secondary legislation. The secondary
legislation will be quite frequently for us to handle.
Q152 Mr Llwyd: The next question
might be blindingly obvious and the answer even more obvious.
Should the National Assembly for Wales itself be a category 1
or category 2 responder?
Mr Morgan: We do not think sono
more than a Whitehall departmentbecause we are not providers
of the services. We are funders of the services, whether it is
ambulance, health or, in the future after transfer, fire; but
we are not the providers. We see the responder role as being for
providers of the response to the emergency, and we are not that.
We coordinate; we fund; we do not provide. We steer; we do not
row. An honourable thing to be done, I have to say.
Q153 Mr Llwyd: Rowing or steering?
Mr Morgan: Both.
Q154 Mr Llwyd: Inclusive politics
Mr Morgan: Yes.
Q155 Mr Llwyd: Should statutory civil
contingency duties be imposed upon central government?
Mr Morgan: As far as we understand
it, this may go back to Britain having an unwritten constitution,
but central government is able to perform such functions without
a statutory basis. That is very British. The UK ministerial commitment
in this area is unquestionable. Does it need a statutory duty?
It is quite hard to work out how, given the nature of the British
constitution, you impose a duty on the government which has the
confidence of the Parliament. I cannot get my head round that
one, I must admit. If you had a written constitution you could
see it might be set out as a duty, but we do not have a written
Q156 Mr Llwyd: Mr Henry, do you have
a view on that?
Mr Henry: We would echo the points
Rhodri made about government departments not being providers of
services. Government departments are not considered as responsible
for the purposes of this Bill. We recognise the distinction which
is there and I think Rhodri has adequately covered that.
Q157 Lord Archer of Sandwell: Of
course one of the consequences of imposing a duty either on the
government or on one of its departments would be that it might
be possible to bring an action for damages if you suffered because
they made a mess of their duties on a particular occasion. If
the Department of Agriculture failed adequately to deal with foot
and mouth disease you might have a list of people claiming damages.
Is that something you would want to see?
Mr Morgan: I think things have
changed a bit in the last ten or 15 years. I am not a lawyer,
so you would be better qualified than me, Peter, to comment on
that. The old theory that you cannot sue Uncle Sam, you cannot
sue the Queen, you cannot sue the Government etc, it is no longer
strictly true, is it?
Q158 Lord Archer of Sandwell: No,
it is not.
Mr Morgan: Whether you would want
to go the whole hog and list a set of duties, and then you could
sue a government for derogation of duties rather than have opposition
parties use that as a vehicle to shoehorn that government out
so that the processes of a democracy and the swing of the pendulum
actually causes the same impulsion on governments to do their
duty, rather than because it is written down in some constitution
or a set of requirements on a government, I am still inclined
to the old-fashioned view that it is job of democracy to penalise
a government that has not carried out its duties, not the job
of the courts or even through civil action in the court.
Mr Henry: From our perspective
people clearly have the opportunity and the rights to challenge
in whatever way, shape and form they think fit; but we should
not lose sight of what we are trying to do here. This is not introducing
legislation to give people rights to compensation. This is about
trying to introduce legislation that enables us to work effectively
in an emergency situation. We need to get that right and elsewhere,
and then we can continue to have debates on rights as well as
Q159 Patrick Mercer: Have you an
estimate of how much the Government's proposals for civil contingencies
might cost responders in Wales to implement?
Mr Morgan: I think we know roughly
what they get now, it is about £1.5 million in Wales. That
would be mostly funding for staffing, plus the occasional exercise,
I guess. I think it is terribly difficult for us to give a figure
for what the additional duties might cost. We did try to probe
local government itself on this, and it was not clear yet. It
was more the principle, that they wanted some compensation for
the additional staffing costs; and the fear that, somehow or other,
not every local authority would be enthusiastic, or something
of that sort. Hugh put it much better than me because his local
government experience is infinitely greater than mine. Local authorities
hate hypothecation and they hate ring-fencing. On the other hand,
it is almost as if they did want it as well for a specific purpose
like this. ODPM has taken a view that it should go into the general
rate support grant settlement. We share that view. Local government
shares that view. This is not megabucks for local governmenttherefore,
do you protect a small budget because it is small, or do you anticipate,
because it is a small budget, it will be protected within local
government because who is going to quibble about spending for
three additional emergency planning officers for each of the 22
local authorities in Wales? I do not know which way it is going
to pan out, but we need to keep an eye on it.