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Lord Dixon-Smith: I simply speak to Amendment No. 22, with which I have some difficulty. What the subsection means is important. It imposes a duty on someone in relation to an emergency only if, in one case, it is,

their functions. Then, however, paragraph (b) states that,

If one can take action to prevent the emergency, it is not an emergency. There is a lack of clarity in the drafting.

If this is a Bill to deal with emergencies, we need to think very seriously about it being that. If it is a Bill to deal with emergency planning—another matter entirely—perhaps we ought to deal with that in the Title. Everyone has a duty to plan and think about what happens in the event of an emergency. I have looked at the end of the Bill at the list of repeals of existing emergency planning legislation, and I assume that it is complementary and has caught every emergency planning power that exists.

I come back to the fact that an emergency is an event. Planning for an emergency can be done, and it is very sensible. But if one can prevent an emergency, there is no emergency in the first place. It is a moot point how one makes the distinction between action to deal with an emergency and the planning stage. Conceivably, planning might prevent an emergency, but it seems to me that it would not. One thing that worries me about the Bill is that it gives people power to start taking all sorts of action before there is an emergency. I wonder whether that is correct. In many instances, it may well lead to inappropriate action.
 
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To that extent, I support the noble Baroness in her question on this part of the Bill. My remarks are to try to persuade the Minister to explain with greater clarity than exists in the present wording exactly what is implied by the subsection.

Lord Bassam of Brighton: I am grateful to the noble Baroness and the noble Lord for their points and questions on this part of the Bill. I shall go very carefully through it, and can probably cover most of the points raised. In essence, the amendments probe the extent of civil protection duties in Part 1 and the scope for responders to enter into collaborative arrangements to fulfil those duties.

When we debated the Bill previously, I made it plain that we saw it very much as a civil protection framework developed in a very open way—in as consultative a way as one can—so that emergencies would be covered. We are working closely with all the stakeholder groups to ensure that that openness continues. We hope that that will inform the way in which guidance is produced, so that that guidance accurately reflects good practice.

The amendments raise interesting issues, and enable us to demonstrate that the Government have a sound approach. I shall deal first with Amendment No. 22. In our discussion on Amendments Nos. 1 to 6 about the definition of emergencies, I noted that we were striving to underpin the civil protection framework set out in Part 1, as it describes which events or situations will trigger the civil protection duties. Simply because an event or situation threatens serious damage to human welfare, the environment or security of a place in the United Kingdom to such an extent that it meets the definition of emergency in Clause 1 does not necessarily mean that the civil protection duties apply. There are a number of responders—in particular the "blue-light services"—who deal with emergencies every day. But the Bill is not about day-to-day events. For example, requiring the police to assess the risk of, and maintain plans to deal with, serious crime is not the job of the Bill, even though many incidents of serious crime will fall within the definition of an emergency. The police deal with crime on a daily basis. It is for police legislation to prescribe how the police should perform those duties.

The Joint Committee indicated that it did not consider the definition of emergency to be a sufficient threshold for the duties. The Government agreed. That is why we have introduced Clause 2(2). Its effect is that the duties under the Bill should apply only to those events which are both emergencies within the meaning of Clause 1 and which stretch the capability of the responder. Clause 2(2) closely follows the existing definition of "major incident" used by responders and in the current guidance on civil protection, Dealing with disaster, which is a guidance document issued by the Cabinet Office. The test in Clause 2(2) makes sense, it is grounded in experience and it commands the support of the emergency planning community. For that reason, we intend keep it.
 
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Amendments Nos. 23 and 25 would enable regulations under Clause 2 to provide which person or body should take the lead in exercising a function or co-ordinating the exercise of the functions. I agree that there is merit in regulations providing which responder in an area should take the lead in performing a particular duty. Rather than all responders in a particular area performing the same duty—for example, assessing the risk of a flood—it will often be appropriate for one responder to take the lead in assessing the risk of a flood—the Environment Agency in most instances—and sharing its work with others. Furthermore, it might be appropriate for the Maritime and Coastguard Agency to take the lead in assessing the risk of maritime pollution and sharing the work with others—mostly local authorities and, perhaps, health service responders.

Indeed the Government propose, subject to consultation, to make regulations to provide for this. For example, the regulations relating to the duty to advise, warn and inform the public will ensure that for any emergency only a single body takes the lead in communicating with the public, with the other bodies acting in support. For most eventualities this "lead responder" will be established by agreement in advance, according to processes described in accompanying guidance. I agree with the thinking behind Amendments Nos. 23 and 25, but they are unnecessary as the Bill currently allows this. Clause 2(3)(b) allows provision to be made about the manner in which a duty is to be performed and that includes appointing "lead responders". I hope that that is clear.

Amendment No. 26 has also raised some concerns. This Bill is an enabling Bill—I am sure that most noble Lords understand that—and is intended to provide Ministers with the flexibility to cut back and clarify the duties in the Bill. Clause 2(5)(a) currently provides that a Minister of the Crown may make regulations concerning the kind of emergency for which a local responder should and should not perform a duty. The amendments would remove the possibility to specify that a duty should not be performed in relation to an emergency. This is a sensible provision that the Government should retain. It is worth setting out how the Government will, or could, use this provision.

For example, the Bill requires responders to assess the risk of an emergency occurring—which means any emergency. The current draft of the regulations provides that responders need only assess the risk of an emergency occurring which will, or may, affect the geographical area for which the responder is responsible. The power to specify the kind of emergencies in relation to which the duties should be performed is not intended as a means of micro-managing local responders, but rather as a way of government offering clarification. Another example is where two or more responders were performing a duty in a way which overlapped or caused confusion through duplication. This provision could be used to specify who should and should not perform a duty in relation to a particular emergency. This need has not yet arisen, but it may in the future.
 
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Amendment No. 38 would prevent regulations under Clause 2 conferring a function on a Minister or another person. I can understand why the possibility of a Minister conferring functions on himself in this area may cause concern, but the Government believe that this amendment would remove a useful area of flexibility, which we may need to have. For example, the Bill imposes a duty on local responders to assess risks. However, some risks—for example, terrorism or severe weather—are best assessed nationally. The draft regulations currently make use of that power by conferring a function on a Minister of the Crown of issuing risk assessments to local responders. This means that local responders do not have to duplicate unnecessarily risk assessment undertaken at the central or regional level. The Delegated Powers and Regulatory Reform Committee, which has just reported on the Bill, did not raise any concerns on this enabling provision, which is essentially a power to sub-delegate.

Clause 5 enables Ministers to make regulations requiring a responder to perform a function in relation to an emergency. Amendments Nos. 46 and 47 would prevent orders under Clause 5 prohibiting a responder collaborating with, or delegating functions to, another responder. While the situations in which it would be appropriate to bar collaboration or delegation are likely to be unusual, orders are more likely to require collaboration than prohibit it. But there may well be circumstances in which that would be appropriate. For example, where a uniform response is required, delegating a function to a third party may not be appropriate. Orders under Clause 5 must be approved by both Houses before being made; so Parliament would be able to consider any provision of this kind before it was made.

In conclusion, the Bill is intended to provide a flexible, long-term framework for civil contingency planning at the local level. The amendments tabled by the noble Baroness would undermine this and I hope that she will not press them. I apologise for examining the matter in some detail, but we must all try to understand how such matters work in practice and why flexibility is necessary in certain definitions that should be in place in particular circumstances. I hope that the detail has helped.


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