Joint Committee on Draft Civil Contingencies Bill Minutes of Evidence

Examination of Witnesses (Questions 140-159)



  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 hurry—no 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 competence—thinking 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, and—including police, fire and ambulance including mobile decontamination units and mass decontamination facilities. We have been looking at introducing practical programmes on strategic and  operational issues—chemical, 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 required—I 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 bodies—in 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 SARS—so 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 Agency—we 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 responders—we have had some representation that they might be included—or St John's or the Salvation Army?

  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 for approval?

  Mr Morgan: We certainly envisage that there will be discussion in the Assembly in some way or another to approve.

  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 so—no more than a Whitehall department—because 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 here!

  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 constitution.

  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 responsibilities.

  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 government—therefore, 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.

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