Joint Committee on Draft Civil Contingencies Bill Minutes of Evidence

Letter from Douglas Alexander MP, Minister of State, Cabinet Office


  My officials have been in regular contact with your Clerk and I appreciate that there are specific issues that are of particular interest and concern to members of the Committee. I stand ready to explore these in depth on Thursday. In advance of my appearance, however, and further to our useful discussion yesterday I thought it would be helpful if I set out briefly the Government's current position on the main points of the questions provided by the Clerk.


  While there has been strong support in the consultation process for a clear definition of emergency, there is also an expectation that the definition should include a "trigger point" at which it begins to take effect. Our aim throughout has been to include a threshold, though our intention was to build this into regulations and guidance. It is apparent from the consultation repsonses, however, that it would be helpful to set out the threshold more clearly on the face of the Bill and we are considering a range of options.

  One of the specific suggestions made is that the definition of major emergency that appears in Dealing with Disaster might be reflected on the face of the Bill. Other options include introducing a scale threshold or further defining the term "serious" on the face of the Bill. Another possibility would be to insert an additional test. There are potential difficulties with each of these approaches, which I will explore further with you on Thursday, and we would of course be interested in the Committee's views on this point.


  A number of responses, mainly from Local Authorities, have raised the issue of the current levels of funding. We have been clear from the outset that the focus of this Bill is the framework of civil protection rather than the funding of civil protection. No new funding could be made available for this function unless there is a clear and robust case for an additional commitment of resources. We are, however, working closely with the Local Government Association on this issue.

  We have, however, also consulted on the mechanism for funding. We proposed a move from the specific Civil Defence Grant to the general Revenue Support Grant. Of those organisations that expressed a view, the majority supported the move to RSG. This reflects the results of the Emergency Planning Review in 2001, and subsequent discussions with representative organisations. On that basis we intend to make the arrangements to move funding into RSG once the Bill is passed.


  I am conscious that there is considerable interest in the content of the regulations and guidance that will accompany Part 1 of the Bill. I want us to be open about the development of the regulations, as we have sought to be open about the development of the Bill itself. We intend to have draft regulations ready for the Bill's introduction and expect to undertake a public consultation on these regulations and guidance following Royal Assent but before commencement.

  We did not publish draft regulations alongside the draft Bill because we needed to address important questions of structure and content before developing the detail of regulations. For example we wanted to establish whether the balance of regulation-making powers and our approach to the definition of emergency were right. We also needed to be sure that our construction of civil protection around an organisation's functions was sensible, and if the range of activities that we said should make up the civil protection duty was correct. It was also important to establish whether there was support for local resilience forums and the arrangements for civil protection in Wales and London and which local responders would need to be included in Categories 1 and 2.

  I will endeavour to address specific points the Committee may have on regulations but we do not want to rush in with premature drafts at this stage. Work on the regulations is progressing well. Our general approach is to capture in regulations what is regarded as good practice now, rather than extending local civil protection into new areas, and to use the regulations and guidance to support local responders where they feel they need it.


  Local responders respond well to emergencies and we believe that we need to put the right structures in place to support their efforts. The new structures will provide regional level co-ordination as necessary and will dovetail with local arrangements, enhancing the overall response.

  Work continues on the role of Regional Nominated Co-ordinator, for which there are two drivers. The first is the need for a clear public lead in each region during an emergency. A similar approach inspired confidence in the areas where it was implemented during FMD. The second motivation is operational. The RNC will provide a channel for communication between the centre and local areas. For example, a Minister would be able to discuss the regional situation with the RNC. The RNC could also be the focus of functions conferrred under emergency powers.

  New regional structures will bring together organisations with well established lines of accountability—government organisations through Ministers and local responders through local arrangements.

  In summary, the Regional Tier including the RNC is something that we feel we need. We do however, welcome the Committee's comments on the specific points regarding its operation, including the identity and role of the RNC.


  We recognise that practitioners would welcome confirmation that the Government will respond more effectively to major emergencies that may arise in the future. In essence, we believe that we are doing everything we can to enhance national resilience and want to ensure that there is awareness in the civil protection community of what government is doing. We are currently exploring what options there might be for communicating the arrangements put in place by government.

  Several commentators have suggested that the solution is to impose a legal duty on central government as a whole. We have considered this carefully and are not clear that this would add to what is already being done. In relation to the criticisms relating to transparency and accountability, we are, as noted above, looking at alternative ways to address this.


  We are of course bound by the operation of the Human Rights Act, which requires compensation to be paid in a number of circumstances. The Government's intentions in this area are set out in the current draft regulations prepared under the Emergency Powers Act 1920, which I understand are before the Committee. These draft regulations provide for compensation in a number of instances.

  We know that there is demand from certain sources for automatic compensation provision where emergency powers are used to take action which removes or destroys property. At present, we are not persuaded that such a provision is necessary or appropriate and there has been very little demand in the consultation for such a provision to be included.


  I know that the Committee has a particular interest in Clause 25 of the current draft. Views about this provision has also been expressed by the Joint Committee on Human Rights, the Defence Committee and a number of consultees. A balance needs to be struck between respecting human rights and ensuring that individuals can protect their legal rights by litigation, and the need to ensure that emergency response is not impeded inappropriately. As indicated in the consultation document, we are not certain that clause 25 strikes the right balance. It could be argued that the law already provides mechanisms to ensure that emergency action is not impeded by legal challenges and that it is therefore unnecessary to supplement these mechanisms with clause 25, and so I would welcome a discussion with the Committee on these issues.


  Legally and constitutionally, use of the Armed Forces is a matter for the Royal Prerogative. This aspect of the Prerogative is vested in the Defence Council and in particular in the Chairman of the Defence Council (the Secretary of State for Defence). The Secretary of State for Defence can, in turn, delegate this authority to other Defence Ministers.

  There is no proposal to devolve any aspect of Armed Forces command and control to local government or devolved administrations. This would be inconsistent with the basic constitutional principle that control of the Armed Forces is a part of the Royal Prerogative, vested in central government. Armed Forces personnel are only obliged to respond to legal and reasonable instructions issued through the military command chain.

  Local commanders have been authorised under established MoD procedures to use the personnel and resources under their immediate command to alleviate distress and to save lives at the time of a civil emergency (the basis of the MACC response outlined in Chapter 2 of Dealing with Disaster). They remain accountable to their command chain for the support they provide, and must seek approval as soon as possible. They have no authority to commit forces in advance and no additional powers.

  We believe that these arrangements amount to a coherent legal and operational package that works well and does not need to change.

  I hope the Committee finds this brief update helpful and I look forward to elaborating upon it before the Committee on Thursday.

15 October 2003

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