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.
PART 1 REGULATIONS
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
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
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 accountabilitygovernment
organisations through Ministers and local responders through local
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
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
15 October 2003