Joint Committee on Draft Civil Contingencies Bill Minutes of Evidence

Memorandum from United Utilities

  Thank you for your letter dated 19 June 2003 inviting comments on the new legal framework set out in the draft Civil Contingencies Bill. I attach United Utilities PLC's response.

  Our multi-utility provision of electricity, water, wastewater and telecommunications services permits a unique view of the draft legislation from the perspective of a Category 2 responder.

  United Utilities PLC provides such services to one in five of the UK population in England, Wales and, shortly, in Scotland. As such, our business will contain one of the UK's primary and coherent groups of Category 2 responders. We have, therefore, taken a keen interest in the draft Bill's contents and trust that you find our comments useful.

John Roberts

Chief Executive

28 August 2003


1.   Is the definition of emergency the right one? If not, in what ways should it be tightened or expanded to exclude certain classes of event or situation.

  Yes, but subject to the prospective regulation under Part 1: Section 1; sub-section (7) drawing the distinction between threats that are serious but unexceptional and, more relevantly, those that are both serious and exceptional. Only the latter should fall within the definition of an "emergency" under the proposed legislation.

  Stakeholders rightly regard many of the incidents that UK utilities deal with as serious. However, the capability of the utilities to manage these efficiently and effectively is generally well proven. The Licence conditions (electricity), Appointments (water and wastewater), General Conditions of Entitlement (telecom) together with statutory and regulatory controls effectively address emergency preparedness in each of United Utilities' regulated businesses. Similar responsibilities are reflected in our contracts for provision of such services in Wales and are being negotiated in Scotland.

  Section 2; Sub-sections (1)-(3) place a range of contingency planning duties on Category 1 Responders and a statutory duty on Category 2 Responders to co-operate and liaise with them. However, there is a danger that, by not focusing Category 1 Responders' attention on "exceptional" threats, they may seek to become involved in operational activities that are already well controlled. Since large utilities interface with many Category 1 Responders (typically some 75 within north-west England) this could lead to extensive and unproductive dialogue. Such dialogue would:

    —  threaten to undermine well established and effective operational arrangements;

    —  prove a source of tension between the parties rather than engendering the co-operation sought;

    —  increase costs and bureaucracy to no good effect.

Economic impact on manufacturing or service industries

  Section 1; sub-section (4) appears to neglect the economic impact of an emergency upon manufacturing or service industries. This could arise through their prolonged disablement (for example: by flooding) or their destruction (for example: by dam failure). In extreme cases this might have a short-term influence on GDP. This could be recognised by the inclusion of a sub-section "4(d) the widespread or prolonged disruption of key manufacturing or service industries". The same comment applies to Section 17; sub-section (4).

Minor enhancements

  Section 1; sub-section (3)(a)(ii); the idenfication of "fuel oils" is unduly specific, being only one of a range of chemical contaminants whose idenfication is already adequately covered in sub-section 3(a)(i). The same comment applies to Section 17; sub-section (3)(a)(ii).

  Section 1; sub-section (9)(b): Alteration of "a specified part. . . " to read "one or more specified parts. . ." would address the situation where an organisation's boundaries encompass parts of both England and Wales.


2.   Do you agree that the obligations imposed on both Category 1 and 2 Responders by or under the new framework will ensure operationally effective and financially efficient planning and response to emergencies at the local level? If not, how should these obligations be increased or reduced?

  Not necessarily. In theory, yes but the effectiveness and efficiency will depend, in part, upon Category 1 Responders understanding the need to focus on serious and exceptional emergencies (see Q1 response).

  For example, UU's regulated water and electricity businesses in north-west England deal with some 75 organisations that could become Category 1 Responders. If even a small proportion of these decided to interpret the duties placed upon them by Section 2; sub-section 1 in an overly-diligent manner this could be conterproductive to both parties' efficiency and effectiveness. The limits to such enquires and the avoidance of their duplication at county and district level should be addressed by the regulation and guidance proposed in Section 2; sub-section (2) and Section 3; sub-section (1) respectively.

  Most telecom businesses have a national presence and it would be impractical for each to be represented at Local or even Regional Resilience Forums. It is suggested that proposals be developed jointly with their industry body, UKCTA, and their regulator Oftel for appropriate representation.

  There is a danger in the response phase that the Regional Nominated Co-ordinator (RNC) or the Minister may fail to recognise the need to preserve existing national utility sector emergency planning arrangements. Such examples include the National Emergency Plan for the UK Telecommunications Sector and the Electricity Supply Emergency Code. Utilities do not appear to be de-facto members of the proposed Regional Civil Contingencies Committee (RCCC). Whilst this is probably correct, the prospective RNCs need to understand, or have rapid access to an overview of, utilities capabilities and emergency response arrangements.

  The most efficient way to achieve this joint understanding would be via "top-down" dialogue at the Regional Resilience Forum (RRF) and Local Resilience Forums (LRF) rather than "bottom-up" interaction between relatively few utilities and many Category 1 Responders. It is important therefore that the utilities' representation at both Forums is one of right, rather than by invitation.

3.   Do you agree that the membership of categories 1 and 2 is right? If not, which organisations should be added, moved or removed?

  Yes, utilities are best suited to a Category 2 Responder's role.

  The relevant UU businesses are correctly identified within their sectors. However, the regulations proposed under Section 1; sub-section (7) and their application under Section 1; sub-section (9) may need to address the distinction between licence holders and service providers as the bodies to whom Section 2; sub-sections (3g) and (3h) apply. For example, whilst Dwr Cymru holds the licence for water and sewerage services within their area, the asset management, operation and maintenance of such assets are currently provided by United Utilites Operational Services under contract to Dwr Cymru.

4.   Do you agree that the Bill gives the Government the right balance of regulation making powers to meet its aims of consistency and flexibility? If not, please explain how the powers used should be expanded or constrained.

  On balance, yes. But the intended flexibility carries risks of its own. For example: Section 2; sub-section (2) allows any Minister of the Crown to make regulations regarding the extent and manner of the Category 1 Responders' duties to assess, plan and advise with regard to the threats described in Section 1. Similar comments apply to Section 3; sub-section (1) in respect of ministerial guidance, Section 5 in respect of ministerial orders and Section 6; sub-section (1) in relation to disclosure of information.

  Given the wide-range of Category 2 responders and the complex nature of their statutory and regulatory environments UU is concerned that these Sections place inadequate emphasis on consultation prior to a Minister making such regulation, guidance or order. This is particularly so where these regulations may extend beyond normal departmental responsibilities. Imperfect crafting of such regulations or guidance and/or their inappropriate application by Category 1 responders could result in an increase in cost and bureaucratic effort by Category 2 Responders to no good effect. Adequate time for consultation of the appropriate bodies is vital to ensure efficient and effective regulations, guidance and orders are produced.

Sensitive Information

  UU is concerned that Section (2); sub-section (3)(h) may result in regulations requiring a Category 2 responder to provide information of a sensitive nature from a data-protection, commercial or security perspective. The Consultation Document's comments (Chapter 3; Para 26) on safeguards are noted but will have no legal standing. Section 2; Sub-section (3)(j) addresses the detail to be contained in plans. Section 6 limits the scope of requests for information to the emergency. Section 10 enlarges on provision of information. Otherwise the draft Bill appears silent on this matter. This requires to be addressed.

  UU supports the concept of more efficient and effective sharing of information to permit Category 1 Responders to assess threats, plan appropriate responses and advise stakeholders appropriately. Where a threat's impact is so significant as to cause public alarm then the manner of promoting such awareness and the degree of information provided should be considered as part of a national risk management policy. The extent of awareness amongst Category 1 and 2 responders and the public should be sufficient to appreciate the threat without providing advantage to those bent on harm.


  UU is concerned that the range of bodies capable of bringing proceedings in the High Court in respect of a Category 1 or Category 2 responder is too extensive. In particular, most utilities will interface with large numbers of Category 1 responders, who are likely to hold divergent views on the need for information or specific actions. In determining policy a utility is unlikely to satisfy all such views. This could result in an increased incidence of reasoned or vexatious enforcement action being taken against the utility. It is recommended such enforcement powers be restricted to Ministers of the Crown only.

Duration—Responders' protection upon lapse of emergency powers

  Section 23 addresses the duration of the emergency powers proclaimed under Section 18 or ordered under Section 19. These powers have a life of 30 days before lapsing or requiring renewal, Category 2 responders may have been required under such powers to take actions that are contrary to normal regulations and good practice. This could result in operational commitments (for example: installation of utility assets) that it is physically impossible to de-commission rapidly should the emergency powers not be renewed. It is not clear what legal protection exists for Category 2 responders in such circumstances, against the resumption of normal statues, regulations and standards.

5.   Do you agree that consistent arrangements for multi-agency working should be established, through the creation of Local Resilience Forums? If not, how else should consistency be established?

  Yes. But every effort should be made by all concerned to integrate the existing, voluntary multi-agency working arrangements into the new Local Resilience Forums (LRF).

  It would be self-defeating if the current arrangements were perpetuated in parallel with the LRF. It is also impractical to consider liaison at a lower level than the LRF with currently available resources. Establishment of the LRF around police force areas is sensible and consistent with both the current planning and response structures. Because of the inevitable inconsistencies in geographical boundaries and organisational inter-relationships UU supports proposals to contain Category 2 Responders' representation at LRF by joint representation of sector interests. However, such arrangements should not preclude an individual Category 2 Responder from attending if it feels its interests require it. Category 2 Responders should also be able to call meetings of the LRF, at short notice if necessary, even if another Category 2 Responder normally represents them there.

6.   Do you agree that the Regulatory Impact Assessment accurately reflects the costs and benefits of the Bill proposals? If not, how should it be changed?

  No, although the order of cost appears broadly correct.

  The costs quoted below are derived from our experience as a large multi-utility that takes its emergency planning responsibilities seriously. For example, in north-west England this interaction with prospective Category 1 and 2 responders on water and electricity issues across six police force areas requires about 40% of the time of a team of five. This equates to about £7k/sector/police force area/year. This includes correspondence, telephone liaison, attending meetings, training and exercises and maintaining an extensive suite of third party emergency plans. This is nearly double the amount quoted in the Regulatory Impact Assessment, even before allowing for any uplift in activity arising from the draft Bill's implementation. It is difficult to predict what additional costs might arise following the draft Bill's implementation but a further 25% increase in initial activity is thought possible.

  The cost implications for UU's telecom business would depend upon any agreement on sector level liaison (see response to Question 2).

7.   Do you agree that funding for Category 1 Local Authorities should be transferred from specific grant (Civil Defence Grant) to Revenue Support Grant? If not, why should specific grant be retained?

  No comment.

8.   Do you agree that the level of funding to support the Bill is sufficient? If not, please explain why you believe it to be too high or too low.

  Yes, when set against current public and regulatory expectations.

Cost Recovery

  In UU's regulated electricity and water businesses, allowance is made in their regulatory funding formulae for such activities. The timing of the draft Bill is such that adequate assessment of additional costs cannot be included in current price review submissions to their respective regulators. The impact of the draft Bill has been included in Chapter B1 of our Draft Water Business Plan submission. This seeks to treat the implementation of the draft Bill as a "relevant change of circumstance" in the post 2005 environment. A similar approach is likely in our submission to the electricity regulator. Where these services are provided to other licence holders a similar approach will be proposed in terms of cost recovery.

  An alternative route for cost recovery would be via a grant under Section 152 of the Water Industry Act 1991 in the event of direction by the Secretary of State under Section 208 of that Act. It is not envisaged that Defra grant aid for the protection of vital installations would be used to support the requirements arising from the draft Bill's contents.

  Condition 5 of the Telecommunications General Conditions of Entitlement under the Communications Act 2003 does not appear to address cost recovery in circumstances such as the draft Bill is designed for.

Force Majeure

  It is recommended that the guidance envisaged under Section 3; sub-section (1) addresses the circumstances under which Force Majeure might be claimed. Entitlement to compensation may turn on such a definition.

9.   Do you agree that performance should be audited through existing mechanisms? If not, what mechanism would you like to see established?


  But the consultation document appears to be in error when it describes (Chapter 3; Para. 37 and 38) performance management occurring via the "use of existing mechanisms" . . . "through bodies like . . . the utility regulators".

  The normal auditing regime is via the respective Government sponsoring department (Defra for water and DTI for electricity). There are no formal auditing arrangements for telecom (DTI).


10.   Do you agree with the role of Regional Nominated Co-ordinator? If not, who should take responsibility at the regional level and with what responsibilities?


  But the consultation document is unclear at which stage the Regional Nominated Co-ordinator (RNC) is appointed. Chapter 4, Para.13 refers to Level 2 meetings of the Regional Civil Contingencies Committee being chaired by the RNC. But Para. 19 indicates the RNC would not be appointed unless special legislative measures were to be taken (that is, at Level 3).

  It is recommended these individuals be selected primarily on the basis of their leadership skills rather than their specific expertise. However, it would be advantageous if such individuals could be identified in advance to permit their gaining some organisational familiarity with Category 2 Responders. This would reduce the likelihood of their subsequently placing illogical or impractical demands upon the responders.

11.   Do you agree with the principle of applying special legislative measures on a regional basis? Please explain your answer.


  But the regional approach should recognise the inconsistencies arising between regional boundaries and those of the Category 1 and 2 Responders.


12.   Do you agree that the current emergency powers framework is outdated and needs to be replaced? If you do not think it should be replaced, please explain why.


  But the effectiveness of existing emergency preparedness should not be compromised by the Regional Nominated Co-ordinator's lack of awareness of such measures when seeking emergency regulations under Section 21.

  The likelihood of compromising existing effective preparedness measures would be reduced by having appropriate Category 2 Responder representation on the Regional Civil Contingencies Committee (RCCC). Such organisations are not there of right. The Consultation Document states (Chapter 4; Para 10) that "Other organisations would be invited to attend depending on the nature of the situation".

13.   Do you agree that the circumstances in which special legislative measures may be taken should be widened from limited threats to public welfare to include threats to the environment, to the political, administrative and economic stability to the UK and to threats to its security resulting from war or terrorism? If not, how would you like to see the circumstances narrowed or extended?


14.   Do you agree that the use of special legislative measures should be possible on a sub-UK basis? If not, please explain.

  Yes. Utilities' responsibilities are more effectively controlled and influenced at a regional level, even though service provision occurs locally. Experience with both the fuel distribution crisis and the foot and mouth disease outbreak (47% of which occurred in UU's area) was that central government was slow to recognise the operational needs of the utilities for liaison at a regional level.

  However, implementation of special legislative measures should recognise the lack of co-incidence between regional boundaries and those of the participating responders.

15.   Do you agree that the authority to declare that special legislative measures are necessary should remain with The Queen as Head of State, acting on the advice of Ministers? If not, who should it sit with?


16.   Do you agree that in the event the process of making a Royal Proclamation would cause a delay which might result in significant damage or harm, a Secretary of State should be able to make the declaration in place of The Queen as Head of State, acting on the advice of Ministers? If not, is delay acceptable or is there another alternative mechanism?


17.   Do you agree that emergency regulations should be treated as primary legislation for the purposes of the Human Rights Act? If not, please explain why.



18.   Do you agree that the arrangements proposed for Scotland strike the right balance between reflecting the devolution settlement and ensuring consistency across the UK? If not, what changes are necessary?


  It is noted that Part 1 of the draft Bill (Local Arrangements for Civil Protection) does not apply to Scotland and that the Scottish Executive will carry out a separate consultation on these issues. It is further noted that Part 2: Section 26 requires the Secretary of State to consult with Scottish Ministers before making emergency regulations under Section 21 unless urgency causes such a requirement to be disapplied.

19.   Do you agree that the arrangements proposed for Wales strike the right balance between reflecting the devolution settlement and ensuring consistency across the UK? If not, what changes are necessary?


  But determination of emergency powers regulations on a national and/or regional basis should reflect the needs of responders whose areas span the border between England and Wales.

20.   Do you agree that the arrangements proposed for Northern Ireland strike the right balance between reflecting the devolution settlement and ensuring consistency across the UK? If not, what changes are necessary?

  No comment.

21.   Do you agree that the role and accountability of the Emergency Co-ordinator in a devolved country should be flexible to reflect different types of emergency? If not, what alternative role should the Emergency Co-ordinator have?

  Yes, to the extent that flexibility is required.

  But it is thought unlikely that there will be emergencies of a significantly different nature in the devolved countries compared to England. The same comments on leadership skills and familiarity with responders' capabilities and requirements apply as in the response to question 10.

22.   Do you agree that the devolved administrations should be able to declare that special legislative measures are necessary, and take action accordingly? If not, please explain why.


  But determination of special legislative measures on a devolved administration basis should reflect the needs of responders whose areas span the border between England and the devolved territory.


23.   Do you agree that London should have different arrangements for co-operation and that the proposals set out are the right way to deliver this? If not, what arrangements should be put in place?


  But it is recommended the divergence from the national arrangements proposed should be justified on the basis of need, not historical precedent.

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Prepared 28 November 2003