Joint Committee on Draft Civil Contingencies Bill Minutes of Evidence

Examination of Witnesses (Questions 320-339)


21 OCTOBER 2003

  Q320  Chairman: Gentlemen, good afternoon. Thank you for coming. Our time is fairly short so perhaps you could introduce yourselves and then we can start?

  Mr Miller: I am head of risk management for the service delivery business within the United Utilities Group.

  Mr West: I am an electrical engineer and policy manager for Western Power Distribution which is the licensed electricity distribution company serving South West England and South Wales.

  Mr Turner: I am head of network continuity and emergency planning for BT.

  Q321  Chairman: Several utility companies have suggested that the definition of "emergency" in the draft Bill is too wide and would include normal weather-related events that utilities already deal with as a matter of course. Can you explain why this might be a problem for your organisations? Can you give some examples of the types of emergency that you think would be most appropriately be covered by the Bill?

  Mr Miller: If I can kick off by attempting to frame the normal environment. Our emergencies span events, of which we have about 6,000 per year in the north west of England, through to crises, of which we have never had one since we were formed or, prior to that, the water authorities were formed in 1974. We typically have one or two major incidents a year, and although individual members of the public in significant numbers can be affected, we deal with them as a matter of course. Quite often those incidents will flair up and be dealt with before any external engagement or involvement would be either useful or timely. We do involve what could be classed as category 1 or category 2 responders as appropriate under existing arrangements, and that works very satisfactorily for all parties.

  Mr West: I regret this is the least brief of my answers but I hope you will bear with me. We believe the difficulty is twofold and interlinked with a perceived ambiguity of the interpretation of the duties. It introduces a parallel and potentially conflicting set of requirements to those already governing electricity distribution network operators, hindering consistency via the possibility of fragmented debates. It significantly exacerbates the potential problems on ambiguity of roles and duties of local authorities. As drafted, clauses 2(1)(a) to (e) place duties on category 1 responders to "assess the risk", "maintain plans", etc, and in (d) to plan to "prevent the emergency", reduce, control or mitigate its effects or take other action. Paragraph 25 of the accompanying explanatory notes states that, in order to perform their duties under the Bill, category 1 responders may need to obtain information from category 2 responders, for example about electricity companies planning arrangements for restoring loss of supply. Thus there may be a perception that local authorities, for example, may have a role or duty to become heavily engaged in the emergency planning measures of the utilities extending to normal weather-related events. Electricity distribution network operators are already subject to extensive statutory and licensed requirements which deal with contingency planning, network resilience and response to failures of electricity supplies. These are common nationally set requirements, on which the DNOs [2] are regulated, and are required to adhere to. Failure to meet reliability standards face severe regulatory financial penalties of up to 2% of companies' income. In light of this, and given that a clear goal of the draft Bill is to achieve consistency, the inclusion of "normal weather related" events within the scope expands the potential ambiguity of the respective duties between category 1 and 2 responders, and may frustrate achievement of consistency rather than deliver it. There would, of course, be no difficulty in sharing with category 1 responders how those nationally set statutory and licence requirements were being met by the DNO.

  Mr Turner: For BT, the first thing is the definition includes "electronic or other system of communications". Firstly, we believe disruption of BT's network on its own rather than as a by-product of a wider serious incident which involves several category 1 and 2 responders is something that we have the expertise and the process to deal with as BT, regardless of the causes of disruption, be they weather or otherwise. Government responders are unlikely to have the required knowledge, skills or expertise to direct the details of a telecommunications recovery, and we believe that the definition of "emergency" in Part 2 should be amended accordingly. On the definition of an emergency, or an example of an emergency, we believe it should be those that involve several category 1 responders that require high level co-ordination where the consequences are either life-impacting or economic. If I give an example, looking at the telecoms industry, if we have an exchange failure for technical reasons it could, and does, impact on several thousand customers not having a telecommunication service which we restore under normal processes. However, if that failure was coupled with a wider incident which involved the same number of customers but also impacted on the utilities and on geography, that would be quite a high level of co-ordination. However, that we would see as an example of an emergency.

Q322  Lord Condon: Gentlemen, building on your answers to the Chairman and that you have just given, is there any advice or observation you would give us about the threshold that you think should be set for the types of emergencies that would (a) trigger the requirement for statutory plans and (b) trigger the actual use of emergency powers? I know it is difficult to set generic thresholds, but is there anything around thresholds that would trigger these two issues?

  Mr Miller: It is important that that dialogue occurs within sectors and is applied consistently, and that that awareness is shared with the proposed category 1 responders. Our experience is that the level of significant emergencies for a utility probably has a higher threshold than is perceived by many members of the community. It is only really when we share that threshold and that is backed by, perhaps, regulatory endorsement at a national level that there is some credibility to that threshold.

  Mr West: I share the comments of my colleague here. In terms of the definition of "emergency" we would support the view expressed by the Association of Chief Police Officers in their written submission in August that the definition contained in the Home Office Dealing With Disaster document is an appropriate one for a threshold. As far as Western Power is concerned, we might consider a threshold as being more than X thousand customers being off supply for perhaps seven days.

  Mr Turner: Again, this is a difficult one on a definite threshold. We believe really, rather than specific scenarios, there should be a flexible approach and also the statutory duty should plan for resilience to a challenge rather than trying to establish what a defined trigger is. Certainly, in talking to the general resilience and emergency community, it might seem a trite statement but you will know one when you see one, and when you try to tie it down to words you end up with so many branches feeding off it, so really we see it as part of a continuum which goes from gas, fire and floods, for instance, to major incidents further up, and it depends on who is involved in the level of co-ordination. Like my previous example, you would have an exchange failure which is not an emergency but the consequence of that combined with other activities and incidents which are going on would constitute an emergency.

Q323  Lord Brooke of Alverthorpe: How do you respond to the view that utility companies should be placed in category 1 because of the potential they have themselves to cause emergencies and to aid response and recovery? I think probably Mr Turner's first response to the Chairman was making the case for you to be included as a category 1 respondent.

  Mr Turner: Firstly, BT accepts the definition in the lists as they stand and agrees that BT should be a category 2. BT if you like carries phone calls and connectivity so it is different to my colleagues who deal with water and gas. If you cut a telecom cable you do not get the road congested with telephone calls; it is connectivity you lose, so you will not get a major flood or anything caused by the cutting of a telecoms cable. Again, if a telephone exchange loses service, we have processes with the blue lights and the police, etc, and our own processes to restore service within that, so I cannot see if we were classed as a category 1 responder for that how additional involvement for the other category 1s, etc, outside BT would help.

  Mr Miller: Expanding on that point, I cannot speak for the water sector but United Utilities sees little advantage in being a category 1 responder. In both the water and the electricity sectors, the regulatory environments require us to have the contingency plans and do the risk assessments already that the requirements under the draft Bill and the emphasis on category 1 responders' duties would bring. So a lot of that proposed category 1 accountability exists already within those two sectors. If there is something of sufficient scale where we as a category 2 responder would step up and inform category 1 responders. That would occur anyway, and it occurs now in the normal working relationships between the parties.

  Mr West: On the electricity side, because distribution companies already have legal duties on them in respect of resilience and contingency planning flowing essentially from section 96 of the Electricity Act 1998 as amended by the Utilities Act 2000, to place them on a list of category 1 responders would create some ambiguity of parallel and competing legislation.

Q324  Lord Brooke of Alverthorpe: Coming back to Mr Turner, I rather got the impression that BT felt they had greater knowledge in certain areas than the lead departments might have if they were concerned with an emergency. Can I press you on that again? For example, what would happen if the City went down and there was total financial collapse in the City? You would be right at the heart of it.

  Mr Turner: We would be at the heart along with all the other telecoms providers in the City, because there is more than BT in the City of London. The way it works at the minute, we would co-operate with other telecoms and service providers in the industry and we would work together on the restoration—BT has restoration plans for its own aspect of that—and then it would come really into the supply chain. If the City went down, if it was because BT lost service, we have our own contingency plans; if BT lost service and the City firms, for instance, could not get into their offices, you are then looking at BT backing up the contingency plans and fallback plans for those institutions that are served in the City. So there are two aspects: one is where BT loses service on its own and the second one is where BT loses service as a result of a wider or catastrophic incident; and then there is the other aspect where BT is required to respond which is providing communication services to the category 1 responders.

Q325  Lord Brooke of Alverthorpe: Who would you see in the instance I have just given you as being the lead department?

  Mr Turner: That is a question at the moment which is resting with the civil contingencies community. At the moment BT have stepped into the breach. We do not have any implied authority to do that but BT are co-ordinating the industry within an Oftel Committee.

  Lord Brooke of Alverthorpe: It sounds a bit like lead 1 responder to me, but anyway.

Q326  Kali Mountford: I take Doug Turner's point that your businesses produce different services and products between you but what you do have in common is businesses over a large geographical area. There is some concern about utility companies' ability to respond to every local authority emergency planning team, but it is important, I think, if category 2 responders are properly involved in the process. Have you got any solutions you would like to suggest to that particular problem? Are you thinking of perhaps feeding in at a regional level, or do you think a flexible model would be useful where you attend a proportion of meetings, say a quarter of them, or any other model you would like to propose?

  Mr Turner: Currently BT supports the local blue lights and the local authorities in their contingency and emergency planning as it stands at the moment. Our recent experience comes from actively supporting the London resilience team, which brings a greater level of commitment because you are really going right down from the detail of the response to an emergency to the level of looking at the routing of circuits and the resilience to category 1 responders. If you then want to replicate that across the rest of the country, we would struggle—it is not just people on the ground but people with the relevant skills. At the moment it is me that supports the London resilience forum, and if I were to support another nine regional committees all wanting to start at the same time there would be an issue not just of who would do it but what is the skillset if you were to put that under BT alone. However, it is something which is on the telecoms industry, which I believe it should be, and exists under the licence as it is at the moment, and would spread the burden. On the question of regional assemblies, if we were called in at a regional level and that replaced the need to liaise at a local level, that would help, but the question would then be whether you would be able to go into the detail required for local authorities working at that level. The other aspect, if you look at national co-ordination, looking at the Bill, is how many regional incidents do you need before they become a national incident, and where is the national co-ordination going to come from? What happens if you have an incident which crosses boundaries? It is not going to stay in the definition of a regional boundary or a local authority boundary. What happens if half of it is in Scotland or in England? What happens if we have an incident in London which hits part of the telecoms infrastructure, bearing in mind the telecoms infrastructure serves the whole of the United Kingdom? It does not mean to say, because you have a switching capability in London, that it serves London; there are international switching gates based in London which are part of the United Kingdom infrastructure, so when you look at telecommunications it is a national capability, and BT does work and we co-operate and have done for a long time with local authorities, assisting with their planning, but we do need to work out what it is going to mean in the availability of skills and resources should you want to expand that and introduce another layer.

Q327  Kali Mountford: No suggestions then?

  Mr Turner: We need to work through the specifics, actually.

  Mr Miller: Speaking on behalf of a business that covers Crewe to Carlisle in terms of area and about seven million population, we interface with six county level forums. The 4.5 staff who are dedicated to that interaction would struggle to interact at a local authority level, and it is not necessarily an advantage to interact at that level because many of the problems we might present to them for their resolution, or contribution to the resolution, can be addressed at a generic level. So whether it is 23 Acacia Avenue or 45 Smith Street, 200 miles apart, in essence the problem is the same and the response is the same. The category 1 responders need to understand the way in which we might present a problem to them and the implications in terms of time scale, impact and likelihood, that is the important exchange that needs to take place. We would certainly welcome a regional forum because having that regional footprint, as you say, particularly with our aqueduct network which stretches across that region, we have the scope to affect fairly quickly from a problem in Cumbria the citizens of Manchester, for instance. So we would be far more comfortable with having that interaction at a regional level than we are, with solely county level liaison.

  Mr West: I would agree with Mr Miller. In respect of our area we would interface with 45 local authorities and, again, there would be the difficulties of consistency. We believe that there would be difficulty in explaining to 45 different authorities that we are working to sets of nationally set guidelines imposed by the DTI and Ofgem.

Q328  Lord Lucas of Crudwell and Dingwall: Suppose a local authority wants to know what the consequences for the powered network are of a particular incident—say Hounslow wants to know what happens to its telephone line facilities if a plane crashes and under what circumstances would they have problems—they would have to go to their regional office to answer that question?

  Mr West: In respect of electricity we already interface with the county councils quite happily and successfully, and we would hope that they could take on the role of co-ordinating the interface with the local authorities below them. If the contingency planning arrangements already existing and required of the electricity companies were somehow perceived to be inadequate in terms of the format, I would see that as being something best addressed by the DTI and the regulator who would have wider knowledge of the environment in terms of the design requirements, the network, the investment criteria, and the national discussion on what was an appropriate level of resilience.

Q329  Lord Lucas of Crudwell and Dingwall: And you would never find a problem with the nationally set criteria meeting what was going to be required by the new systems emerging at local level? You could get a complete difference between what you are being required to do nationally if you were never having to test that against the requirements of responding in terms of the local plans? I am sure you would need a good interface there to know whether national requirements being placed on you are appropriate any more?

  Mr West: Absolutely, and there is nothing I would wish to suggest which would indicate that we would not wish to share with the local authorities, through county council level ideally, what those arrangements were, and if they were sought to be inadequate to escalate those back up through (Ofgem and DTI) for a nationally consistent set of arrangements.

  Mr Miller: I would not want to give the impression that in any way we are reluctant to answer particular inquiries from local authorities. Virtually all the local authorities are represented at county level and we do have regular exchanges with them, but the implication of having more detailed and more extensive exchanges, as is perhaps implied in the proposals, would require additional resources on our part to manage, but that testing and challenge of the preparedness does go on at county council level.

Q330  Mr Allan: Clause 2 of the draft Bill has a requirement that category 2 responders—or category 1 and category 2 but category 2 responders such as yourselves—may be required to provide information to the category 1 responders, and concerns have been expressed about the potential data protection implications of this and the commercial sensitivity of you handing data over—to local authorities, I guess in particular. How significant a problem is that in your estimation, and do you think the Bill requires amending or further definition in order to make you feel comfortable about those implications.

  Mr West: For Western Power we have no particular concerns in terms of data protection. Information reasonably requested by category 1 responders, is subject to confidentiality agreements should the need arise in a regulation, made under clause 2(2). A theoretical area of concern is the situation where information provided has not been subject to regulation under clause 2(2) but which category 1 and 2 responders cannot agree should be published. That scenario might be covered by adding a reference to section 2(1), into clause 3(1), the "Minister may issue guidance" clause, so that if it became an issue there was a mechanism to deal with it.

  Mr Turner: BT does not have a specific issue about, and recognises the importance of, sharing information in an emergency. What we would like, though, is some provision for restricting the use of it. We recommend that the Bill be amended to ensure the confidentiality of it is respected, and to prevent it being used in an anti competitive way or any other way to secure a commercial advantage possibly with appropriate penalties for infringement. So it is not providing the information; it is how it is then secured once it is provided and used.

  Mr Miller: I would echo my colleagues' comments but there are two other areas: certainly a number of our assets are of such strategic importance that the security angle concerns us, but I am assuming that is taken as read. The other is of a more practical nature in terms of the willingness on both parties to share information, particularly about vulnerable customers, whatever implication that designation has, where the Data Protection Act at the moment makes one or both parties reluctant to exchange that information but where there is probably a benefit for both parties and the person whose data is being proposed for exchange, but the parties are reluctant to test the Data Protection Act in respect of that information provision.

Q331  Mr Allan: So some specific guidance in that area where it is personal data, and I guess we would be looking to summon up the Information Commissioner to offer that, would be of assistance?

  Mr Miller: It would.

Q332  David Wright: Do you think central and regional tiers of government should be included as category 1 or 2 responders? Are there any other organisations that you think should be included in category 1 or 2? If so, why?

  Mr West: From our point of view they should only be included if they have a specific and defined role to play. We would seek clarity in roles.

  Mr Turner: From our perspective, we would give a guarded "yes". We think that this should be included but, again, that the role be defined because otherwise we cannot see how you would end up with any national co-ordination if an incident then became more than a regional incident.

  Mr Miller: We would certainly support regional government being involved as potentially a category 1 responder to provide that focus and co-ordination for regional response. It was our experience in both the fuel crisis and the foot and mouth outbreak, about 50 per cent of which occurred in our region, that we would have benefited from that in the early stages of the outbreak. In terms of central government's role, I might suggest that there is maybe more value there in promoting a rational debate on national risk appetite, because it is difficult for industries or sectors to determine what their priorities and what their thresholds are for risk exposure without a clear understanding of what the public perception of risk acceptance is. We have seen examples, for instance, in investment in rail safety where if you transfer the debate on to investment in the NHS or junction improvements on highways different people have different attitudes to the value of that investment. So the sectors can make judgments but without the national debate we are making it in isolation.

Q333  Lord Brooke of Alverthorpe: Who would you define as regional government? Are you talking about the government office in the regions as being the appropriate body, or is it some separate body that you have in mind?

  Mr Miller: No. That is who I have in mind. We are beginning to see the development of that dialogue now with that office within the north west, and the engagement of external agencies like the North West Development Agency, for instance, so there is a constructive dialogue developing.

Q334  Lord Brooke of Alverthorpe: Would you see them as responder 1 or 2?

  Mr Miller: I would see them as responder 1.

Q335  Mr Bailey: In the submission from United Utilities it points out that the only gas utility identified is Transco and you point out that there are other organisations, including yourselves, that hold a licence for the operation of gas distribution networks. Which other organisations would you like to see included?

  Mr Miller: We hold an independent gas transporters licence, admittedly a modest one for only about 3,000 customers. The largest of the other organisations that we have an awareness of has about 100,000 customers. They tend to be in discrete areas, so a new housing estate or a new industrial development can be served by a separate gas utility other than the one that had the previous monopoly in that area. To some extent that represents a challenge for the draft Bill because as competition embeds nationally the number and the fragmented nature of the customer base of those organisations will grow. It is possible to construct a form of words, I will offer some to the Committee, as to how you might attempt to deal with that in the draft Bill, but I will not weary you with it now.

  Mr Bailey: That was my next question, but if you are going to submit it that will be sufficient.

Q336  Chairman: We will need a reply fairly quickly, of course.

  Mr Miller: Fine.

Q337  Lord Bradshaw: You have mentioned that the major body with whom you liaise is the county councils, that was certainly said by somebody. What added value is there in building up either a regional or a national forum to deal with emergencies, or does the present system largely work and can it be made to work without additional aid?

  Mr Miller: Perhaps I can offer a parallel experience of Y2K. I led the business continuity planning approach for our business at Y2K. There was a body formed there called the UKY2K utilities group which contained virtually all the big players at national level among the utility companies. It was amazing to see the lack of awareness there of the different approaches, boundaries and risk appetites that existed. At the end of that organisation's life of two or two and half years there was a far greater shared understanding and informal network in place and a greater ability to develop standards and common approaches than existed at the start. If a national forum on emergency planning backed by some debate on risk appetite and preparedness to accept risk across the different sectors existed then I think there would be a distinct benefit for UK plc.

Q338  Lord Bradshaw: But you are saying that that research is basically in training mode, risk appetite research, you are not actually doing anything, are you?

  Mr Miller: The sectors already have quite extensive mutual aid arrangements. That has tended to develop on a silo basis and so there is not that much of an exchange of awareness or resources, but that is the kind of forum that those questions and that debate could be held in.

Q339  Lord Bradshaw: But if an emergency happened in Manchester or Cumbria tonight the arrangements would work, would they?

  Mr Miller: Yes.

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